Volume 127 — California Reports

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

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

<p>APPEAL from a judgment of the Superior Court of Shasta County. Edward Sweeny, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

E. P. Unangst, Judge. The facts are stated in the opinion in this case and in that rendered upon the former appeal, in 116 Cal. 467.

<p>Election Contest—Abatement—Death oe Contestant after Judgment against Contestee—Appeal—Substitution of Administrator. Neither the contestant of an election nor his estate can escape liability for costs, in case the contest is unsuccessful; and the action does not abate by the death of the contestant after a judgment annulling the election of the contestee, nor can the contestee be deprived thereby of his right of appeal. Upon death of the contestant pending the appeal, the administrator of his estate may be substituted upon motion in the supreme court, and the case will be heard upon its merits.</p>

<p>Lease op House—Immoral Purposes —Knowledge op Lessor—Void Contract.—A lease of a house for a term of years for the purpose of conducting it as a house of prostitution and assignation, with the knowledge and consent of the lessor, is unlawful and void; and a court will not aid either party in an attempt to enforce such a contract.</p> <p>Id.—Evidence—Bad Character op Inmate's—Reputation op House.— Evidence is admissible to prove the bad character and reputation of the inmates and frequenters of the house leased, and to prove the reputation of the house as a house of ill-fame, both prior and subsequent to the date of the lease.</p> <p>Id.—Prior Reputation—Knowledge of Lessor—Estoppel.—Evidence of the prior bad reputation of the house before the date of the lease is not only admissible as tending to show its reputation afterward, but also as tending to show the knowledge of the lessor, who may not shut his eyes to that which is patent to the community, and stop his ears from that which has become notorious among his neighbors, and say he has no actual knowledge.</p>

<p>New Trial—Engrossment of Statement—Reference to Documents on Rile.—A statement on motion for new trial is not defectively engrossed for the purposes of the hearing on the motion, where it makes exact reference to documents on file in the action, as exhibits, with the direction “here insert,” without transcribing them at length, though in printing the transcript on appeal the documents referred to must be inserted at length.</p> <p>In.—Dismissal of Motion—Abuse of Discretion.—Where the party moving for a new trial engrossed the statement and presented it to the judge for his signature in due time, and trifling omissions noted by him' were at once corrected, but the judge departed from the county, and remained absent for a month, and, after a return of ten days, again left the county, and during his second absence, a motion to dismiss the motion for negligence of the mover was served, upon the hearing of which the properly engrossed statement was presented to the judge for his certification, the dismissal of the motion for negligence was an abuse of discretion. The omission to present the statement during the interval of ten days was not such gross negligence as to warrant the dismissal.</p>

<p>Mechanic’s Lien—Materials for Construction of Railroad—Claim of Lien.—Alien for materials used in the construction of a railroad must, in general, be claimed and enforced against the entire road, and not merely against that part thereof for which the materials were furnished.</p> <p>Id.—Sufficiency of Description—Name of Road Indicating Proposed Terminus—Reference to “Present” Terminus—Implication.—A claim of lien which stated that the claimant furnished certain materials which were used in the construction “of that certain railway known as and called the Sierra Valleys and Mohawk Railway” (Mohawk valley, in Plumas county, being its proposed westerly terminus), includes the. entire railway by general description. A further particular description of the road as commencing at its easterly starting point and continuing through points specified “to its present westerly terminus,” particularly described, which was twelve miles short of its proposed westerly terminus, is not inconsistent with the general description, but implies that the road was projected westerly beyond the described terminus, and the claim includes the then incompleted westerly extension of the railroad.</p> <p>Id.—Record of Claim—Railroad Lying in Two Counties.—The statute does not require the claim of lien to be recorded in each county in which the railroad is situated; and, where it lies in two counties, the claim of lien may be recorded in either county.</p> <p>Id.—Void Contract—Statement in Claim—Value of Materials—Contract Price.-—Where the contract for the construction of an extension cf the railroad was void for want of record, the claim of lien may properly state the contract price for the materials, and such statement is a sufficient showing prima -facie of their value.</p> <p>Id.—Pleading—Allegation of Value—Certainty.—The complaint for foreclosure of the claim of lien sufficiently alleges the value of the materials by alleging the contract price at which they are furnished in the absence of a demurrer for uncertainty.</p> <p>Id.—Proof of Value—Admission of Answer.—Where the averment of the complaint as to the contract price for the materials was neither specially demurred to nor denied by the answer, the value of the materials need not be proved at the trial.</p>

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

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

<p>Estates of Deceased Persons—Claims—Action upon Rejected Claim—Variance.—No action can be maintained upon a claim against the estate of a deceased person which has not first "been presented for allowance, and no recovery can be had in an action upon a rejected claim, upon any cause of action not included in the claim. In an action upon a claim for specified services and specific compensation therefor, a recovery at the rate of thirty dollars per month for two years, is a variance which has no foundation in the claim presented, and cannot be supported.</p> <p>Id.—Burden of Proof—Failure of Evidence—Nonsuit not Required.—The burden of proof is upon the plaintiff in an action upon a rejected claim to establish that claim. If the evidence of the plaintiff fails to establish the claim sued upon, owing to his misfortune in not being competent to testify in his own behalf, the obligation of the administrator is not thereby varied; nor is the administrator bound to move for a nonsuit, but he may submit the case upon the plaintiff’s testimony, and ask for a judgment upon the merits.</p>

<p>Election—Validity of Ballots—Excess of Names Voted fob—Identifying Mark.—Ballots cast for an excessive number of names for one office have only the effect, under section 1211 of the Political Code, to prevent the ballots from being counted for that office; and such excessive number of votes for one office does not constitute an identifying mark within the meaning of section 1215 of the same code, and does not destroy the validity of the ballot, or affect it in so far as properly cast for candidates for other offices.</p> <p>Id.—Construction of Code—Exceptions as to Identifying Marks.— The fact that the vote for an excessive number of names for one office might be used as an identifying mark does not affect the validity of the ballot in respect of other offices, such identifying marks being relieved from the operation of section 1215 of the Political Code by virtue of the more specific provision of section 1211 óf that code, which is a limitation upon section 1215.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. Frank F. Oster, Judge.</p> <p>This was a proceeding for a writ of mandate to compel the clerk of the superior court of San Bernardino county to pay to the petitioner, who was a creditor of the estate of a deceased person, and whose claim was founded on a promissory note secured by mortgage, the amount of interest due on the note at the rate provided for therein, out of the proceeds of fhe mortgage property, which had been sold in the probate proceedings. Further facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. Joseph H. Budd, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminad Law—Evidence—Search in Connection with Distinct Crime—Burglary.—On a trial for burglary in which evidence for the prosecution had been given that a certain revolver, found in the possession of the defendant, was one of the articles alleged to have been stolen, but which the defendant testified was his property and had been in his possession for a long time previous to the alleged crime, it is improper, in rebuttal, to ask a witness for the prosecution, who had found the revolver while searching the person and trunk of the defendant, how he came to make such search, and for the witness to answer that the search was made in connection with another burglary which the defendant was suspected of having committed.</p> <p>Id.—Improper Conduct of District Attorney.—Upon such answer being ruled out, it is error justifying a new trial for the district attorney, in his argument to the jury, to refer to such search as having been made for such other burglary, and that he knew of the same to his own knowledge.</p>

<p>APPLICATION for a writ of mandate.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Dismissal—Undertaking Referring to Prior Appeal—Filing after Second Appeal.—An undertaking on appeal executed after the filing of a first notice of appeal, and prior to the filing of a second notice, which recites that the appellant has appealed, and that the sureties undertake in consideration of such appeal, refers only to the first appeal, and limits the liability of the sureties thereto. The fact that the undertaking was filed by the appellant’s attorney subsequently to the second appeal does not constitute it an undertaking thereupon; and the second appeal must be dismissed for want of an undertaking.</p> <p>Id.—Definiteness of Undertaking.—A valid undertaking on appeal must refer with definiteness to the particular appeal to which it is intended to relate, and. if it fails to do so, it is insufficient. An undertaking definitely referring to a pending appeal when executed cannot he wrested from its natural language, so as to refer to a subsequent appeal, because filed thereafter. Id.—Effectiveness of Undertaking—Filing—Authority of Attorney-Limited Agency for Sureties.—Although an undertaking on appeal does not become effective until the date of filing, its validity has reference only to the appeal to which it refers; and, although the attorney for the appellant is the agent of the sureties for the purpose of filing the undertaking, his agency is limited to the filing of it in the particular appeal to which it has reference.</p>

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

<p>Election—Eligibility op Supervisor—“Elector”—Change op Residence—Registration.—A person elected supervisor in a district to which he had changed his residence from another district more than one year prior to the election, and who, during that period and at the time of the election, was an “elector” of that district, as defined in section 1 of article II of the constitution, was eligible for the office in that district, under section 15 of the County Government Act of April 1, 1897, notwithstanding he did not change his registration from the precinct of his former residence until a little more than thirty days prior to the election.</p> <p>Id.—Registration not a Qualification of an Elector.—Registration is not a “qualification” of an elector, and cannot add to the qualifications fixed by the constitution; but it is to be regarded as a reasonable regulation by the legislature for the purpose of ascertaining who are qualified electors, and of having their names enrolled upon an authentic list, in order to prevent illegal voting.</p> <p>Id.—Eligibility not Inclusive of Registration.—An elector may be eligible to the office for which he was elected, though his name may not be upon the great register, and though for that reason he could not have voted at the election.</p> <p>Id.—“Elector” and “Voter”—Distinction as to Qualifications.—The constitutional qualifications of an elector are not the same thing as the legal qualifications of a voter. The voter is the elector who votes; and an elector may not be legally qualified to vote.</p> <p>Id.—Construction of Code—“Qualified Elector”—“Registration.”— Section 1083 of the Political Code, assuming to define who “shall be a qualified elector,” which adds to the constitutional qualifications that of enrollment upon the great register of the county fifteen days prior to the election, must be construed to use the words “qualified elector” in the sense of an elector who has the right to vote.</p>

<p>APPEAL from an order of the Superior Court of Solano County denying a petition for partial distribution of the estate of a deceased person. A. J. Buckles, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Forgery—Insufficient Indictment.—An indictment charging the forgery of a mortgage, which does not state facts showing that the mortgage could have injured or defrauded anyone, or that it was given to secure an indebtedness or other obligation, or that it purported to be a valid writing obligatory, is insufficient to show the existence of any crime.</p> <p>Id.—Presumptions—Aid op Indictment.—The presumptions are all in favor of the innocence of the accused, and in no case can an indictment be aided by imagination or presumption. If the facts stated may or may not constitute a crime, the presumption is that no crime is charged.</p>

HABEAS CORPUS in the Supreme Court to review the validity of a conviction in the Justice’s Court for violation of an ordinance of Stanislaus County. D. L. Smith, Justice of the. Peace. The facts are stated in the opinion of the court.

<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.</p>

<p>Mortgage—Foreclosure—Maturity—Election by Mortgagee—Stipulated Dismissal of Action—Statute of Limitations.—Under a mortgage providing for an election of the mortgagee upon nonpayment of interest for thirty days to treat the mortgage as due and to foreclose it, where a former action of foreclosure was dismissed by stipulation upon payment of all interest then due, in discharge of the default, and interest was thereafter paid for several years, the statute of limitations against a second action brought after maturity of the note does not begin to run from the commencement of the first action, but only from the maturity of the note.</p> <p>Id.—Provision for Benefit of Mortgagee—Waiver of Penalty.—The provision for foreclosure by the mortgagee, at his election, upon default of interest, is for his benefit, and the mortgagor cannot claim that the note secured is due until its maturity. The mortgagee may waive the penalty for the default; and the bringing of a foreclosure suit does not put it out of his power to waive the penalty, by accepting a payment of all interest due and dismissing the action.</p> <p>Id.—Estoppel of Mortgagor.—The mortgagor, having claimed that all interest was paid prior to the commencement of the first action, and afterward, upon payment of interest to the date of dismissal, having stipulated with the mortgagee for dismissal thereof, and having continued to pay interest thereafter, is estopped from setting up the statute of limitations as having run from the date of the first action against another action to foreclose the mortgage after maturity of the note.</p> <p>Id.—Construction of Statutes of Limitation.—Statutes of limitation are intended to prevent stale demands from springing up after long periods of time, and not as defenses to just demands of recent origin. They uphold defenses which are clearly within them, however unjust and unconscionable they may be; but, where the facts relied upon leave it greatly in doubt whether or not the case is within the statute pleaded, the court will not indulge in a strained construction in order to support it.</p>

<p>Estates of Deceased Persons—Claim for Guaranteed Value of Stock—Particulars of Claim.—Under a contract by which one thousand shares of mining stock were delivered by the decedent in part payment for land purchased, at fifty cents per share, guaranteed to be worth that in cash in two years, he agreeing to take the stock from the vendor of the land at that figure if at the end of two years the vendor should hold the stock and so request, a claim presented against his estate a few days after the expiration of the two years, by the vendor of the land for five hundred dollars, with a copy of the contract attached, and an offer to surrender the shares of stock to the administrator in the same condition in which they were received, sufficiently states the particulars of the claim.</p> <p>Id.—Demand under Contract—Maturity of Claim—Presentation— Limitation of Actions.—Conceding that the claim under the contract for the five hundred dollars was not due until demand made thereunder, it became due upon proper presentation of the claim to the administrator, which is in its nature a demand upon the estate; and, upon rejection of the claim, an action may be maintained thereupon within three months thereafter. The provision for an action within two months after the maturity of a claim not yet due is intended to extend and not to limit the three months' period.</p> <p>Id.—Delay in Presenting Claim—Construction of Contract—Extension of Credit—Reasonable Time for Option.—The stipulated period of two years allowed under the contract was an extension of credit to the decedent, who could not, during that period, be compelled to pay the five hundred dollars in lieu of the stock; and the vendor of the land was allowed a reasonable time at the expiration of that period to exercise his option to demand the money for the stock. A delay of four days after expiration of the two years in presenting the money demand to the administrator of the decedent was not unreasonable.</p> <p>Id.—Constitutional Law—Wagering Contracts for Stock—Conditional Payment in Stock with Guaranty.—The restriction of the constitution intended to prevent wagering contracts for the sale of stocks on margin, or to be delivered at a future day, will not be extended by construction so as to forbid the delivery of stock as a conditional payment for the purchase of land, with a guaranty of cash value, and an agreement to take it back at the end of two years, upon request, and to make the payment in cash, in the absence of any proof that the contract was intended to effect a prohibited transaction, by evasion.</p>

<p>Water Eights—Appeal from Judgment—Subordinate Eights—Appellants not Injured.—Upon appeal by plaintiffs from a judgment which establishes their prior right, by appropriation only, to one hundred and eighty inches of water measured under a six-inch pressure, and establishes the subordinate rights of the defendant as an appropriator to one hundred inches of water, and as a riparian proprietor to the flow of the remainder of the stream, the appellants are not concerned in the question as to how the rights of the defendant shall be measured, and as to whether there is a want of certainty on that question in the judgment and findings, and cannot be injured or entitled to a reversal of the judgment for want of such certainty.</p>

<p>School District—Division by Enlarged City Boundaries—Annexation for School Purposes—Construction of Code.—Section 1576 of the Political Code, providing for the annexation by the supervisors for school purposes of the remainder of a school district divided by the organization of an incorporated city or town, upon petition of the majority of the heads of families residing therein, is to be liberally construed, as permitting such annexation where a district is divided by the reincorporation of a city or town with enlarged boundaries.</p> <p>Id.—Rights of Pupils in Annexed School District—Registration.— Pupils resident in the remainder of the school district, which has been annexed by the supervisors to a city for school purposes, are entitled to attend the public schools of the city, though not residents of the city, in the order of their registration, which must be made by the board of education.</p> <p>Id.—Equitable Ground for Annexation—Conveyance of School Property to City.—The conveyance to the city of school property of great value in the remainder of the divided school district, including the schoolhouse situated therein, in consideration that all the residents of the district shall have the rights and privileges of the public schools of the city, even if such contract was not valid, affords a strong equitable ground for the exercise by the supervisors of their power to annex the remainder of the district to the city for school purposes.</p> <p>Id.—Result of Annexation—Application of Pupil—Consent of Trustees.—The result of the annexation to the city of the remainder of the school district for school purposes is to destroy it as a separate school district, and there being no trustees thereof, their consent is not required to an application of a pupil to attend the public schools of the city:</p> <p>Id.—Ambiguity of Complaint—Residence of Pupil—General Demurrer.—A complaint by a parent to establish the right of his son to attend the public schools of the city, which avers that when the demand was made he was a resident of a city school district, and which also avers that he was and is residing in the former school district by its name, which it is further alleged became and is a part of the city school district by the alleged action of the board of supervisors in annexing it for school purposes, is not misleading, nor subject to a general demurrer.</p>

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

<p>APPEAL from an order of the Superior Court of Merced County denying a new trial. J. K. Law, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Separate Property of Wipe—Deposit in Savings Bank—Pass-book in Alternative Names—Gift to Husband not Shown.—Upon the deposit of money which is the separate property of the wife in a savings bank, the taking of a pass-book showing an account with the bank in the alternative names of the husband or wife, is consistent with the desire of the wife to give her husband authority to withdraw the money for her use. when .needed; and the wife having retained the right to withdraw the whole of the money, and the pass-book not being shown to have been delivered by her to the husband, nor possessed by him until after her death, no gift to the husband is shown or indicated, but the money remained the separate property of the wife, and is to be administered upon as such.</p> <p>Id.—Burden of Proof upon Donee of Husband.—The burden of proof is upon a donee of the deposit claiming under the husband, without consideration, to show affirmatively that the husband had acquired a title to what had been the wife’s separate property, and that it had ceased to be such.</p> <p>Id.—Presumption—Nature of Gift—R enunciation of Bight of Giver.— There is no presumption in favor of a gift. A gift in its nature divests the donor of all title, and requires a renunciation of all claim and interest of the donor in the subject of the gift. •The retention by the wife of the right to withdraw the whole ' of the deposited money in her own name from the bank is inconsistent with the idea of a gift thereof to her husband.</p> <p>Id.—Gift Claimed After Death—Proof Required.—When the claim of a gift is not asserted until after the death of the alleged donor, clear and satisfactory evidence of every element which is requisite to constitute a gift is required to sustain such claim.</p> <p>Id.—Appeal by Claimant under Husband—Payment by Bank on Husband’s Order—Question of Authority not Involved.—The husband not having title to the deposit, could give none to his donee thereof, and upon appeal by one claiming as such donee from a judgment sustaining the title of the wife’s administrator to the residue of the deposit, after deducting a payment made by the bank, after the husband’s death, to a third person on the husband’s written order, cannot question the authority of the bank to make such payment.</p>

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

WRIT of review from the Supreme Court to annul an order of the Superior Court of Merced County, in so far as designating a newspaper for the publication of notice to the creditors of a deceased person. J. K. Law, Judge. The facts are stated in the opinion of the court.

<p>Phonographic Reporters—Order for Payment of Compensation—Mandamus—Pleading.—A petition for mandamus against the treasurer to enforce payment of the compensation of a phonographic reporter for services in felony cases, ordered to be paid by the superior court, under section 274 of the Code of Civil Procedure as it stood under the amendment of 1880, must state that the treasurer has funds in his hands applicable to the payment of the demand, else it is insufficient to show that the treasurer is under legal duty to pay the order.</p> <p>Id.—Issue as to Want of Funds—Admission at Trial as to General Fund—Waiver of Objection to Petition.—Where the answer of the treasurer pleaded that there were no funds applicable to the payment of the amount fixed by the order, and both parties treated the sufficiency of the various funds to meet it as in issue, and it was admitted by the treasurer at the trial that there was sufficient money in the general fund to pay the amount, and no objection was made to the findings showing the amounts in the various funds, the judgment should not be reversed for want of an allegation in the petition as to the sufficiency of money in the treasury for that purpose.</p> <p>Id.—Audit of Claim—Payment from General Fund.—It is not necessary to the payment of a claim for the services of a phonographic reporter, fixed by the court pursuant to law, that it must have been presented to the auditor; nor is it necessary that the order of the court for its payment should have designated the fund out of which it is to be paid, but the order is to be made upon the treasury and is payable out of the general fund.</p> <p>Id.—Power of Supervisors to Designate Special Fund.—The supervisors have no power to defeat the law by designating a special fund for the payment of phonographic reporters, which is insufficient to pay all legal demands upon the treasury therefor, while there is sufficiency of money in the general fund to meet them.</p> <p>Id.—Constitutional Law—Validity of Amendment of 1880—Judicial Action.—The amendment of 1880 to section 274 of the Code of Civil Procedure is constitutional and valid. The court, in fixing the compensation of its own reporter thereunder, is not fixing the salary of a county officer, but is adjusting compensation for services of a ministerial officer of the court, and in so doing acts not in a legislative, but in a judicial capacity.</p> <p>Id.—Unconstitutional Amendment of 1885—Repeal.—The amendment of 1885 to section 274 of the Code of Civil Procedure authorizing the court to order payment of a monthly salary of an official reporter out of the treasury is unconstitutional and invalid for any purpose, and cannot operate as a repeal of the amendment of 1880.</p>

<p>APPEAL from an order of the Superior Court of Humboldt County refusing to set aside a sale under a decree of foreclosure of a mortgage. G. W. Hunter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Bank—Liability op Stockholders to Depositors—Statute op Limitations—Amendment op Complaint.—The liability of the stockholders ■of a bank to its depositors is barred by the statute of limitations within three years from the date of the deposit, if action is not sooner commenced thereon. If a new cause of action as to a deposit is not stated in the complaint, the statute of limitations cannot be evaded under the guise of an amendment to the complaint; but if an amendment more fully sets forth a cause of action upon a deposit defectively alleged in the original complaint, the amendment merely supersedes the original, and takes its place, as of the same date, without, affecting the identity of the original cause of action, as respects the statute of limitations.</p> <p>Id.—Action by Assignees—Amendment to Correct Mistake in Names op Depositors—Identity of Causes of Action.—Where the original complaint against the stockholders of the bank was filed by the assignees of many depositors, the causes of action upon which were in fact owned by them before the commencement of the action, and correctly stated the amount of each deposit sued upon, but, by mistake, alleged that certain of the deposits were made by their immediate assignors, which were in fact made by others under whom their assignors lawfully claimed as assignees, an amendment correcting the mistake is allowable, and does not affect the identity of the causes of action originally sued upon, as respects the statute of limitations.</p> <p>Id.—Claim not Assigned.—There can be no recovery by the plaintiff of a claim alleged to have been assigned to the plaintiff, but which was not in fact assigned, and of which the plaintiff is not the owner and holder.</p>

<p>Note—Mortgage as Collateral Security—Foreclosure—Bid in interest op Principal Debtor—Accounting—Trust.—Where a loan evidenced by a note given by direction of the lender to his agent was collaterally secured by a note and mortgage for a much larger sum assigned to the same agent, which was foreclosed by the agent under an agreement with the principal debtor that the bid should not be less than the amount thereof, for his benefit, such debtor is not entitled to demand an accounting and payment of the surplus of the collateral note and mortgage above the original debt secured, and a decree declaring that the land purchased under the foreclosure, and the deficiency judgment therein, are held in trust by the agent as security for the principal debt, and refusing an accounting, will be affirmed upon appeal of the debtor therefrom.</p> <p>Id.—Collection of Collateral Security—Right of Debtor to Accounting.—The holder of a mortgage as collateral security may foreclose the lien, and, if he does so of his own motion, without fraud, he takes the absolute legal title to the property free from any trust therein, and must account to the debtor for the proceeds, if there is any surplus thereof. But where the bid is made larger than it otherwise would be at the request of the debtor, and for his benefit in respect of the amount of the excess, it would be inequitable to compel an accounting of the surplus, which existed only by reason of the act of the debtor; and he must be limited in such case to a right of redemption upon paying the principal debt, or to a right to have the trust property sold and the proceeds ratably apportioned.</p> <p>Id.—Harmless Rejection of Evidence.—The rejection of evidence as to the relations between the lender and his agent, which could not in anywise prejudice the rights of the appellant, under the findings and decree entered in his favor, or entitle him to any relief other or greater than that awarded, cannot be ground for reversal upon his appeal.</p>

<p>Insolvency—Replevin by Assignee—Supplemental Answer—Judgment in Another Action—Res Adjudicata.—In an action of replevin brought by an assignee of insolvent debtors to recover property sold at sheriff’s sale by preferred creditors, the defendants may be allowed to set up by supplemental answer that, in another action commenced in another county by the assignee to recover the same property against two of the same defendants, judgment had been rendered in favor of the defendants and against the plaintiff. Such judgment is res adjudicata, and operates as an estoppel between the parties thereto, whether erroneous or not.</p> <p>Id.—Evidence—Opinion of Judge—Legal Effect of Judgment.—The opinion of the judge rendering the judgment relied upon as an estoppel is not admissible to control the legal effect of the judgment where the record shows that the cause of action and the parties are the same, as respects the plaintiff and two of the defendants to the present action.</p> <p>In.—Findings—Defeat of Recovery.—Where the court finds upon sufficient evidence in favor of the defense of res judicata as to two of the defendants, and that the only other defendant did not have in his possession any of the property described in the complaint at the commencement of the action, and that plaintiff is not, and never has been, the owner, nor entitled to the possession of the property, the plaintiff is not entitled to recover.</p> <p>Id.—Consistency of Findings—Purchase at Sheriff’s Sale—Intended Preference by Insolvents—Estoppel by Judgment—Ownership.— Findings that one of the defendants purchased the property described in the complaint at sheriff’s sale, and had disposed of a large part of it before the commencement of the action, and that he and another defendant, parties to the suit in which the other judgment was rendered, seized the property upon execution, for the purpose of obtaining a preference, having reason- • able cause to believe the debtors insolvent, are not inconsistent with the findings that the judgment is an estoppel between the parties thereto, and that the plaintiff is not, and never has been, the owner of, nor entitled to the possession of, the property.</p>

<p>APPEAL from an order of the Superior Court of Eiverside County settling an administrator’s account and from an order denying him extra compensation. J. S. Hoyes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Estates of Deceased Persons—Action upon Written Promise of Decedent—Statute of Limitations.—An action upon a written promise of a decedent to pay money, brought more than four years and nine months after its maturity and one year and eight months after the issuance of letters of administration, is barred by the terms of sections 337 and 353 of the Code of Civil Procedure.</p> <p>Id.—Statutory Suspension—Presentation and Rejection of Claim— Right of Action.—In such case, there is no statutory suspension of the right of action beyond the period of ten days after presentation of the claim, after which action may be brought as upon a rejected claim; and the limitation of one year after the issuance of letters of administration, operating to extend the general statute of limitations, cannot be further extended by the neglect of the administrator to indorse a formal rejection of the claim thereupon.</p> <p>Id.—Special Statutory Limitation of Three Months—Effect upon General Statute.—The special statutory limitation of three months after the rejection of a claim in which to bring action thereupon, is independent of and collateral to the general statute of limitations. It may shorten, but cannot lengthen, the operation of the general statute. After a claim is barred by the general statute of limitations, it can never be allowed or made a valid claim against the estate by any act or neglect of the administrator.</p> <p>Appeal—Dismissal—New Trial Statement—Objection not Appearing in Record.—It is not ground for the dismissal of an appeal from a judgment and from an order denying a new trial, that the statement on the motion for the new trial and the amendments thereto were not presented and filed with the clerk in time; and where neither such fact nor objection thereto appears in the settled statement, and they appear only in a separate statement signed by the respondent, which is no part of the record, and has no place in the transcript, the fact therein stated is not ground for disregarding the settled statement.</p>

<p>Action to Determine Claim to Money—Bank' Deposit by Deceased Person—Evidence—Hearsay.—In an action to determine a claim of the plaintiff to money deposited in bank by a deceased person, the dividends upon which were made payable to the order of plaintiff, after evidence given of a conversation with the deceased person about the plaintiff, further evidence as to the prior acts and declarations of the father of the deceased person during his last illness is not admissible as being explanatory of how the conversation arose, and such further evidence is properly stricken out as hearsay.</p> <p>Id.—Money Had and Received—Equitable Claim to Deposit—Trust— Jury Trial.—In an action against a savings bank for money had and received to plaintiff’s use, and to determine the adverse claim of the executors of a deceased person to the money claimed, the adverse claim cannot be determined by a court of law; and where the bank expressed its willingness to pay the money as the court might determine, and the nature of the issues joined between the disputants and the evidence adduced thereupon showed that plaintiff is asserting an equitable claim to a deposit made by the decedent for her benefit, and is seeking a judgment in satisfaction of a trust, as against the executors, the action against them is in equity, and the plaintiff is not entitled to a jury trial of the issues joined with them.</p>

<p>Estate of Deceased Person — Mortgage by Executor — Order for Mortgage—Note.—Under section 1578 of the Code of Civil Procedure, prescribing the proceedings requisite in order io mortgage real property belonging to the estate of a deceased person, a promissory note and mortgage of such property, executed by the executor in pursuance of an order of the court, are not invalidated merely because the order directing the execution of the mortgage omitted to direct the execution of the note.</p> <p>Id.—Date of Payment.—An order made under said section, directing that the mortgage should be made payable “on or before two years” after its date, is complied with by the execution of a note and mortgage which are made payable “on or before one year” after their date.</p> <p>Id.—Oral Directions of Judge.—An oral direction made by the judge to the executor, at the time of making the order, instructing him to pay or individually secure the interest to become due on the note which was to be secured by the mortgage, does not affect the rights of the mortgagee, if he was without knowledge or notice of such direction.</p>

<p>Criminal Law—Obtaining Money under False Pretenses—Larceny— Review upon Appeal.—Where the evidence upon a charge of obtaining money under false pretenses fails of proof thereof, and it is conceded by the attorney general that the evidence indicates that the only offense committed was that of larceny, the judgment of conviction must be reversed; and as the case cannot be tried again upon the charge made, the court will not, upon the appeal, determine moot questions of law.</p>

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

<p>Criminal Law—Extortion—Controlling Cause—Construction of Code.—Section 518 of the Penal Code, defining the crime of extortion, and providing that “the crime is only committed when the property is obtained with the consent of the owner, and this consent must be induced by an unlawful use of force or fear,” can only mean that the unlawful use of force or fear must be the operating or controlling cause which produces the consent.</p> <p>Id.—Erroneous Instructions—Fear as a Partial Cause—Prejudicial Error.—Instructions to the effect that the crime was committed if the fear of the prosecuting witness, induced by the threats of the defendants, entered to any extent whatever into the parting by him with his money are erroneous; and, where the evidence is such ¿s specially called for correct instructions upon the subject of controlling cause, the error in giving such incorrect instructions is prejudicial, and is not cured or neutralized by other correct instructions as to the elements constituting the crime of extortion.</p> <p>Id.—Evidence—Declaration op Codependant as to Other Proposed Offenses.—The declaration of a codefendant as to other proposed offenses, entirely distinct from the offense in controversy, is inadmissible; and the refusal of the court to strike it out is prejudicial error.</p> <p>Id.—Unexpected Answer—Objection to Question—Motion to Strike Out.—When an unexpected answer of a witness, which could not be anticipated by objection to the question, contains inadmissible and prejudicial matter, a motion to strike it out is the proper remedy. When it is apparent from the question that the answer will contain evidence necessarily inadmissible, then a motion to strike out comes too late, unless preceded by an objection to the question, but the rule is otherwise when the answer may or may not be admissible.</p> <p>Id.—Immoral Conduct op Defendants.—Evidence of the immoral conduct of the defendants as between themselves prior to the commission of the crime charged in no way tends to indicate the commission of the crime alleged, and is inadmissible.</p>

<p>Action fob Money Had and Received—Equity and Good Conscience.— An action for money had and received is based upon the principle that one party has money which in equity and good conscience belongs to another; and, where the defendant has no money which belongs in equity and good conscience to the plaintiff, the action cannot be maintained.</p> <p>Id.—Action by County—Money Paid fob Bbidge—Good Faith—Invalid Contract.—An action cannot be maintained by a county to recover back money paid under a contract entered into in good faith and in accordance with the advice of its law officer, for the construction of a railroad bridge across a river separating it from another county, with a separate overhead roadway, to be kept in order by the railroad company for free public highway e purposes, the construction of which was completed and enjoyed by the public, notwithstanding the contract may be invalid, for want of compliance with the requirements of the law.</p> <p>ID.—Equitable Estoppel of County—Benefit under Equitable Contract Legally Defective.—A county, state, or municipality may be equitably estopped by its acts, in the same manner as an individual, when acting within the general scope of its powers. A county paying money for a bridge to be used for highway purposes, which has been completed, and of which the county enjoys the benefit, is estopped to maintain an action to recover the money, if the contract, under which it was paid, though legally defective, was not immoral, inequitable, or unjust.</p> <p>Id.—Construction op County Government Act—Recovery op Money Illegally Paid—Equitable Estoppel—General Powers op Supervisors.—Section 8 of the County Government Act, providing for the recovery of money paid by order of the supervisors “without authority of law,” only applies to payments which the board has no general power to make, and does not affect the principle of equitable estoppel as applied to payments made within the scope of the general powers of the board, and by virtue of which it has acquired a benefit, or an interest of which it retains the enjoyment.</p> <p>Id.—General Power over Bridges.—A board of supervisors has general power to construct, buy, or rent a bridge, or to purchase an exclusive right of way over a bridge, and may be equitably estopped to recover back money paid therefor, which has secured to it a benefit, though the forms of law were not complied with in making the contract under which it was paid.</p>

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

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

<p>Nonsuit—Motion—Admissions—Intebpbbtation of Evidence.—A motion for a nonsuit admits the truth of all of the plaintiff’s evidence, and every inference of fact that can be legitimately drawn therefrom; and upon such motion the evidence submitted by the plaintiff is to be interpreted most strongly against the defendant.</p> <p>Id.—Evidence of Negligence—Interpretation for Plaintiff—Injury in Untimbered Tunnel.—Upon a motion for nonsuit in an action by an employee to recover damages suffered from the falling of a rock in an untimbered tunnel, evidence that timbers were required to make the tunnel reasonably safe is to be taken in connection with other evidence which, though susceptible of two constructions, may be interpreted in favor of the plaintiff, to the effect that no timbers were provided for use in the tunnel, and that the injury was in a completed part of the tunnel, and such interpretation of the evidence must be taken as true for the purposes of the motion.</p> <p>Id.—Questions of Fact—Negligence — Contributory Negligence— Assumption of Risks.—The question as to the negligence of the defendant and the contributory negligence of the plaintiff or his assumption of the risks of his employment, with full knowledge of its dangers, must be left to the jury.as questions of fact to be determined by them, and not disposed of as questions of law upon motion for a nonsuit, where it cannot be said that all reasonable men must draw the same inference as to the freedom of the defendant from negligence, or as to the contributory negligence of the plaintiff, or assumption of risks by him.</p> <p>Master and Servant—Duty of Master to Provide Safe Place—Permanent Tunnel—Fall of Overhanging Rock.—The rule of law requiring the master to provide a safe place in which his servants may work applies to the construction of a permanent tunnel in a mountain, and it is the duty of the master, in so far as the work therein is completed, to make the tunnel reasonably safe, so as to prevent the fall of overhanging rock.</p> <p>Id.—Action of Fellow-Servants.—The rule as to the erection of temporary structures by fellow-servants has no application to the construction of a permanent tunnel; and the fact that fellow-servants are engaged in such construction cannot relieve the defendant from his duty to provide a safe place for his servants.</p> <p>Id.—Rights of Servant—Presumption.—The servant has a right to presume that the master has performed his duty in making the place in which he is directed to work reasonably safe, and to proceed upon that presumption, unless a reasonably prudent person, in performing the work assigned to him, would have learned facts from which he would have apprehended danger to himself.</p> <p>Id.—Inexperienced Servant—Unobvious Danger—Absence of Warning—Contributory Negligence.—An inexperienced servant is not chargeable as matter of law with contributory negligence, where the danger to him was not so obvious and threatening that a reasonably prudent person in his situation would have avoided it, and where he had no warning of the danger occasioned by the fault of the defendant in not providing a safe place in which to work.</p>

<p>Criminal Law—Evidence—Depositions Taken at Preliminary Examination—Filing op Original Notes.—Upon the trial of a defendant under a charge of felony, in the superior court, the deposition of a witness taken at the preliminary examination and contained in the transcript of the notes of the official reporter, cannot be objected to as evidence after proof of the death of the witness, upon the ground that it has not been first affirmatively shown that the stenographic reporter had filed his original notes with the county clerk as required by subdivision 5 of section 869 of the Penal Code.</p> <p>Id.—Absence of Filing of Notes—Oure of Irregularity.—The fact that the notes were not filed in fact when the deposition was admitted is without prejudice to the defendant, as an irregularity, where it appears that the notes were actually filed with the county clerk before the conclusion of the trial.</p> <p>Id.—Confessions—Proof of Voluntariness.—The confessions of the defendant are admissible, if proved to have been freely and voluntarily given, and made without duress, or inducement, or promise.</p>

<p>Resulting Trust—Part Payment of Purchase Money—Purchase of Title under Execution—Notice of Equity.—A payment of part of the purchase money of land, the legal title to which is held by another, carries with it by resulting trust a proportionate equitable estate in the land purchased, which may be enforced in equity against a subsequent purchaser of the legal title under execution, who took with notice of the equity.</p> <p>Id.—Pleading — General Demurrer—Uncertainty.—A complaint to enforce a resulting trust which states facts showing a sale, and the proportion of the price paid by each purchaser, and bringing the case clearly within the rule requiring the enforcement of an equity against the defendant, is good as against a general demurrer, and any uncertainty as to the time of payment of the purchase price cannot be objected to if not urged as a ground of special demurrer.</p> <p>Id.—Review upon Appeal—Objection to Complaint by Respondent.— Upon appeal by the plaintiff, an objection by the respondent to the complaint cannot be heard, unless it is so defective in averment that it would not support any judgment in plaintiff’s favor.</p> <p>Id.—Former Judgment—Res Ad judicata—Improper Action to Quiet Title.—A former judgment between the parties is only conclusive when the same thing under the same title is litigated. A former judgment against the plaintiff in an action which he was not entitled to maintain as a cestui que trust to quiet his title against the defendant who was his trustee of the legal title, cannot estop him from maintaining a subsequent action which he is entitled to maintain to enforce a resulting trust in his favor against the same defendant.</p>

<p>Criminal Law—Trial for Felony—Absence of Judge from Courtroom.—There can be no court without the presence of the judge, who is a component part of the court: and the absence of the judge from the courtroom during any part of the trial of a defendant for a felony, though he may be within hearing of the courtroom, is prejudicial error entitling the accused to a new trial.</p> <p>Id.—Embezzlement by Secretary of Corporation—Evidence—Books of Corporation.—Upon a charge of embezzlement against the defendant, who was secretary of a corporation, the books of the corporation, showing a shortage, kept by a bookkeeper who committed suicide about the time when the shortage was discovered, are not admissible against the defendant, without proof that he knew their contents, and was responsible for their condition.</p> <p>Id.—Neglect of Duty as Secretary—Presumption.—No mere neglect of the duty of the defendant as secretary to examine the books of the corporation can sustain a charge of embezzlement, and the presumption of innocence will overcome all presumptions of knowledge or control of the secretary over the books.</p> <p>Id.—Books of Collectors and of Bank.—Books of the collectors for the corporation, and of a bank in which deposits were made, not proven to be correct by those who kept them, are inadmissible against the secretary of the corporation, who is charged with embezzlement; and, if offered to show that the defendant did not keep correct books, the presumption of correctness is destroyed, and they cannot be received as admissions without proof of his knowledge and complicity in falsifying the books.</p>

<p>Mortgage by Deed Absolute—Title of Mortgagor.—In this state a deed absolute in form, but intended as a mortgage, is a mortgage, and conveys no title to the grantee named in the instrument.</p> <p>Id.—Action to Declare Deed a Mortgage—Power of Court—Strict Foreclosure—Erroneous Judgment.—In an action to have it adjudged that a deed from plaintiff’s grantor to the defendant is a mortgage, the court, after having found that it is a mortgage^ has no power under our system to make a strict foreclosure thereof in the action, and to bar and destroy plaintiff’s equity of redemption and other right to the property at the end of twenty days after written notice of the judgment, if the mortgage should not then be paid. Such a judgment is erroneous, though, perhaps, not void, if not appealed from.</p> <p>Id.—Written Notice of Judgment—Forfeiture of Rights.—The provision in the judgment for a forfeiture of the plaintiff’s rights within twenty days after written notice of the entry of the judgment, if no redemption should be made within that period, must be construed as requiring a separate written notice expressly intended for the purpose of starting the period of time mentioned in the judgment.</p> <p>Id.—Incidental Recital in New Trial Notice—Knowledge of Judgment.—A mere incidental recital of the rendering of the judgment in a notice of motion for a new trial is not a sufficient compliance with the terms of the judgment respecting written notice; nor is the actual knowledge by plaintiff of the rendition of the judgment material upon the question of such compliance.</p> <p>Id.—Final Judgment Barring Plaintiff’s Rights—Appeal.—A subsequent judgment assuming to bar the plaintiff from all equity of redemption or other right to the mortgaged premises, and dismissing the action for noncompliance with the terms of the judgment as to the time for redemption, is a final judgment as respects the rights of the plaintiff, and is appealable by the plaintiff as such.</p>

<p>Corporations—Liability of Stockholders—Statute of Limitations— Renewal of Notes.—The running of the statute of limitations in favor of the stockholders of a corporation upon their statutory liability to the creditors of the corporation cannot be interrupted by a renewal of the debt under which the liability was created, by taking up old notes of the corporation evidencing such liability, and giving new notes in lieu thereof.</p> <p>Id.—Support of Finding as to Renewal of Notes—Nominal Intervention of Third Party.—A finding that the new notes ol the corporation were a renewal of the old notes is supported by evidence showing that, throughout the transaction, the negotiations for the taking up of the old notes to the plaintiffs, and the substitution of the new notes, were had between the corporation and the plaintiffs, and that the notes were made to a nominal third party who indorsed them to plaintiffs, and whose name was used under an arrangement for the exchange of checks, to give an appearance of payment of the old notes, no money having been really advanced by such third party or paid to the plaintiffs.</p>

<p>Corporations—Vacancy in Board op Directors—Corporate Act by Majority op Full Board—Validity op Mortgage.—Notwithstanding a vacancy in the board of directors of a corporation organized under the laws of this state, it seems that a vote of a majority of the full board is valid as a corporate act to sanction the execution of a mortgage upon property conveyed to the corporation by the mortgagee.</p> <p>Id.—Ratification op Mortgage by Full Board.—The subsequent action of a full board requiring the mortgagee to make additional advances on the security of his mortgage, and recognizing its validity in a resolution authorizing a second mortgage upon the property, is a full ratification of the first mortgage.</p> <p>Id.—Pleading op Mortgage by Corporation—Proop of Ratification.— Where a mortgage executed by the corporation is pleaded, proof of a subsequent ratification is as pertinent to support the allegation as proof of a prior authorization.</p> <p>Id.—Incompetency of One Director to Act.—The incompetency of one director to act, by reason of his interest in the transactions leading to the conveyance of the property to the corporation, and to the execution of the mortgage by the corporation, cannot affect the validity of the original authorization of the mortgage by a majority of the full board of directors to which his vote was not necessary, nor affect the subsequent ratification of the mortgage by a newly elected full board of directors, of which he was a member.</p> <p>Id.—Security for Advances—Demand and Refusal—Fraud.—Where the mortgagee did not bind himself by the- terms of the mortgage to make further advances which were provided for therein, excepting such advances within a specified limit as might be required to compromise any hostile claim to the mortgaged property, when requested so to do by the corporation, a mere demand by the corporation for further advances without reference to such a compromise, and a refusal to make the advances demanded, does not show any fraud committed by the mortgagee upon the corporation.</p> <p>Id.—Pleading—Variance—Exclusion op Evidence.—Where the answer alleged merely a demand by the corporation for further advances, and a refusal by the mortgagee to make any further advances, an offer to prove a demand for an advance to carry out a compromise of a hostile claim is properly refused, and evidence thereof properly excluded, upon the ground that it had not been pleaded.</p> <p>Id.—Refusal to Make Promised Advances—Recoupment—Pleading.— The refusal of the mortgagee to make promised advances cannot render the mortgage wholly void and incapable of enforcement; but the mortgagor, in such case, can only. recoup the actual damage shown to have resulted from the breach of that stipulation in the contract, under a pleading justifying such recoupment.</p> <p>Id.—Application of Advances.—The mortgagee is not bound to see that advances made by him to be expended in the care and preservation of the mortgaged property are so expended by a representative of the corporation to whom the advances are properly paid.</p> <p>Id.—Consideration of Mortgage—Advances Inuring to Benefit of Corporations.—A mortgage executed to secure advances made by the mortgagee for the care and preservation of the property of the corporation, and of trust property which inured to its benefit, and which was conveyed to it by the mortgagee, has a sufficient consideration for its support.</p> <p>Id.—Agreement with Owner of Stock Personally—Conveyance of Trust Property—Corporate Property—Assumption of Liabilities by Corporation.—The consideration of the mortgage is not affected by the facts that the mortgagee became trustee of lands conveyed to him as security for advances thereupon under a personal contract made with the owner of nearly all of the stock of the corporation, who was then acting in his own name, but for the benefit of the corporation (the corporation being then dormant), and that such owner assumed to convey to said trustee as security the property which then belonged to the corporation, and that such property, together with the other property held in trust, was conveyed by the trustee to the corporation, after assumption by it of all the acts and liabilities of the owner of such stock, without dispute as to their correctness.</p>

Matt;. F. Johnson, Judge. The main facts are stated in the opinion of the court, and in the concurring opinion of Mr. Justice Garoutte, as to the general character of the proceedings setting apart the homestead, and the absence of allusion in the terms of that order to the separate property of the husband.

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

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

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

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

<p>Assignment—Judgment—Undertaking on Appeal — Eights of Assignee.—The assignment of a judgment only, without the assignment of the undertaking on appeal therefrom, does not pass to the assignee any right of action upon the undertaking on appeal, whether the assignment be made pending the appeal, or after the judgment has become a finality.</p> <p>Id.—Distinct Contract of Sureties — Action by .Assignee of Judgment.—The contract of the sureties in undertaking on appeal and to stay proceedings is distinct from and independent of the judgment, and not a necessary incident to it, and an action thereupon by a mere assignee of the final judgment cannot he sustained.</p>

<p>Mechanics’ Liens—Invalid Claims of Lien—Several Demands Below Jurisdiction—Joint Personal Judgment.—In an action to foreclose several mechanics’ liens, where the demand of each claimant is less than three hundred dollars, if the liens claimed are invalid, and the equity jurisdiction to enforce them fails, the superior court has no jurisdiction to render a personal judgment against the owners of the land. Such judgment, if rendered, must be several and not joint; and the several demands cannot be cumulated for the purpose of jurisdiction. A joint personal judgment in favor of several plaintiffs, for a sum in excess of three hundred dollars, the respective demands being severally less than that sum, cannot be sustained.</p>

John C. Gray, Judge. The facts are stated in the opinion of the court and in the opinion rendered in the case of Miller v. Carlisle, ante, p. 327.

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

<p>Guardianship of Incompetent Person—Notice of Hearing—Jurisdiction—Void Appointment.—An incompetent person must be served with proper notice, both of the time and place of hearing of an application for guardianship of his person and estate, before the court can .acquire jurisdiction to make the appointment. An order and notice specifying merely a day for hearing, without' specification of hour or place, is insufficient; and, after an adjournment of the hearing until Tuesday, March 3d, the appointment of a guardian on Tuesday, March 2d, is without jurisdiction and void.</p> <p>Id.—Presence of Incompetent Person—Waiver of Notice—Consent to Jurisdiction.—The required presence of the incompetent person at the hearing cannot have the effect to dispense with or waive proper notice of the hearing. He is incapable of consenting to the jurisdiction, and cannot waive any steps necessary to confer jurisdiction upon the court.</p> <p>Id.—Collateral Attack upon Jurisdiction.—A void appointment of a guardian of an incompetent person, which shows upon the face of the record that the court was without jurisdiction to make the order, is subject to collateral attack in an action brought in the name of the incompetent person by such guardian.</p>

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

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

<p>Officers—Notice of Election—Certificate—Time for Qualification— Construction of Code.—The “notice of election” provided for in section 907 of the Political Code is to be given by the issuance of the certificate of election provided for in section 1284 of that code, and the time for the qualification of an elected officer is within ten days after the issuance of his certificate of election, or in default of such certificate, within fifteen days after the commencement of his term of office.</p> <p>Id.—Actual Knowledge—Canvass of Returns by Elected Supervisor.—The actual knowledge of the result of the election cannot dispense with or take the place of the issued certificate of election; and the fact that an elected supervisor, as chairman of the existing board of supervisors, participated in the canvass of the returns of the election, does not affect the time for his qualification for the elected office.</p> <p>Id.—Abortive Attempt at Qualification—Forfeiture—Due Qualification—Title to Office.—An abortive attempt at qualification by an elected supervisor, by way of anticipation of the notice of election required by law, cannot work a forfeiture of his right; and, if no certificate of election is subsequently issued, a due qualification effected by him within fifteen days from the commencement of his term is sufficient to entitle him to the office.</p> <p>Id.—Invalid Appointment by Governor.—There being no vacancy in the office of supervisor, an appointment by the governor to that office is invalid, and confers no right.</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 of the court.,</p>

<p>Order Granting New Trial—Delay op Hearing—Laches—Consent —Presumption upon Appeal.—Upon appeal from an order granting a new trial, where the record does not show that any objection was made to delay in the hearing of the motion on the ground of apparent laches of the moving party, it will be presumed by this court that the time for the bearing of the motion was extended by consent of the parties. <■</p> <p>Id.—Statement—Reference to Map Tracing-—Stipulation—Presumption—Clerk’s Certifícate.—The fact that the engrossed statement contained a direction as to the insertion of a map tracing, which at the trial had been directed to be filed in lieu of a map used in evidence, and that it was not inserted, and does not appear in the transcript, does not show a skeleton statement inconsistent with an order granting the motion, where it appears that both parties stipulated that the statement was properly engrossed, and that such stipulation was approved by the judge. It must be presumed in support of the order that the map tracing was properly used upon the hearing; and the clerk’s certificate that it was not on file cannot be considered, and has no effect against such presumption.</p> <p>Id.—Parties to Motion—Service of Notice—Death of Disclaiming Defendant—Authority of Attorney—Jurisdiction—Affirmance of Order.—The death of a disclaiming defendant, in an action involving the title to water, after a judgment in his favor, and before notice of the hearing of a motion for a new trial, revokes the authority of his attorney; and the service of the notice upon his attorney is ineffectual for any purpose, and cannot confer jurisdiction upon the court to grant the motion as to him. But such disclaiming defendant is not a necessary or adverse party to the motion; and the affirmance of an order granting the motion will not have the effect to vacate the judgment in his favor.</p> <p>Id.—Opinions of Trial Judge and of Judge Granting New Trial.— The opinion of the trial judge, whether appearing in the briefs of counsel or in the record, can only be useful to indicate the points involved, and the views of the trial court thereupon, and cannot be considered to affect or change the facts as found; nor can the reasons given in the opinion of the judge granting ” a new trial control the legal effect of a general order granting the same.</p> <p>Id.—Support of Order Granting New Trial.—An order granting a new trial will be affirmed, If it can be justified on any ground made by statute a ground for new trial, which Is included in the mo-, tion, regardless of the ground on which the court below may have based its order.</p> <p>Id.—Change of Judge—General Order Granting New Trial—Conflicting Evidence—Presumption. —Where the trial is had before one judge, and the motion for a new trial is passed upon by another judge, the latter stands in the shoes of the former, and has the same power and is charged with the same duty as if the motion had come before the former. If the motion is made upon all the statutory grounds, a general order granting a new trial, made by another judge, is entitled to the same presumption that the court changed its opinion as to the effect of conflicting evidence as if the order were made by the trial judge.</p>

Carroll Cook, Judge. The facts are stated in the opinion of the court, and in the opinion in the case of People v. Piggott, 126 Cal. 509.

<p>Bond of Guardian—Judgment against Sureties—Assignment to Paying Sureties—Constitution—Election of Procedure.—Part of the sureties upon a guardian’s bond, who have paid in full a judgment rendered against the guardian and all of the sureties, to * the extent of the liability of each upon the bond, may enforce contribution from the remainder of the sureties, and may, if they choose, proceed against them in the manner provided in section 709 of the Code of Civil Procedure; but they are not compelled to do so, and may, instead, take a written assignment of the judgment from the plaintiff upon payment thereof, and enforce it in his name by execution against each of the other sureties for his proportionate share of the debt, independently of section 700, which is not intended to include the case of such an assignment.</p> <p>Id.— Assignment to Judgment Debtors.—The fact that the sureties making the payment to the plaintiff were some of the judgment debtors could not prevent them from taking an assignment of it, for the purpose of enforcing contribution from the other judgment debtors.</p> <p>Id.—Payment by Part of Sureties—Judgment not Satisfied—Intention of Parties.—The payment of a judgment by one or more joint debtors does not operate as an accord and satisfaction of the judgment as to other joint judgment debtors, unless it plainly appears that the payment was intended to have such effect; and the payment of a judgment against sureties on a bond by part of them, who, upon such payment, take an assignment of the judgment for the enforcement of contribution against other cosureties, or the principal debtor, cannot operate as a satisfaction of the judgment as against them, nor render the assignment invalid.</p> <p>In.—Indemnity from Principal to Paying Sureties—Contribution— Equality of Burden and Benefit.—Property transferred by the principal debtor to the paying sureties by way of indemnity need not be first exhausted by them before proceeding to enforce contribution against each of the other sureties for his proportionate share of the debt. In such case; equality of burden and of benefit is equity; and the indemnity, whenever enforced, will inure to the benefit of all of the sureties.</p> <p>In.—Enforcement of Judgment by Assignees—Execution Limited to Proportionate Share of Surety.—The judgment can only be enforced by the assignees against any other surety for an aliquot part of the debt, based on the whole number of sureties, and on the legal liability of all the sureties to contribute in the proportion of the respective amounts for which they became surety; and execution cannot he allowed against any surety for an amount in excess of his legal proportion of the debt.</p> <p>Id.—Presumption of Solvency of Sureties—Action in Equity.—The proceeding for the enforcement of the judgment is not in equity, and must be governed by the legal presumption that all of the sureties are solvent. If some of them are in fact insolvent, the sureties may bring their action in equity for contribution, in which the burden may be equally placed upon the solvent sureties.</p>

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

<p>Criminal Law—Pleading—Name of Defendant—Immaterial Omission of “Jr.”—An information entitled and indorsed in the name of the people against “F. O., Jr.,” which in the charging part avers that “the said F. O.” committed the offense charged, and concludes that “all of the acts of the said F. O., Jr., were and are contrary to the statute,” etc., sufficiently shows that the defendant was charged by the name of “F. O., Jr.,” which he declared to he his true name; and there is no defect in the charging part of the information affecting a substantial right of the defendant.</p> <p>In.—Junior and Senior no Part of Name.—Junior and senior are no part of a name, however commonly employed; and neither the omission nor the insertion of either, contrary to what would be deemed proper, will create a variance or otherwise injure the indictment or information.</p> <p>In.—Impanelment of Jury — Withdrawal of Names by Consent— Special Venire — Waiver of Objection — Challenge to Sworn Panel.—Where the names of six jurors engaged in another trial were withdrawn from the jury-box by consent of the defendant, and after the remainder of the names were exhausted without completing the panel a special venire was summoned, and the jury completed and sworn, without any statutory challenge having been interposed to the special venire, a challenge subsequently made to the sworn panel by the defendant, on the ground stated “that there were not in the box at the commencement of the drawing, or at any time during the drawing, the full number of names that should be there during the drawing,” was properly denied.</p> <p>In.—Time for Challenge to Panel.—A challenge to the panel must, be taken before a juror is sworn.</p> <p>Id.—Robbery—Evidence—Identification of Defendant—Standing up for Comparison.—Upon a charge of robbery, where the prosecuting witness described the size of the party robbing him, It is not error for the court to overrule an objection to a request of the district attorney that the defendant should stand up for comparison. It would not be error for the court to compel the defendant to stand up for comparison.</p> <p>Id.—Confessions of Defendant—Evidence of Voluntariness—Conflicting Evidence of Defendant.—The confessions of the defendant are admissible for the prosecution, if the evidence for the prosecution shows that they were free and voluntary, and not made under the influence of any threats, intimidations, promises, or inducements of any kind. The fact that the evidence of the defendant conflicts with that for the prosecution cannot justify the exclusion of the evidence of his confessions; hut the jury, under proper instructions, are the sole judges of the credibility of the witnesses in regard to the matter.</p> <p>In. — Drunkenness of the Defendant — Instructions — Absence of Request.— Where there was evidence indicating that the defendant ivas drunk at the time of the commission of the offense, and no error is alleged in the instructions given on that subject, the defendant canuot object that further instructions were not given in relation thereto, in the absence of a request made therefor by the defendant.</p> <p>In.— Reproving Remarks by Judge to Defendant’s Counsel.—Reproving remarks by the judge to the defendant’s counsel, though not courteously addressed, are not reversible error, where the manner of the counsel in asking and repeating many immaterial questions merited some rebuke, and tried the patience of the judge.</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. C. B. Hebbard, Judge.</p> <p>The bond set forth in the complaint was signed by the sureties alone, A. D. Turner and J. L. Vermeil, who undertook to become sureties and guarantors “for the full performance on the part of J. S. Antonelle and S. B. Frazier, copartners doing business as J. S. Antonelle & Co., the parties of the second part in the above contract,” being a contract made by them as second parties, with C. V. Perry and C. S. Holmes, as parties of the first part, for the construction of a tunnel in the “Butte Basin gravel mine.” S. R. Frazier transferred his rights under the contract to J. S. Antonelle, November 6, 1895, and the assignment of the contract by J. S. Antonelle to the plaintiffs and the accompanying agreement for division of the profits between Antonelle and the plaintiffs were made November 7, 1895, Further 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 Sacramento County. Matt P. Johnson, Judge.</p> <p>The facts are stated in the opinion of the court in Bank and in the opinion rendered in Department Two.</p>

<p>Criminad Law—Homicide—Sele-Deeense—Review of Evidence.—A. verdict of guilty of manslaughter cannot be reversed upon appeal, upon the ground that the evidence shows that the homicide was committed in self-defense, where the evidence as to self-defense appears to be conflicting, and the appellate court cannot say. upon a review of the evidence, taking the testimony of the defendant together with the general facts proved, that the jury were riot warranted in finding that the homicide was not committed in self-defense.</p> <p>Id.—Evidence—Recollection of Witness—Use of Word '‘Presume.”— A witness, in stating facts within his knowledge or personal observation, is not required to testify with that certainty which excludes all doubt, and the use of the word “presume” by the witness is not ground for striking out his evidence, when, as used by him, it evidently meant nothing more than a statement of his best recollection as to particulars of a fact observed.</p> <p>Id.—Misconduct of Jury—Affidavit of Juror—Misrepresentation as to Punishment for Manslaughter.—An affidavit of a juror cannot be received to impeach the verdict by setting forth a misrepresentation made by a juror as to the limit of punishment which could be inflicted for manslaughter, by which many jurors were induced to agree upon a verdict of guilty of that offense.</p> <p>Id.—Newly Discovered Evidence—Diligence.—A new trial cannot be granted for newly discovered evidence which is of slight importance, and in respect to which no diligence was shown in seeking to discover it before the trial.</p>

<p>Criminal - Law—Abortion—Evidence—Dying Declarations —Belief of Impending Death not Shown.—Dying declarations in reference to the commission of the crime of abortion, leading to the death of the declarant, are not admissible against a defendant charged with the abortion, where the circumstances surrounding the declarations, the condition of the declarant, and the testimony of the attending physician render it doubtful whether the declarant believed that the hand of death was laid upon her, and her conduct in failing to make any preparations for death seemed to indicate the contrary. Dying declarations are not admissible if the declarant had the slightest hope of recovery, and if it is not plainly manifest that they were made under a belief of impending death.</p> <p>Id.—Introduction Written by Stenographer without Request—Ratification not Distinctly Shown.—An introductory statement declaring a knowledge of impending death, written by the stenographer who took the evidence, without a previous statement of such knowledge by the declarant, or a request that it be written, is not shown to be distinctly ratified by a mere general assent to a long document embodying the statement after 9 single reading of it as a whole by the stenographer, and the signing of it by the declarant, especially where the circumstances are such as to indicate that a belief of impending death was not then manifestly in the mind of the declarant.</p>

PETITION in Supreme Court for writ of review to annul orders of the Superior Court of San Diego County. J. W. Hughes, Judge. The facts are stated in the opinion of the court.

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

<p>Estates of Deceased Persons—Property Less than Fifteen Hundred Dollars—Rights of Widow—Revocation op Letters—Notice to Creditors—Maxim.—A widow, who is administratrix of her deceased husband, cannot have her letters revoked for failing to give notice to creditors for more than two months after her appointment, under section 1511 of the Code of Civil Procedure, where both her petition for letters and the return of the inventory and appraisement show that the entire property of the estate is of less value than fifteen hundred dollars. In such case the widow, if there are no children, is entitled to have the whole estate set apart to her under section 1469 of the same code, without any further proceedings in the administration; and no notice to creditors is necessary.</p> <p>Id.—Petition to Revoke Letters by Persons not Interested.—The law does not permit persons not interested to invoke the machinery of the courts; and a sister and niece of the decedent, who can have no interest in an estate which the widow is entitled to have set apart to her, cannot authorize a person not interested in any manner in the estate to file a petition to revoke letters of administration granted to the widow.</p>

<p>Aliens—Control and Inheritance of Property—Treaty.—The question as to the rights of aliens to possess, enjoy, and inherit property in the United States is a proper subject matter of treaty; and a treaty regulating those rights must control all state legislation contrary thereto as the supreme law.</p> <p>Id.—Power of State—Laws not in Conflict with Treaty.—A state has the primary right to regulate the tenure of all real property within its limits, and may allow aliens to take, hold, and dispose of property, real and personal, within the state, in so far as its laws are not in conflict with the express provisions of a paramount treaty of the United States.</p> <p>Id.—Inheritable Blood—Change of Common Law.—A state may, by express law, change the common-law rule that an alien was not of inheritable blood, and may thereby remove the disability of the alien to inherit, if there is no paramount law to the contrary.</p> <p>Id.—Construction of Treaty with Great Britain—Silence as to Inheritance — Validity of Code Provision.—The silence of the treaty between the United States and Great Britain upon the subject matter of the right of citizens of Great Britain to inherit property within the United States, is not equivalent to a denial of that right, and cannot affect the power of a state to confer the right. That treaty is not in conflict with section 671 of our Civil Code, allowing aliens, including citizens of Great Britain, to “take, hold, and dispose of property, real and personal, within this state.”</p> <p>In.—Nonbesident Aliens—Operation of Code.—The provisions of section 671 of the Civil Code are not made to operate extraterritorially, by conferring a right upon nonresident aliens to take and hold property within this state. That section merely provides a rule with respect to property within the state, and confers a right to be enjoyed within its jurisdiction.</p> <p>Id.—Construction op State Constitution.—Section 17 of article I of the state constitution is merely intended to secure the rights of foreigners of the classes named, and does not operate as a limitation upon the power of the legislature to extend similar privileges to other foreigners or aliens.</p>

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

<p>Estates op Deceased Persons—Reversal op Decree op Distribution— Recovery by Executors prom Distributee—Payment op Personal Debts.—Upon the reversal of a decree of distribution, the assets of the estate paid to the distributee under the decree may be recovered back by the executors. It is no defense to such recovery that a portion of the assets distributed were applied by the distributee in payment of personal debts, and the payees are not required to make restitution.</p> <p>Id. —Prompt Compliance with Decree by Executors — Presumption— ~ Title of Distributee and Payees. — The executors did not act at their peril in promptly complying with the decree of distribution before the expiration of the time for appeal; but they and all parties interested were entitled to presume that the judgment of distribution was right and would be affirmed. The distributee had a perfect title to the money distributed, and might transfer title thereto by payment to personal creditors at any time prior to an actual reversal of the judgment, which alone could destroy or impair the distributee’s right.</p> <p>Id.—Payment to Creditors—Transfer of Bank Credits.—A payment to creditors of the distributee is effected by a transfer of bank credits in a savings bank, and the opening of a new account by the bank and the issuance of a bank-book in the name of each creditor so paid.</p> <p>Id.—Personal Debts to Executors—Settlement and Payment—Release of Mortgage.—A transfer of bank accounts in the amount of personal debts of the distributee to each of the executors, accompanied by a release of. a mortgage securing the same, shows a settlement and payment of such debts by the distributee; and the amount thereof cannot be deducted from a recovery by the executors against the distributee, after reversal of the decree of distribution.</p>

MOTION to dismiss appeals from .an order of the Superior Court of Los Angeles County disallowing an account of a special administratrix. John L. Campbell, Judge, presiding. The facts are stated in the opinion of the court.

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing the sale of the real estate of a deceased person. J. V. Coffey, Judge.-</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons — Removal of Administrator—Invalid Judgment upon Claim. — After the removal of an administrator from his trust, he ceases to have any connection with the estate, and no judgment rendered against him while removed can bind the estate, or have any validity as evidencing the existence of a claim against the estate.</p> <p>Id.—Appeal from Order of Removal—Suspension of Administrator— tudgment Pending Appeal—Vacating Order.—An appeal from an order removing an administrator does not revive or restore bis powers, but he remains suspended from office pending the appeal, and has ceased from the date of the removal to be practically and in effect the administrator of the estate, until such time as the order may be reversed. No judgment can properly be rendered against him pending such appeal; and an order vacating a judgment upon a claim so rendered is proper, and must be affirmed.</p>

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

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

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

<p>Appeal—Review—Argument.—Upon appeal from a judgment and from an order denying a new trial, tlie appeal from the judgment cannot be considered if taken too late; and the sufficiency of the evidence will not be reviewed upon appeal from the order denying the new trial, where the brief of the appellant relies only upon alleged errors of law, occurring at the trial.</p> <p>Action for Breach of Contract—Discharge from Employment as Teacher—Evidence—Employment of Predecessor.—In an action against a board of education, and the members thereof, to recover as damages for the breach of an alleged contract of employment as teacher for a stated period at a fixed salary, the amount of salary which would have been received if plaintiff had not been discharged, evidence of the employment of plaintiff’s predecessor at the same monthly salary, and of his continuing to act for one year, and of his resignation, and the choice of plaintiff as his successor, is irrelevant and immaterial, and does not tend to prove the contract alleged.</p> <p>Id.—General Offer of Evidence.—Where an offer of evidence includes many different propositions grouped together, if the proof of any proposition is incompetent, irrelevant, or immaterial, the ruling of the court in rejecting the entire offer must be sustained.</p> <p>Id.—Evidence of Special Meeting of Board—Charges of Unprofessional Conduct—General Motion to Strike Out.—Evidence received of a special meeting of the board of education to investigate charges of unprofessional conduct against the plaintiff, prior to his discharge, is not reached by a general motion “to strike out the testimony thus far introduced, partially upon the ground that it appears that no notice had been given” to a certain member of the board of education. The motion is broad enough to include all the evidence in the case, and was correctly denied.</p>

HABEAS CORPUS in the Supreme Court for admission of the defendant to bail pending an appeal from a judgment of the Superior Court of the City and County of San Francisco. Frank H. Dunne, Judge. The facts are stated in the opinion of the court.

<p>Street Assessment— “Remonstrance”—“Appeal.”—The distinction between a “remonstrance” and an “appeal” under the street improvement law is, that the former is made, before assessment, to the action or proceedings of the council, while the latter is made after the assessment, and relates to the acts of the superintendent of streets which are specified as grounds for appeal.</p> <p>Id.—Form of “Appear”—Use of Word “Remonstrate.”—A written objection addressed to the city council by the owner of property assessed, and filed with the clerk after the assessment, though not designated as an "appeal,” and purporting to “respectfully remonstrate against the acceptance of the contract” described therein, upon the “claim” that “said contract has not been done according to specifications on file in the office of the street superintendent,” and stating what work the “claim” includes, is an effective appeal in form and in substance.</p> <p>Id.—Effect of Appeal—Stay of Proceedings—Duty of Council as to Notice of Hearing.—An appeal taken by one assessed owner of property, going to the whole of the work done under the contract, operates to stay proceedings against all assessed owners until the appeal is regularly determined after published notice of hearing, which it is the imperative duty of the council to give, and not of the appellant to ask for.</p> <p>Id.—Power of Council—Rights of Property Owners.—The council has no power to dismiss an appeal, or to bind the appellant or other assessed owners of property by deciding without notice or hearing that the appeal is insufficient. The appeal is to be deemed pending, notwithstanding such action; and all assessed owners have a right to be heard thereupon, and can only be concluded by determination thereof after due notice of hearing. The appellant and all other parties assessed m'ay safely rest until due notice is given.</p> <p>Id.—Premature Foreclosure.—An action to foreclose any street assessment pending an appeal by any other property owner assessed upon different property involving the validity of the assessment, and which, if determined in favor of the appellant, would preclude a recovery against any of the parties assessed, is premature, and cannot be sustained.</p>

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

<p>Quieting Title to City Lots—Defense of City—Claim of Taxes— Statute of Limitations.—In an action to quiet title to city lots, a defense of the city setting up a claim for taxes assessed and levied more than three years prior to the commencement of the action, and demanding their payment as a condition of plaintiff’s recovery, is barred by the statute of limitations.</p> <p>Id.—Invalid Assessment and Levy of Taxes — Reincorporation of City.—To be valid, the assessment and levy of taxes must be made strictly as provided by law. In a city reincorporated under a lower class, the assessment, equalization, and levy of taxes must be made as provided for cities of such lower class, and, if made for the year of reineorporation, as differently provided for cities of the class under which the. city was originally incorporated, they are invalid and void.</p> <p>Id.—Action to Determine Adverse Claim—Void Claim of Defendant— Construction of Code—Inapplicable Rules of Equity.—The rule that equity will require a plaintiff to do equity, by paying such taxes as ought equitably to be paid, as a condition of enjoining a tax sale, and that equity will not cancel a void tax deed, which cannot amount to a cloud upon title, are inapplicable to an action under section 738 of the Codé of Civil Procedure to determine an adverse claim, in which action plaintiff is entitled to judgment, if there is a disclaimer, or if the answer shows no legal defense, and the objection that the adverse claim of the defendant is void upon its face is not available.</p>

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

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

<p>Mining Partnership.—A mining partnership exists, without an express agreement to form a partnership, when two or more persons owning shares or interests in the mine actually engage in working the same for the purpose of extracting the minerals therefrom.</p> <p>Id.—Action for Dissolution, Accounting, and Sale—Evidence as to Mining Partnership—Nonsuit.—In an action for the dissolution of an alleged mining partnership, and for an accounting and sale of the mining property, to repay money contributed by the plaintiff in excess of his proper share In the business of working the mine, where the evidence tends to show the relation of mining partners between the parties, or tends to establish facts Indicating that relation which might be reasonably, though not necessarily, inferred from the evidence, it Is error to grant a nonsuit.</p> <p>Id.—Review on Motion for Nonsuit.—On motion for a nonsuit, whatever facts relevant to the issue the evidence for the plaintiff tended to prove must he regarded as proved, and the plaintiff is entitled to the benefit of the facts in testimony, and of the presumptions of fact which might reasonably be drawn from them.</p> <p>Id.—Deed of Mining Interest to Wife—Work by Husband—Agency— Ratification—Existence of Mining Partnership.—Evidence showing that the deed of the mining claim in controversy was procured by a husband to be made in the name of the plaintiff and of his wife, made defendant, that the husband and plaintiff worked the mine together, the husband assuming to represent his wife as agent, that subsequently the husband and wife conveyed an undivided interest to another defendant, agreeing that he should “be at no expense for assessment or development work” on the mine, until it should “begin to produce,” and that the wife subsequently declared that she owned the mining property individually, and that her husband was her agent in the matter, tends to show a ratification of the deed to her. and of the acts of her husband as her agent, and to show the existence of a mining partnership between the plaintiff and the wife.</p> <p>Id.—Declarations of Husband as to Agency.—The declarations of the husband as to his agency for his wife were incompetent to establish the fact of agency'as against the wife, though competent for the purpose of showing that the plaintiff dealt with him as agent, and not as principal.</p> <p>Order for Nonsuit—Judgment—Entry—Time for Appeal.—An order for a nonsuit entered "in the minutes of the court, which does not show what were the grounds of the motion, and does not purport to be a dismissal of the action, nor a judgment of any kind, and upon which no execution could be issued, but is a mere memorandum from which data for a judgment might be drawn, is not a dismissal of the.action, nor a judgment of non-suit, within the meaning of section 581 of the Code of Civil Procedure, declared to be effective when entered in the minutes of the court. The time for appeal does not run in such case until the entry of a proper judgment of nonsuit of the plaintiff, which operates as a final disposition of the case.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. A. S. Kittredge, Judge.'</p> <p>The fadts are stated in the opinion.</p>

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

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

<p>Appeal from Judgment—Review, when Limited to Judgment-Roll.— Upon appeal from a judgment taken more than sixty days after the rendition thereof, the case must be reviewed upon the judgment-roll alone, without reference to the question whether the evidence was sufficient to support the findings and judgment or not.</p> <p>Estates of Deceased Persons — Action upon Note by Executor— Counterclaim—Share of Decedent’s Indebtedness to Corporation.—In an action upon a note of the defendant to the decedent brought by the administrator, the defendant cannot offset, by way of counterclaim, his alleged share in an indebtedness of the decedent to a corporation formed by them as partners, for which alleged indebtedness no claim was- presented against the estate.</p> <p>Id.—Pleading of Counterclaim—Burden of Proof—Appeal from Judgment — Failure to Find upon Issue — Presumption.—The alleged matter of counterclaim was deemed controverted by the plaintiff, and the burden of proof was upon the defendant to establish it; and upon an appeal from the judgment, where the evidence cannot be reviewed, it must be presumed, in favor of the judgment and against error therein, that a failure to find upon the issue as to the counterclaim was not prejudicial to the appellant, and that a finding thereon, if made, would be adverse to the appellant.</p>

<p>Criminal Law—Indictment—Indorsement of Names of Witnesses— Object of Requirement.—The purpose of the requirement of the law that the names of the witnesses examined by the grand jury shall be indorsed upon the indictment, is to inform both the people and the defendant of the names of the witnesses upon whose testimony the indictment is based, and to give them both an opportunity to secure their attendance at the trial.</p> <p>Id.—Use1 of Surname of Witness—Knowledge of Defendant—Harmless Irregularity.—An irregularity in indorsing the mere surname of a witness upon the indictment, without giving his Christian name, is harmless, if the defendant, immediately after the finding of the indictment, knew the particular person so named upon the indictment.</p> <p>Id.—Requested Instructions Included in Charge.—When all matters material and legally sound in instructions requested by the defendant were given by the court in' its charge to the jury, it is not error to refuse such instructions.</p>

<p>APPEAL from an order of the Superior Court of Contra Costa County confirming a sale of real estate of a deceased person. Joseph P. Jones, Judge.</p> <p>'The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Homicide—Confessed Error in Instructions—Unauthenticated Bequests of Defendant.—Where the attorney general has confessed manifest error in the instructions given to the jury upon the trial of a defendant accused of murder, the effect of the error cannot be overcome by filing certified copies of requests for instructions by the defendant, suggested to contain similar error, where the alleged requests are rot authenticated as such in any manner that would entitle them to be considered as part of the record.</p> <p>Id.—Transcript upon Appeal—Improper Duplication of Instructions.— Where the instructions are properly authenticated so as to be • part of the judgment-roll, they ought not to be duplicated by •insertion in a bill of exceptions. There should be only one insertion in the record of instructions properly authenticated.</p> <p>Id.—Conviction for Murder—Sufficiency of Evidence—Question for Jury.—Where there are circumstances in evidence indicative of the guilt of the defendant, and others of an opposite tendency, and the opinions of the medical witnesses were conflicting, the question of the guilt or innocence of the defendant is for the jury to determine.</p> <p>Id.—Motion to Set Aside Information—Complaint by District Attorney—Cure of Defect.—A motion will not lie to set aside the information for murder after the defendant has been held to answer as the result of a preliminary examination, on the ground that the district attorney who filed the complaint had no personal knowledge of the facts of the homicide. Any imperfections in the complaint are cured, where the evidence taken by the magistrate warrants an order holding the defendant to answer.</p> <p>Id.—Motion in Arrest of Judgment.—A m.otion in arrest of judgment can only be made for defects appearing upon the face of the indictment or information.</p> <p>.Id.—Improper Cross-Examination by District Attorney.—The cross-examination of a witness for the defendant who had made previous statements to the district attorney in conflict with the testimony given, must be confined to the question of such com flict on material points; and it is error for the court to permit the district attorney to read portions of the statement made to him, having no relation to the testimony given, and to cross-examine the witness thereon, to the prejudice of the defendant.</p>

<p>Police Pension Fund—Amended Statute not Retroactive.—The act of March 2, 1897 (Stats. 1897, p. 52), Including therein the amendment of section 3 of the act of 1889 (Stats. 1889, p. 56), relating to the pension fund payable to retiring police officers, is not retroactive; and the amended section has no application to one whose connection with the police department was at an end before the passage of the amendment.</p> <p>In.—Mandamus — Alleged Discrimination of Board.—Upon an application for a mandamus to the police relief, life, and health insurance board to compel the payment of a pension to which the applicant is not entitled, the alleged discrimination of the board in awarding pensions under the amended act to other retiring police officers no less deserving than the applicant is immaterial, and cannot affect the applicant’s right.</p>

<p>Insolvency—Order Relating to Crop upon Homestead—Appeal— Res Adjudicata—Action for Value of Crop—Assignee Sued Individually.—An order denying the right of an insolvent debtor to the proceeds of a grape crop grown upon land claimed by him as a homestead, and affirming the right of the assignee thereto, is appealable; and, upon failure to appeal therefrom within the time limited, it becomes res adjudicata, and is a bar to an action brought by the claimant of the land to recover the value of the crop against the assignee in his individual capacity.</p> <p>Id.—Identity of Action and Parties.—The final determination of a substantial matter of right upon a motion or petition upon which the interested parties have a right to be heard, is res adjudicata, where the same subject matter is sought to be litigated in an independent action; and the substantial identity of the two proceedings cannot be affected or destroyed by the fact that an assignee in insolvency was a party to the motion or petition for a fund held by the assignee in his official capacity, and is sued in the action, in his individual capacity, in relation to the same subject matter.'</p>

<p>Promissory Note—Attorneys’ Fees — Special Damage.—Attorneys’ fees, provided for in a promissory note in the event of suit, are in the nature of special damage under the contract.</p> <p>Id.—Action in Justice’s Court — Jurisdiction—Void Judgment.—A justice’s court has no jurisdiction of an action upon such a promissory note, where the amount of the principal sum and the attorneys’ fees demanded under the contract exceed the sum of three hundred dollars; and the judgment rendered in such action is void.</p> <p>Id.—Judgment in Superior Court—Appeal to Supreme Court.—Where the superior court, upon appeal from the void justice’s'judgment, tried the case, and rendered a judgment exceeding three hundred dollars, exclusive of interest, the supreme court has jurisdiction of an appeal from that judgment, even though it be void; and such an appeal cannot be dismissed for want of jurisdiction.</p> <p>Id.-JDismissal op Appeal—Sufficiency of Undertaking—Failure of Sureties to Justify — Attorney as Surety.—The appeal to the supreme court from such judgment of the superior court cannot he dismissed upon the ground that the sureties upon the three hundred dollar' undertaking upon appeal failed to justify, nor upon the ground that one of the attorneys of appellant became a surety upon tlie undertaking, in violation of a rule of the superior court.</p> <p>Id.—Violation op Rule op Superior Court Cognizable Therein.— The violation of a rule of the superior court that an attorney for the appellant shall not become a surety upon the undertaking on appeal is a matter cognizable before that court, to be dealt with as it may be advised.</p>

<p>Appeal—Bond to Stay Execution—Judgment against Sureties — Procedure in Original Action.—The entry of judgment against the sureties upon a bond to stay execution pending an appeal is not a special proceeding within the meaning of section 23 of the Code of Civil Procedure, but Is part of the procedure in the original action authorized by section 942 of the Code of Civil Procedure, and is in sequence of the judgment rendered therein against the appellant.</p> <p>Id.—Stipulation of Sureties—Parties to Action.—Under the provisions of the code, the sureties upon the appeal bond stipulate that upon the affirmance of the judgment appealed from, if the appellant does not pay the same within thirty days after the filing of the remittitur, judgment may be entered against them for the amount of said judgment, with the interest then due thereon; and they thereby make themselves parties to the original action, and the proceedings against them are taken therein.</p> <p>Id.—Premature Judgment—Effect of Reversal.—The reversal of a premature judgment entered against the sureties less than thirty days after the filing of the remittitur affirming the judgment leaves the parties in the same position held by them before it was rendered. It does not affect or impair the obligation of the sureties upon their undertaking, which is the same as if no judgment had been rendered against them; and the plaintiff is still entitled to enforce that obligation by a proper motion for judgment against them.</p> <p>Id.—I’besumption—Request of Appellants fob Vacation of Judgment.—Upon appeal from a judgment properly entered against- the sureties, it will be presumed, if necessary, that the former premature judgment reversed upon appeal was vacated at the request of the appellants.</p>

<p>APPEAL fro-m a judgment of the Superior Court of Alameda County. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>State Hospital—Insanity Law—Qualifications of Medical Superintendent.—Under the “insanity law” of March 81,1897, establishing a state lunacy commission for state hospitals, theretofore known as state insane asylums, the qualifications prescribed for the medical superintendent are imperative, and the board of managers of a state hospital cannot appoint a medical superintendent for the liospital, -who has not had at least three years’ experience in the care and treatment of the insane.</p> <p>Id.—Bights of Former Superintendent.—A new appointee, not possessing the qualifications prescribed by the law of 1897, cannot oust the former medical superintendent of the insane asylum, who has the requisite qualifications, though his term of office has expired, he being entitled to hold over as medical superintendent under the act of 1897 until a qualified successor takes his place.</p> <p>Id.—Insanity Law Constitutional.—The insanity law is not special legislation, nor devoid of uniform operation, nor does it embrace subjects not expressed in its title; but it is in all of these respects valid and constitutional.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hdbbard, Judge.</p> <p>The complaint alleged that the superintendent of streets fixed the time in the contract for the commencement of the work “to ■be within fourteen days from the date of said contract.” Further facts are stated in the opinion of the court.</p>

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

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

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

<p>Master and Servant—Negligence—Defective Appliances—Assumption of Risk.—Notwithstanding the negligence of a master in furnishing the servant with defective appliances, the servant assumes the risk of working therewith, and impliedly agrees to release the master from liability therefor, if he either continues to use them with knowledge of their dangerous character and without objection or protest, or continues to use them with like knowledge for an unreasonable time, after notification given to the master of their defective character, and after the servant has no right to expect that the defect will be remedied.</p> <p>Id .—Lapse of Unreasonable Time—Questions of Fact and Law.— Generally, the question of reasonable time is one of fact for the jury; but where it appears, without conflict in the evidence, that the servant continued his employment for nine months after notification to the master of the defective appliance, and without any intimation from the master tha't the defect wquld be repaired, during all of which time the defect was obvious to his senses, the delay is unreasonable as matter of law, and is fatal to his cause of action for injury resulting from the defect</p> <p>Id.—Evidence—Remedy of Defect after Accident.—In an action for negligence of a master in furnishing defective appliances, evidence is not admissible to show that the defects were remedied after the accident.</p> <p>Id.—Expert Evidence—Safety of Appliances.—It is not proper, in such an action to admit the testimony of expert witnesses as to what appliances were safe, and what were unsafe. A master is not bound to furnish the safest appliances. The jury is the proper judge of the safety of the appliances actually used; and the safety of other appliances is immaterial.</p>

J. C. B. Hebbard, Judge. The action was brought in November, 1897, by a stockholder of the Eclipse Gravel Mining Company, to recover the sum of one thousand dollars, as provided in the act of 1874 for the protection of the stockholders of mining companies, for alleged breaches of that act, charged to have occurred in the months of June, July, August, September and October of that year.

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

<p>Stipulation—Motion to be Relieved—Discretion op Court.— A motion to be relieved from a stipulation upon the ground that •it was entered into through inadvertence, excusable neglect, and mistake of fact, is addressed to the sound discretion of the superior court; and this court will not interfere with the exercise of that discretion in doubtful cases, nor unless it is apparent that the court abused its discretion.</p> <p>Id.—Agreement to Abide Event op Another Suit — Foreclosure ' op Street Assessment—Delay in Application—Insufficient Showing. It is not an abuse of discretion to refuse to set aside a stipulation agreeing to abide the event of another suit for the foreclosure of a street assessment lien, where the application for relief was not made until after the other case had been decided adversely, and no affidavit of merits was filed at the hearing of the motion, but it was merely shown that since making the stipulation the applicant had discovered that the lot described in the complaint was not the lot described in the assessment, and was not shown that the amount was not due on the assessment, and on the lot therein described, nor that the complaint could not have been amended to obviate the objection.</p>

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

<p>Street Improvement—Protest op Owners op Majority op Frontage— Jurisdiction op Supervisors—Case Appirmed.—The protest of the owners of the majority of frontage upon a. proposed street improvement, delivered to the clerk of the board of supervisors of the city and county of San Francisco, within proper time, not only operates to suspend the jurisdiction of the board to proceed with the improvement for the period of six months, but also precludes the further ordering of the work to be done without the passage of a new resolution of intention therefor; and no lien can be created by an assessment for the work without such new resolution.</p> <p>Id.—Agreement op Property Owners — Assignment op Contracts — Proportional Assessment under Original Contract—Estoppel.— The agreement by certain property owners to obtain a contract for the proposed work in front of their lots at a reduced rate, and to assign the same to one who agreed to do the work for them at that rate, to be paid “on completion of said work,” without any agreement by them to pay any assessment under the original contract, and without any representation by them as to its validity, does not estop them from disputing the validity of a proportional assessment in favor of an assignee of the original contract, who was also am assignee of the contract of the owners, for work done under the original contract, in the completion of two blocks out of six included therein.</p> <p>Id.—Foreclosure op Street Assessment—Statutory Proceedings — Estoppel in Pais Inapplicable.—In an action to foreclose a street assessment, the lien of which exists only by virtue of a strict compliance with the provisions of the statute, and the proceedings in which are purely statutory, and without the enforcement of any personal liability, the doctrine of estoppel in pais has no application.</p>

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

<p>Sale of Personal Property—Statute of Frauds — Memorandum— Telegrams—Figures and Abbreviations—Interpretation.—'Upon a sale of personal property within the statute of frauds, where the memorandum of agreement consisted of telegrams bearing the same date, and containing symbolic figures and abbreviated terms, they should not only be read together, for the purpose of determining their sufficiency, but the court is permitted to interpret the terms used therein by the light of all the circumstances under which they were sent and received, and in the light of all the knowledge of the meaning of the terms which the parties to the transaction haid at the time, and, if it can thus be plainly seen from the proper understanding of the telegrams who were the parties to the contract, and what were its subject matter and terms, the memorandum should be held sufficient.</p> <p>Id.—Admissibility of Parol Evidence.—Parol evidence is admissible in such case to explain all of the circumstances surrounding the parties, to show in what sense the figures and abbreviated terms were used and understood by the parties, and to connect the description of the subject matter with the thing intended.</p>

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

<p>Promissory Note—Extension of Time for Payment—Oral Agreement.—The time for the payment of a promissory note past due cannot be extended for a definite period, so as to bind the payee, by an unexecuted oral agreement that the maker shall pay the interest monthly, according to the terms of the note, for such period.</p> <p>Frivolous Appeal—Damages.—Where an appeal is entirely devoid of merit, the judgment will be affirmed, with damages to the respondent.</p>

PETITION for writ of review to annul orders of the Superior Court of Lassen County, fixing the bond of the public administrator, approving the same, and ordering the issuance of letters. F. A. Kelly, 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 the City and County of San Francisco and from an order denying a new trial. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Corporations—Election for Directors—Qualification of Voters— Registration of Stock.—The election of directors of all corporations having a capital stock, including mining corporations, is regulated by sections 307 and 312 of the Civil Code; and no person is qualified to vote at such an election unless he is a bona fide stockholder, having stock registered in his name on the stock-books of the corporation at least ten days prior to the election.</p> <p>Id.—Act Concerning Mining Corporations—Qualification of Holders of Unregistered Certificate — Constitutional Law — Special Legislation.—There is no natural or inherent distinction between mining and other corporations for profit, or any peculiarity of the former, which will authorize special legislation for the mode of conducting the election of their directors; and section 3 of the act of 1880 for the further protection of stockholders in mining corporations, which authorizes the holders of indorsed certificates of stock therein to vote at the election of directors thereof, though the stock is not registered in their names upon the books of the corporation for a period of ten days, as required by section 312 of the Civil Code, is special legislation, in violation of section 25 of article NI of the constitution, the case bemg one in which a general law can be made applicable.</p>

PETITION to the Supreme Court for a writ of review to annul an order of the Superior Court restraining an execution for costs upon appeal and to compel the clerk to issue such execution. John Hunt, Judge. The facts are stated in the opinion of the court.

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