Volume 128 — California Reports

<p>APPEAL from an ord'er of the Superior Court of the City and County of San Francisco mating partial distribution of the estate of a deceased person. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PETITION for mandamus in the Supreme Court to compel a Judge of the Superior Court of San Joaquin County to render a decision and final judgment. E. I. J ones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Fire Insurance—Loss upon Buildings Payable to Mortgagee—Interests op Mortgagor and Mortgagee — Discharge of Mortgage Debt.—A policy of fire insurance taken by a mortgagor upon the mortgaged buildings with loss made payable to the mortgagee, as further security for the mortgage debt, is upon the interest of the mortgagor, who is the party insured; and the relation of the mortgagee to the policy is merely that of a creditor having a provisional assignment of the contingent proceeds of the policy, and his interest therein ceases whenever the mortgage debt is discharged.</p> <p>Id.—Purchase by Mortgagee under Foreclosure—Extinguishment of Debt—Cessation of Interest in Policy.—A purchase by the mortgagee, under foreclosure, of the mortgaged premises for the amount of the mortgage debt and costs, operated as an extinguishment of the debt, and the mortgagee thereby ceased to be a creditor of the mortgagor, and had no further interest as such creditor in the policy of insurance taken by the mortgagor, and cannot recover thereupon for any subsequent loss.</p> <p>Id.—Loss During Period for Redemption—Payment to Mortgagor— Change of Position of Mortgagor.—The payment to the mortgagor of a loss which occurred during the period for redemption, cannot make the insurance company liable to the mortgagee as a creditor of the mortgagor, after his interest in the policy has ceased with the extinguishment of the indebtedness; and it is immaterial whether the mortgagor could or could not have recovered anything upon the policy. The change of the mortgagee from the position of creditor to that of purchaser cannot aid him in recovery upon a policy in which he had no interest but that of creditor.</p> <p>Id.—Effect of Sale under Foreclosure — Redemption—Case Limited.—Though a sale under foreclosure does not extinguish the mortgagor’s' equity of redemption, until the expiration of the statutory period for redemption, yet it does pass a defeasible title which may become absolute, and it operates to extinguish the mortgage debt if the purchase is made for the amount thereof. Redemption is not made by paying the extinguished debt, but by paying the purchase price, with statutory percentage and costs. The dase of National BanJc v. Union Ins. Co., 88 Cal. 497, limited so far as inconsistent with later cases, and with the opinion in this case.</p>

<p>Master and Servant—Negligence—Defective Car—Contributory Negligence—Assumption of Risk—Questions of Fact—Nonsuit.— In an action for an injury to the conductor of a defective car negligently used by an electric railway company, where the negligence of the company clearly appeared, and the evidence showed that the conductor had only used the car once before, a week previously, and had only used it one hour on his second . trip, when he was injured by a lunging of the defective car, while doing his duty in watching the trolley at a crossing, and there was no evidence that he knew that the car was the same he had previously used, or that he knew it had not been repaired, the conductor cannot be charged with contributory negligence, or with assumption of the risk, as matter of law. These are questions of fact, which should have been submitted to the jury; and it was error to grant a nonsuit.</p> <p>Id.—Reasonable Time fob Complaint and fob Remedy of Defect-Question of Fact.—A servant is allowed a reasonable time, in view of the circumstances of the case, in which to complain of a discovered defect in an appliance furnished by the master, and is also justified after complaint made, in continuing work for a reasonable time in expectation that the defect will be remedied; and what, under the circumstances, would be a reasonable time for either purpose is ordinarily a question of fact for the jury. Under the circumstances of this case, it was essentially a question of fact, and not of law.</p> <p>Id.—Negligent Mode of Performing Duty of Conductor—Question of Fact.—The question whether the mode selected by the conductor for performing the duty imposed upon him of watching the trolley and holding the trolley rope at a crossing to replace it, if it should become displaced, amounted to contributory negligence, is a question of fact alone. The mere fact that, if he had selected another mode of performing his duty, the injury would have been avoided, does not conclusively show contributory negligence, as matter of law.</p> <p>Id.—Negligence of Fellow-servant—Starting Cab without Brakes Set—Question of Fact.—When the setting of the brakes before the starting of the car was not authorized by the railway company, and.was liable to result in damage to the car, and was out of the ordinary way, and was only a partial remedy for the defect in the lunging of the car, and where there is no evidence that the brakes were not set when the car started, at the time of the injury, the question of whether the injury was caused by the negligence of the motorman, as a fellow servant, is one of fact for the jury, and not one of law for the court.</p>

• HABEAS CORPUS in the Supreme Court to the sheriff of the county of Solano, to test the validity of a conviction under an ordinance of the city of Vallejo, in the Justice’s Court of Vallejo Township. O. B. Genty, Justice of the Peace. The facts are stated in the opinion of the court.

<p>Malicious Prosecution—Nonsuit—Supply of Proof by Defendant.— In an action for malicious prosecution, an order denying a motion for a nonsuit will not he disturbed for want of sufficient proof by the plaintiff, at the close of his evidence, of want of probable cause and of malice in fact, where the testimony of defendant’s witnesses cured the weakness of plaintiff’s case, and supplied the necessary proof, so that the whole of the evidence, considered together, was sufficient to support the verdict and judgment for the plaintiff.</p> <p>Id.—Probable Cause — Question of Law and Fact—Harmless Instructions.—What constitutes probable cause is a question of law, but the existence of sufficient facts to constitute probable cause is a question of fact. An instruction on the question of probable cause, indicating it to be a question of fact, though not perfect in form, is harmless, where the jury were strictly instructed in the charge that, if the evidence disclosed certain facts specified, there was no probable cause for the arrest of plaintiff. It is not strictly proper to define “probable cause” in an instruction, it being a question of law for the court, but the giving of such definition is harmless.</p> <p>Id.—Instruction as to “Presumed” Malice—Exemplary Damages.— An instruction referring to “malice, actual or presumed,” as a ground for exemplary damages, is to be construed as referring to “presumed” malice in fact, and not to malice in law.</p> <p>Id.—Advice op Counsel—Good Faith—Disclosure op Known Facts, and Exculpatory Facts Believed.—Good faith on the part of one who would justify an arrest upon a criminal charge under the advice of counsel requires not only that he should disclose to the counsel all material facts known to him, but also that, if he has reasonable ground to believe that other facts exist tending to exculpate the person excused, he should either himself make inquiry, or disclose his belief of such facts to the counsel, that he may have an opportunity to make such inquiry.</p>

<p>Cropping Contract—Tenancy in Common.—Under a cropping contract giving to the cropper a certain share of the grain and hay raised by him upon a portion of a ranch, the cropper and the owner of the ranch are tenants in common in the crops.</p> <p>Id.—Growing Crops—Levy of Execution upon Owner’s Interest— Order to Pay “Rent” to Creditor—Assignment—Possession of Cropper for Assignee.—Where an execution was levied upon the interest of the owner in the growing crops, and an order was given by the owner to the cropper to pay the “rent” to a creditor, who satisfied all liens upon the property, the word “rent” in the order is properly construed as refgrring to the interest of the owner in the crops, and as having the effect of an assignment thereof to such creditor, and of making the assignee a tenant in common with the cropper, whose possession is the possession of the assignee.</p> <p>Id.—Assignment of Interest Levied upon—Statute of Frauds.—The assignment of the undivided interest of the owner of land in crops growing thereupon under a cropping contract, by means of an order given in favor of a creditor, at a time when the owner’s interest therein was levied upon under execution, is not subject to the provisions of section 3440 of the Civil Code, and does not require an actual delivery from the assignor to the assignee. In such case, the parties stand in no different position as to the law from that which they would have occupied if the cropper had had the actual and exclusive possession of the property at the date of the order rather than the sheriff.</p> <p>Id.—Rights of Assignee—Satisfaction of Liens—Subsequent Levy and Sale—Action for Conversion.—The assignee of the owner’s interest in the crop, having satisfied all existing liens against the property, became the owner thereof as against the sheriff, and, being in possession thereof as a tenant in common with the cropper, no subsequent levy of the sheriff upon the interest of the owner in the crops and sale thereof under execution can affect the rights of the assignee; and he may maintain an action for the conversion of the crops by such levy and sale.</p>

<p>Replevin—Title to Land—Sale of House by "Bona Fide Claimant in Possession—Severance from Land.—The title to land cannot he litigated in an action of replevin; and where a house was sold by a bona fide claimant of the land, in actual adverse possession thereof, and was severed from the land and delivered to • the vendee, who removed the same from the premises, another person claiming to be the owner of the land, but out of possession thereof, cannot maintain an action of replevin for the house against such vendee.</p> <p>Id.—Immaterial ' Evidence—Title—Homestead—Findings.—Rulings upon matters of evidence in such action relating to plaintiff’s title to the land, and to the validity and effect of a homestead claim of the defendants, are immaterial, especially in view of findings of fact as to the actual possession and bona fide claim of title by the defendant, when the house was sold and severed from the land.</p> <p>Id.—Judgment-roll—Claim of Title.—Judgment-rolls introduced in evidence, not for the purpose of showing title, but as tending to show that the defendant in possession of the land upon which the house was situated claimed title thereto, and which are pertinent to that purpose, are admissible in favor of the defendant.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing the payment of judgments in favor of laborers by the sheriff from money in his hands. Edward A. Belcher, Judge.</p> <p>The .facts are stated in the opinion.</p>

J. H. Logan, Judge who tried the cause. Lucas F. Smith, Judge denying new trial. The facts are stated in the opinion of the court.

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

<p>Will—Contest of Probate—Insane Delusions against Husband— Burden of Proof—Absence of Pacts Inducing Belief—Presumption of Sanity.—Where the husband of the testatrix contested her will upon the alleged ground of insane delusions on her part that he was unfaithful to her, was attempting to poison her, and was conspiring with others to place her in an insane asylum, the burden was upon him to prove the existence of these delusions, and not only that they had no foundation in fact, hut also that there was no evidence of any facts brought to her knowledge from which she might form a belief, however unreasonable and perverse it might be, in the truth of her charges. He must present evidence sufficient to overcome the presumption that she was sane when she made the will.</p> <p>Id.—Absence of Belief—Suspicion.—If there is evidence to show that the testatrix did not really believe in the truth of the charges made by her, or had a mere suspicion of them, whether resting upon evidence or not, which did not amount to an abiding conviction of the truth of the facts suspected, but was a mere doubt or mistrust of her husband, there was no insane delusion. A suspicion which rests upon evidence cannot be held to be a delusion.</p> <p>Id.—Nature of Insane Delusion—Imaginary Facts—Absence of Evidence—Immovable Belief.—An insane delusion is the conception of a disordered mind which imagines facts to exist of which there is no evidence, the belief in the existence of which is adhered to against all evidence and argument to the contrary, and cannot be accounted for on any reasonable hypothesis.</p> <p>Id.—Irrational Inference from Facts, not Insane.—One cannot he said to act under an insane delusion, if there is any evidence, however slight or inconclusive, which might have a tendency to create the belief or a suspicion of the truth of the facts, or if the condition of mind results from an inference drawn from facts which are shown to exist, however irrational or unfounded such inference may be.</p> <p>Id.—Perverse Opinions—Unreasonable, Prejudices.—On questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation. Wills do not depend for their validity upon the testator’s ability to reason logically, or upon his freedom from prejudice.</p> <p>Id.—Construction of Finding against Delusions.—A finding that the testatrix was not under any of the delusions with which she was charged by her husband is equivalent to a finding that all of the elements n.ecessary to create an insane delusion did not exist in respect to either of them; and if there is evidence inconsistent with those elements in any respect, the finding must be sustained.</p> <p>Id.—Support of Finding—Physical Condition and Conduct of Wife— Actions and Words of Husband.—The court in making its finding was authorized to consider the physical condition, temperament, and habitual conduct of the wife, and her relations with her hus • band, and also his actions and words, as laying the foundation for her suspicions against him, and leading to excited and violent accusations, which were characteristic of her, in her physical condition, when irritated. The court ivas also authorized to consider the continued friendly relations between them, her consulting of him upon her business matters, and the provision in her will for him and for his children by a former marriage, and might reasonably conclude therefrom that she was not fully convinced of the truth of her charges; and its finding that there was no insane delusion is sufficiently supported.</p> <p>Id.—Evidence—Certificate of Examination of Testatrix by Experts —Discretion—Cross-examination — Proponent’s Case.—A certificate of examination of the testatrix by experts upon insanity before malting her last codicil may he allowed in the discretion of the court to be offered on cross-examination of one of the experts called as a witness for the contestant, instead of making the admission of the certificate a part of proponent’s case.</p> <p>Id.—Limitation of Certificate as Evidence—Waiver of Objection-— Appeal.—Where it was not urged in any manner in the court below that the certificate should be limited as evidence to the statement of the particular expert called as a witness, and could not include the unsworn statement of another expert, the objection is waived, and is not available upon appeal.</p> <p>Id.—Wish of Testatrix to Make Gift—Instrument not in Issue— Testamentary Intent not Shown.—An instrument signed by the testatrix subsequent to the last codicil to her will, expressing a wish to make a gift of a specified sum of money to a person named, for which no petition for probate was presented, is not in issue upon the contest of the will and codicils presented for probate. In the absence of proof of testamentary intention, such instrument cannot be held to constitute a will.</p>

<p>Fire Insurance—Reinsurance—Mistake of Applicant—Reformation.— A policy of reinsurance in another company taken by a fire insurance company for one year, dated one day prior to the date of its own policy for one year, does not cover a loss occurring on the last day of its policy; and the mistake of date by the applicant for reinsurance, not known to or concurred in by the company issuing the policy of reinsurance, is not ground for reforming that policy, which was issued according to the terms of the written application therefor.</p> <p>Id.—Mutual Mistake Requisite for Reformation.—Equity cannot reform a policy of insurance unless by mutual mistake of the parties it has failed to express their agreement, and such mutual mistake must he made out by the clearest evidence.</p> <p>Id.—Incompetent Evidence—Custom of Insurance I Companies.—Evidence as to the custom of insurance companies as to the period of reinsurance is incompetent to control the terms of a policy of reinsurance for a definite period between two dates, issued pursuant to a written application therefor.</p>

<p>APPEAL from an order of the Superior Court of San Joaquin County denying a motion to vacate and set aside the judgment and the order denying a motion for new trial and to perpetually stay execution upon the judgment. Edward I. Jones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial, and from & warrant of execution. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Assignment fob Benefit of Creditors—Rights of Assignee—Transfer in Fraud of Creditors.—An assignment for the benefit of creditors does not pass to the assignee any greater or other rights than those possessed by the debtor; and the assignee has no power or right to maintain an action to recover property previously transferred by the debtor in fraud of his creditors.</p> <p>Id.—Unverified Chattel Mortgage—Good Faith—Validity against Elected -Assignee.—An unverified chattel mortgage, made in good faith, and not intended to be fraudulent as to creditors, and which was valid as between the parties, and as to all others except creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, is valid as against an assignee elected by the creditors, after a voluntary assignment for the benefit of creditors made by the mortgagor to the sheriff.</p> <p>Id.—Amendment of Code—Assignment to Sheriff—Election of Assignee—Constructive Fraud as to Creditors.—The amendment of section 3449 of the Civil Code in 1899, so as to require that voluntary assignments for the benefit of creditors, shall be made in the first instance to the sheriff, and that after the election of an assignee by the creditors, the sheriff shall assign to the elected assignee the property assigned to him, does not affect or alter the rule that the assignee has no authority to sue to set aside an unverified chattel mortgage made in good faith, and which operates only as a constructive fraud against creditors by force of the statute.</p> <p>'Id.—Construction of Codb-^-Fraud as to Creditors—“Devolving” of Estate in Trust—Operation of Law.—Section 3439 of the Civil Code, which makes every transfer, etc., made “with intent to delay any creditor,” void as to all creditors of the debtor, “and against any person upon whom the estate devolves in trust for the benefit of others than the debtor,” only applies to an estate so devolving by operation of law upon an assignee in insolvency, without any voluntary act of the owner; and does not apply where a voluntary assignment is made for the benefit of creditors.</p>

<p>Sale of Grapes—Maturity of Purchase Money—Reasonable Time —Construction of Contract.—A contract for the sale of grapes to be paid for when the purchaser shall have sold the wine made therefrom, or shall have sold other wine then on hand, is to be construed as allowing the purchaser a reasonable time in which to make, mature, and sell the wine from the grapes purchased, unless in the meantime he should in fact sell the other wine then on hand.</p> <p>Id.—Action for Purchase Money—Insufficient Complaint—Laches of Defendant not Shown.—A complaint in an action upon such contract to recover the purchase money, which alleges “that within a reasonable time after the delivery of said grapes” the plaintiff demanded payment of the price, instead of alleging that the demand was made after the lapse of a reasonable time for the defendant to fulfill his contract, does not show any laches of defendant, and does not state a cause of action.</p> <p>Id.—Comparison of Dates—Lapse of Reasonable Time.—Where the court cannot, by the comparison of dates, see, as matter of law, that a reasonable time must have elapsed for the maturity and sale of the wine to be made from the grapes purchased, before the demand was made, the insufficiency of the complaint cannot be aided by such comparison.</p> <p>Id.—Breach of Contract to Deliver Wine in Payment—Recoupment —Cross-complaint—Proof of Guaranty.—A cross-complaint setting up damages by way of recoupment for breach of a contract that plaintiff should take wine from the defendant at an agreed price, in payment for the grapes sold by plaintiff to defendant, is sustained by proof that plaintiff agreed to take enough wine to pay the debt, and find a purchaser at the agreed price. Such contract, whether construed as one of sale to plaintiff or of guaranty that the wine should be sold by plaintiff for enough to pay the debt, bound the plaintiff to accept the wine in full payment at the rate fixed, and the claim of damages in recoupment would be the same in either case.</p>

<p>Street Assessment—Construction of Culverts and Cubbing—Materials not Named in Resolution.—A street assessment cannot be enforced for the construction of culverts and curbing, where the materials out of which they are to be constructed are not named in the resolution of intention.</p> <p>Id.—Specifications in Order for Doing the Work—Defective Resolution not Aided—Case Overruled.—The defective resolution of intention cannot he aided by subsequently detailed specifications prepared by the city engineer and set forth in the order for doing the work and inviting sealed proposals therefor. Deady v. Townsend, 57 Cal. 598, overruled.</p> <p>Id.—Description of Character of Work in Resolution—Following Language of Statute—Case Limited.—It is only where the language of the statute of itself shows the character of the work to be done that It is sufficient to follow the language of the statute in the resolution of intention. In all other cases there must he such a description of the work in the resolution as will show the nature of the materials to be used in doing the work. Emery v. Han Francisco Gas Co., 28 Cal. 376, limited.</p>

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

<p>Fire Insurance—Time for Proofs of Loss—Condition Precedent to Action.—A policy of fire insurance providing that proofs of loss shall be made within sixty days after the fire, unless such time is extended in writing by the company, and that no suit or action on the policy shall be sustainable “until after full compliance by the insured with all the foregoing requirements,” makes the proofs of loss within the time limited a condition precedent to an action upon the policy.</p> <p>Id.—Insufficient Complaint upon Policy.—A complaint upon a fire insurance policy which shows that the proofs of loss were made four months after the loss, and which does not set out any facts showing a waiver of the condition that the proofs must he presented within sixty days, does not state a cause of action.</p> <p>Id.—Erroneous Instruction—Seasonable Time.—It is error to instruct the jury that they are to determine whether, under all the facts and circumstances of the case, the proofs of loss were presented within a reasonable time, and to find in favor of the plaintiffs, if they find the proofs were presented within a reasonable time under those facts and circumstances.</p>

<p>Appeal prom Judgment—Motion to Dismiss — Time for Filing Transcript—Settlement of Statement.—The time for filing the transcript on appeal from the judgment under rule II of this court does not begin to run until the settlement of a proposed statement of the case—to be used on the motion for a new trial; and a motion to dismiss the appeal made within less than forty days after the settlement of such statement will be denied.</p> <p>Id.—Construction of Code—Record upon Appeal—Use of Bill of Exceptions or Statement.—The first sentence in section 950 of the Code of Civil Procedure permits the use, upon appeal from the judgment, of any bill of exceptions, or .statement in the case upon which the appellant relies, without regard to whether the same has been used upon a motion for a new trial. The provision of the second sentence in that section for the use of a settled hill of exceptions or statement of the case which has been used on the motion for a new trial does not affect or impair the provisions of the first sentence in the section.</p> <p>Id.—Appeal from Judgment after Sixty Days—Use of Settled Statement not Involved in Motion to Dismiss.—The question as to what use can he made, upon an appeal from the judgment, taken more than sixty days after its entry, of a statement settled to be used upon a motion for i new trial, is not involved in a motion to dismiss the appeal from the judgment, where it does not appear affirmatively that it cannot be used for any purpose upon such appeal.</p> <p>Id.—Review upon Appeal.—What use can be made of the statement will be determined when the appeal from the judgment is reviewed upon its merits. The insufficiency of the evidence to justify the decision cannot be considered upon such an appeal taken more than sixty days after entry of the judgment, and the use of the statement will be limited at the hearing to such matters as are authorized to be determined upon the appeal.</p>

<p>Negligence—Injury from Defective Sidewalk—Insufficient Complaint—Duty to Repair not Shown.—A complaint for damages for an injury occasioned by the breaking of a rotten plank in the sidewalk in front of the defendants’ premises, alleging it to have been in such rotten condition solely by reason of the negligence of the defendants, and further alleging that defendants had notice posted on the part of the city and county of San Francisco of and concerning the rotten condition of the sidewalk, and were advised to repair the same, does not show an obligation of the defendants to repair the sidewalk, under the general street law.</p> <p>Id.—Sidewalk Part of Street — Obligation of Owner to Repair Street—Notice from Superintendent of Streets.—A sidewalk is part of the street. No common-law duty is cast upon the owner of the abutting property to maintain the street in good repair; and no primary or inceptive duty rests upon such owner under the street law to repair the street, and no duty rests upon him under that law until written notice is given by the superintendent of streets requiring him to make the necessary repairs upon the highway fronting his lot.</p> <p>Id.—Liability of Owner for Injuries — Neglect to Repair after Notice.—The street law does not impose a liability upon the owner for injuries resulting from the nonrepair of the street in front of his lot, unless the defect continues after the lapse of twenty-four hours or more from the time of the giving of the statutory notice by the superintendent of streets requiring him to make the repairs.</p> <p>In.—Pleading—Statement of Facts Showing Liability—Defective Averment.—A complaint, in order to show the liability of the defendants for defects in the street, must .aver that the notice to be given by the superintendent of streets had been given and had been disregarded by the owner for the specified time. It is not the equivalent of such an averment, to allege that each of the defendants had notice posted on the part of the city and county of and concerning the rotten condition of the sidewalk, and was advised to repair the same; and a complaint containing such allegation merely is defective, and is the proper subject of a general and special demurrer.</p> <p>Id.—Declining to Amend Complaint.—A plaintiff who has declined to amend his complaint, after a demurrer has been sustained which is both general and special, must stand upon his pleading as against both grounds of demurrer.</p>

<p>Bond of Building Contractor—Delivery—Filing for Record—Mandatory Statute.—A bond given by a building contractor in support of the contract, as contemplated by section 1203 of the Code of Civil Procedure, in an amount equal to twenty-five per cent of the contract price, and which by its terms is to inure to the benefit of persons performing labor or furnishing materials for the contractor, must, as a substitute for delivery, accompany the contract and be filed for record with the contract, as required by that section, which is mandatory; and without such filing there can be no valid delivery of the bond.</p> <p>Id.—Delivery of Bond to Agent of Building and Loan Association— Invalidity of Bond.—A delivery of such bond to the attorney for a building and loan association which agreed to furnish a loan of money upon the lot to aid in the building, when the bond was executed, cannot be a valid susbstitute for the filing of the bond for record required by the statute; and if not filed for record, such bond is invalid and cannot be enforced.</p> <p>Id.—Redress of Laborers and Materialmen.—If the bond is not filed for record, and is void, the, laborers and materialmen have their redress by the terms of the statute, which gives them a remedy against the owner and contractor for such damages as they may have suffered.</p>

<p>Insolvency—Opposition to Discharge op Debtor—Absence op Answer to Opposition — Evidence—Waiver—Jurisdiction.—The court is not deprived of jurisdiction to determine the merits of an opposition to the discharge of an insolvent debtor by one of his creditors, by reason of the fact that no formal answer was filed thereto by the insolvent. The creditor had a right to consider the affidavit of the debtor in support of bis application for discharge as a substantial denial of the opposition thereto; and where the creditor introduced evidence in behalf of the opposition, a formal answer thereto was waived, and the court had jurisdiction to determine the merits of the case, and to ■ grant the application for discharge.</p> <p>Id.—Delivery op Books to Clerk—Evidence op Deputy—Findings.— An averment in the opposition of the creditor that the books of account of the insolvent debtor were not delivered to the clerk.</p> <p>is not necessarily sustained by the evidence of a deputy clerk that he had access to the records and papers of the office, and. had never seen any account-books which had belonged to the-insolvent. Where no evidence was given by the county clerk himself, the court was not required to find from the evidence-of the deputy that the books were not delivered to the clerk, nor that the defendant had not kept proper books of account. Id.—Insufficient Averment in Opposition—Failure to Keep Proper-Books of Account—Defects not Specified.—The averment of the creditor, as his opposition to the discharge of the debtor, upon information and belief, that the insolvent had not kept proper books of account, without specifying or showing any defects in the mode in which they had been kept, is not sufficient to defeat the application.</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.</p> <p>Daniel Titus, Louis Titus, and Bigelow & Titus, for Appellant.</p> <p>The agreement was good at common law, and is good in this state unless invalidated by the statute. (Civ. Code, sec. 1622.) In this state the provision for an oral lease for one year omits the words “from the making thereof,” and an oral lease to commence in futuro is therefore valid. The oral agreement not to be performed within one year, and the oral lease refer to different subjects, and the former never controlled the latter under the English statute of frauds, or generally in this country. (Reed on Statute of Frauds, secs. 814, 815; 8 Am. & Eng. Ency. of Law, 668; Bolton v. Tomlin, 5 Ad. & E. 856; Wright v. Stavers, 2 El. & E. 721; Sears v. Smith, 3 Colo. 287; Young v. Dake, 5 N. Y. 463; 55 Am. Dec. 356; Becar v. Flues, 64 N. Y. 518; Bateman v. Maddox, 86 Tex. 546; McCroy v. Toney, 66 Miss. 233; Whiting v. Ohlert, 52 Mich. 462; 50 Am. Rep. 265; Sobey v. Brisbee, 20 Iowa, 105; Huffman v. Starks, 31 Ind. 474; Childers v. Talbott, 4 N. Mex. 168; Steininger v. Williams, 63 Ga. 475.)</p>

<p>Attachment—Garnishment—Sheriff’s Return—Admission of Indebtedness—Parties—Jurisdiction—Judgment against Garnishee. The service of a writ of attachment upon a garnishee is not the commencement of an action against him, nor is the return hy the sheriff of an admission of indebtedness by him to the attachment defendant conclusive of that fact; and if the garnishee is in no way brought into court or made a party to the action, the court has no jurisdiction to render judgment against him, based merely upon the return of the sheriff.</p> <p>Id.—Void Justice’s Judgment—Insufficient Docket—Presumption.— Where judgment was rendered against a garnishee in the justice's court based merely upon the sheriff’s return of an admission of indebtedness, and the justice’s docket and the judgment failed to show that the garnishee was brought into court by any process, no presumption can be indulged in favor of the validity of the judgment, and it is void upon its face.</p> <p>Id.—Equitable Relief against Judgment—Remedy by Motion or Certiorari—Waiter of Objection—Appeal.—Where the garnishee brought an equitable action to set aside and enjoin the execution of the justice’s judgment, averring that the return of the sheriff was false, and that the garnishee had no knowledge of it until forty days after the judgment was rendered, and the defendant failed to demur to the complaint, but answered to the merits, without objection in the court below, that the plaintiff had a remedy by motion or by certiorari to set the judgment aside, objection to a judgment for plaintiff on that ground is waived, and cannot be urged upon appeal for the first time.</p>

<p>Conditional Sale—Instrument in Form of Lease, with Agreement for Bill of Sale.—An instrument in the form of a lease of personal property, and for the payment of rents till the amount paid equals the agreed value of the property, when a hill of sale is to he made and the transaction closed, and expressly reserving title in the vendor, with right to retake possession upon breach of its conditions, is a conditional sale, and not a lease. The nature of the instrument is to be determined, not by the name that it hears, hut from a consideration of all of its terms, conditions, and covenants.</p> <p>Id.—Breach of Conditions—Replevin—Rights of Purchaser and Mortgagee.—In case of a conditional sale, a purchaser who has broken the conditions upon which the sale was made can transfer no rights to a purchaser or mortgagee of the property conditionally sold, and the vendor may replevy the property from the possession of a purchaser and mortgagee of the vendee.</p>

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

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

The facts are stated in the opinion of the court. Gavin McEab, J. F. Rooney, and James L. Robison, for Appellant. The situation of the parties and the surrounding circum-. stances were properly to be considered in construing the grant, and so construed it shows that less than a fee simple estate was intended.

<p>Negligence — Injury from Defective Reefing Pennant—Pleading— Causal Relation—Defective Allegation Cured by Verdict.—A complaint charging that it was the duty of the defendants to supply a schooner, upon which plaintiff was employed, with good, safe and strong ropes, tackle, and sailing apparatus, and that defendants, disregarding their duty, provided and used an old, worn-out, rotten, defective .reefing pennant with which to reef the mainsail, of which they had notice, and that while plaintiff, in obedience to .orders, was assisting in reefing the mainsail by pulling at the reefing pennant in the usual and proper way, it broke; and that when it broke plaintiff fell backward from the roof of the cabin and was injured, is liable to special demurrer for not distinctly alleging that the reefing pennant broke because it was defective, and that the breaking of it caused plaintiff to fall, but is sufficient after verdict for plaintiff to support the judgment in his favor.</p> <p>Id.—-Evidence—Opinion—Unsoundness of Rope—Discernible Defect. It is proper to inquire of a witness whether a defect in an unsound rope could have been discerned or discovered by the use of ordinary diligence; and the question as to how it can be determined whether a rope has become rotten and unsound is not objectionable as not being a proper subject of opinion evidence.</p> <p>Id.—Inadmissible Declaration of Captain—Res Gestae—Agency ■—Prejudicial Error.—The declaration of the captain of the vessel when examining the broken rope after the accident that “that looks pretty bad” is not admissible as part of the res gestae, nor as the declaration of an agent within the scope of,his employment; and it cannot bind the owners of the vessel. Its admission must be deemed prejudicial error, which is not overcome because other competent evidence tended to prove the same fact.</p> <p>Id.—Instructions—Refusal of Bequests. — Requested instructions which are embodied in the charge, or which are inapplicable to the evidence in the case, are properly refused.</p> <p>Id.—Inapplicable Rule—Continuous Use of Safe Machíne.—The rule that when a machine not obviously dangerous has been in daily use for a long time, and has uniformly proved safe and efficacious, its use may be continuous without imputation of negligence, which is properly applied where some particular device or pattern in use is compared to another deemed more safe, is incorrect as applied to the use of a particular instrument which is defective.</p> <p>Id.—Master and Servant—Discovery of Defects in Apparatus.— A servant is not required to use any degree of care or diligence to discover defects in an apparatus which are not obvious, and he only assumes the risk when the defects are so obvious that he must be held to have known them, or to have been grossly careless in not observing them. The servant has a right to rely upon the master’s inquiry as to all defects not obvious to view, because it is the master’s duty to inquire as to their existence, and in such case the servant may justly assume that the apparatus is fit and suitable for the use he is directed to make of it.</p> <p>Id.—Equality of Means of Knowledge—Erroneous Instruction.—An instruction that the servant could not recover for injuries from a defective apparatus unless the defendants knew or ought to have known of the defect, and the servant had not equal means of knowledge, is erroneous.</p>

<p>Assignment—Action by Assignee—Pleading—General Denial to Unverified Complaint—Burden of Proof.—In an action by the assignee of a cause of action, a general denial to an unverified complaint puts in issue the assignment and plaintiff’s right to sue upon the cause of action, and the burden of proof is upon the plaintiff to establish the assignment.</p> <p>Id.—Right of Action as Assignee Distinguished from Capacity to Sue.—The right of action of the plaintiff as assignee is distinct from his capacity to sue, and must be established when denied, whatever may be the capacity of the plaintiff to sue. The question of assignment does not go to the capacity of the plaintiff to sue, and the absence of assignment need not, like the want of capacity to sue, be pleaded as a special defense.</p> <p>Id. —Insufficient Proof of Assignment—Demand by Plaintiff—Notice of Assignment.—Where there is nothing to show that the defendants, or either of them, dealt with or recognized the plaintiff as assignee, proof that the plaintiff made demand of the defendants, and that the defendants received notice from the original owner of the claim that he had assigned the claim to the plaintiff, is not sufficient proof of an assignment to overcome the denial thereof.</p> <p>Id.—Description in Special Defense—Admission—Denial.—The description in a special defense of the original owner of the claim, so as to append to his name the descriptive words “the assignor of plaintiff,” does not amount to an admission of the assign- ■ ment, in contravention of the denial thereof, and those words can only be regarded as descriptive of the person named.</p>

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

<p>Pledge of Stock of Corporation—Sale of Pledgee upon Notice—Uncollected Dividend—Conversion—Improper Action. — An action will not lie in favor of a pledgor for the conversion of the stock of a corporation pledged to secure his note, by reason of a sale thereof by the pledgee after due notice to the pledgor, where the only pretense of previous payment of the note is that the corporation declared a dividend sufficient to pay it, if such dividend was never in fact collected by or paid to the pledgee.</p> <p>Id.—Ownership of Dividend—Pledgee’s Right to Collect—Effect of Failure.—A dividend declared upon pledged stock is the property of the pledgor, the same as the stock, hut the pledgee has the right to collect it if he can and apply it upon the secured note; yet his failure to collect it does not cast upon him the duty of crediting it upon the note.</p> <p>In.—Disputed Offset—Litigation by Pledgor—Rights of Pledgee— Sale of Stock.—Where the corporation claimed an offset against the dividend of alleged indebtedness of the pledgor to the corporation, and offered to pay the residue, which the pledgor refused to accept, disputing the validity of the offset, and commenced an action to compel the payment of the entire dividend to the pledgee, the pledgee is not bound to await the result of the litigation, but may demand payment of the matured note, and may proceed to sell the stock for nonpayment of the indebtedness, upon due notice to the pledgor of the time and place of sale.</p> <p>Id.—Action fob Conversion—General and Special Verdict—Decision upon Appeal.—Where the general verdict for the plaintiff in the action for the conversion of the pledged stock is unwarranted by the evidence, and the special verdict is inconsistent with the general verdict, and entitles the defendant, as matter of law, to judgment, the judgment and order denying a new trial in favor of the plaintiff will be reversed upon appeal, and the court below directed to enter judgment upon the special findings of the jury in favor of the defendant.</p>

<p>Order Denying New Trial—Beview upon Appeal—Findings—Pleadings—Errors of Law — Evidence.—Upon appeal from an order denying a new trial, the questions whether the findings are sufficient to support the judgment, or correspond to the issues presented by the pleadings, and as to what issues the pleadings represent, cannot be considered;, and the only questions to he reviewed are those relating to alleged errors of law, and whether the findings are justified by the evidence.</p> <p>Id.—Findings Conflicting with Answer — Foreclosure of Lien — Defense—Composition Agreement—Alteration not Pleaded.—In an action by a subcontractor to foreclose a mechanic’s lien, where the aflswer pleads a composition agreement alleged to have been signed by plaintiff and all the creditors of the contractors, agreeing to release the contractors and the property of the owner upon conditions specified, findings in conflict with the answer that the agreement was not signed by all of the creditors, and that it did not, when signed, contain the words set forth in the answer, “conditional upon all creditors signing this agreement,” but that those words were inserted by some other person after the agreement was signed, can be reviewed as not being within the issues only upon appeal from the judgment, and must be taken as correct and proper findings upon appeal from an order denying a new trial, if there is any evidence to sustain them.</p> <p>Id.—Failure to Object to Evidence—Amendable Answers—Objection to Findings upon Appeal.—Where evidence was oSered which supports findings made in conflict with the answer, and no objection was made thereto, and the answer might have been amended to meet the objection, if made, it cannot be urged; upon appeal that a finding based upon such evidence is inconsistent with the pleadings.</p> <p>Id.—Conflicting Evidence—Terms of Composition Agreement—Time of Payment.—Where the evidence is conflicting as to what were the terms of the composition agreement, and what time of payment was agreed upon, the findings thereupon will not be disturbed.</p> <p>Id.—Tender of Money and Note at Different Times—Failure to Object.—Where the composition agreement provided for the payment of a certain sum and the execution of a note, the fact that money was tendered on one day and the note on another is immaterial if no objection was made at the time of the tender to its sufficiency.</p> <p>Id.—Extinction of Lien by Composition Agreement—Consideration —Mutual Promises.—A composition agreement shown as a defense to the foreclosure of a mechanic’s lien, signed by the plaintiff and other creditors of the contractors, agreeing to release the contractors and the owner upon the terms specified, operates to extinguish the liability which the lien was filed to secure; and the consideration therefor consists of the mutual promises of the signing creditors to take something less than or different from what they were entitled to under their previous contracts.</p> <p>Id.—Signatures of Creditors.—In the absence of a condition in the contract to that effect,' all of the creditors need not sign a composition agreement to make it valid; but it is sufficient if two or more creditors sign such an agreement, the signature and promise of each being a sufficient consideration for the agreement of the others.</p>

J. V. Coffey, Judge. Ho evidence appears in the record of the alleged appointment of the appellant as guardian in South Carolina. Further facts are stated in the opinion of the court.

<p>Chattel Mortgages on Crops—Priority—Second Mortgage to Secure Rent—Prior Agreement in Unrecorded Lease—Notice.—One who takes a first chattel mortgage on growing crops and crops to be grown during the year, duly verified and recorded, to secure the payment of a liona fide indebtedness, is protected against a second mortgage of the growing crops to secure rent, though executed pursuant to a prior agreement therefor contained in an unrecorded lease, and though the first mortgagee had notice of the existence of the lease, if he had no actual notice of the agreement to give a mortgage to secure the rent therein contained.</p> <p>Id.—Knowledge of Lease—Constructive Notice—Usual Covenants— Unusual Agreement for Chattel Mortgage.—The knowledge of the existence of an unrecorded lease is only constructive notice of the usual covenants ordinarily contained in a lease, and is not constructive notice of an unusual covenant therein agreeing to give the owner of the land a chattel mortgage to secure the payment of rent on all of the crops to be put in by the lessee, as soon as the crops should be out of the ground.</p> <p>Id.—Replevin of Crops by Lessor—Improper Judgment for Value— Liens for Balance of Rent—Credit.—In an action of replevin for the crops brought by the lessor, a judgment in his favor for the full value of the crops in excess of the balance due for rent is improper in any event. The plaintiff, at the most, had only a lien upon the crop for the balance of rent due him; and, if he could not recover the identical crop, he was entitled to no greater sum as damages than the balance due him after crediting the value of crops received and sold by him, which should be applied as a payment on rent.</p> <p>Id.—Validity of Chattel Mortgage—Crop to be Raised.—A valid chattel mortgage may be made not only upon growing crops, but also upon a crop to be raised upon specified land after the execution of the mortgage during a defined term.</p>

<p>Order Refusing to Set Aside Default and Fix Time to Plead—Appealable Order—Default not Appealable.—An order made after judgment refusing, upon motion of the plaintiff, to set aside the default of a defendant, and to fix a time in which the defendant should plead, is an appealable order.</p> <p>Id.—Previous Vacation of Judgment not Res Adjudicata.—The dismissal of the appeal of the plaintiff from an order vacating the judgment on motion of the defendant, though it operates as an affirmance of the order, is not res adjudicata as to an order refusing the motion of plaintiff .to set aside the default of the defendant and to fix a time for the defendant to plead, and does not preclude the plaintiff from appealing therefrom.</p> <p>Id.—Distinct Motions and Records—Distinct Relief.—A motion of the defendant to vacate the judgment, and a motion of the plaintiff to set aside the default of the defendant, and to fix a time for the defendant to plead, are distinct from each other, depend upon distinct records, and seek distinct relief. •They do not presumptively involve the determination of the same facts; and the final decision of the first motion by vacation of the judgment does not involve the subject matter of the latter motion.</p> <p>Id.—Right of Plaintiff to Set Aside Default.—The plaintiff is not precluded from moving to set aside the default of the defendant and to fix a time for pleading, by reason of the fact that the default was entered at his instance.</p> <p>Id.—Perfecting Appeal—Service of Notice upon Defendant’s Attorney—Appearance.—The notice of appeal from the order refusing to set aside the default, etc., is properly served upon the defendant’s attorney, in perfecting the appeal, if his appearance in the action was general, and not merely special.</p> <p>Id.—Special and General Appearance—Motion to Vacate Judgment —Excusable Neglect—General Appearance.—Where defendant’s attorney assumed to appear specially for the purpose of moving to vacate the judgment, and in the supreme court only for the purpose of moving to dismiss an appeal therefrom, but the motion papers, besides formally stating as a ground the want of service of summons upon the defendant, really presented, as a ground for relief, the excusable neglect of the defendant in not properly examining a copy of the summons and complaint served upon the defendant, the appearance of the attorney for defendant is general, and in the absence of a substitution of attorneys a notice of appeal may be served upon such attorney.</p>

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

<p>Street Assessment—Resolution of Intention—Pleading—Anticipation of Defense—Negativing Work Already Done.—A complaint to foreclose a street assessment, which shows an assessment sufficient in form to give the board of supervisors jurisdiction to order the street improvement, need not negative, by way of anticipation, any facts constituting matter of defense, and need' not allege that the work was not already done in front of the lot described in the complaint.</p> <p>Id.—Publication of Resolution—Construction of Statute — Regular Issues of Daily Newspaper—Omission of Holidays—Extra Issue. Section 34 of the street improvement act, which provides that the resolution of intention “shall be published in a daily newspaper in cities where such there is, and where there is no daily newspaper, in a semi-weekly or weekly newspaper to be designated by the council of such city, as often as the same is issued,” "whether the latter words are to be considered as referring to the daily or not, is to be construed as requiring the resolution to be published in the daily as often as it is regularly issued. Where the regular publication of a daily was omitted on Sundays and holidays, the publication of the resolution therein upon the days of its regular issue is sufficient; and no publication need be made in an extra issue of half size published upon a particular holiday on account of a strike.</p> <p>Id.—Record of Engineer’s Certificate—Sufficiency of Proof—Omission in Certificate of Superintendent.—Where it appears that the record of the engineer’s certificate in fact immediately followed the record of the assessment, and preceded the record of the diagram and warrant, and that the entire record appeared upon pages T9, 80, and 81, of the volume, the certificate of the engineer that “the foregoing on pages 79, 80, and 81 is a true ' and correct record of assessment, diagram, and warrant recorded and issued,” etc., the omission of the superintendent to designate the engineer’s certificate as recorded is not material.</p> <p>Id.—Record of Contract—Validity of Lien.—The prior record of the contract is not requisite to the validity of the lien of the assessment. The statute requires the contract to be recorded after the return of the warrant, if not already recorded, but makes the several amounts assessed a lien upon the lands assessed upon the recording of the warrant, assessment, and diagram, together with the engineer’s certificate.</p> <p>Id.—Work at Termination of Street—Undue Assessment—Appeal.— Where an assessment upon defendants’ lot for work done at the intersection of a street terminating in another street is alleged and found to have been for an undue amount, and it does not require extrinsic evidence to show that the portion of the assessment for work done at the intersection of the streets was in violation of the statute, the defendants are entitled to object to that portion of the assessment, without having previously appealed to the board of supervisors.</p> <p>Id.—Waiver and Relinquishment of Improper Part of Assessment— Modification of Judgment. — Where the respondent waives and relinquishes the improper part of the assessment, and requests a modification of the judgment by striking it out, such request will be granted, instead of remanding the cause for a new trial.</p>

MOTION to dismiss appeal from a judgment of the Superior Court of Colusa County against revocation of the probate of a will and from an order denying a new trial. H. M. Albery, Judge. The facts are stated in the opinion of the court. Clunie & Bridgford, Crittenden Thornton, E. Weyand, and E. T. Crane, for Appellants.

<p>County Government Act—Compensation of Assistant District Attorney—Constitutional Law—Classification of Counties.—Subdivision 36 of section 25 of the County Government Act, conferring power upon the supervisors to authorize the district attorney to appoint an assistant, who shall receive a compensation of fifteen hundred dollars per annum, to be paid out of the county treasury, is unconstitutional and void, as being in violation of the mandatory provisions of section 5 of article XI of the constitution, which requires the compensation of all county and township officers to be adjusted in accordance with their respective duties, under a classification of counties by population made for that purpose.</p>

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

WBIT of prohibition from the Supreme Court to restrain the Superior Court of Modoc County from proceeding with the trial of a cause. J. W. Harrington, Judge. The facts are stated in the opinion of the court.

The facts are stated in the opinion of the court. W. F. Fitzgerald, Attorney General, Tirey L. Ford, Successor, Percy V. Long, Thomas A. McGowan, George E. De Golia, and F. H. Smithson, for Appellant. The articles of incorporation must have been subscribed and acknowledged by at least five incorporators, to make a corporation de jure. (Civ. Code, sec. 292; People v. Montecito Water Co., 97 Cal. 276; 33 Am.

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

MOTION to allow substitution of transferee of respondent upon appeal from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial. G. W. Nicol, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Z. N. Goldsby, P. E. Dunne, and B. H. Griffins, for Appellant.</p> <p>The wife had her home in Oakland, and there is no doubt of her intention to make it such. Her home constituted her domi-</p> <p>cile. (Story on Conflict of Laws, sec. 41; Doucet v. Geoghegan, L. R. 9 Ch. Div. 456; Whicker v. Hume, 7 H. L. Cas. 124; Hoyt v. Brown, 1 Wall. Jr. 262; Venable v. Paulding, 19 Minn. 490; Smith v. Croom, 7 Fla. 81.) The theoretic identity of domicile between husband and wife is only a prima facie presumption, subject to be rebutted by proof of the contrary when justice requires it. (Harrison v. Harrison, 20 Ala. 629; 56 Am. Dec. 227; Harteau v. Harteau, 14 Pick. 181; 25 Am. Dec. 372; Colvin v. Reed,55 Pa.St.379; Harding v.Alden, 9 Greenl.140; 23 Am.Dec. 549; Hunt v. Hunt, 72 N. Y. 217,242; 28 Am. Rep. l29; Cheever v. Wilson, 9 Wall. 108, 123; Atherton v. Atherton, 155 N. Y. 134; 63 Am. St. Rep. 650; Robinson v. Frost, 54 Vt. 105; 41 Am. Rep. 835; Dutcher v. Dutcher, 39 Wis. 659; Smith v. Smith, 19 Neb. 711; Burlington v. Swanville, 64 Me. 78; Rundle v. Inwegan, 9 N. Y. Civ. Pro. Rep. 330; In re Florance, 54 Hun, 328; Champon v. Champan, 40 La. Ann. 31, 32.) When the reason of the rule ceases, the rule ceases. (Bennett v. Bennett, Deady, 305.) The common-law rule ceases where separate rights and interests of husband and wife are recognized. (Shute v. Sargent, 67 N. H. 305; Harteau v. Harteau, supra.)</p>

<p>Arbitration and Award—Review upon Appeal—Affidavit—Bill of Exceptions—Statement.—Where an award of arbitrators was entered as an order of court by stipulation of the parties to the arbitration, any alleged errors, if reviewable upon appeal, cannot be reviewed upon an ex parte affidavit of the appellant, which cannot take the place of a bill of exceptions or of a statement of the case.</p> <p>Id.—Failure to Swear Witnesses — Misconduct not Shown. — An affidavit merely stating that the arbitrators failed to swear the witnesses, without showing that the appellant asked to have them sworn, or objected to their not being sworn, or excepted to their unsworn statements, does not show any misconduct óf the arbitrators.</p> <p>Id.—Legal Rules Inapplicable—Equitable Nature of Award.— Arbitrators are not bound to make their award on principles of dry law, or in strict adherence to the legal rules and procedure expected in judicial trials, but may decide on the principles of equity and good conscience, and make their award ex aequo et dono.</p> <p>Id.—Grounds for Vacating or Modifying Award.—The only grounds for vacating or modifying an award are those set forth in sections 1287 and 1288 of the Code of Civil Procedure, which do not include ordinary errors or faults of judgment, but only things that are “gross.” An award will not be disturbed upon appeal, which does not appear to be invalid upon any of the grounds specified in those sections.</p> <p>Id.—Findings and Reasons not Required.—Arbitrators are not required to find facts nor to give reasons for their award.</p> <p>Id.—Amount Dub upon Note—Modification of Award—Absence of Evidence—Computation of Interest.—In the absence of the evidence given before the arbitrators as to the amount due upon a note, their award fixing the amount cannot be modified for supposed error in the computation of interest, or in not computing it for a sufficient period of time.</p> <p>Id.—Rejection of Distinct Matter not Covered by Submission.— An award is properly modified by striking out matter inserted therein which was not included in the submission, and is a part thereof which can be separated from other parts, and does not affect the decision on the matter submitted.</p>

<p>Election Contest—Statutory Proceeding — Grounds.—An election contest is a statutory proceeding which can only he inaugurated in one of the cases enumerated in section 1111 of the Code of Civil Procedure, and upon no other grounds than those therein specified.</p> <p>Id.—Illegal Votes—Comparative Number of Votes.—A contest may he made on account of illegal votes; hut it is not a ground of contest merely that some other person received a higher number of votes than the one declared, or an equal number of votes with him.</p> <p>Id.—Highest Number of Legal Votes.—It is only where some other person than the one returned has received the highest number of legal votes that he can be declared elected.</p> <p>Id.—Finding of Tie Vote—Improper Judgment Annulling Contest— Dismissal.—A finding upon an election contest that the contestant and the contestee have “received an equal and the highest number of votes cast for said office,” cannot sustain a judgment annulling the election. The judgment should be that the contestant take nothing by the proceeding, and that it be dismissed.</p>

<p>Deed—Condition as to Cost of Dwelling—Removal of Improper Dwelling to Lot—Breach of Promise to Improve.—An express condition in a deed of several lots that any building to be used as a dwelling-house erected upon the premises within two years should cost not less than twelve hundred dollars, is broken by the removal to one of the lots, before the execution of the deed, with knowledge of its proposed condition, of a small, unsightly dwelling of no greater value than four hundred dollars, without the consent of the grantor, and under promise, after objection • by the grantor, that he would improve the building so as to make it worth twelve hundred dollars, and by maintaining the same after the execution of the deed without further improvement, in breach of such promise.</p> <p>Id.—“Erection” and “Moving” of Building—“Placing upon” Lot —Pleading—Construction of Deed by Parties.—In view of the facts accompanying the moving of the improper building upon the lot, and the construction placed upon the deed hy both parties, it cannot be maintained that the “erection” of the building upon the lot ivas substantially different from the “moving” of a building thereupon; and a complaint averring that such building was “placed upon” a certain lot, “without the consent of the plaintiff,” etc., sufficiently states that it wan “erected” thereupon, as against a general demurrer.</p> <p>Id.—Conveyance of Distinct Lots—Two Sets of Adjoining Lots— Location of Building “upon Lot”—Forfeiture Limited to Single Lot.—In a conveyance of four distinct lots, containing nevertheless two distinct sets of adjacent lots, where it was conditioned “that any building to be used as a dwelling-house erected upon these premises within two years shall cost not less than twelve hundred dollars, and shall be located not less than twenty feet from front line of said lot,” and where there is nothing in the deed expressly providing for a forfeiture of any other lot than that upon which the building of less cost is placed and maintained, in breach of the condition, the forfeiture is to he deemed limited to that particular lot, and not to include the lot adjacent thereto.</p> <p>Id.—Construction of Deed—Condition Applicable to Each Lot.—The deed is to be construed as intending that the condition should apply to each lot conveyed, the same as if there had been four separate deeds of the separate lots, each containing the same condition set forth in the. deed.</p> <p>Id.—Forfeitures not Favored—Interpretation to Avoid Forfeiture.— Forfeitures are not favored by the courts; and, if an agreement can be reasonably interpreted so as to avoid a forfeiture, it is the diuty of the court to avoid it. The burden is upon the party claiming a forfeiture to show that such was the unmistakable intention of the instrument.</p> <p>Id.—Reconveyance of Lot Forfeited.—In an action to have the title to land adjudged forfeited for breach of condition subsequent, the court is authorized, under section 1109 of the Civil Code, to direct a reconveyance of the lot of land forfeited by the grantee to the grantor.</p> <p>Id.—Waiver of Condition—Delivery of Deed—Acceptance of Notes and Mortgage—Collection of Interest by Assignee.—The delivery of the deed and the acceptance of notes and a mortgage upon the lots conveyed for the purchase money, under the facts of this case, could not operate as a waiver of the performance of the condition subsequent promised by the defendant and relied upon and insisted upon by the plaintiff, and which the defendant had the right thereafter to comply with within the period allowed by the deed for its performance. The subsequent collection of interest on the notes and mortgage by a bank, which was the assignee of the plaintiff, could not operate as a waiver of the condition on the part of the plaintiff.</p> <p>Id.—Condition Running with Title—Subsequent Deed—Notice—Recital.—A condition subsequent in a deed is attached to the title, and runs with it as against the grantee of a subsequent deed, who has constructive notice by the record of the deed, or actual notice that his title would be subject to the condition. It is immaterial that the subsequent deed does not recite the condition contained in the deed to the grantor.</p>

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

<p>New Tbial—Statement—Insufficient Specifications.—In a statement on motion for a new trial, specifications of insufficiency of the evidence to justify the findings and decision of the court, madé in the form “that the court erred in finding” as set forth in the words of an entire finding repeated in the statement, “but, on the contrary, the court should have found" other facts stated, favorable to the moving party, fail to comply with the requirement of section 659 of the Code of Civil Procedure, that the statement shall specify the particulars in which the evidence is alleged to be insufficient; and such specifications are not entitled to be considered on the hearing of the motion.</p> <p>Id.—Review of Obdeb upon Appeal—Abgument—Ekrobs of Law not Ubged.—When the appellant does not urge the errors of law specified in the statement on motion for new trial in his argument or points and authorities upon appeal from the order denying the motion, the court will not seek to discover any error therein.</p>

<p>Marriage—Contract—Finding—Insufficient Evidence—Divorce. — Prior to the amendment of 1895 to section 55 of the Civil Code, a mere contract to marry, without any solemnization of marriage, must have been followed by a mutual assumption of marital rights, duties, or obligations, in order to constitute a marriage; and where there was proof of such a contract, hut no proof of any assumption of marital rights, duties, or obligations, or of any general and undivided repute of marriage, or-of any declaration of the fact of marriage, except by the alleged wife in a single instance, a finding of the fact of marriage is not sustained by the evidence; and a judgment of divorce based upon such finding must be reversed.</p>

<p>Will—Order Refusing to Revoke Probate—Appeal—Dismissal.—An order refusing to revoke the probate of a will is not one of the “probate matters” with respect to which an appeal is provided for in section 903 of the Code of Civil Procedure, and an appeal therefrom must be dismissed.</p> <p>Id.—Appeal in Probate Matters Statutory—Order Made After Judgment.—Probate matters are appealable only when the statute gives an appeal therein; and it is immaterial, with respect to the right of appeal, whether, for certain purposes, a proceeding in probate is a civil case or a special proceeding, or whether, in certain aspects, an order in probate is a final judgment. An order refusing to revoke the probate of a will is not appealable as being “a special order made after final judgment.”</p>

<p>The facts are stated in the opinion of the court.</p> <p>C. A. Storke, for H. J. Finger and E. F. Rogers, Appellants.</p> <p>The actions of replevin and for conversion are improperly joined in the complaint. (Code Civ. Proc., sec. 427; McLaughlin v. Piatti, 27 Cal. 464; Bigelow on Torts, 185; 1 Chitty’s Pleading, 111; 3 Blackstone’s Commentaries, 146, 152.) The plaintiff was not entitled to possession at the commencement of the action, but such right was in the pledgee. (5 Am. & Eng. Ency. of Law, 653-55; 20 Am. & Eng. Ency. of Law, 1050.) A pledgee has a right of possession, and may maintain replevin. (Deeter v. Sellers, 102 Ind. 458; Jones on Pledgees, sec. 429.) . The defendants may show title or a right of possession in a third person. (Tanner v. Allison, 3 Dana, 422; Davis v. Warfield, 38 Ind. 461; Landers v. George, 40 Ind. 160; Loomis v. Youle, 1 Minn. 175.) The plaintiff’s right of possession must be absolute and not conditional. (Lambert v. McCloud, 63 Cal. 163.) Appellants were bona fide purchasers of the note without notice that the note had been previously assigned to plaintiff. (Snyder v. Moon, 5 Kan. App. 447; Calvin v. Sterrit, 41 Kan. 215.) There was no proof of conspiracy, and the conversations with Thomas W. More were not admissible against appellants. (People v. Collins, 64 Cal. 295; Barkly v. Copeland, 86 Cal. 483; Code Civ. Proc., sec. 1870, subd. 6; 4 Am. & Eng. Ency. of Law, 135, 631.) Suspicion of a "defect of title will not affect the title of the holder of negotiable paper before maturity in the absence of bad faith. (Murray v. Lardner, 2 Wall. 121; Hotchkiss v. National etc. Bank, 21 Wall. 354; Tourlelotte v. Brown, 1 Colo. App. 408; Schoen v. Houghton, 50 Cal. 528.)</p>

<p>Order Granting New Trial—Record upon Appeal—Specifications.— ' Upon appeal from an order granting a motion for a new trial, the sole object of the appeal is to determine whether the court erred in granting the motion on the record made up by the moving party in respect of any one or all of the grounds specified by him. There can be no other record upon such an appeal than that made up hy the moving party; and no specifications are required to be made by the appellant.</p> <p>Id.—Review upon Appeal from Order—Pleadings—Claim and Delivery— Insufficient Complaint.—Upon appeal from an order granting a new trial in an action of claim and delivery, the insufficiency of the complaint to state a cause of action, or to support the judgment, for want of an averment of ownership or right of possession of the plaintiff at the time the action was commenced, is not open to review, and cannot be considered. The appeal involves only such matters as were presented on the motion for a new trial.</p> <p>Id.—Review of Grounds of Motion — Silence of Order.—An order granting a new trial, which is silent as to the grounds or reasons upon which it is based, must be’ presumed to have been made upon any valid ground upon which it can be sustained, which was specified by the moving party.</p> <p>In.—Verdict—Insufficiency of Evidence — Conflicting Evidence— Duty of Trial Judge.—1£ the trial judge is not satisfied with the verdict of the jury, it is his duty to grant a new trial for insufficiency of the evidence to justify the verdict; and he is not bound by the rule of conflicting evidence in passing upon the motion.</p> <p>Id.—Order Consistent with Decision upon Former Appeal—Validity of Sale of Personal Property—Want of Delivery and Change of Possession.—Where the principal question of fact related to the validity of a sale of the personal property involved in the action to the defendant, and the evidence was substantially the same as that considered by this court upon a former appeal, upon which it was held that the evidence did not show an immediate delivery and actual and continued change of possession, as required by section 3440 of the Civil Code, an order granting a new trial, in harmony with the view of the evidence taken by this court, should be affirmed.</p>

<p>Pleadings—"Verified Complaint upon Note—Unverified General Denial—Admission of Cause of Action—Judgment upon Pleadings. An unverified answer to a verified complaint stating a cause of action upon a promissory note set out therein, which merely “denies generally and specifically each and every allegation in said complaint contained,” sets forth no defense, hut in legal effect admits the cause of action, and entitles the plaintiff to judgment upon the pleadings.</p> <p>Id.—Sufficiency of Notice of Motion—Statement of Ground.—A notice of motion for judgment upon the pleadings, specifying that it would be made “upon the pleadings, files, and records in said action, and upon the ground that the answer on file herein constitutes no defense to the cause of action, or any portion thereof, stated in said complaint,” is sufficient, and states .a proper ground for the motion.</p> <p>Id.—Election of Procedure—Motion to Strike out Answer and for Judgment.—The plaintiff had an election of procedure, either to move directly for judgment on the pleadings,or to move to strike the unverified answer from the files, and for judgment as for want of an answer. He was not confined to the latter course, but either course may be pursued.</p> <p>Id.—Frivolous Appeal—Damages.—Where an appeal is clearly frivolous, the judgment appealed from will be affirmed, with damages.</p>

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

<p>Criminal Law—Forgery—Fictitious Check—Evidence—Sheriff’s Return of Subpoena.—Upon the trial of a defendant charged with forging the name of “J. P. Collin,” alleged to have been a fictitious name, to a check payable to the defendant’s order, which the defendant, a Chinese, claimed to have received from another Chinese person in the employ of a person named Collins in Santa 'Barbara county, the sheriff’s return of a subpoena issued by the district attorney and directed to “J. P. Collins, Santa Barbara,” stating that after diligent search and inquiry he was “unable to find J. P. Collins in the county of Santa Barbara,” is not competent evidence against the defendant to prove the nonexistence of the person whose name was subscribed to the check, and this is so even if the name “Collin,” could be considered as identical with “Collins.”</p> <p>Id.—Construction of Statute—Sheriff’s Return as Prima Facie Evidence—Testimony of Sworn Witnesses.—The statute making the return of the sheriff upon process prima facie evidence of the facts stated must be held to mean that the return is prima facie evidence when the question under investigation is of such a character as makes that mode of proof appropriate, and cannot be construed as dispensing with the testimony of sworn witnesses upon the trial of an issue which must be proved in the ordinary way, and not by a sheriff’s certificate.</p>

The motion for a new trial was based on the alleged ground of newly discovered evidence. The transcript does not contain the pleadings or the judgment. But both parties to the appeal admit in their brief that a demurrer was sustained to the -amended complaint of plaintiff, and that judgment was entered thereupon.

<p>Appeal — Substitution of Parties — Representative of Deceased Person—Substitution in Superior Court—Question of Costs.— The substitution of the representative of a deceased person as a party to an action pending an appeal to the supreme court ought regularly to be followed by a like substitution, upon a proper showing, in the superior court, in order properly to determine the responsibility for the costs upon appeal.</p> <p>Id.—Action for Costs on Appeal against Representative of Substituted Executrix—Statute of Limitations.—An action to enforce the payment of costs upon appeal awarded against the executrix of a deceased person substituted for such deceased person as a party tp the action pending an appeal, brought two years after her death against her personal representative, and eight years after the decision of the appeal and filing of the cost bill, is barred under section, 336, subdivision 1, of the Code of Civil Procedure.</p> <p>Id. — Bepeesentative Unable to Waive Statute — Objection upon Appeal.—An executor or administrator acting for others, and in a trust capacity, cannot waive the statute of limitations by a failure to plead it by demurrer or answer, as may be done between parties acting in their own right. No claim barred by the statute can be allowed against the estate of a deceased person; and the executor or administrator may insist upon the bar of the statute, though not pleaded, whenever the bar appears upon the record, and may raise the objection upon appeal for the first time.</p>

<p>Appeal—Estates of Deceased Persons—Vacating Decree of Distribution.—An order vacating a decree of final distribution of the estate of a deceased person is not appealable, and an appeal taken therefrom will be dismissed.</p>

<p>New Trial—Order by Court of Its Own Motion—Limitation of Time —Query.—The question raised, but not decided, whether the time within which the superior court can set aside the verdict and grant a new trial of its own motion, for plain disregard of the instructions and the evidence, under section 662 of the Code of Civil Procedure, is limited to that allowed the losing party in which to give notice of intention to move for a new trial, or whether the court may act at any time before judgment is entered upon the verdict.</p> <p>Id.—Disregard of Instructions or Evidence Must be Gross.—In order to justify the action of the court in setting aside the verdict of the jury and ordering a new trial of its own motion, it must be made to appear that the jury plainly, palpably, and grossly disregarded either the instructions or the evidence; and if such gross disregard does not appear, the aggrieved party should be left to his remedy under a motion for a new trial, and the order of the court made of its own motion should be reversed.</p> <p>Id.—Action fob Personal Injury—Holes for Trees in Sidewalk—Authority of Gardener—Evidence and Instruction—Disregard by Jury not Gross.—In an action for personal injury from holes for trees dug in a sidewalk by defendant’s gardener, in which the verdict was for the defendant, and there was evidence that the gardener acted directly under authority of a boy of thirteen, in the absence of his mother, the defendant, and without her knowledge, direction, or consent, and that the gardener was not permitted during her presence to plant or remove trees without her authority, though he had discretion in other respects, and acted as he thought best during her absence, it cannot be said that the jury grossly disregarded clear and palpable proof that the gardener acted under defendant’s authority, or that they grossly disregarded an instruction that the mother was not responsible for the torts of the child, and that if the hoy caused the excavation, and defendant did not authorize it, or know of its existence until after the injury, their verdict should be for the defendant. The court should not, in such case, set aside the verdict of its own motion.</p>

<p>Foreclosure of Mortgage—Insufficient Description of Property in Complaint—Order Appointing Receiver—Reversal upon Appeal.— Where a judgment foreclosing a mortgage has been reversed upon appeal for failure of the complaint to describe the mortgaged premises with sufficient exactness to justify the foreclosure, an order appointing a receiver to take charge of the fruit crop growing upon the mortgaged premises described in the complaint must also be reversed upon a separate appeal therefrom, for want of a res of which, under the order, a receiver could'take possession. The order is in legal effect the appointment of a receiver to take charge of nothing.</p> <p>Id.—Resignation of Receiver—Appeal from Order—Effect of Dismissal.—The resignation of the receiver before the appeal from such order would not be ground for dismissal of the appeal, which would leave the order in full force and effect, with power in the court to appoint a substitute: and where the record does not show that the receiver had in fact resigned, or that the order complained of was not in full force and effect, the appeal therefrom will not be dismissed, but the order will be reversed.</p>

<p>Stbeet Assessment—Fobeclosube—Appeal—Objections not Sustained by Recobd.—Upon appeal from a judgment foreclosing the lien of a street assessment, where the record of the cause does not sustain objections made by the defendant to the assesment, diagram, warrant, etc., which were prima facie proof of plaintiff’s case, the judgment will be affirmed.</p>

<p>Street Improvement—Award op Contract — Optional Approval by Mayor or Council.—The award of a contract for a street improvement is’ not required to be presented in the first instance to the mayor for his approval, but the award may be approved in the first instance either by the mayor or by a three-fourths vote of the city council.</p> <p>Id.—Defective Preliminary Bond Accompanying Proposal for Contract—Irregularity not Jurisdictional.—An irregularity in the preliminary bond accompanying a proposal for the contract, by making the bond a few dollars less than ten per cent of the aggregate amount of the proposal, is not jurisdictional, and does not vitiate all subsequent proceedings. The preliminary bond has served its purpose when the contract has been awarded, and the bond for the due performance of the work has been entered into; and the property owner cannot object to the preliminary bond, if the work has been performed under the contract to the satisfaction of the authorities.</p> <p>Id.—Mode of Assessing Benefits—Constitutional Law.—Subdivision 12 of section 7 of the street law of 1891 (Stats. 1891, p. 204) is not unconstitutional in directing the street superintendent to assess benefits without prescribing the precise mode of assessment.</p>

MANDAMUS from the Supreme Court to compel the Judge of the Superior Court of Riverside County to settle a hill of exceptions upon appeal from an order of said Court. J. S. Noyes, Judge. The facts are stated in the opinion of the court.

<p>Street Improvement—Defective Resolution of Intention—‘ Suitable Drains and Inlets” at “Street Grossings”—Invalid Assessment. A resolution of intention for a street improvement, which includes as part of the proposed work that “suitable drains and inlets are to be constructed at ail intersecting crossings, to carry the surface water of intersecting streets and of Market street into the main branch sewer running along said Market street,” without specifying the number of drains and inlets, or the size of the drains, or the materials of which they are to be constructed, or the kind or character of the inlets, is fatally defective, and cannot lay the foundation for a street assessment under a contract for the proposed work specified in the resolution.</p> <p>an.—Resolution of Intention Jurisdictional.—A proper resolution of intention to improve a street is the basis of the jurisdiction of the city council to order the work to he done, and is the foundation of a right to foreclose a street assessment for the work.</p> <p>Id.—Construction of Statute as to Resolution—Full Description of Proposed Work Essential—Failure in Material Part—Void Contract and Assessment.—The provision of the statute requiring that the city council, before ordering any work done, shall pass a resolution of intention so to do, “describing the work,” applies to ail and each of its material parts; and a failure of description in any material part of the work vitiates the resolution as a whole, and renders void a bid and contract to do the work proposed by the resolution, inclusive of the defective part, and no street assessment can be enforced under such contract.</p> <p>Id.—Certainty of Description—Plans and Specifications—Option-Conformity to Resolution.—The description of the work in the resolution must he certain, though not required to he as minute and precise as would be proper in plans and. specifications; but if plans and specifications are required by the council, which is optional on their part, they must conform to and be consistent with the description in the resolution of intention.</p> <p>Id.—Complaint upon Assessment—Insufficient Pleading—Averment as to Plans and Specifications.—A complaint for the foreclosure-of a street assessment which shows on its face that the resolution of intention to do the proposed work was fatally defective in a material part of the description thereof, does not state a cause of action; and the defect in the description is not shown to be cured, if it could be at all cured by plans and specifications, by an averment of the complaint that before ordering the work done the mayor and common council required the city engineer to prepare plans and specifications of the work to be done, which were, furnished, approved, and adopted by the council, without averring or disclosing to the court what was shown thereby.</p>

<p>Mechanics’ Liens—Estate of Deceased Person—Power of Executor— Contract to Work Mine—Notice to Laborers.—An executor has no power as such to make any contract which would give laborers under the contractor in a mine known to belong to the estate a right to file liens thereupon. A contract to work a mine belonging to the estate, signed by the executor, as such, if it is known to laborers under the contractor, is notice of all that it contains, and would preclude laborers' liens upon the mine.</p> <p>Id.—Title in Individual Name of Executor—Implied Trust—Probate Proceedings—Notice—Protection of Bona Fide Lienholders.— Where the laborers were ignorant of the existence of the contract with the executor, and the title to the mine stood upon the records in his individual name, as an implied or resulting trust for an estate which he was administering in another county, the laborers are not chargeable with notice of the probate proceedings, as affecting the legal status of the mine, but are protected in their liens acquired for work done in actual ignorance of the rights of the estate, as encumbrancers for value without notice of the trust, within the meaning of section 856 of the Civil Code.</p> <p>Id.—Liens upon Mining Claim—Laborers Taking Out Ore.—Work done by laborers in a quartz mine in taking out ore, or breaking-down and tearing away from the face of the drifts and mine the quartz and substance of the mine, is work for which a lien upon the mine may he claimed under the terms of section 1183 of the Code of Civil Procedure.</p>

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

<p>Mandamus—Levy of City School Tax—Double Demand by Boabd of Education—Refusal by Council—Levy by Supervisors—Question of Legality Undecided.—Where the board of education of a city made demand both upon the city council and upon the board of supervisors of the county for the levy of a sufficient tax to pay the expenses of the public schools of the city, and the council, at the time of making its levy for city taxes, refused to make the levy demanded, while the hoard of supervisors, at its regular time for levying taxes, levied a sufficient tax upon all of the property of the city to defray the entire expenses of the city schools for the current fiscal year, this court will not undertake upon mandamus against the city council to determine which of the two bodies ought to levy the tax, the object sought by the writ having been accomplished through a different instrumentality, it being presumed that the taxes levied by the supervisors not already paid will be paid in due course during the fiscal year.</p> <p>Id.—Writ of Mandate, When not Issued.—The writ of mandate will not issue where it will work injustice, or introduce confusion and disorder, or operate harshly, or will not promote substantial justice; nor will it issue where the writ, if granted, could not be enforced, and would be unavailing.</p> <p>Id.—Time of Levying Taxes—Peremptory Provision.—A provision in a city charter fixing the time within which the council are to levy taxes upon all of the property in the city sufficient to raise revenue to carry on the different departments of the municipal government for the year is peremptory; and a levy made after the date provided therein would he invalid and unavailing, and cannot be enforced by mandamus.</p>

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

<p>Estates of Deceased Persons—Insolvent Estate—Probate Homestead—Discretion—Limit of Value.—The law does not contemplate, in case of an insolvent estate, that the homestead set apart out of the separate estate of the decedent shall be sufficient in extent for the permanent support of the family, and although there is no limitation fixed by law to the value of a probate homestead not selected by the decedent, yet as an insolvent debtor cannot claim a homestead worth more than five thousand dollars against the demands of his creditors, a wise discretion should limit the value of the homestead so set apart out of his insolvent estate to that sum, where a homestead of that value can be divided from the remainder of the estate, or where the property sought to be set apart is capable of such admeasurement.</p> <p>Id.—Large Farm Used for Family Home—Excess in Value—Abuse of Discretion.—Where it appears that the estate is insolvent, and the family home was a large farm, the separate property of the deceased, comprising two hundred and fifty acres of cultivated land, and about eighty acres more of land not cultivated in the creek bottom, worth in all more than eleven thousand dollars, and the property is so situated that a portion thereof not exceeding five thousand dollars in value could be selected and set apart' as a homestead, an order setting apart the whole farm as a homestead is an abuse of discretion, and must be reversed.</p> <p>Id.—Correctness of Order—Criterion—Condition of Estate at Time of Application—Subordinate Rights of Creditors—Protection of Family.—In determining the correctness of an order setting apart, a homestead out of the separate estate of the decedent, the character of the estate, or its amount and condition, at the time.of the application or of the hearing thereon, and the rights of the creditors as then appearing, viewed as subordinate to the right of the family to the protection of - a home, are to be considered; and an order which might have been supported at the outset of an administration may not be supported where it is clear that the estate has become insolvent.</p> <p>Id.—Immaterial Matters—Management of Estate—Family Allowance.—In determining the right to have a homestead set apart, the court should not take into consideration any benefit that the estate may have derived from the care and provision of the widow as executrix, or any extravagance on her part in the management of the estate, or any amount previously allowed for the support of the family.</p>

<p>Estates of Deceased Persons—Presentation of Claims—Note Secured by Mortgage—Recital in Note—Mortgage not Presented.—The mere recital in a promissory note presented as a claim against the estate of a deceased person that it is secured by mortgage does not include a presentation of the mortgage, where no copy of the mortgage was set out in the claim, and no reference was made therein to the date, volume, or page of its record.</p> <p>Id.—Sale of Mortgaged Land—Purchase by Mortgagee — Credit upon Mortgage Note.— Where land included in a mortgage not presented as a claim against the estate is purchased by the mortgagee, upon a sale thereof by the estate, he cannot claim an application of the purchase money as a credit upon the mortgage note presented and allowed as a claim against the estate.</p> <p>Id.—Waiver of Lien of Mortgage—Right to Conveyance—Payment of Purchase Money.—By reason of the failure of the mortgagee to have the mortgage presented as a claim together with the mortgage note, he waived the right to have the mortgage considered as a lien on the property, and is not entitled to demand the conveyance from the administrator of part of the mortgaged property purchased by him, without payment of the price at which it was purchased from the estate.</p> <p>Id.—Motion to Amend Claim to Include Mortgage—Order Denying Motion—Appeal—Dismissal.—An order denying a motion for an amendment of the claim upon the mortgage note by including the mortgage in the claim is not appealable; and an appeal therefrom must be dismissed.</p> <p>Id.—Review of Order as Error—Appeal from Order Refusing Conveyance upon Application of Purchase Money.—The order denying leave to amend the claim upon the mortgage note cannot be reviewed as error upon an appeal from an order refusing a previous motion to compel a conveyance upon application of the purchase money of mortgaged property purchased by the mortgagee from the estate, upon the mortgage note allowed as a claim. If the motion to amend had been granted, the amendment would not have been available upon the other motion, nor would it have been ground for a different ruling thereupon.</p> <p>Id.—Ineffective Amendment of Claim After Order of Sale and Confirmation—Direction for Conveyance.—The order of sale and the confirmation thereof having been made in view of the claims theretofore allowed against the estate, any amendment of a claim made after the confirmation of the sale could not affect the order of confirmation, nor take away from it the force of the direction therein made to execute the conveyance upon the payment of the purchase price, nor could it affect any sale of property previously had under the order.</p> <p>Id.—Delayed Application for Amendment—Limitation.—An application to amend the claim for inadvertence or mistake under section 473 of the Code of Civil Procedure could not be made after the lapse of six months from the allowance of the claim upon the mortgage note; and no substantial change can be made in an allowed claim after the expiration of the time allowed for the presentation of claims.</p>

<p>Partition—Findings—Conveyance by Second Assignee in Insolvency —Due Appointment—Collateral Attack — Presumption—Discharge of First Assignee.—In an action for partition, where plaintiff’s title depends upon a conveyance of the undivided property of a partner, made hy a second assignee in insolvency under an order of sale and confirmation, and the court finds that the appointment of the second assignee was duly given and made, and that he thereupon became and ever since continued to be the qualified and acting assignee, it must be presumed, as against a collateral attack in the action for partition, that the order of appointment of the second assignee was regularly made within the jurisdiction'of the court in the insolvency proceedings, and that it was supported by proof of the discharge of the first assignee and that the first appointment was no longer in force.</p> <p>Id.—Title of Assignee in Insolvency—Relation—Intervening Judgment Quieting Title.—The title of an assignee in insolvency relates to the filing of the petition in insolvency, and must prevail over an intervening judgment to quiet the title of a third party against one of the insolvent debtors, rendered after the filing of the petition, and before the date of the assignment.</p>

<p>Conveyance in Satisfaction of Mortgage—Deed not a Mortgage— Limited Option to Grantee of Mortgagor to Repurchase—Independent Transaction.—Where a mortgagor transferred the mortgaged premises to his daughter as a gift, and subsequently, in consideration of the surrender, extinguishment, and satisfaction of the note and mortgage, the father and daughter made a deed absolute to the former mortgagee, without any agreement that it was to secure any debt, such absolute deed is not a mortgage; and an option given to the daughter to repurchase the granted premises within a limited period, upon payment of a sum equal to the principal and interest of the original mortgage debt, with the taxes for the year, and the expenses of deed, abstract, and record, the option to cease if not exercised within the time limited, is a new and independent transaction as to her, who was never indebted to the grantee of the deed absolute. [Temple, J., dissenting.]</p> <p>Id.—Quieting Title—Evidence — Written Memorandum'of Items — Parol Proof.—In an action to quiet the title of the grantee of the deed absolute against the father and daughter, where the defendants offered in evidence a written memorandum showing the different items which made up the amount of the price to be paid by the daughter, including taxes for the year, under the option to repurchase, a question asking for parol proof as to who was to pay the taxes for the year was properly disallowed.</p> <p>Id.—Inadmissible Question Begging Point in Issue—Willingness of Grantor to Convey Absolutely.—A question asked of the daughter whether she was willing, and considered that she was deeding the property absolutely to the grantee named therein, is inadmissible, as begging the point in issue to be determined by the court from the evidence of the witnesses who had testified as to all that occurred prior to and at the time of the conveyance, and the reasons for executing the same.</p> <p>Id.—Market 'Value—Improper Questions.—Questions as to the market value of the property not addressed to its value at the time of the conveyance, hut as of the date of the trial, asked of a witness who testified that he did not know the market value of land in the vicinity of the land in question, are properly disallowed as not proper evidence.</p>

<p>Vendos and Purchaser—Contract to Convey Land for Services— Nonassignability—Agency for Purchaser — Contract of Purchaser to Procure Conveyance and Convey—Specific Performance. Under a contract to plow land, plant it with fruit trees, and cultivate it four years and pay one-half the taxes thereon, for a conveyance of one-half of the land, which contract was not assignable by the purchaser without the consent of the owner, where the purchaser arranged with a third person to carry out the contract for him, and agreed at the end of the four years to procure the conveyance, and then to convey the land to such third person, and such third person was recognized by the owner as the agent of the purchaser, and permitted to carry out the contract for him, he may, after completing the contract, maintain an action of specific performance against the owner and purchaser, to compel a conveyance by the owner to the purchaser, and by the purchaser to himself; and it is no defense to such action that the owner did not recognize the plaintiff as an assignee of the purchaser.</p> <p>Id.—Jurisdiction of Equity—Parties—Full Adjudication of Rights— Specific Performance of Two Contracts.—All the parties interested having been made parties to the bill, it was competent for a court of equity to adjudicate all their rights and to do justice between them; and this was properly done by a judgment enforcing a specific performance both of the original contract for a conveyance from the owner to the purchaser, and of the purchaser’s contract to procure the conveyance from the owner and to convey to plaintiff.</p>

<p>Foreclosure of Mortgages — Maturity — Default of Interest for Three Months—Insanity of Mortgagor—Period not Extended.— An action for the foreclosure of three mortgages, one of which was mature, and the other two claimed to be due six days before the commencement of the action, at the option of the mortgagee, by reason of a default of three months in the payment of quarterly interest provided for in the mortgages, cannot be rendered premature as to the two mortgages by an addition to the three months’ period of a period of five days' notice given of an application for guardianship of the mortgagor as an insane person, and of a further period of one week between the adjudication of his insanity and the issuance of the letters to his guardian, where it appears that one month of the three months period still remained after the issuance of the letters, and no offer was seasonably made by the guardian to pay the interest due, and the jurisdiction of equity was not invoked by him to be relieved from the penalty of its nonpayment.</p> <p>Id.—Separate Mortgages upon Real and Personal Property—Aggregate Foreclosure Erroneous—Separate Orders of Sale Required. Where two of the mortgages foreclosed were upon the same real estate, and the third mortgage was of personal property only, it is erroneous to make an aggregate foreclosure of the three mortgages. The real and personal property should be ordered to be sold separately for the amount ascertained to be due upon each.</p> <p>Id.—Apportionment of Attorneys’ Fees—Lien only Provided for in Chattel Mortgage—General Allowance.—Where the real estate mortgages did not make the attorneys’ fees a lien upon the realty, and the only lien provided for was in the chattel mortgage, the fees^should be apportioned, and the amount due upon the chattel mortgage separately ascertained and mad:a lien upon the personal property mortgaged. A general allowance of attorneys’ fees cannot properly be made a lien upon any of the property; and an aggregate order of sale making the attorneys’ fees payable out of the proceeds of the sale is erroneous.</p> <p>Id.—Apportionment of Insurance—Deduction of Excess.—The amount allowed to the mortgagee for insurance paid upon the real and. personal property should be properly apportioned between them, after deducting an excess in the allowance.</p>

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

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

HABEAS CORPUS to determine the validity of an ordinance of the City and County of San Francisco, of a violation of which the petitioner was convicted in the Police Court. A. B. Treadwell, Judge. The facts are stated in the opinion of the court. James G-. Maguire, and Frederick McGregor, for Petitioner. The ordinance is an arbitrary restraint upon the personal liberty and property rights of the citizen. (Const., art. I, sec. 1; Civ.

<p>School Law—County Certificates Without Examination—Permissive Statute—Mandamus.—Section 1775 of the Political Code providing that “the board may also, without examination, grant county certificates of either the grammar or the primary grade to holders of life diplomas of other states,” etc., “and county certificates of the high school grade to holders of California State University diplomas when recommended by the faculty of the university,” is not mandatory, but permissive and discretionary; and mandamus will not lie to compel a county board of education to issue a county certificate, without an examination, to anyone falling within the terms of that section.</p> <p>Id.—Statutory Construction—“May,” When Mandatory, and When Permissive.—“May” in a statute is to be construed as mandatory only when it can be seen that the legislative intent was to impose a duty, and that a mandatory construction is necessary to give effect to the clear policy and intent of the legislature, and that the public is interested, and the public or third persons have a claim de jure to have the power exercised. But where there is nothing in the connection of the language, or in the sense and policy of the provision, to require an unusual interpretation, its use is merely permissive and discretionary.</p>

<p>In addition to the averments of the complaint set forth in the opinion, the complaint averred that the value of the property owned by him and described in the complaint, and which he was induced to convey to the defendant, Anna H. Mullen, was at the time of the conveyance, and is now, about five thousand dollars; that plaintiff is an old man, sixty-five years of age; that in the month of May, 1895, while residing at the home of the defendants, plaintiff, being alarmed at his condition of health, decided to go to San Francisco for medical treatment, and that the defendant Mrs. Anna Mullen falsely and fraudulently represented to plaintiff that his property was in charge of other persons who were not his friends, and who intended to wrong and injure him, and who would in case of his death squander and misappropriate his estate, and that she and her husband were his most devoted and trustworthy friends, and were anxious to protect him and befriend him and care for him in his illness; that plaintiff then reposed the utmost trust and confidence in her, and because of said fraud and false representations was induced to make a will bequeathing to her said land and premises, upon the promise that she would maintain and keep plaintiff and provide him a suitable, convenient, comfortable, and pleasant home for the remainder of his life, and would pay him the sum of eight hundred dollars; and that on the twenty-fifth day of June, upon the representation that she v,ranted a deed made to avoid trouble from his relations, and upon the same false representations, and upon the same promises made to secure the will, she persuaded and induced the plaintiff to convey the said premises to her; that the said defendant did not at any time intend to perform any of the said promises, but they were made solely for the purpose of defrauding and injuring the plaintiff, who was then an old man, ignorant and illiterate, and for that reason and because of his illness, was of a weak and feeble mind, and incapable of dealing with said defendant, who was shrewd and ingenious in her dealings, and possessed a knowledge and intellect capable of misleading and improperly influencing the plaintiff, which she did, and took advantage of plaintiff’s mental weakness, and that plaintiff, trusting and confiding in her, and being induced and persuaded solely by said false promises, representations, and pretenses, and without any other consideration, executed said conveyance, which recited a consideration received of eight hundred dollars, no part of -which was paid; that said recital was false, fraudulent, and untrue, and said acknowledgment of receipt was obtained by the false and fraudulent pretenses, representations, and promises hereinbefore set forth. It is unnecessary to repeat the further allegations of the complaint set forth in the opinion. The court found most of the allegations of the complaint to be true; that the misrepresentations were made as alleged; that the promise which induced the will and the deed was to give plaintiff a comfortable home as long as he lived, .and to pay his estate after his death eight hundred dollars; that the plaintiff owed no debt to the defendants when the deed was made, and that the value of the land was four thousand dollars.</p> <p>!F. P. Primm, and Eogers, Paterson & Slack, for Appellants.</p> <p>The allegations of fraud and undue influence in the complaint are not sufficiently specific. Fraud or undue influence cannot be alleged in general terms. (Oakland v. Carpentier, 21 Cal. 665; Kent v. Snyder, 30 Cal. 674; Capuro v. Builders’ Ins. Co., 39 Cal. 123; Goodwin v. Goodwin, 59 Cal. 560; Robins v. Hope, 57 Cal. 493.) The breach of a parol agreement to give a home to plaintiff is not a ground for setting aside a deed, but plaintiff is remitted to an action for damages. (Civ. Code, sec. 1691; Herrick v. Starkweather, 54 Hun, 537; Fratt v. Fiske, 17 Cal. 384; Barfield v. Price, 40 Cal. 542; Morrison v. Lods, 39 Cal. 385; Herman v. Haffenegger, 54 Cal. 164; Burkle v. Levy, 70 Cal. 250; Bailey v. Fox, 78 Cal. 389; Toby v. Oregon Pac. R. R. Co., 98 Cal. 490; Gamble v. Tripp, 99 Cal. 223; Marten v. Burns etc. Co., 99 Cal. 355.) A party cannot maintain a domestic relation under a contract for years and then complain that its terms have been violated. (Barnes v. Barnes, 110 Cal. 422; Williams v. Mitchell, 87 Cal. 532; Bancroft v. Bancroft, 110 Cal. 374; Lion u. McClory, 106 Cal. 623.) In order to a rescission, the plaintiff must offer to put the defendants in statu qua (Buena Vista Etc. Co. v. Tuohy, 107 Cal. 244), and it is too late to make offer at the trial. (Herman v. Haffenegger, supra; Barry v. St. Joseph Hospital (Cal. 1897), 48 Pac. Rep. 61.)</p>

<p>The facts are stated in the opinion.</p> <p>James E. Farraher, and James D. Fairchild, for Appellant.</p>

<p>Municipal Corporation—Freeholders’ Charter—Constitutional Law —Concurrent Jurisdiction of Police Oourt and Justice’s Court.— A freeholders’ charter of a city adopted subject to section 8% of article XI of the constitution, permitting it to provide “for the constitution, regulation, government, and jurisdiction of police courts,” has no constitutional authority to confer exclusive jurisdiction over certain misdemeanors upon a police court; and notwithstanding such provision for exclusive jurisdiction in such a charter, a justice’s court, whose jurisdiction includes the corporate limits of the city, has concurrent jurisdiction with the police court over such misdemeanors, by virtue of the general law conferring such jurisdiction upon justices’ courts.</p> <p>Id.—Word “Exclusive” not Properly in Charter—Mere Grant of Jurisdiction not Exclusive—Concurrent Grants.—The word “exclusive” not being properly in the charter, the charter must be construed as if it were omitted therefrom. A mere grant of jurisdiction is not impliedly exclusive, and concurrent grants of jurisdiction to distinct courts confer concurrent powers upon each.</p> <p>Id.—Repeals by Implication not Favored.—Repeals by implication are not favored; and there is no implied repeal of the general law conferring jurisdiction upon a justice’s court established in a city by the grant of jurisdiction over misdemeanors to the police court by the charter of the city.</p>

The facts are stated in the opinion. Shortridge, Beatty & Brittain, and F. P. Flint, for Appellants. The guaranty was absolute and unconditional, and was broken at maturity of the debt of the corporation. (Civ. Code, secs. 2806, 2807; Coburn v. Brooks, 78 Cal. 444-48; First Nat. Bank v. Babcock, 94 Cal. 104; 28 Am.

<p>The facts are stated in the opinion of the court.</p> <p>The guaranty is set out in Pierce v. Merrill, ante, p. 464.</p>

<p>The facts are stated in the opinion.</p> <p>W. F. Fitzgerald, Attorney General, Tirey L. Ford, Successor, George Fuller, and Smith, McNutt & Hannon, for Appellants.</p>

<p>Criminal Law—Libel—Evidence—Anonymous Letters—Opinion of Expert—Comparison of Handwriting—Erroneous Order Striking-Out Exhibits—Province of Jury.—Upon the trial of a charge of libel contained in anonymous letters, where the defendant was convicted mainly upon the testimony of an expert in handwriting called for the plaintiff, and the defendant claimed and sought to prove by specimens of the handwriting of another expert that he had written them for the purpose of implicating the defendant in the charge, it was error for the court to strike out the exhibits of the handwriting of such expert, merely because plaintiff’s expert witness testified that there was no similarity between such exhibits and the anonymous letters, and because there was no independent evidence tending to connect them; but the jury should be permitted to-pass upon the question of similarity between them, from a personal inspection of them, and the plaintiff’s expert witness cannot be substituted for the jury in passing upon that question of fact.</p> <p>Id.—Comparison of Handwriting by Nonexperts—Eight of Jurors to Differ from Experts.—In a case involving the comparison of different writing's where the question is one of resemblance or similarity, an ordinary individual can arrive at a conclusion quite as correct as that of the opinion of the most skilled expert in handwriting. Jurors have the right to use their eyes as well as their ears in such a case, and may differ in their conclusion from the opinion of an expert witness.</p>

<p>Chattel Mortgage—Contract for Possession After Default—Replevin.—Where a chattel mortgage contains a special contract allowing the mortgagee to take possession of the mortgaged chattels after default, as permitted by section 2927 of the Civil Code, such contract may be enforced after default by an action of replevin.</p> <p>Id.—Limited Effect of Mortgagee’s Possession—Action to Foreclose— Construction of Code.—The possession acquired by the mortgagee under contract therefor merely adds to the security of the mortgagee, but does not enlarge his interest. The action of replevin to enforce such contract is not inconsistent with section 726 of the Code of Civil Procedure, allowing but one action to enforce the debt or lien of the mortgage. That section is not applicable to an agreement for possession allowed as an incident to the mortgage by section 2927 of the Civil Code, and such an agreement may be enforced without foreclosure.</p> <p>Id.—Motion for Nonsuit in Action for Replevin—Dismissal of Prior Action to Foreclose—Grounds of Motion—Appeal.—Upon a motion for nonsuit in an action of replevin by the mortgagor, the question of the effect of the dismissal of a prior action to foreclose the chattel mortgage upon application of the mortgagor cannot be considered upon appeal where such dismissal was not made one of the grounds of the motion.</p> <p>Appeal—Bill of Exceptions—Specifications of Error.—No specifications of error occurring at the trial are required in a bill of exceptions, in order that the errors of law therein set forth may be reviewed upon appeal.</p>

<p>Nuisance—Noxious Gases from Creamery—Private Action.—A nuisance arising from noxious gases emitted from the sour and putrid refuse of whey, milk, and debris permitted to accumulate and stand in tanks by the defendant as the owner of a creamery, to the detriment of the plaintiff as a near neighbor, though also injurious to other neighbors more remote, may be abated at suit of the plaintiff as being as to him a private nuisance.</p> <p>Id.—Private Action for Public Nuisance—Private Nuisance—Multiplicity of Suits.—Although a nuisance may be public, that fact does not deprive an individual of an action, df, as to him, the nuisance is private, and obstructs the free use and enjoyment of his private property. A nuisance, the effect of which extends to the dwellings or places of business of other persons to such an extent as to render their occupancy materially uncomfortable, is a private nuisance as to each of them, for which each one thus injured may have a private action, though there are many persons thus affected, and the result will be to promote a multitude of suits</p>

<p>The facts are stated in the opinion.</p> <p>Stafford & Stafford, and Thomas F. Graham, for Appellants.</p>

<p>Assignment of Insurance Policy—Want of Consideration—Fraud upon Creditors of Assignor.—Where an insurance policy payable to the surviving wife of the insured was assigned by her after ithe death of the insured, without consideration moving to her, -tw'l'^’to an aunt who was a creditor of the insured, with intent to hinder, delay, and defraud the judgment creditors of the assignor, such creditors are entitled to the payment of their claims out of the proceeds of the policy as against the assignee.</p> <p>Id.—Intent to Defraud Creditors—Support of Finding—Appeal.— Evidence tending to show that the wife, who was the payee of the policy, was insolvent, and had declared a homestead upon her real property, and had assigned the insurance policy without legal consideration, so as to place all of her property beyond the reach of her existing creditors, sufficiently supports a-finding of intent to defraud her creditors by such assignment, for the purposes of review upon appeal, where all reasonable implications derivable from the evidence must be considered as established facts. x</p> <p>Id.—Assignee Without Consideration not Protected—Ignorance of Fraudulent Intent.—An assignee who paid no consideration for the policy is not protected against the creditors of the assignor, however ignorant of the fraudulent intent of the assignor.</p> <p>Id.—Guaranty by Widow of Insolvent Husband’s Note—Consideration—Promise to Husband—Moral Obligation Insufficient.— Where the widow, without consideration other than a supposed moral obligation, and a promise made to the husband to pay his debt without legal obligation to do so, made a guaranty to pay her husband’s note to the assignee of the policy, such guaranty was a mere legal gratuity, which could not be supported by a mere moral obligation, and could not constitute a legal consideration to support the assignment of the policy.</p> <p>Id.—Transfer of Note in Trust.—The transfer of the note of the husband by the assignee of the policy to the assignor thereof in trust for collection, by the assignor, who was executrix of the will of her insolvent husband, and to pay the sums collected according to a declaration of trust made by the assignor, cannot constitute a consideration for a personal guaranty of the note by the assignor of the policy, nor for the assignment of the policy.</p> <p>Id.—Assignment of Policy as Means of Payment on Note—Departure from Trust.—The assignment of the policy, if made for the purpose of enabling the assignee to receive the proceeds of the policy as a means of payment of the husband’s note transferred in trust to the assignor of the policy for collection, would contemplate a departure from the trust, and a violation of its provisions, for which the transfer of the note could not be the consideration.</p>

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

<p>Reclamation of Swamp Land—Claim of Owner upon Swamp Land Fund—Personal Property—Relation—Collection by Grantee of Land—Action by Assignee of Claimant.—The claim of the owner of swamp land who has fully reclaimed it at an expenditure of more than two dollars per acre, to a pro rata payment out of the swamp land fund, to him or his assigns, is a claim of personal property, the right to which relates to the date of its presentation and passes to his personal assignee thereof. It is not a covenant real, and does not pass with the land to a grantee or purchaser thereof, who takes after the date of such presentation; and if the money is collected by such grantee, it may be recovered from him in an action by the assignee of the claimant.</p>

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

<p>Order Granting New Trial—Review upon Appeal—Sufficiency of Complaint and Findings.—Upon appeal from an order granting a new trial, as well as from an order denying a new trial, this court cannot consider the sufficiency either of the complaint or of thp findings to support the judgment.</p> <p>Id.—Erroneous Order—Insufficient Specifications in Statement— Truth of Defenses Established—Immateriality of Other Findings.—Where the plaintiff’s statement on motion for a new trial does not specify the insufficiency of the evidence to sustain affirmative defenses set up in the answer which the court has found to be true, the truth of such defenses is established, and if either of them is a sufficient defense, an order granting a new trial is erroneous. In such case it is immaterial whether the court found against the evidence in favor of the denials of the answer to the allegations of the complaint.</p> <p>In.—Action by Assignee of Contract for Street Work—Release by Assignor—Sufficient Defense Unassailed—Absence of Discretion to Grant New Trial.—In an action by the assignee of a contract for street work, in which a personal judgment is sought against the defendant, an answer pleading that when the contract was executed by plaintiff’s assignor it was agreed that the defendant should not be personally liable upon the contract, and that, as part of the contract, said assignor executed and delivered an acquittance and release of the defendant from all liability on the contract, states a sufficient defense, which, if supported by evidence, is a bar to the action. Where the sufficiency of the evidence to support such defense is not assailed by plaintiff’s statement on motion for a new trial, the court has no discretion to grant a new trial.</p> <p>Id.—Notice: of Release to Assignee.—The mere fact that the assignee was not aware of the release of the defendant when he took the assignment is immaterial. The plaintiff, as assignee, took the contract cum mere, subject only to the duty of the defendant to notify him of any conditions not specified in the contract itself.</p>

<p>Judgment—Assignment—Formal Writing not Required—Agreement for Sale—Telegrams—Ownership—Deposit of Draft in Postoffice.—A formal written assignment of a judgment is not necessary to evidence a sale thereof nor to pass title thereto, and where an agreement is made by telegrams between the owner and purchaser of a judgment for a sale and assignment thereof for a specified sum in cash to be sent by draft on New York, the owner to take the purchaser for the balance, the deposit of a draft for the cash agreed upon in the postoffice, ■ by the purchaser, according to the direction of the owner, has the effect of a cash payment, and makes the purchaser the owner of the judgment, subject to an immediate right of action against Mm for the balance of the judgment.</p> <p>In.—Return of Draft—Written Assignment to Third Person.—The vendor, after the deposit of the draft by the purchaser according to Ms direction, cannot repudiate the agreement of sale by a return of the draft; and the written assignment of the judgment to a third person after the date of the agreement of sale passed no title.</p> <p>Id.—Direction to Execute Papers Mailed to Vendor.—A telegraphic direction to the vendor to sign papers mailed and to return them to the purchaser, intended merely to obtain written evidence of the transfer, the terms of which were already agreed to by the parties, and which would be complete without such writing, does not purport to change the terms of the agreement, and is immaterial.</p>

<p>Life Insurance—Payment of First Premium by Note—Condition— Delivery of Policy—Waiver.—Where the note of the insured was given for the first annual premium upon a life insurance policy, for which a receipt was given by the general agent specifying that if the application was accepted the policy should be in force from the date of acceptance, and the note was forwarded by such agent to the home office, and its amount was there charged to the agent, and the policy was issued and delivered to the insured, it must he held that the first premium was paid by the note, and the delivery of the policy is evidence that cash payment was waived in so far as it may have been a condition precedent to the delivery of the policy.</p> <p>Id.—Nonpayment of Premiums—Notice Required by New York Statute—Forfeiture—Construction of Policy.—A policy issued at the New York office by a New York life insurance company, and which is a contract to he performed in that state, is to he read as if the New York statute, requiring thirty days’ written notice to he given after nonpayment of a premium before the policy can be declared forfeited, were incorporated in the policy; and there can be no forfeiture of such policy unless the company alleges and proves nonpayment after due service of the notice required by law.</p> <p>Id.—Limitation of Power—Waiver of Notice not Permissible.—A New York life insurance company has no power to declare a forfeiture in the absence of the notice required by law; and the statute being a limitation upon its power, the statutory notice cannot be waived, though an express waiver of the notice is inserted in the policy.</p> <p>Id.—Statute of Limitations—Policy Executed Out of State.—An action upon a policy of insurance executed out of this state is barred after the lapse of two years from the time of the accrual of a cause of action thereupon, under subdivision 1 of section 339 of the Code of Civil Procedure.</p> <p>Id.—Place of Execution of Policy—Delivery.—A policy of insurance which does not expressly stipulate that the policy shall not he in force until actual payment of the premium, in cash, and which has been issued in consideration of a note for the premium, given to the general agent under a contract which expressly stipulated that the policy should be in force from the date of the acceptance of the application by the company, the note having been charged by the company to the agent when the policy was issued, and which policy purports to be signed and delivered in the state of New York, is a binding policy from the date of its execution and transmission from New York, and is to he deemed executed out of the state.</p> <p>Id.—Lapse of Period of Limitation—Absence of Notice, Proof, and Demand.—Where the covenant of the policy was to pay within sixty days after notice and proof of death and the interest of the party giving the notice, the covenant is practically for a demand of payment, and, in the absence of any notice, proof of death, or demand of payment within the period of limitation, the claim is stale, and no action can he maintained thereupon.</p> <p>Id.—Running of Statute—Accruing of Cause of Action—Possible Acre-of Creditor Making Claim Payable.—A cause of action is deemed to have accrued in such case, for the purpose of setting the statute of limitations in motion, as soon as the creditor by his own acts could make the claim payable, in spite of the debtor. He cannot prevent the statute from running by failing to make a demand required to establish his right of action.</p> <p>Id.—Right of Foreign Insurance Company to Plead Statute—Appointment of Agent—General Statute—Special Provisions of Code.—The general act of 1872, in relation to foreign corporations, precluding the plea of the statute of limitations, unless the name of a person residing in the county of its principal place of business upon whom process may be served shall be filed in the office of the secretary of state, has no application to a foreign insurance company doing business in this state, which is controlled by the special provisions of the Political Code requiring foreign insurance corporations to file in the office of the insurance commissioner their designation of the principal agent or chief manager of the business of such corporation in the state, giving his name and place of residence as the one on whom process may be served.</p> <p>Id.—Statutory Construction — Amendments of Special Statute— Acts in Pari Materia—Control of General Statute.—All amendments made by the legislature to the special provisions of the statute regulating foreign insurance corporations must be construed together with the original provisions thereof as being m pari materia, and the intention of the legislature must he gathered from the consideration of all the special provisions enacted on that subject; and those special provisions must govern in relation to that subject matter as against general provisions elsewhere, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate.</p> <p>Id.—Certificate of Insurance Oommissionbr.—The certificate issued by the insurance commissioner pursuant to section 505 of the Political Code, showing that a foreign life insurance company named has fully complied with the laws of the state and has appointed and commissioned a person designated therein as agent, and that said life insurance company and its agent are authorized to do business in this state, is prima facie evidence of the compliance of such insurance company with the special provisions of the Political Code.</p> <p>Id.—Locality of Foreign Insurance Company Doing Business in This State—Bight to Plead Statute of Limitation.—A foreign insurance company which is lawfully doing business in this state, and has duly submitted itself to the jurisdiction of its courts, must be deemed to be in the state, both for the purpose of suit against it and for the purpose of its right to plead the statute of limitations to an action brought against it in this state.</p>

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

<p>APPEAL from an order of distribution of the estate of a deceased person made in the Superior Court of the (City and County of San Francisco. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion.</p> <p>A. Boyer, for Appellant</p>

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

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

<p>Insolvency—Action by Assignee—Fraudulent Transfer.—An action may be maintained by an assignee in insolvency of a copartnership to recover property fraudulently transferred by the insolvents within one month before the filing of the petition in insolvency.</p> <p>Id.—Transfer Out of Course of Business—Notice of Insolvency— Prima Facie Evidence of Fraud—Burden of Proof.—An assignment by a copartnership firm doing business as retail merchants of the accounts, books, journals, ledger, and blotters of the firm to a father in law of one of the partners, residing in another county, is not made in the usual and ordinary course of business of the firm, and is notice of its insolvency, and prima facie evidence of fraud, which throws the burden of proof upon the defendant to show that the transfer was in good faith and not fraudulent.</p> <p>Id.—Absence of Evidence to Overcome Presumption—Recovery by Assignee Against Second Transferee.—In the absence of evidence to overcome the presumption of fraud, raised by the prima faeie case made by the transfer out of the ordinary course of business, the assignee is entitled to recover the property so transferred by the insolvent firm against a second transferee thereof, who took 'from the original transferee by transfer entered on the ledger on the same page with that of the original transfer, and with actual notice of the Insolvency of the firm, and who applied the property so transferred on the indebtedness of the firm to such second transferee.</p> <p>Id.—Void Transfer—Title of Second Transferee.—Where the original transfer is void as against the creditors of the firm, a second transferee of the property taking it from the first transferee can take no greater title than that held by the first transferee.</p> <p>Ed .—intention of Transfer—Refusal of Instructions.—It is proper to refuse instructions to the effect that if, at the time of the transfer by the firm, it was not intended for the defendant, plaintiff should recover, where the circumstances in evidence indicate that defendant was aware of the fraudulent intent of the firm in making the transfer, and there is no evidence that it was not intended for the defendant.</p> <p>Id.—Instructions as to Facts Known to Jury—Presumption.—The jurors must be presumed to have ordinary common sense and intelligence, and could not reasonably be misled to believe from an instruction that they will “consider all the facts and circumstances by which the parties were surrounded” at the time they made the assignment, “so far as known to them,” that they had the right to consider any facts not proven in the case before them.</p> <p>Id.—Instruction as to Belief of Jury.—An instruction directing the jury that if they “believe” certain facts, then they should find for the plaintiff, is not misleading, where the context shows that it clearly meant to refer to facts which might be found by the jury, and the court elsewhere instructed the jury at appellant’s request that if there is no testimony to support any fact alleged in the complaint, such fact should be found for the defendant.</p> <p>Id.—Instruction as to Transfer of “All” Boons—Application to Evidence.—An instruction that a transfer by a retail merchant of all his books of account, and the accounts therein, is not in the usual and ordinary course of business, is correct, and is applicable to evidence showing an assignment of a ledger, “and each and every account therein contained, together with the . blotters and journals and other books of account” of the firm “from which said accounts are taken and made.”</p> <p>Id.—Transfer of Part of Books—Oourse of Business.—A transfer of part of the books of a retail merchant would not be in the usual and ordinary course of business.</p>

<p>Change of Place of Trial—Disqualification of Judge—Transfer to “Nearest” or “Most Accessible” Court.—In case of the disqualification of a judge by reason of his Interest in the subject matter of the action, he is in duty bound to transfer the cause to the nearest or most accessible court, if the parties do not agree as to where the action should be transferred for trial. If the “nearest” court is also the “most accessible,” the judge has no discretion; but if some other court than the “nearest” in distance is the “most accessible” in means of communication, the court may transfer the cause to the “most accessible” court, though it may not be the “nearest.”</p> <p>Id.—Convenience of Witnesses—Determination by Qualified Judge.— The disqualified judge cannot properly pass upon a question of the convenience of witnesses; hut that matter is to be determined by a qualified judge of the nearest or most accessible court.</p> <p>Id.—Discretion of Judge—Conflicting Affidavits—Motion by Part of Defendants.—A judge, if properly passing upon a motion to transfer the cause to some other court than the nearest or most accessible court on account of the convenience of witnesses, floes not abuse his discretion in refusing such motion, where the affidavits are conflicting as to what is the most convenient court for witnesses, and only forty-five out of two hundred and fifty defendants joined in the motion.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County and from an order setting aside a sale under foreclosure of a mortgage. Edward I. Jones, Judge.</p> <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 settling the final account of a special administrator. James M. Trontt, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Action upon Contract—Construction op Railway Embankment—Evidence—Measurement by Plaintipp’s Engineer.—In an action upon a contract for the construction of a railway embankment, which provided for a percentage of shrinkage not to be paid for, hut to be added to the fill, to be specified by the engineer of the company, who fixed it at five per cent, and made the grade that much higher to allow for settlement, where there is no question but that the embankment was constructed in a workmanlike manner, and was accepted by the company’s engineers, evidence ' of a measurement of the cubical contents of the embankment made after the work was well settled by plaintiff’s engineer, a competent expert, in the use of an ordinary and not unprofessional method, which was shown to be sufficiently accurate for practical purposes, is sufficient to justify the court in accepting his measurement and computations as the basis of its decision.</p> <p>Id.—Deduction op Percentage por Shrinkage.—Where the court, notwithstanding the measurement of plaintiff’s engineer was made after the settlement of the embankment, deducted five per cent therefrom for shrinkage, its finding of the amount of earth in the embankment after allowing such deduction is not unwarranted by the evidence.</p> <p>Id.—Exclusion op Field-notes op Dependant’s Engineer—Failure op Proof.—The field-notes made by the defendant’s surveyor and engineer, who did not testify to their correctness, and the correctness of which was not proved by any competent evidence, were properly excluded.</p> <p>Id.—New Trial—Newly Discovered Evidence—Neglect to Apply foe Continuance.—A new trial cannot be granted for newly discovered evidence which was not in fact newly discovered, and the importance of which was fully known to the defendant making the motion before the trial, merely because the whereabouts of the witness was not known or discovered by the defendant at the time of the trial. In such case, the defendant should have moved for a continuance, and, failing to do so, the tria! was entered upon at the defendant’s peril.</p>

The facts are stated in the opinion. Garber, Creswell & Garber, and Smith & Pringle, for Appellant. Double taxation is unconstitutional in this state. (Const., art. XIII, sec. 1; Savings etc. Soc. v. Austin, 46 Cal. 483, 495; People v. Hibernia Bank, 51 CaL 243; 21 Am. Rep. 704; Burke v. Badlam, 57 Cal. 600; Spring Valley W. W. v. Schottler, 62 Cal. 112; San Francisco v. Mackey, 21 Fed. Rep. 539; San Francisco v. Anderson, 103 Cal. 69; 42 Am.

<p>The facts are stated in the opinion.</p> <p>Pierson & Mitchell, George E. Crothers, and Garret W. McEnerney, for Appellants.</p> <p>Bonds of railroad and quasi public corporations in this state are not assessable. There can be no double taxation. (Const., art. XIII, sec. 1; Pol. Code, sec. 3617; People v. Hibernia Bank, 51 Cal. 243; 21 Am. Rep. 704; Bank of Mendocino v. Chalfant, 51 Cal. 370; McHenry v. Downer, 116 Cal. 20-24; Burke v. Badlam, 57 Cal. 594; San Francisco v. Anderson, 103 Cal. 69; 42 Am. St. Rep. 98; San Francisco v. Mackey, 10 Saw. 302; 21 Fed. Rep. 540.) Bonds of private corporations are not taxable as such, the lien, as an interest in the property, being the only subject matter taxable. (Const., art. XIII, sec. 1.) Bonds not in this state on the first Monday in March are not taxable. It is only “property in this state” which is taxable under the constitution, article XIII, section 1, and under section 3607 of the Political Code. (People ex rel. Jefferson v. Gardner, 51 Barb. 352; State v. St. Louis County Court, 47 Mo. 594; Redmond v. Commissioners of Rutherford, 87 N. C. 122; Catlin v. Hull, 21 Vt. 152, 157; Duer v. Small, 4 Blatchf. 263; Varner v. Calhoun, 48 Ala. 178; Hoyt v. Commissioner of Taxes, 23 N. Y. 225; People v. Home Ins. Co., 29 Cal. 534; State ex rel. Dunnica v. Howard County Court, 69 Mo. 454; Burroughs on Taxation, secs. 40, 45, 50; Bradley v. Bauder, 36 Ohio St. 25; 38 Am. Rep. 547; Poppleton v. Yamhill Co., 18 Or. 377; Susquehanna Canal Co. v. Commonwealth, 72 Pa. St. 72; Finley v. Philadelphia, 32 Pa. St. 381; People v. Trustees of Ogdensburgh, 48 N. Y. 397; Graham v. First Nat. Bank of Norfolk, 84 N. Y. 393; 38 Am. Rep. 528.)</p>

<p>Taxation—Secured Bonds of Quasi Public Corporations—Double Taxation—Case Affirmed.—A tax upon the bonds of railroads and other quasi public corporations of this state secured by mortgages or deeds of trust, the encumbered property of which is required to be assessed at its full value to such corporations, is double taxation, forbidden by the constitution. The case of Germania Trust Go. v. San Francisco, ante, p. 589, affirmed.</p>

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

<p>Vacating Judgment by Default—Discretion—Review upon Appeal.— The discretion of the court below in setting aside a judgment by default upon motion of the defendant will not be interfered with upon appeal, unless there is a clear abuse of legal discretion, although the facts are such as would have warranted the court in denying the motion.</p> <p>Id.—Conflicting Affidavits—Province of Judge.—Where the affidavits and counter-affidavits used upon the motion were conflicting, it was the peculiar province of the judge of the court below to' determine the truth therefrom.</p> <p>Id.—Liberal Exercise of Power—Hearing upon Merits.—The power of the court should be liberally exercised to mold and direct its proceedings so as to dispose of cases upon their merits; and where the circumstances are such as to lead the court to hesitate, the doubt should be resolved in favor of the application so as to secure a trial and judgment upon the merits.</p> <p>Id.—Affidavit of Merits—Verified Answer.—A verified answer presented with the motion, containing specific denials of the material allegations of the complaint, and containing affirmative matter of defense to the action, is of itself a sufficient affidavit of merits.</p> <p>Id.—Right to File Answer.—Where the notice of motion to vacate the judgment stated that it would be made upon the affidavits and verified answer, copies of which were served therewith, and the order setting aside the judgment directed that the cause be reopened, and the parties be permitted to take such further proceedings as they may see fit, the defendants have a right to answer, notwithstanding a special request therefor was not incorporated in the motion, and no special permission was given therefor in the order.</p> <p>Id.—Payment to Clerk of Money Ordered Paid to Plaintiff—Objection upon Appeal—Motion.—It cannot be objected by the plaintiff upon appeal from the order vacating the judgment that money ordered to be paid to him by the defendants was paid to the clerk, when it appears that he refused to accept it; and any objection that the order was not complied with must be presented first by motion in the lower court, and cannot be considered upon such appeal.</p>

<p>Id.—Findings of Fact—Eights of Plaintiff—Ultimate Facts—Conclusions of Law.—Findings that the level at which the plaintiff had been accustomed to receive his water was not established by defendant as the level at which plaintiff had the right to receive the water, and that plaintiff had no prescriptive or other right to receive water from said canal at any other level than the bottom of said canal, are findings of ultimate facts, and not. of conclusions of law.</p> <p>■ APPEAL from a judgment of the Superior Court of Riverside County. J. S. Noyes, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Summons—Proper Issuance and Service—Mistake in Date Immaterial. Where a summons is in fact issued and served within proper time after the commencement of the action, a mistake of the clerk in dating it a month prior to the commencement of the action is not conclusive proof that it was then issued, but is immaterial, and cannot render the judgment void. The date of the summons is no part of the form of a summons prescribed by the code.</p> <p>Foreclosure of Mortgage—Default of Administratrix—Intervention by Heir—Dismissal—Discretion.—In an action to foreclose a mortgage, the heir of the deceased mortgagor, if entitled to intervene at all, may properly be refused leave to intervene after default of the deceased administratrix, and the dismissal of his complaint in intervention thereafter filed is not an abuse of discretion.</p> <p>Intervention, When not Allowed.—An intervention will not, as a general rule, be allowed when it would retard the principal suit, or require a reopening of the case, or delay the trial, or change the position of the original parties.</p> <p>Id.—Provision of Code—Trial—Default.—The code expressly requires an intervention to be made “before trial”; and a default by which all of the issues tendered by the complaint are admitted in favor of the plaintiff is the equivalent of a trial when the case is litigated.</p>

<p>Contract of Fruit Company with Fruit Growers—Several Bight of Action for Breach.—A contract between "a fruit company and a number of fruit growers to receive and dry and market their crops in the most approved manner, at specified rates per pound, under which the fruit delivered by each fruit grower was weighed and dried separately, and weighed again to the owner, and then mingled with other fruit, and a receipt given to the owner for so many pounds in bulk, is a several contract with each fruit grower, and each has a several right of action against the fruit company for breach of its contract.</p> <p>Id.—Commingling of Dried Fruit—Ownership in Common.—The commingling of the dried fruit had no effect upon the title of the several owners, other than simply to convert it into an ownership in common.</p> <p>Id.—Negligence in Drying and Handling Prunes—Evidence—Bad Condition of Prunes in Bins—General Negligence.—In an action by a fruit owner whose interest is an undivided third of dried prunes commingled in bins, charging negligence of the defendant in drying, curing, packing, and handling plaintiff’s prunes, evidence is admissible to show the bad condition of the fruit in the bins, and the causes of its deterioration, and to show general negligence in the drying process of the commingled fruit, before it was commingled.</p> <p>Id.—Measure of Damage to Commingled Fruit.—Where damaged fruit is commingled with the knowledge and consent of the parties, the measure of damage to each owner of an undivided share thereof is his proportion of the aggregate damage to the commingled mass.</p> <p>Id.—Construction of Contract—“Most Approved Manner”—Methods in General; Use—“Green Grading” of Prunes—Improper ■ Rulings upon Evidence.—The provision! of the contract that the fruit should be handled and marketed “in the most approved manner” is to be construed as referring simply to the methods most generally used by competent men in the trade of fruit drying, though they may not be the best methods obtainable, or secure the best results; and it is erroneous to permit proof that the process known as the “green grading” of prunes was the best process, and to exclude evidence that more men in the state who handle and dry large quantities of prunes do not adopt the process of “green grading” than those who do.</p> <p>Id.—Figures Given to Witness by Accountant—Refusal to Strike Out—Error Deemed Material.—The testimony of the plaintiff as a witness to a balance of account of which he had no personal knowledge, the figures of which were given to him by an accountant, should be stricken out, and the refusal to strike it out is to be deemed material error, where the record does not clearly show otherwise.</p> <p>Id.—Conversion of Fruit—Rejection of Refuse.—The fruit company is not liable for a conversion of fruit consisting only of the rejection of refuse fruit which was authorized by the terms of the contract.</p> <p>Evidence—General Objection.—Where evidence is inadmissible for any purpose, the general objection that it is immaterial, irrelevant, and incompetent is sufficient.</p>

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

<p>Bill of Exchange—Dishonob by Drawee—Advance by Payee—Action Against Drawee.—The drawer of a bill of exchange, the amount of which has been advanced by the payee, is liable, after notice of dishonor, to an action by the payee to recover back the amount of the money advanced.</p> <p>In.—Defense not Sustained—Special Agency of Plaintiff—Certificate Bequibed by Letter of Credit—Bills of Lading and Invoices. A defense to such action upon the ground of the plaintiff’s representation of its agency is not sustained, where the evidence discloses no other representation than that the plaintiff pank was the special agent of a Melbourne bank which authorized the bill of exchange to be drawn upon its London correspondent, merely for the purpose of giving a certificate, required toy a letter of credit in favor of the drawer, that bills of lading and invoices of goods representing the amount of the draft had been forwarded to the manager of the Melbourne bank. The fact that such bills of lading and invoices were delivered by the defendant to the plaintiff bank to be forwarded to such manager as a means of obtaining the certificate from the plaintiff to be sent with the bill of exchange to London is immaterial.</p> <p>Id.—Gashing of Bill of Exchange No Part of Agency.—The cashing of the bill of exchange by the plaintiff bank, at the request of the defendant, was no part of such special agency, and had the same effect as if it had been cashed by any other bank.</p>

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

<p>Action to Set Aside Deed—Fjraud and Undue Influence—Statute os Limitations—Nonsuit.—Where a father died, leaving estate in the name of his hrother, who sold it in 1872, and then paid the share of the deceased in money to his widow, who invested it and raised all of the children thereupon, and all of them, when of age, in 1887, joined in a deed of all their rights to their mother, in an action by one of them brought in 1897 to set the deed aside, for fraud and undue influence, alleged to have been discovered within two years to avoid the statute of limitations, if the plaintiff’s evidence shows no fraud or undue influence connected with the deed, but the contrary, and shows that plaintiff knew all of the facts known by him when the deed was executed, a judgment of nonsuit is properly entered, and should be affirmed.</p>

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

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

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Eranciseo and from an order denying a new trial. J. M. Seawell, Judge. The facts are stated in the opinion of the court. Jones & O’Donnell, and Hu Jones, for Appellant, Charles E. Broad.

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

<p>Pleading—General Demurrer—Counts of Complaint.—A general demurrer to a complaint containing more than one count should be overruled, if the complaint contains one good count stating a cause of action.</p> <p>Conversion—Action by Wife—Count not Alleging Marriage—Separate Property.—A count of a complaint by a wife for the conversion of goods belonging to her, which does not allege that she is a married woman, need not state that the property converted was plaintiff’s separate property; but, if it is made to appear in proof that she is married, her right of recovery must depend upon the fact that such property was her separate property.</p> <p>Id.—Issue as to Demand—Answer Dispensing with Proof.—Where the answer takes issue upon the averment of demand in the complaint, but proceeds to aver facts showing that a demand, if made, would he unavailing, the averment of demand need not he proved.</p> <p>Id.—Evidence—Sale to Plaintiff—Question Assuming Fact Disproved. Where a witness testified that he had purchased the goods in question at sheriff’s sale, and had afterward sold them to the plaintiff, a question on cross-examination assuming a contrary fact that the goods were handed over to her husband, was properly disallowed as unfair.</p> <p>Id.—Gross-examination—Offer of Evidence—Orders of Superior Court—Record—Materiality not Shown.—Evidence offered upon cross-examination of plaintiff’s husband relating to orders of the superior court is not shown to be material, where the record does not contain the orders, or show why they have any importance, or that any ruling was made excluding the evidence, but only that objection was sustained to a statement of fact made by counsel which the witness had denied.</p> <p>Id.—Harmless Error—Admission of Evidence upon Count Withdrawn from Jury.—An objection to evidence improperly overruled is harmless error, where the evidence relates only to a count of the complaint withdrawn from the jury by the instructions of the court, and could not affect the cause of action upon which the verdict was rendered.</p> <p>Id.—Measure of Damages for Conversion—Value—Price.—The measure of damages for the conversion of the plaintiff’s goods is their value, not exceeding the price paid by plaintiff for them.</p> <p>Id.—Indebtedness not Part of Price—Instructions—Verdict for Price. - Where no evidence appears in the record to show that a previously existing indebtedness of the plaintiff to the vendor of the goods was included in the purchase money, and it does not appear that defendant requested any instruction that such indebtedness must be deducted from the price, and the jury were properly instructed as to the measure of damages, a verdict for the full price of the goods will not he disturbed.</p>

<p>Taxation—Bonds of Foreign Railroads—Domicile of Trustee—Situs. Bonds of foreign railroads payable in the city of New York, which were the property of a deceased resident of this state, and were distributed by the superior court to trustees named in the will, are taxable at the domicile of the trustees; and where only one of the trustees is a resident of this state, and the nonresident trustee has the bonds on deposit in the city of New York, in the joint names of both of the trustees, are taxable in this state only as to the undivided half thereof legally owned by the resident trustee.</p> <p>Id.—Interest of Nonresident Trustee.—The interest of the nonresident trustee in the bonds is not “property in the state” within the meaning of the constitution of California, and cannot be taxed in this state.</p> <p>Id.—Interest of Resident Trustee—Identity of Bonds—Control of Local Agent for Investment.—The interest of the resident trustee in the same identical bonds which had been the property of the estate of the deceased owner, and which are on deposit in New York in the name of both trustees, is taxable in this state, and does not fall within the rule that where credits are in the possession and control of a local agent in another state, who holds them for the purpose of transacting a permanent business of investment and reinvestment therein, such credits have a local situs in that state.</p> <p>Id.—Payment Under Protest—Recovery of Taxes Assessed to Ron-resident Trustee.—Where the entire legal interest in such bonds was assessed in this state, and the taxes were paid under protest, the taxes on the half interest in the bonds legally owned by the nonresident trustee may be recovered back at suit of both trustees.</p> <p>Id.—Protest Against Entire Tax—Sufficiency to Sustain—Recovery of Part.—Where the protest specified that the bonds were bonds of foreign corporations held in New York by a trustee who was a nonresident of this state, it sufficiently showed that' the whole assessment was void as to such trustee; and the fact that the protest was against the entire tax, and not against the interest of the nonresident trustee therein does not preclude the recovery back of his undivided interest. The greater protest in-. eluded the less; and the protest was a substantial compliance with the statute.</p>