Volume 129 — California Reports

PETITION in the Supreme Court for writ of prohibition to the Superior Court of the City and County of San Francisco. J. C. B. Flebbard, Judge. The facts are stated in the opinion of the court. Franklin K. Lane, City and County Attorney, William I. Brobeck, Sheffield S. Sanborn, and William B. Bosley, for Petitioners. John H. Dickinson, and Henry E. Monroe, for Respondents.

<p>Eminent Domain—Power of Railroad Under Statute—Trespass.—A railroad corporation cannot, under sanction of the statute relating to eminent domain, enter upon lands and construct its road, before commencing condemnation proceedings; and, if it does so, it becomes a trespasser, and the ordinary common-law remedies are open to the owner.</p> <p>Id.—Construction of Railroad Without Condemnation—Action for Trespass—Statute of Limitations.—An action to recover damages for a wrongful entry by a railroad company upon the land of plaintiff, and the construction of its railroad thereupon, without proceedings for condemnation, and without plaintiff’s consent, if commenced more than three years after the road was built and operated, is barred by subdivision 2 of section 338 of the Code of Civil Procedure.</p> <p>Id.—Implied Permission—Limitation of Two Years.—If the entry and occupation by the railroad company are lawful by reason of an implied permission by the owner of the land, and not by grant or donation, nor under a statutory right of condemnation, an action for compensatory damages would be barred within the two years’ limitation of subdivision 1 of section 339 of the Code of Civil Procedure, applicable to contracts not in writing.</p>

<p>Ejectment—Evidence—Deraignment of Title from Defendant Under Execution.—In an action of ejectment, where the plaintiff had proved title in the defendant, and offered proof of a deraignment of title from him by levy, sale, and sheriff’s deed under execution issued upon a money judgment against him, it is error to exclude such evidence, regardless of the question whether or not the defendant can overcome that evidence by proof of other facts.</p>

•APPEAL from orders of the Superior Court of the City and County of San Francisco settling the final account of an administrator and decreeing distribution of the estate of a deceased person. J. V. Coifey, Judge. The facts are stated in the opinion of the court.

The action was brought by the plaintiff as a.private corporation, organized under the law of the state of Missouri, for the keeping, treatment, and care of insane persons, having its place of business in St. Louis.

<p>Husband and Wife—Liability of Husband fob Necessaries—Abandonment of Insane Wife.—A husband who took his insane wife from the custody of an incorporated institution for the care of the insane, in which he had placed her, and shortly thereafter left her, deserted and destitute, in another state, with the presumed intention that her identity should be lost, and that she might no longer be a charge upon him, is liable, as upon an implied request, for necessaries thereafter furnished to her by the same institution to whose custody she was returned, by an officer of the law, though he may have had no knowledge that she was thereafter kept and provided for therein.</p> <p>Id.—Notice by Letter—Evidence—Copy—Presumption from Mailing. A copy of a letter addressed to the husband, defendant, by the president of the corporation plaintiff, proved by its secretary to have been a copy of an original, addressed to the defendant and mailed to him at his address, which is presumed from the facts to have been known in the institution, and which contained a notice of the return of his wife to the institution by an officer of the law, is admissible if not specifically objected to as being a mere copy of the original letter; and the original, of which it was a copy, having been proved to have been properly addressed and mailed to the defendant, it is presumed that he received it.</p> <p>Depositions Taken out op State—Reading and Correction by Witness—Construction op Code.—Section 2032 of the Code of Civil Procedure, requiring the certificate to a deposition to state that the deposition, when completed, was read over to the witness and corrected by the witness if so desired, applies only to depositions taken in this state, and not to depositions taken out of the state.</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>Injunction—Taxpayer—Illegal Claim Against County for Printing. A taxpayer cannot maintain an action to enjoin the board of supervisors from allowing an alleged illegal claim against the county for printing; nor can he in that action enjoin the auditor and treasurer from acting officially upon such claim.</p> <p>Id.—Quasi Judicial Action of Supervisors—Presumption.—The board' of supervisors, in passing upon a claim against the county, acts in a quasi judicial capacity; and it must be presumed that the board will do its duty, and will reject the claim if it is illegal.</p> <p>Id.—Pleading—Insufficient Allegations.—A complaint to enjoin the allowance and payment of an illegal claim for printing, which does not allege that any claim therefor has been made out or filed with the board of supervisors, or that any such claim will be presented, is fatally defective.</p>

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

The note secured by the mortgage was dated March 27, 1895, and was for the sum of four thousand five hundred dollars, with interest thereon from date until payment, at the rate of eight per cent per annum, payable semi-annually, and, if not so paid, then to be added to and become part of the principal. The indorsement of the note and assignment of the mortgage was made by the payee to the plaintiff April 24, 1895, prior to the maturity of any payment of interest on the note.

<p>Findings—Immaterial Variance—Judgment.—Where the findings of fact are full and explicit, a judgment entered thereon In favor of an intervenor will not be reversed merely because in the conclusions of law the word “plaintiff” is inadvertently used for “intervenor.”</p>

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

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

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

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

The facts are stated in the opinion. E. W. McGraw, Shirley Ward, and Frank D. Lewis, for Appellants. The complaint does not show irreparable injury. (Branch Turnpike Co. v. Yuba County, 13 Cal. 190; Richards v. Kirkpatrick, 53 Cal. 433.) There is no sufficient segregation of improper charges or tender of the proper charges. (Esterbrook v. O’Brien, 98 Cal. 671.) He who seeks equity must do equity.

<p>Mechanics’ Liens—Contractor Fully Paid—Valid Contract.—Where the contractor has been fully paid according to the terms of a valid building contract, no mechanics’ liens can be enforced against the owner of the building.</p> <p>Id.—Sufficiency of Memorandum of Contract.—Where the original contract consisted of three parts, each signed by the parties, consisting of the agreement, the specifications, and the plans and drawings, a memorandum thereof, consisting of a verbatim copy of the contract and signatures thereto and a copy of the specifications referred to in the agreement as “signed by the parties,” without giving such signatures, and a copy of the plans and drawings, referred to in the agreement as “signed by the parties and hereunto annexed,” without such signatures, all of which were attached together and marked “Memorandum of contract” and filed with the recorder, is sufficient to make the contract valid, where, without the aid of oral evidence, it shows ail that is required to be shown by a memorandum of the contract, under section 1183 of the Code of Civil Procedure.</p> <p>Id.—Absence of Signatures.—The statute does not require the memorandum to be signed; and the absence of a copy of signatures from the specifications and from the plans and drawings does not vitiate the memorandum.</p> <p>Id.—Memorandum not Purporting to be Copy op Contract.—Where there was nothing in the memorandum except the style of the writing to indicate that it was a copy of anything, its language, though reading like a contract, must be deemed that of a memorandum or statement of the substance of the contract.</p> <p>Id.—References-in Memorandum to Parts of Itself—False Description Harmless—Maxim.—The reference in the memorandum to the plans and drawings as “hereunto annexed” is to the memorandum itself, and not to the original contract, and the references to the specifications, plans, and drawings as being “signed by the parties,” must be deemed to describe them merely as parts of the memorandum, which asserts nothing as to the mode in which they were identified in writing as parts of the original contract, and, the defect being merely in the memorandum, the maxim, Falsa demonstrate non nocet, applies.</p> <p>Id.—Detailed Drawings Made During Construction—Harmony with Plans and Drawings Filed.—Enlarged detailed drawings prepared during the construction of the building for the instruction of the workmen, which were in harmony with and did not change or add anything to the specifications, plans', and drawings filed with the recorder, and made parts of the memorandum, are not objectionable because not' filed with the memorandum of contract.</p> <p>Id.—Unnecessary Reference in Contract.—A reference in the contract to such enlarged drawings as “detail drawings” is not to the signed plans and drawings made part of the contract, but it is an unnecessary reference, and does not affect the validity of the contract, if it indicates no change made therein.</p> <p>Id.—Ambiguous Reference—Oral Evidence—Validity of Contract.— The reference to “detail drawings” is sufficiently ambiguous to justify oral evidence of the architect to explain it, and to show that it referred to a mere amplification of the drawings which were a part of the contract, made during the progress of the work for the eye of the workman to indicate how that which was called for in the contract was to be done; although, without such explanation, the original contract was sufficient for the purposes of the law.</p>

<p>The facts are stated in the opinion of the court in Bank, and in the opinion rendered in Department Two.</p>

<p>Estates of Deceased Persons—Sale of Real Estate—Best Interest of Estate—Constitutional Law.—Section 1536 of the Code of Civil Procedure, providing that "when it appears to the satisfaction of the court that it is for the advantage, benefit, and best interest of the estate and those interested therein that the real estate, or some part thereof, be sold, the executor or administrator may sell any real as well as personal property of the estate upon the order of the court” is constitutional and valid.</p> <p>Id.—Rights of Heirs—Effect of Previous Statute.—The rights oí the heirs of an intestate are controlled by a statute in force at the time of the death of the intestate, regulating the administration of the estate or the sale of its property.</p>

<p>Appeal—Judgment—Lapse op Time.—An apneal from a judgment taken nearly two years after the rendition and entry of the judgment cannot be entertained.</p> <p>Id.—New Trial Order—Proceeding Independent op Judgment.—A motion for a new trial under the code is a proceeding independent of the judgment, and may be granted even after the judgment has been affirmed upon appeal; and an order granting or denying a new trial may be reviewed upon an appeal taken in time, notwithstanding the judgment may be final.</p> <p>Sale—Harvester—Change of Title—Later Conditional Sale—Title of Subsequent Vendee.—Where a harvester was sold and delivered to the purchaser, under an agreement to give notes for the purchase money, and under the terms of an absolute sale passing title to the purchaser, the sale cannot be afterward converted into a conditional sale, without any change of possession, by a mere written agreement between the parties, so as to affect the title of a subsequent vendee of the purchaser to whom the possession was delivered.</p> <p>Id.—Conditional Sales not Favored.—Conditional sales intended as security, in lieu of a chattel mortgage upon the property, are not favored; and, by reason of the opportunities for fraud presented by such contracts, courts are inclined to scrutinize them closely.</p> <p>Id.—Tax Title—Validitf of Assessment.—Taxes were properly assessed to the original purchaser of such harvester, while in his possession and control, with indicia of ownership invested under the original purchase thereof; and the addition of other names on the assessment-roll did not invalidate the assessment to him. The taxes being delinquent, the assessor’s sale of the harvester to the highest bidder passed title to such bidder, irrespective of the amount of the delinquent tax.</p>

<p>Taxation—National Banks—Limitation of Power of State.—The right of the state to exercise its power of taxation over the property of national banks is limited and defined by section 5219 of the Revised Statutes of the United States; and the state can exercise no power of taxation not therein expressly permitted.</p> <p>Id.—Void Assessment of Personal Assets—Recovery of Taxes Paid Under Protest.—An assessment of the personal assets of a national bank by the state is not permitted and is void; and taxes collected under such void assessment, and paid under protest, may be recovered back.</p>

PETITION for writ of prohibition to prevent the respondent from trying a cause in the Superior Court of Alameda County. E. C. Hart, Acting Judge. The facts are stated in the opinion of the court. W. A. Dow, City Attorney of Oakland, and R. Y. Hayne, for Petitioners.

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

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

<p>Gbiminal Law—Assault with Intent to Commit Rape—Consent of Gibl Undeb Age of Consent.—Upon the trial of a defendant accused of an assault with intent to commit rape upon a girl under the age of consent, the fact that the girl went voluntarily to the room of the defendant by previous appointment, and made no resistance, is immaterial, and can constitute no de-' tense to the charge. The law, in such case, conclusively implies incapacity of the girl to give consent; and the law resists for her, regardless of her actual state of mind at the time.</p> <p>Id.—Evidence—Age of Pbosecutbix—Memobanda—Entby in Bible— Physician’s Cash-book.—The mother of the prosecutrix, in testifying to her age, may refresh her memory as a witness from an entry made by her in the family Bible shortly after the birth; and the physician who attended at the birth may refresh his memory as a witness from an entry made by him at the time in his cash-book. It is not necessary that such written memoranda should be admissible in evidence.</p> <p>Id.—Administebing Wine to Pbosecutbix—Untenable Objection to Evidence.—Evidence is admissible to show that about one hour before the assault the defendant gave wine to the prosecutrix, which she drank. It is not a tenable objection to such evidence that it may tend to prove that defendant administered intoxicating narcotics with intent to prevent the prosecutrix from resisting, and that defendant is not charged therewith in the information.</p> <p>Id.—Misconduct of Distbict Attobney—Request to Bystandebs—■ Questions to Witnesses.—Where it appears that the court carefully guarded the rights of the defendant, and that the district attorney did not act through passion or prejudice, or with intent to injure the defendant, it was not prejudicial misconduct for him to request the bystanders to retire while the prosecutrix was testifying, nor to ask objectionable questions to witnesses, which could not have injured the defendant.</p>

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

<p>Trust—Religious Association — United Brethren—Majority ani> Minority Schism.—A conveyance to trustees named therein and their successors in office “in trust for the United Brethren in-Christ for camp-ground, meeting-house, and parsonage purposes,” is. for the benefit of what is known as the “liberal”' church, constituting a majority of that order, and not of the minority known as the “radical” church of the same order.</p> <p>Id.—Seceding Minority of General Conference.—A small minority seceding from the general conference of a religious body, which is the highest legislative and judicial body in the church, must be regarded as abandoning the church, if there is no such revolutionary usurpation of power in the governing body as to result in a new and substantially different organization, or in such a radical change of the articles of faith as to constitute an essentially different religion from that previously followed by the church.</p> <p>Id.—Action of General Conference — Change in Ordinance of Church—Revision of Articles of Faith.—The general conference of the church, as the highest legislative body therein, cannot hind future conferences by adopting a so-called “constitution’' which is in its nature a legislative ordinance, and not a constitution to be adopted by the members of the church; and a-change in such “constitution,” together with a revision of the “articles of faith” by a subsequent general conference not touching the identity of the organization, or of the general faith of the church, is valid and binding as an ordinance of the church, if not as a constitution.</p>

<p>Divorce—Extreme Cruelty—Pleading—Demurrer—Motion for Judgment.—In action for divorce where the complaint states sufficient acts of cruelty to constitute the statutory offense of extreme cruelty, a general demurrer thereto and a motion of defendant for judgment on the pleadings are properly overruled.</p> <p>Id.—Trial by Jury—Discretion—Requiring of Deposit by Wife.—It is discretionary with the court to allow or refuse a jury trial of certain issues in an action for divorce; and where it is demanded by the wife, without the consent of the husband, to try issues of adultery charged by the wife, the court has discretion to require the wife to deposit with the clerk one day’s per diem and mileage of the jury, as a condition of making the order.</p> <p>Id.—Motion for Nonsuit—Interpolation in Record.—Where it appears that a motion for a nonsuit was properly denied, a statement interpolated in the bill of exceptions by the judge, that the evidence for the plaintiff was sufficient to meet all the allegations of the bill of complaint, does not injure the defendant, and will be disregarded as an attempt to forestall the question to be examined upon the evidence brought up.</p> <p>Id.—Harmless Error.—Erroneous rulings upon evidence, which appear from the record not to have materially injured the appellant, are not ground for reversal.</p> <p>Id.—Orders Relating to Bill of Exceptions—Appeal—Bemedy.—An appeal does not lie from an order refusing to amend a bill of exceptions, nor from an order refusing to strike out evidence therefrom, nor from an order refusing to settle a proposed hill of exceptions. The remedy for wrongful refusal to settle a bill, of exceptions is by mandamus, and for wrongful refusal to allow an exception in accordance with the facts is by petition to this court.</p>

<p>Water Rights—Adverse User—Interruption.—An adverse user of the waters of a stream, in order to ripen into a title, must have been continuous and uninterrupted; and any interruption of the adverse user, however slight, prevents the acquisition of a prescriptive title.</p> <p>Id.—Insufficient Finding—Adverse User of Half of Stream.—A finding of an adverse user of one-half of the stream in controversy, which shows that the user had been interrupted by the plaintiff at least once each year, by acts found to be acts of trespass, and which does not show that the defendant’s user was open or notorious, Is Insufficient to support a judgment awarding one-half of the water to the defendant.</p> <p>Id.—Agreement for Division of Stream not Pleaded—New Trial— Amendment of Answer.—Where the defendant testified to an agreement between plaintiff and defendant for division of the stream, which was not pleaded nor found, he will be allowed leave to amend the answer upon a new trial granted upon appeal.</p> <p>Id.—Complaint—Defective Allegations—Appropriation —Adverse User—Amendment.—A complaint not specifically alleging that the plaintiff is the owner of the stream in controversy, and which attempts to allege an appropriation by plaintiff’s grantor, without pleading the acts of such appropriation, and which alleges an adverse user by the plaintiff interrupted by the defendant, will be allowed to be amended upon a new trial granted upon plaintiff's appeal.</p>

<p>'Estates :of Deceased Persons—Settlement and Distribution—Exclusive Probate Jurisdiction of Superior Court.—The superior court which has charge of the administration of the estate of a deceased person has exclusive jurisdiction as a court of probate over all questions relating to the settlement and distribution of the estate.</p> <p>Id.—Deraignment of Title to Estate—Decree of Distribution.— Under our probate system all deraignment of title to the property of deceased persons, whether dying testate or intestate, is-through the decree of distribution -entered as the final act in the administration of the estate.</p> <p>Id.—Conclusiveness of Decree.—The law of an estate distributed under a will is the decree of distribution and not the will, and the decree of distribution is conclusive upon the whole world.</p> <p>Id.—Instruction by Court of Equity.—The superior court, sitting as a court of equity, has no jurisdiction of an action brought pending The administration of an estate to instruct the court having probate jurisdiction thereof, as to what distribution of the estate should be made under, the will, after the administration has been completed.</p> <p>Id.—Action in Equity to Construe Will—Legal Questions—Trusts— Province of Superior Court Settling Estate.—An independent action in equity does not lie in this state to construe a will, whether it involves merely legal questions, or questions relating to the execution of trusts created by the will. It is the province of the superior court Which settles the estate of a deceased person to construe the will and the trusts created thereby; and it may exercise all equity powers necessary for a complete administration of the estate, though not authorized in the limited exercise of its probate jurisdiction to determine controversies not within the scope of such administration.</p> <p>Id.—Equitable Action in Same Court Having Probate Jurisdiction— Dismissal—Void Judgment.—An action in equity brought in the same court which has probate jurisdiction over the estate, to obtain from that court sitting in equity a construction of the will for the same court sitting in probate, cannot be entertained, and must be dismissed. Any judgment rendered therein would be void.</p> <p>Id.—Cases Distinguished—Change of Constitution.—Cases for the construction of wills and of trusts thereunder arising under the former constitution, which vested all equity jurisdiction in the district courts, and established separate probate courts, are inapplicable to the present judicial system established under the new constitution, which vests both equity and probate jurisdiction in the superior court. One judge of the superior court sitting in equity cannot control another sitting in probate.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. A. S'. Kittredge, Judge. The facts are stated in the opinion of the court. H. V. Morehouse, F. J. Hambly, D. W. Burchard, and E. M. Rea, for Appellant.

<p>Foreclosure of Mortgage—Conveyance Intended to Secure Note— Sufficiency of Complaint.—A complaint alleging that the defendants jointly executed to plaintiff a note for a specified sum, which is unpaid, and thereafter, as security for the payment of the same defendants, conveyed to plaintiff by deeds of grant certain described real estate, and “that said conveyance of said real estate by defendants to plaintiff is and was intended by both plaintiff and defendant to secure the payment of said promissory note,” states a cause of action for the foreclosure of the deeds given by way of mortgage.</p> <p>Id.—Attorney’s Fee Stipulated in Note—Lien upon La>d—Admission of Averment.—Where the note alleged to be secured by the deeds of grant was set out in the complaint, and contained a provision for the allowance of attorneys’ fees in case of suit, the allegation of the complaint that the conveyance was “intended to secure the payment of said promissory note,” includes the contract to pay the attorneys’ fees, as well as the principal and interest of the note; and where such allegation was admitted at the trial, it was proper not only to give judgment for the attorneys’ fees, but also to make them a lien upon the mortgaged premises.</p> <p>Id.—Decree of Foreclosure—Sale in Separate Parcels.—Where the decree of foreclosure, in directing the sale of the mortgaged property, substantially followed the provisions of section 720 of the Code of Civil Procedure, and was in proper form under that section, if no defendant presented any equity to the court that he desired to have protected in the decree, no defendant can complain of its form. If the defendants desired to have the property sold in separate parcels, they should have. proceeded to that end in accordance with section 094 of that code, by direction given at the sale, and cannot object upon appeal that the decree did not provide therefor.</p> <p>Id.—Deficiency Judgment.—Under section 720 of the Code of Civil Procedure, which is constitutional and valid, the court was warranted in providing in the decree for the foreclosure of the deeds given by way of mortgage, for the entry of a deficiency judgment for any residue of the note left unpaid after the sale of the mortgaged premises.</p>

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

<p>Malicious Prosecution—Conspiracy op Defendants—Gravamen of Action.—An action will not lie for a mere malicious conspiracy wrongfully to prosecute an action. In an action for the malicious prosecution of a civil action, where a malicious conspiracy of the defendants is alleged, the gravamen of the action is not the conspiracy, but the injury to the plaintiff, arising from the malicious prosecution of the action.</p> <p>Id.—Want of Probable Cause—Termination of Prosecution—Insufficient Complaint.—A complaint in an action for the malicious prosecution of a civil action, which does not aver that the alleged prosecution was without probable cause, as well as malicious, nor that it had terminated before the action was brought, is fatally defective.</p> <p>Id.—Judgment for Plaintiff—Reversal Upon Appeal—Question of Probable Cause.—An averment that a judgment was rendered in favor of the plaintiff in the action alleged to have been maliciously prosecuted, and that it was reversed upon appeal, does not tend to show or raise a presumption that the action was without probable cause; but the rendition of the original judgment for the plaintiff would rather show probable cause for bringing the action, notwithstanding its ultimate reversal.</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>Street Railway—Common Use of Street by Two Lines—Construction of Code—Original Expense—Reasonable Value.—Section 499 of the Civil Code, which provides for the joint use of part of the same street, not exceeding five blocks, hy two lines of street railway operated under different managements, “each-paying an equal portion for the construction of the tracks and appurtenances used by them jointly,” as applied prospectively to a case where no track has been constructed, leaves it to-the lines to agree as to the construction thereof, the expense of which is to be equally borne; but the section also extends to-a case where one line has already constructed and used its track, and another line seeks to use It under the statute, in which case the latter is not required to pay one-half the original expense of its construction, but only one-half of its reasonable value at the time of permission to use it.</p> <p>3d.—Present Cost of Materials.—Where the court allowed and required the payment by the new line of one-half of what would have been the present cost of the material used in the track and appurtenances at the time of its decree, in the absence of any other evidence of the reasonable value of the same at that time, the allowance of such cost is sufficient proof that that was its reasonable value.</p>

<p>Appeal—Refusal to Strike Out Irrelevant Matter—Identification in Record.—In the record upon appeal from an order refusing a motion to strike out certain parts of a complaint as redundant, unnecessary, and irrelevant, which are referred to in the motion by page and line of the pleading, the transcript should identify the matter to which the motion was addressed.</p> <p>Id.—Harmless Error.—Where the record siiows that the cause was tried upon its merits, and that no substantial right could have been affected by the ruling of the court in refusing to strike out immaterial matter which should have been stricken out as irrelevant, the error will he deemed harmless, and in such case the judgment will not be reversed.</p> <p>Id.—Unnecessary Findings — Admissions in Pleadings.—Undenied allegations of the complaint require no findings; but it is not error to make such findings, and it cannot be assumed that such findings were purposely made burdensome upon the appellant.</p> <p>Foreclosure—Annuity of Wife Charged Upon Husband’s Land—Purchase by Subsequent Mortgagee—Future Installments—Second Action.—A wife who has foreclosed a lien for installments due upon a life annuity charged upon her husband’s' land by an agreement of separation, and has purchased part of the land in satisfaction thereof, under a decree which allowed a subsequent mortgagee to sell the land subject to the wife’s lien, hut which did not provide for future installments, or for sales upon motion, may maintain a second action against such mortgagee, who purchases the land subject to her lien, to sell other portions thereof for further installments which have become due upon the annuity.</p> <p>Id.—Practice Upon Foreclosure for Part of Debt—Judicial Ascertainment of Future Debt.—Upon foreclosure of a lien for part of a debt which has fallen due, if the decree judicially ascertains and adjudicates the amounts of the debt yet to fall due, and makes provision for applying to the court upon motion for sale of more of the premises charged with the lien to satisfy the same, the proper practice is to file a motion in the cause reciting the proceedings and alleging that other installments of the debt have become due, and asking for a sale of the property. But when there is no such judicial ascertainment or provision in the decree, such motion is not proper, and a second action should be brought to sell other portions of the land for a portion of the debt which has subsequently become due.</p>

<p>MOTION to dismiss an appeal from an order of the Superior Court of Mendocino County setting aside portion of a sale made under a decree of foreclosure. J. M. Mannon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to vacate the judgment for the plaintiff and to enter a judgment for the defendants. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Quieting Title—Annulment of Sheriff’s Deed—Mortgage Subsequent to Conveyance—Single Cause of Action—Demurrer for Misjoinder.—A complaint seeking to quiet plaintiff’s title, and also to annul a sheriff’s deed to the defendant under foreclosure of a mortgage made subsequently to the record of a conveyance by the mortgagor under which plaintiff claims title, states only a single cause of action for the enforcement of plaintiff’s right to the premises in question against the unlawful claim of the defendant thereto, and is not subject to a demurrer for misjoinder of causes of action.</p> <p>Id,—Plural Remedies for Single Right.—A plaintiff may frequently be entitled to several remedies of different kinds for the enforcement of a single right of action.</p> <p>Id.—Homestead—Business and Hotel Property—Conveyance by Husband—Subsequent Joint Mortgage.—No valid homestead claim can be made upon premises used for a general merchandise store and hotel, though the family may reside in such hotel; and a conveyance made by the husband alone of such premises which were his separate property, after a declaration of homestead had been filed by him thereupon, passed title to the grantee, and plaintiffs claiming under such conveyance duly recorded hold the title free from the encumbrance of a subsequent mortgage executed jointly by the husband and wife, and from any title derived thereunder by the defendant through a sheriff’s deed under foreclosure of such mortgage.</p> <p>Id.—Foreclosure of Mortgage—Parties Defendant—Pleading—Res Adjudicata—Adverse Title not Involved.—Where the plaintiffs in the action to quiet title, having a title prior, adverse, and paramount to that of the mortgage, were made parties defendant to the foreclosure thereof, under the usual allegations in the complaint that the defendants other than the mortgagor claim some interest in the premises, and that such interest is subsequent and subordinate to that created by the mortgage, without setting forth the particulars of the defendants’ claim, or showing that it was prior in time to the mortgage, the judgment of foreclosure does not become res adjudicata as to the prior adverse title of the plaintiffs.</p> <p>Id.—Estoppel of Former Judgment—Identity of Questions.—In order that a judgment in one action may constitute an estoppel against the parties thereto in a subsequent action, it must be made to appear, with certainty to every intent, either upon the face of the record or by extrinsic evidence, that the identical questions involved in the issues to be tried were determined in the former action. What was involved must not be left to any uncertainty or conjecture; and that only is deemed to have been adjudged in the former action which appears upon the face of the record to have been so adjudged, or which was actually and necessarily included therein, or necessary thereto.</p> <p>Id.—Object of Foreclosure of Mortgage—Title of Mortgagor at Date of Mortgage—Proper Parties—Dismissal of Adverse Claimants.—The object of a suit to foreclose a mortgage is to vest in the purchaser at the sale the same title or estate which the mortgagor had at the date of the mortgage; and the only proper or necessary parties defendant are the mortgagor and those claiming under him subsequent to that date. Titles adverse to that of the mortgagor, or superior to the mortgage, are not proper subjects for determination; and the proper action of the court is to dismiss from the suit any of the defendants who appear to be adverse claimants of such a title.</p> <p>Id.—Conclusiveness of Judgment Against Adverse Claimant—Plead- ‘ ings.—If the complainfcin foreclosure sets forth thefacts upon which an adverse claimant made defendant bases his claim of title, and he allows issues to be tried thereon without objection, he is concluded by the judgment; but if it merely avers that he claims an interest, and that such interest is subsequent and subordinate to the mortgage, it negatives any claim of plaintiff that it was prior thereto and presents a mere conclusion of law, and the denial of these averments does not raise an issue upon a claim of title prior and adverse to that covered by the mortgage, or upon the validity thereof, and a claim of such title is not concluded by the judgment.</p>

<p>Joint Note—Benefit from Consideration—Presumption of Joint and Several Promise—Construction of Code.—Section 1659 of the Civil Code, which provides that “where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several,” cannot be construed to mean that the parties, though receiving some benefit from the consideration, may not create a joint liability upon a note expressly made joint and intended to be joint only, as provided for in section 1430 of the same code.</p> <p>Id.—Presumption, When Inapplicable.—The presumption of a joint and several promise does not apply where there is an express joint obligation-, in the absence of any facts to show a contrary intention.</p> <p>Id.—Presumption Overcome—Express Agreement for Joint Note.— Where parties having several undivided interests in lands covered by several judgments of foreclosure expressly agreed with each other, in consideration of a conveyance of the mortgaged lands to a trustee to be conveyed to them severally in proportion to their interests, upon payment in full, to execute a joint note for the aggregate amount of the judgments, such express agreement overcomes the presumption of a joint and several promise, and the joint promise of such joint note must be enforced according to its terms.</p> <p>Id.—Action Upon Joint Note—Parties.—In an action upon a joint note upon which there is no several liability, all of the joint makers must be joined as parties defendant.</p>

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

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

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

<p>■The facts are stated in the opinion of the court.</p> <p>Frank S. Sprague, Charles C. Holl, and Edward C. Harrison, for Appellant.</p>

<p>Promissory Note—Indorsement—Waiver oe Demand, Protest, and Notice—Words Stamped on Note—Joint and Several Contract— Presumptions.—The words, “For value received, I hereby waive demand and notice of demand, protest, and notice of protest and nonpayment,” when not written over the name of the first indorser of a promissory note by himself, but printed upon the back of the note with a rubber stamp before any of the names of a number of required accommodation indorsers were written thereupon, are not limited to the first of such indorsers, but must be deemed a part of the note, and, notwithstanding the use of the singular number, must be presumed to be the joint and several contract of all of the indorsers, who must be presumed to have read the words and to have adopted them as their contract; and the bank discounting the note, whose president had affixed the stamp, had a right to assume, on return of the note thus signed, that each and every indorser was severally bound by the waiver.</p> <p>Id.—Evidence—Intention of Indorser Immaterial.—Evidence of the intention of an indorsor not to waive presentation or notice, who is found on sufficient proof to have attached his signature under the stamped waiver, is not admissible, and, if admitted without objection, is irrelevant and immaterial, and cannot affect or change his liability.</p> <p>Id.—Action Upon Lost Note—Tender of Indemnity Bond—Offer in Complaint—Filing—Service—Costs.—Where an indemnity bond against a lost note is not tendered before suit, but is offered in the complaint and filed with It, it must be deemed tendered when the complaint is served upon the defendant, and if defendant then offers to pay or to let judgment be taken, plaintiff cannot recover costs; but if the defendant persists in making defense to the action, and plaintiff recovers, he should recover all costs thereafter accruing.</p> <p>Id.—Unsuccessful Defense—Recovery of Costs—Insufficient Record Upon Appeal.—Where the action upon the lost note was unsuccessfully defended after tender of an indemnity bond in the complaint, and the record upon appeal does not show what costs ' had accrued at the time the bond was filed, or when it was tendered, the judgment for costs will not be disturbed upon appeal.</p>

<p>Street Assessment—Proceedings in Invitum—Compliance with Statute Essential.—Proceedings upon which a street assessment are based are in invitum, and the statute must be substantially complied with, or the assessment will be void.</p> <p>Id.—Cost of Grading Street—Void Assessment Upon Lots on One Side of Street.—The city authorities have no power to assess the entire cost of grading a street upon the lots on one side thereof if the street upon which the work was done was not a subdivision, street, avenue, or lane, and the work was not done opposite work of the same class already done; and such an assessment is void.</p> <p>Id.—Construction of Statute—Lands Fronting on Work.—The provision of the statute that “the expenses incurred for any work authorized by this act .... shall be assessed upon the lots and lands fronting thereon,” means that the expense of the whole work authorized by the act in the improvement of a public street shall be assessed upon all of the lands fronting on the work, on both sides of the street, regardless of whether more of the work of grading is done on the one side of the street than on the other. The public improvement, when made, is equally for the benefit of each and every lot abutting on the street.</p>

<p>Venue of Action—Diversion of Water—Ditch in Two Counties—Injury to Real Property—Injunction.—The right of the owner of a ditch situated in two counties to have water flow therein is coextensive with its right to the ditch; and a diversion of water therefrom in one of the counties is an injury to the real property of the owner in the other county. An action to enjoin such diversion is properly brought in either county.</p> <p>Id.—Change of Place of Trial—Place of Business of Corporation Defendant — Diversion in Another County.—The fact that the defendant in an action to enjoin the diversion of water from a ditch situated partly within the county of the venue is a corporation having its principal place of business in another county, in which the ditch is also situated, and that it diverted and used the water in that county, cannot entitle the defendant to a change of the place of trial of the action to that county.</p> <p>Id.—Pleading—Averment of Damage Unnecessary.—In an action to enjoin the diversion of water from plaintiff’s ditch, it is not necessary to aver that plaintiff has already sustained any damage, nor to state the amount thereof.</p>

<p>Bill of Exceptions—Settlement After Default—Jurisdiction—Excuse not Appearing—Appeal.—A judge is without jurisdiction to settle a bill of exceptions presented after the time allowed by law if it fails to disclose any excuse for the delay, or any facts from which the appellant could claim relief from his default, or that he applied therefor. A bill of exceptions so settled cannot be considered upon appeal.</p> <p>Id.—Extension of Time—Limits of Power.—A judge cannot grant an extension of time to present a bill of exceptions, exceeding in the aggregate a period of thirty days, without the consent of the opposite party. He cannot grant two or more extensions of thirty days each, nor can he grant an extension of time after the moving party has made default.</p>

<p>Specific Peefobmance—Inadequacy of Considebation.—Under section 3391 of the Code of Civil Procedure, inadequacy of consideration is made a distinct ground for refusing a specific performance of a contract, independently of the question whether it amounts to evidence of fraud.</p> <p>Id.—Contingent Fee of Attobney in Diyorce'Suit—Share of Community Pbopbbty—Inadequate Consideration—Reasonable Compensation.—A contract for a contingent fee of an attorney in a divorce suit, giving one-third interest in the share of community property recovered by the wife as plaintiff, cannot be specifically enforced, where it appears that the plaintiff did not receive adequate consideration for her promise, and that the attorney received, by order of the court in the divorce suit, a reasonable compensation for all the services performed by him.</p> <p>Id.—Presumption from Allowance by Order of Court—Knowledge of Contract—Invalidity.—It must be presumed from the allowance made for the services of the attorney for the plaintiff in the divorce suit, by order of the court, with knowledge of the written contract for a contingent fee, that the court deemed the contract illegal and void, and made the allowance as if no contract had existed. Otherwise, the allowance could not be justified.</p> <p>Id.—Justice and Reasonableness of Contract—Rules of Equity.— Under section 3391 of the Civil Code, specific performance cannot be enforced against a party to a contract “if it is not as to him just and reasonable.” Under the settled rules of equity, specific performance cannot be decreed unless it affirmatively appears that the contract is fair, just, and equal in all of its parts, and reasonable and equal in its operation; and if it is in any respect unfair or oppressive, the plaintiff will be left to his remedy at law.</p> <p>Id.—Divorce—Contract for Contingent Fee Against Public Policy.— A contract between an attorney and the plaintiff In a divorce suit for a contingent fee is against the policy of the law, and contrary to good morals. The law does not favor divorce; and any collateral bargaining promotive of it is unlawful and void, whether made by the parties with each other, or by one of the parties with an attorney whose benefit depends upon procuring the divorce.</p> <p>Id.—Reason of Rule as to Contingent Fees—Cessation of Rule in Divorce Cases—Power of Court.—The reason of the rule allowing attorneys to contract for contingent fees in civil cases, for the protection of persons unable to pay a certain fee for a meritorious cause of action or defense, does not apply to contracts with the wife in a divorce suit, in which the court may require the husband to pay the wife’s expense for prosecuting or defending the action. The reason or necessity for the rule ceasing in such cases, the rule itself also ceases therein.</p>

<p>The facts are stated in the opinion.</p> <p>Isaacs & Tillotson, and Charles A. Garter, for Appellant.</p>

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

<p>APPLICATION for a supersedeas pending an appeal from a judgment- of the Superior Court of Los Angeles County. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Contract—Supplemental Agreement—Consideration. —A supplemental agreement, either adding to or varying the terms of the original contract, so as to impose new and onerous burdens upon one of the parties, requires a consideration to support it; and if there is no consideration in some favorable modification or release of previous obligations, and no new consideration appears, the supplemental agreement cannot be sustained.</p> <p>Id.—“Explanatory” Agreement—Original Consideration.—The fact that the supplemental agreement is also described as “explanatory” of the first agreement executed at a previous date is not conclusive that it was part of the original agreement, though not included in the writing, so as to be supported by the original consideration.</p> <p>Id.—Pleading — Want op Consideration — Demurrer.—An answer pleading a want of consideration for a supplemental agreement which imposes a new and onerous burden on the defendant, and does not disclose any consideration therefor on its face, presents a sufficient defense to an action based thereon, and a demurrer thereto is improperly sustained.</p> <p>Id.—Repudiation op Contract.—It is not in the power of one of the parties to a contract to discharge it by repudiating it. Upon such repudiation, the other party may regard it as discharged, but not the party in fault.</p>

<p>Oeiminal Law—Assault with Intent to Mubdeb—Void Vebdict—Dis-CHABGE OE JuBY WITHOUT CONSENT—JeOPABDY—ACQUITTAL.—Under an information charging a defendant with an assault with intent to commit murder, a void verdict for an assault with a deadly weapon, an offense not included in the charge, constitutes no legal reason for a discharge of the jury without the consent of the defendant; and in case of such discharge appearing to have been made without his consent, entered upon the minutes of the court, the defendant upon a second trial is entitled to an acquittal upon a plea of once in jeopardy and a former acquittal.</p>

<p>APPEAL from a judgment of the Superior Oourt of the City and County of San Francisco and from orders refusing to vacate the judgment and denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles N. Kirkbride, and George C. Ross, for Appellants.</p>

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

<p>Findings—Support of Judgment—Indecisive Reference to Pleadings. Where the answer contains both denials and affirmative allegations of matter of defense, findings that all of the allegations of the complaint are true, and that all of the allegations of the answer, so far as they are inconsistent with the allegations of the complaint, are not true, cannot support a judgment for the plaintiff. Such findings leave it undecided what allegations of the answer are inconsistent with the allegations of the complaint.</p> <p>Id.—Durr of Loweb Coubt—Findings not Made Upon Appeal.—It is the duty of the lower court to make its findings certain and decisive; and this court will not assume the function of determining for the first time upon appeal what allegations are true or false, either by reference to the testimony or by reference to other facts found.</p>

<p>Action Involving Title to Office — Justice of the Peace—Party Nomination—Legality of Election—Insufficient Complaint.—A complaint setting forth that at a former election plaintiff was elected justice of the peace of a specified township, and had qualified and acted as such' continuously until the commencement of the action, and that at the last election defendant’s name was placed upon the ballot as having been nominated by a Republican convention, when he had not been so nominated, and that his election was illegal, but that he had received the certificate of election, and would exercise the functions of the office unless restrained, and praying for an injunction to restrain from so doing, does not state a cause of action.</p> <p>Id.—Quo Warranto—Intrusion into Public Office not Shown.—The complaint showing that the plaintiff is in the exercise of the office, and not alleging or suggesting that the defendant has usurped or intruded into the office, does not state a cause of action in quo 'warranto.</p> <p>Id.—Contest of Election—Statutory Ground not Shown —The complaint showing that defendant wrongfully procured his nomination, or had his name illegally placed upon the tickets, does not show a statutory ground for contesting the election.</p> <p>Id.—Nomination by Electors not Negatived—Presumption—Performance of Official Duty.—The complaint not expressly negativing the nomination of the defendant by petition or certificate containing the signatures of a sufficient number of electors, and expressly showing that the clerk received the name of the defendant upon the ballots,- and that a certificate of election had been issued to him, it must be presumed that official duty was regularly performed, and that the defendant was nominated and elected, and duly received the certificate of election.</p>

APPEALS from a judgment of the Superior Court of Orange County and from an order refusing to set aside a default and judgment entered after demurrer overruled. J. W. Ballard, Judge. The facts are stated in the opinion of the court.

HABEAS CORPUS in the Supreme Court to A. M. Gardner, Medical Superintendent of Napa State Hospital for the Insane, to determine the sanity of Hugh Buchanan, charged with murder in the Superior Court of Yuba County, and to obtain his return to said county for trial. E. A. Davis, Judge. The facts are stated in the opinion of the court. Theodore A. Bell, E. L. Webber, and Henry C. Gesford, for Petitioner.

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

<p>Mining Claims—Validity of Relocations—Evasion of Annual Work. A relocation made by mining claimants at the close of the year in the name of a nonresident, without his authority, under a pretense that they had abandoned their claims immediately prior to such relocation, with full knowledge that no annual work had been done or attempted, as required by the statute, and with intent to evade such requirement, and to preclude a subsequent valid location, has no validity or effect; and a location proper in form, made on the first day of the following year by another claimant, for failure of the former claimants to do the required annual work, is valid and effective.</p> <p>Id.—Abandonment of Claims—Question of Intention—Facts and Circumstances—Inconclusive Testimony—Support of Finding.— Abandonment of mining claims is a question of intention, which it is the province of the jury or the trial court to determine, in view of all the facts and circumstances of the case. The direct testimony of claimants that they abandoned the claims in controversy a few minutes before they relocated them in the name of another person is not conclusive; and a finding that they did not abandon them is supported, notwithstanding such testimony, where the facts and circumstances in evidence indicate its improbability, and justify the conclusion that there was no abandonment.</p> <p>Id.—Location of Borax Claims—Lode Claims—Placer Claims.—It is not material that locations of mineral claims containing deposits of borate material, or borax, should be described either as lode claims, or as placer claims; and notices stating “that we, the undersigned, have this day located this ground for borate mining purposes,” and describing claims fifteen hundred feet long and six hundred feet wide, are sufficient as notices of placer claims.</p> <p>Id.—Reference to Monuments in Notice—Liberal Construction.— Notices of location of mining claims are to be liberally construed; and references in a notice to an adjoining mine, and to the distance and direction of the claim from a named road and town, are presumed to be a sufficient reference to monuments to identify the claim.</p> <p>Id.—Marking of Boundaries — Record of Claim.—Though the distinct marking of the boundaries of a mining claim upon the ground so that they can be readily traced is essential to a valid location, yet the statute does not require that the record of the claim shall state that it is so marked upon the ground.</p> <p>Id.—District Record Book—Custody of County Clerk.—Where the pleadings admit that the claims were located in a specified mining district, and the name of the recorder of that district is shown, a district record book showing records of locations in the district signed by such recorder, and produced by. the county clerk, in pursuance of the act of 1897, then in force, comes from the proper custodian.</p> <p>Id.—Custom to Record — Supply of Evidence by Defendant.—Evidence introduced from the district record book of the claims both of the plaintiffs and of the defendants is some evidence that there was a rule or custom to record mining claims in the district; and the absence of the proof of such custom by the plaintiff, objected to by the defendants, is supplied by the defendants’ introduction of the same records to prove their locations.</p>

<p>APPEAL from an order of the Superior Court of San Luis Obispo County striking from the files a notice of intention to move for a new trial. E. P. TTnangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

Lewis H. Smith, Frank H. Short, and W. D. Crichton, for Appellant. The words “charged with or convicted of a felony” import that the “charge” must be made in some legal proceeding. (State v. Duncan, 9 Port. 260; Ryan v. People, 79 N. Y. 598; Day v. Otis, 8 Allen, 477.) The word “the” magistrate particularizes the offense of concealing the felony. (25 Am. & Eng.

<p>Deed of Water Right—Contract for Delivery—Total Failure of Consideration—Recovery Back of Money Paid.—An action may be maintained to recover back the consideration paid in money for a conveyance of the right to a sufficient quantity of water perpetually to irrigate plaintiff’s land at all proper and seasonable times for the irrigation thereof, accompanied by a contract to deliver the water in an open ditch at the most convenient point on the margin of plaintiff’s land, where there is a total failure of consideration, owing to an entire breach of the contract, and the entire worthlessness of the deed.</p> <p>Id.—Construction of Contract—Delivery of Water at Proper and Seasonable Times fob Irrigation.—The contract to deliver the water “at all proper and seasonable times for the irrigation of said land” is to be construed as referring only to the recurring seasons of the year suitable for irrigation, and not as requiring the land to be cleared, ploughed, fenced, or improved as a condition precedent to the' defendant’s obligation to deliver the water. Where it appears that the defendant did not deliver the water at any season of the year, no allegation or finding “that a proper and seasonable time has existed ” is necessary.</p> <p>Id.-—Executory Contract—Nonperformance—Failure of Consideration—Rescission—Damages.—In all executory contracts the several obligations of the parties constitute to each reciprocally the consideration of the contract, and a failure to perform the contract constitutes a failure of consideration—either partial or total, as the case may be—within the meaning of section 1689 of the Civil Code, providing for a rescission of the contract for such failure. The remedy for the breach of the contract is not confined to an action for damages.</p> <p>Id.—Recovery of Consideration Paid—Rescission Before Suit—Total Failure of Consideration—Implied Promise to Repay.—Where there is a total failure of consideration under an executory contract, and nothing of value has been received under the contract by the party seeking to rescind, it is not necessary that a formal rescission of. the contract be made before bringing suit; but an action can be maintained to recover the consideration paid to the other party, under an implied promise for repayment.</p> <p>Id.—Rules of Diligence and Laches Inapplicable—Estoppel of Defendant.—In an action involving the rescission of an executory contract, to recover the consideration paid as money had and received to the plaintiff’s use, in case of total failure of consideration on the part of the defendant, the authorities bearing upon the questions of diligence and laches do not apply. The defendant in default cannot object that the plaintiff waited too long to bring such action.</p> <p>Id.—Deed of Water Right to be Delivered—Obligation in Future— Extinguishment by Judgment.—A deed of the perpetual right to a sufficient amount of water to irrigate the land of the grantee, to be taken from the water system of the grantor and delivered by the grantor in a ditch to be constructed to such land, cannot operate as a grant until delivery of the water, and creates merely an obligation to be performed by the grantor in futuro, which is extinguished by a judgment for recovery back of the purchase money paid, because of total failure of the consideration.</p> <p>Id.—Absence of Value—Support of Finding—Legal Conclusion.—A finding that such deed has no value either to plaintiff or the defendant is supported by proof of total nonperformance of the obligation to be performed by the grantor in futuro, and is a necessary legal conclusion from findings that defendant never delivered any water to the plaintiff, and had done nothing toward performing its promises and agreements, and that plaintiff received nothing of value from defendant under and by virtue of said water deed or grant.</p> <p>Id.—Pleading—Failure to Allege Absence of "Value.—The failure of the plaintiff to allege specifically in the complaint that the water deed and grant was of no value is immaterial, where facts are alleged from which that fact appears as a necessary conclusion.</p> <p>Id.—Statute of Limitations—Written Contract—Seasonable Time fob Delivery of Water—Oral Agreement as to Time.—An action founded upon the written contract between the parties for the delivery of water, construed as a contract to deliver it within a reasonable time, and interpreted under an admissible oral agreement of the parties, fixing a specified time as the limit for such delivery, is not barred by the provisions of section 337 of the Code of Civil Procedure, where the required delivery was less than four years before the commencement of the action.</p> <p>Id.—Limitations Inapplicable—Fraud — Other Relief.—Where no fraud is charged in the complaint, and the action is not for relief on the ground of fraud or mistake, but is based upon an obligation growing out of failure to perform a written contract, upon which no cause of action arose until within four years before the commencement of the suit, the limitations prescribed by subdivision 4 of section 339 and by section 343 of the Code of Civil Procedure are inapplicable.</p> <p>Id.—Election to Rescind Contract and Recover Money Paid—Running of Statute as to Implied Contract.—The plaintiff had the election to treat the contract as still subsisting, notwithstanding any breach of it, and the limitation of subdivision 1 of section 339, referring to actions on contracts “not founded upon an instrument of writing,” could not begin to run against an action to recover the purchase money for total failure of consideration of the contract until the plaintiff made his election to rely no longer upon the contract, and to sue for the money paid to the defendant under it.</p> <p>Id.—Interest on Amount Recovered.—Legal interest may be allowed on the amount recovered for money paid under the contract from the date of the payment thereof.</p>

<p>Swamp Land Fund—Property op State—Division op County—Reclamation District in New County—Legislation—Right op Payment.— Money paid into the treasury of a county to the credit of the swamp land fund is the property, not of the county, but of the state; and where the price of swamp lands in the county had been paid into that fund, and the county was thereafter divided, and the reclamation district for those lands was situated wholly in the new county, which had no part of the swamp land fund, and reclamation was there effected, new legislation is not required to warrant payment to the owners of such lands of their proportion of the swamp land fund of the old county.</p> <p>Id.—Statutory Construction—Statement by Register—Location op District—Payments to Purchasers.—Section 3477 of the Political Code, requiring the register of the state land office, upon receiving proper proofs of the reclamation of swamp lands, to credit each purchaser in the district with payment in full for such lands, and to forward “to the treasurer of the county in which any part of the district is situated, a statement showing the amount paid by each purchaser in the district,” is to be construed with other provisions requiring the treasurer to divide the balance of the swamp land fund “pro raía among the original purchasers of land,” and to “pay to each purchaser the amount found to be due,” and the reference to the location of the district is not to be considered as standing in the way of the payment to the purchasers as required by law. The statement by the register is properly made to the treasurer of the county in which the lands of the district were situated when the payments for the swamp lands were made, and not to the treasurer of a new county in which the district is situated, which has no part of the swamp land fund.</p> <p>Id.—Refusal of Treasurer of Old County—Mandamus.—Where the treasurer of the old county, after receiving from the register of the state land office the proper statement of payments made into its treasury by purchasers of swamp lands situated in the new county, the reclamation district of which was there located, refused to make any payment to the successor of the owners of the reclaimed lands, mandamus will lie to compel him to pay the amount found to be due to such owners out of the moneys in his hands to the credit of the swamp land fund of the county.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco against the sureties upon a bond to stay proceedings. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>M. H. Wascerwitz, John J. Roche, and A. Ruef, for Appellants.</p> <p>Lucius L. Solomons, and Linforth & Whitaker, for Respondents.</p>

<p>Action fob Broker's Commission—Sale of Beal Estate—Written Contract Essential—Obal Evidence Inadmissible.—By the terms of subdivision 6 of section 1624 of the Civil Code, an agreement authorizing or employing an agent or broker to sell real estate for a compensation or commission must be in writing. In an action to recover for services rendered by the plaintiff in effecting a sale of the defendant’s land, oral evidence to establish the contract is properly excluded.</p>

<p>Mechanic’s Lien Law—Construction oe Schoolhouse—Bond of Contractor—Recital of Consideration— Guaranty to Third Persons—Estoppel of Sureties.—The validity of a bond given by a contractor for the faithful performance of his contract to build a public schoolhouse, which recites a valuable consideration, and guarantees payment in "full of all claims of subcontractors, laborers, and materialmen due to them from the contractor, and states that the bond shall inure to their benefit, does not depend upon the applicability or operation of the mechanic’s lien law to a public building. It is sufficient that the bond is not prohibited by law; and persons who bring themselves within the terms of the guaranty may sue the sureties upon the bond, and the sureties are estopped in such action to deny the validity of their undertaking.</p> <p>Id.—Evidence—Effect of Bond Upon Party Furnishing Materials and Labor — Harmless Ruling.—The admission of evidence to show what effect the making and giving of the bond had upon the plaintiff in furnishing materials and labor to the contractor is harmless. The plaintiff, as matter of law, had a right to rely upon the bond.</p> <p>Id.—Question as to Nature of Bond—Province of Witness.—It is not the province of a witness to determine the question whether the bond was a common-law bond or a statutory bond; and it is not error to exclude a question, asked upon cross-examination, as to whether the plaintiff relied upon a statutory bond at the time of entering into the contract.</p> <p>Id.—Immaterial Finding—Consideration of Labor and Materials— Execution of Bond—Presumption.—A finding that the consideration of the furnishing of the labor and materials was the execution of the bond is immaterial, and need not be supported by the evidence. The bond being for the benefit of the plaintiff, the labor and material are presumed to have been furnished in consideration of the whole contract, including the bond.</p>

<p>Municipal Franchise for Electric Light and Power — Mandamus— Pleading—Demand and Refusal.—In an action of mandamus to compel the board of trustees of a town to grant a franchise to the plaintiff to erect and maintain poles and wires along the > streets of the town for the purpose of conveying electricity for power and lighting purposes to its inhabitants, where the complaint sets forth a sufficient petition presented to the board for the franchise, which it alleges was denied, and that the board refused to take further action thereon, the averment of demand and refusal is sufficient.</p> <p>Id.—Special Demand for Specific Acts of Duty not Required.—The complaint need not allege a special demand upon the board for the performance of specific acts or steps required of them in the granting of the franchise. The refusal to grant the franchise was a refusal to take any of the steps required of them, and no further demand was necessary.</p> <p>Id.—Hearing Upon Verified Petition—Failure to Answer—Proof— Findings of Court.—In a hearing had upon a verified petition for a writ of mandate, where the defendant has failed to answer, the truth of all the facts alleged is conceded, and they do not need to be otherwise proved; and where the court in such case heard the cause upon the complaint, and made and filed findings in accordance therewith, the judgment entered thereupon is not contrary to law or void, as being a judgment by default.</p> <p>Id.—Privileges Granted to Rival Company—Pleading—Waiver of Objections—Findings—Presumption of Evidence—Judgment.— Where the complaint showed that Sour of the trustees were interested in a rival company engaged in furnishing electricity for light and power, and that at the meeting at which plaintiff's petition was rejected the route of such rival company was approved, though not specifically alleging, as it should, the conditions of its franchise, yet, in the absence of a special demurrer, and of objections to evidence, it must be presumed that a finding, in addition to the facts alleged, that such company did not bid for its franchise, and that it was not sold to it, was sustained by evidence; and a judgment upon the findings awarding a writ of mandate to the trustees to grant the same privileges which were bestowed upon such company, is not objectionable.</p> <p>Id.—Franchises Under Constitution—Construction—Mandatory and Prohibitory Provisions—Act for Sale Unconstitutional.—In section 19 of article XI of the constitution, the word “city” is to be construed as including “town”; and the privileges therein granted of using the public streets, and of laying down pipes and conduits therein, under the regulations and conditions provided for in the section, for the purpose of supplying the city and its inhabitants with illuminating light, etc., are mandatory and prohibitory, and exclude the right of the municipality to award such privileges to the highest bidder. The act of 1897 (Stats. 1897, p. 135), providing for the public sale of such franchises, is unconstitutional.</p> <p>Id.—Duty of Municipal Officers—Impartiality of Privileges Under Regulations—Prior Grant of Franchise.—It is the duty of the officers of a municipality, subject to the regulations provided for in the constitution, to grant to any applicant a franchise ior the use of its streets for poles and wires for the purpose of supplying the municipality and its' inhabitants with electricity for the purposes of light and power. A prior grant of a similar franchise or privilege to other persons or corporations is no reason for not granting it to another.</p> <p>Id.—General Regulations eor Damages and Indemnity—Judgment for Equal Privileges—Presumption—Estoppel of Trustees.— Where it does not appear that the town trustees had made any “general regulations for damages and indemnity for damages,” such as are referred to in section 19 of article XI of the constitution, but it does appear that they had granted a privilege to another company identical with that sought by and awarded to the plaintiff, the judgment awarding the same privilege necessarily includes whatever regulations are imposed upon that company. It must be presumed that the grant of equal privileges to the two companies does not exceed the powers or duties of the trustees; and the trustees cannot assert the contrary as against the plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of Glenn County and from orders denying a new trial and denying a motion of the defendants to vacate and annul proceedings for condemnation. Frank Moody, Judge.</p> <p>The facts are stated in the opinion.</p> <p>Seth Millington, and Charles L. Donohoe, for Appellants.</p>

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

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

<p>1 The facts are stated in the opinion.</p>

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

<p>Attorney and Client—Action for Services—Judgment Upon Counterclaim for Negligence—Advice not to File Lien—Construction of Finding.—In an action by an attorney for services rendered, where the defendant recovered judgment upon a counterclaim for damages for negligent advice, upon which issue was joined, particularly as to whether the relation of attorney and client existed at the date of the alleged negligence, a finding, not assailed for want of evidence, that on or about that date the defendant sought and obtained of the plaintiff advice as to filing a lien for materials furnished to a contractor, and that plaintiff advised the defendant not to file any lien, for the reason that the contractor was about to file one, should receive such a construction as will uphold the judgment, and, so construed, sufficiently establishes prima facie that the relation o£ attorney and client then existed between the parties.</p> <p>Id.—Attorneyship eor Contractor—Relation not Adverse.—The fact that the plaintiff, at the time of the alleged negligence, was the attorney for the contractor, for whom he was about to file a lien against the owner of the property, does not establish an adverse relation which would preclude the relation of attorney " and client between the plaintiff and the defendant in the matter of advice as to his right to file a lien against the same property for materials furnished to the contractor; and the defendant’s knowledge respecting the attorneyship of plaintiff for the contractor is not material.</p>

<p>Location of Mining Claims—Liberal Construction of Proceedings.— The proceedings of miners in the location of mining claims are to he regarded with indulgence, and their notices of location are to be liberally construed.</p> <p>Id.—Sufficiency of Recorded Notices — Reference to State and County—Omission.—Where the preliminary notice of location of a mining claim, recorded under the act of 1897, named the county in which the claim was located, and the final certificate of location referred to the posting and record of the preliminary notice, the fact that such certificate omitted to name the state and county of the purported location will not defeat the certificate of location, or the record thereof.</p> <p>Id.—Description of Claim—Boundaries—Reference to Monuments— Construction of Statute.—The statute of 1897, requiring that the recorded certificate of location shall contain “a description of the claim, defining the exterior boundaries as marked upon the ground, and such additional description by reference to some natural object or permanent monument as will identify the claim,” is not to be construed as requiring a different reference or identification from that required by the Revised Statutes; and a reference to permanent posts or stone monuments erected on the exterior boundaries is sufficient</p> <p>Id.—Possession oe Claim by Prior Locators—Subsequent Location Invalid.—Where the locators of a mining claim under a valid prior location had performed the requisite amount of annual-labor thereupon, and were in actual possession of the claim, having a tent thereupon with their bedding and tools in charge of an employee holding possession for them, and their monuments marked upon the ground were plainly visible at the time of entry made by other locators, who made a location upon an alleged discovery of ore taken from the place where the prior locators had been working, such subsequent location can have no validity, though all the statutory requirements of location were complied with by the subsequent locators.</p>

<p>Irrigation op Lands—Lien op Water Company por Annual Bates— Construction op Contract—Covenants Binding Bepresentatives. In the absence of any law regulating water rates, a water company engaged in the irrigation of lands in a farming district may enforce a lien upon the lands to which water is supplied, as against a subsequent purchaser thereof, for nonpayment of the annual rates fixed by the contract with the original owner, ' when the contract makes the water supplied thereunder an appurtenance to the land upon which it is to be used, and contains a covenant binding the owner of the land, his heirs and assigns and successor in interest, to pay a fixed sum per year to' the water company, although technically such covenant does ■ not run with the land.</p> <p>Id.—Public Use—Regulation op Water Bate—Franchise—Constitutional Law—Construction op Constitution.—The provisions of the state constitution making the use of ail water appropriated for sale, rental, or distribution a public use, and subject to the regulation and control of the state in the manner to be prescribed by law, and declaring that the right to collect rates or compensation for the use of water in any county, city and county, or town, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law, are not to be construed as taking away the right under the general law of the land to collect rates or compensation fixed by contract of the parties for the Irrigation of lands, in the absence of a special statute, or authorized provision, regulating such rates.</p> <p>Id.—Construction of Act of 1885—Power of Supervisors—Maximum Rates — Right of Contract.—The act of March 12, 1885 (Stats» 1885, p. 95), does not destroy the right of contract between irrigation companies and the owners of land. It merely allows-the supervisors upon proper petition to fix maximum rates, and the power of contract within such maximum rates is still preserved, and until the supervisor's shall have acted, persons selling water are allowed to continue to collect their established and customary rates, without being required to make a formal declaration or to secure an ordinance to that effect.</p>

Id.—Defective Decree—Omission of Small Legacies—Order for Correction—Costs Upon Appeal.—A defect in the decree of distribution in failing to contain a provision for the payment of small legacies, of five dollars each, will be ordered corrected in that respect by the trial court, without costs to the appellant. APPEAL from a decree of the Superior -Court of the City and County of San Francisco distributing the estate of a deceased person. J. Y. Coffey, Judge.

<p>Life Insurance—Stipulations in Policy for Purchase With Net Reserve—Construction of Code—Waiver.—The provisions of section 450 of the Civil Code, requiring every life insurance policy delivered in this state upon the life of a resident thereof to contain certain stipulations specified in that section, in reference to the purchase with the net reserve of a term policy or a paid-up policy, in ease of nonpayment of premium after three years’ full payment thereof, do not have the effect to make such stipulations part of the policy, as matter of law, if not inserted therein, and, if they are so inserted, they are mere matter of agreement, which may he waived by the consent of the parties.</p> <p>Id.—Loan Upon Policy—Stipulation in Note—Protection of Security—Waiver of Terms of Policy—Forfeiture.—After payment oi more than three years’ premiums, where a cash loan was made upon the policy of nearly the full amount of the net reserve, and the note given therefor stipulates that, if the policy shall at any time thereafter lapse for nonpayment of premium, all provisions in the policy for the issue of a paid-up or a term policy shall become null and void, such stipulation is a reasonable and valid protection of the security of the note, and operates as a waiver of the terms of the policy; and in case of nonpayment of premium thereafter, there is nothing in the laws of the state relative to forfeitures which makes against the enforcement of the condition so agreed upon.</p>

<p>Street Assessment—Burden of Proof—Presumption from Documentary Proof.—In an action- to foreclose the lien of a street assessment, evidence of the documents provided by the statute as prima facie evidence of the regularity and correctness of the assessment and of the prior proceedings throws the burden of proof upon the defendant.</p> <p>Id.—Presumption not Affected by Unexplained Delay—Affirmative of Issue.—The presumption of the sufficiency and regularity of the proceedings arising from the statutory proof is not affected by the unexplained lapse of time for a period of three years between the date of the work and the date of the assessment. The affirmative of the issue still remains upon the defendant to show a defect in the proceedings.</p> <p>In.—Time of Bid for Work—Presumption.—Where there is nothing to disclose that the bid for the work was not put in within the time provided in the advertisement for bids, it must be presumed that it was put in in time, though the bids were not opened and considered by the supervisors until after such time had elapsed. It must be presumed that official duty was regularly performed, as well as that all the proceedings were regular from the prima facie case made by the plaintiff.</p> <p>Id.—Blank Bid—Void Contract—Jurisdiction of Supervisors.—A blank bid omitting the name of the bidder is void. Such blank cannot constitute a bid; and no valid contract can be let thereupon to the persons who actually presented the blank bid. The supervisors have no jurisdiction to make a contract with one who is not a bidder.</p> <p>Id.—Bond of Contractor Referring to Bid—Misrecital—Void Bond. A void bid is not rendered valid by a bond attached thereto signed by the contractors and their sureties, referring to and misreciting a bid or proposal made by them. The offer or bid must be in such form as to he binding upon its acceptance, otherwise the bond would be of no avail.</p> <p>Id.—Absence of Bid Jurisdictional.—The absence of a valid bid is jurisdictional, and is a defect which cannot be corrected upon appeal.</p>

PETITION for mandamus from the Supreme Court to the Superior Court of the City and County of San Francisco. Carroll Cook, Judge. F. M. Angellotti, Acting Judge. The facts are stated in the opinion.

<p>Criminal Law—Witness Before Grand Jury—Refusal to Answer— Pertinency of Questions—Incrimination of Witness—Contempt.— Where a witness who was subpoenaed before the grand jury to testify upon the examination of a charge against another person for forging a check given in payment of the interest of an alleged heir of an estate, whose existence was a subject of inquiry, refused to answer questions propounded to him, including a question as to whether the accused did not inform the witness that the alleged heir was not the legal heir of the deceased, on the grounds that the questions were not pertinent to the matter under inquiry, and that the answers might tend to incriminate him and degrade his character, it is sufficient to sustain a punishment for contempt for refusal to answer that the one question so included appears to have been pertinent to the charge under inquiry, and [that it did not appear and was not fairly shown to the court that an answer of the witness thereto would have a tendency to incriminate him or to degrade his character.</p> <p>HABEAS CORPUS in the Supreme Court to test the validity of a punishment by the Superior Court of the City and County of San Francisco of the petitioner for contempt in refusing to answer questions before the grand jury. Frank H. Dunne, Judge.</p>

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

<p>The facts are stated in the opinion.</p> <p>Henry N. & Jabish Clement, and George A. Lamont, for Appellants.</p>

<p>Mining Claims—Priority of Location.—The principle which governs the conflicting claims of appropriators of mining claims and other rights on the public domain is that, other things being equal, the prior locator prevails.</p> <p>Id.—Record of Location—Absence of Mining Rules.—Where no mining rules or customs are made to appear requiring a record, it is not required by the Revised Statutes of the United States: but where a record of the notice of location is actually made which refers to some natural object or permanent monument, such as will identify the claim, the record is sufficient.</p> <p>Id.—Marking of Boundaries—Reference in Notice to Stakes Previously Set.—Where stakes had been previously set upon a former occasion by the locators to ynark the boundaries of their claim, which so distinctly marked the location on the ground that it could be readily traced, they were not required to take them out and reset them or to plant other stakes to mark their boundaries, and it was proper for their notice of location to refer to those stakes.</p> <p>Id.—Discovery Before Location—Vacant Public Land—Support of Findings.—Where there was some evidence, though not very explicit, tending to support findings that a gold-bearing ledge was discovered and worked prior to the location relied upon by the plaintiffs, and that at the time of the location the land was vacant public land, subject to appropriation, the findings are sufficiently supported by evidence as against the defendant, who was a subsequent locator, and asserted no title antedating his location.</p> <p>In.—Bight of Action by Plaintiffs—Option to Third Parties to Purchase—Deed—Delivery—Finding as to Intention — Beconveyance in Escrow.—A contract purporting to sell the mining claims of the plaintiffs to third parties for a sum to be paid on or before a certain date, and a deed purporting to convey the title to the purchasers left in their possession, but found by the court upon evidence not to "have been intended as an absolute delivery, and a reconveyance by them to the plaintiffs placed in escrow, to be delivered to the plaintiffs upon failure of the purchaser to make such payment, all bearing the same date, are to be taken as parts of the same transaction, and as intended to create substantially an option in such third parties to purchase the lands within a stated time for the sum fixed by the contract; and such option does not interfere with the right of action by plaintiffs to recover the possession of their claims, supposing them to be included in the contract and deeds, as against a subsequent locator.</p> <p>In.—Overlapping of Claims—Line of Stakes Set by Coplaintiff— Non agreement—Estoppel.—Where the subsequent location of the defendant’s claim overlapped that of the plaintiffs, the subsequent fixing of a line of stakes by one of the plaintiffs, so as to lessen the overlap without the consent of the other plaintiff, and without any agreement by the defendant that such line should be a compromise boundary line between the claims, does not create an estoppel.</p> <p>In.—Limiting Claim to Fifteen Hundred Feet.—Where the court found that fifteen hundred feet running southerly along the ledge from plaintiffs’ northern stake and shaft, as described in their notice of location, would end somewhat north of what they claimed to be their southerly end line on defendant’s subsequent overlapping claim, the court properly confined the claim of the plaintiffs to the actual length of fifteen hundred feet from their starting point.</p> <p>Id.—Ejectment—Action not Arising from Land Office.—In an ordinary action of ejectment to recover the possession of a mining claim, not arising under the Bevised Statutes of the United States out of an application to the United States land office for a patent, the rights of the parties, not as against the United States, but as against each other, are alone to be considered.</p>

<p>Sale of Mine—Condition—Prospecting by Purchasers—Services of Mining Expert—Void Oral Bargain for Commission.—An oral agreement between the vendor of a mine and a mining expert well acquainted therewith, made while proposed purchasers under a conditional contract for purchase of the mine, if found satisfactory within a specified period, were in possession and prospecting the mine, that for the services to be rendered by such mining expert in aiding the vendor to consummate the sale, in case the sale was made, he should receive ten per cent of the purchase price, is void, as being in violation of the sixth subdivision of section 1624 of the Civil Code, requiring a contract to pay a commission upon the sale of real estate to be in writing.</p> <p>Id.—Construction of Code.—Subdivision 6 of section 1624 of the Civil Code is not confined in its operation to persons who make a business of buying and selling real estate, but includes every person who, in any case, comes within its provisions.</p> <p>Id.—Evidence—Successful Services Rendered to Purchasers.—The fact that the mining expert at the request of the purchasers gave them directions where to work to develop ore, and that his directions were followed successfully, and resulted in such development of ore as induced the purchase of the mine under the contract, whatever liability it may impose upon the purchasers, cannot aid the recovery by the mining expert against the vendor under the oral contract for commission, and is not admissible evidence in an action against the vendor to recover such commission for the services rendered to the purchasers at his request.</p>

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

<p>APPEAL from orders of the Superior Court of Santa Clara County dismissing the opposition of a creditor to the discharge of an insolvent debtor and granting such discharge. A. S. Iiittredge, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Homicide—Proper Instructions as to Motive.—Hpon the trial of a defendant accused of murder, it is proper to Instruct the jury that motive is not the ultimate fact to be proved; and that, if the crime is sufficiently proved, it does not matter whether there is a motive or not; but that, in a case depending upon circumstantial evidence, the presence or absence of motive is matter of corroboration, and makes other evidence more or less persuasive, and diminishes or increases the presumption of innocence.</p> <p>Id.—Improper Instructions as to Motive—Probative Force of Evidence—Charge Hpon Matter of Fact.—An instruction requested toy the defendant that “it is against all experience and reason to suppose that a man will imperil his own life and inflict upon another a brutal crime without a motive, and in the mere wantonness of depravity,” involves no rule of law, but is only as to the probative force of evidence, and is properly refused. A charge given by the court that “it may he impossible to show or establish a motive, for the reason that we cannot fathom the mind of the accused on trial, and ascertain if there is not a hidden desire of vengeance or some passion to he gratified,” is an argument against the defendant on the facts, and is an improper charge as to a matter of fact.</p> <p>Id.—Construction of Constitution—Province of Court and Jury.— Section 19 of article III of the constitution, providing that “judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law,” refers to the province of the jury to determine ail matters of fact, and of the court to determine the law, and forbids either the judge or the jury to trespass upon the province of the other. The court must not charge or advise with respect to matters of fact, and its power to state the testimony is exclusive of any other power of the court in its charge in respect to the evidence; and the prohibition upon it is coextensive with the exclusive province of the jury.</p> <p>Id,—Relative Force of Direct and Circumstantial Evidence — Instruction as to Matter of Fact.—The law declares nothing as to the relative probative force of direct and circumstantial evidence; and it is wholly matter for the jury to determine, according to their convictions, from the evidence. An instruction to the jury that circumstantial evidence is not entitled to a less degree of credit than direct evidence, and that circumstances are not likely to be fabricated, is an instruction as to matter of fact within the prohibition of the constitution. [McFarland, J., Garoutte, J., and Van Dyke, J., dissenting.]</p> <p>Id.—Oases Overruled.—People v. Cronin, 34 Oal. 191, and cases affirming the doctrine of that case as to the relative weight of direct and circumstantial evidence, overruled. [McFarland, J., Garoutte, J., and Van Dyke, J., dissenting.]</p> <p>Id.—Inapplicable Decisions as to Weight of Circumstantial Evidence. The decisions made by the courts of other states in relation to the relative weight of direct and circumstantial evidence, where the trial judges were free from any constitutional or statutory restrictions upon their power to sum up the evidence, are inapplicable under our constitution.</p> <p>Id.—Effect of Prior Decisions — Construction of Constitution — Power of Judges to Criticise Evidence.—Though it is conceded to be a proper rule of construction that the words of our constitution are to be construed in the same sense that had been previously fastened upon similar language by the decisions of other states, yet there are no authoritative decisions of other states which have fastened upon the language of our constitution the construction that judges may, in their charges to juries, criticise the weight and credibility of evidence.</p>

<p>Pleading — Negative Allegation—Nonpayment of Debt—Burden of Proof—Support of Finding.—Negative allegations in a pleading need not be proved, unless they constitute an essential part of the original substantive cause of action. The allegation of nonpayment of a debt sued upon, though necessary to make the complaint perfect, need not be proved; but the burden of proof of payment is upon the defendant. Where the debt sued upon is proved within the statute of limitations, in the absence of proof of payment, a finding of the nonpayment alleged is sufficiently sustained.</p> <p>Authorization for Sale of Land — Certainty of Description — Abbreviations—Reference to Attached Diagram.—The use of abbreviations in the description of land contained in an authorization for its sale by real estate agents does not render the authorization void for uncertainty, where the abbreviations are intelligible and easily understood by the aid of a diagram attached to the document</p> <p>Id.—Variance—Description in Indorsed Receipt—Understanding of Parties—Action for Return of Deposit.—A variance between the description in the authorization and that contained in the printed receipt indorsed on the back thereof is not fatal, where both refer to the attached diagram, and it is clear that all parties had reference to the same property. Where it was plainly agreed that if the title was not made good, the deposit made with the agents by the proposed purchaser should be returned to him, such variance will not affect an action to enforce the return of the deposit for failure of the owners to make the title good.</p> <p>Id.—Sale Authorized by Administrator—Evidence—Representative Capacity—Harmless Error.—Where a sale was authorized by an administrator to be negotiated by real estate agents, in an action by a proposed purchaser to recover back the money deposited by him with such agents, evidence is admissible for the defendant to show that he was acting in his representative capacity, and that all parties so understood the fact to be; but error in excluding such evidence is harmless, where it subsequently appears m proof that he acted in his capacity as administrator of the estate, and was endeavoring to dispose of, some of its property for the benefit of himself and other heirs.</p> <p>Id.—Personal Liability of Administrator — Descriptio Persons.— Onewho, in authorizing a sale of real estate, uses the first person in the body of the instrument, in fitting words to bind himself personally thereby, to which he appends his name, followed by the designation of himself as administrator of the estate of a deceased person named, is personally liable upon the contract, notwithstanding the description of his person and representative capacity so appended to his signature.</p> <p>Id.—Validity of Contract—Liability for Deposit.—There is nothing unlawful in an administrator binding himself personally by a contract to sell the property of the estate in good faith for the benefit of himself and other heirs; and though he may not be able to make a title by the decree of the court within the time limited, he may bind himself personally by a valid agreement for the return of the deposit made by his authority.</p> <p>Id.—Creation of Agency—Liability of Principal.—Where there was no provision in the written terms of the authorization to the real estate agents for a sale on their own account, or for compensation of any price obtained over a fixed sum, an agency is thereby created, and the principal is bound by the contract made by the agents under such authorization for a return of a deposit made by a proposed purchaser, in case of failure of the principal to make title, as agreed.</p> <p>Id.—Statute of Limitations — Action to Becover Deposit—Written Contract.—The written contract being valid and personally binding upon the administrator, an action to recover the deposit agreed by its terms to be returned in case of failure to make-title as agreed is not based upon an implied contract, nor affected by the two years’ statute of limitations, and is not barred until the lapse of four years from the accrual of the cause of action.</p>

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

<p>MOTIONS in the Supreme Court to dismiss appeals from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to vacate the judgment and to modify an order sustaining a demurrer to the amended complaint. George H. Bahrs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion.</p> <p>A. H. Ashley, District Attorney, and W. B. Nutter, for Appellant.</p>

The facts are stated in the opinion of the court. W. E. Dunn, City, Attorney of Los Angeles, Walter F. Haas, Successor, T. E. Gibbon, and William J. Hunsaker, for Appellants. The railroad company exhausted its power by the original location of its road, under-the grant of the ordinance expressly reserving all the residue of the street for other uses.

<p>APPEAL from an order of the Superior Court of the City, and County of San Francisco denying a motion to quash an execution for a fine for usurping a franchise, or to amend the same by striking out the interest on the fine provided for therein. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion.</p> <p>Naphtaly, Freidenrich & Ackerman, and Garber & Garber, for Appellant.</p>

<p>'Criminal Law—Homicide—Manslaughter—Mistake of Defendant— Pursuit of Unknown Fugitive from Justice.—If a defendant accused of murder mistook the deceased, who was shot while running from him after being ordered to stop, for a fugitive from justice unknown to the defendant, who had stabbed another man, and of whom the people of the village, including the defendant, were in pursuit, and if the killing was the result of such mistake, it was without malice, and could not amount to more than manslaughter.</p> <p>Id.—Reasonable Cause for Mistaken Belief—Province of Jury—Improper Instruction.—Where there is a state of the evidence from which the jury might find that the killing was the result of a mistake in attempting to arrest the wrong person, while lawfully seeking to arrest a fugitive who had committed a felony, it is the province of the jury to determine whether the defendant had reasonable cause to believe that the deceased was the person who had committed the felony; and an instruction taking that question from the jury, and stating that in contemplation of law, assuming all the evidence to be true, the defendant had no reasonable cause so to believe, and that he was guilty of an unlawful act if he attempted forcibly to arrest the deceased, is improper, and derogates from the constitutional functions of the jury.</p> <p>Id.—Question op Law as to Reasonable Cause—Applicability op Rule.—The rule applied in favor of a defendant, that where, upon the undisputed facts before the jury, the defendant had reasonable cause to believe at the time of the killing that the deceased had committed a felony, it was the duty of the court so to instruct the jury, cannot be applied against the defendant in a criminal case to establish a want of probable cause for a mistaken belief.</p> <p>Id.—Reasonable Doubt—Absence of Malice—Impkopeb Instruction.— An instruction to the effect that before the jury would be warranted in returning a verdict of manslaughter they should be satisfied from the evidence beyond a reasonable doubt that the defendant without malice killed the deceased is erroneous; and though the law is elsewhere correctly given, the error cannot be deemed without prejudice, where the court took the question of acquittal from the jury, and left it to them only to determine the grade of the offense.</p>

PETITION for mandamus from the Supreme Court to the judge of the Superior Court of San Joaquin County. . Joseph H. Budd, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Homicide—Circumstantial Evidence—Difference in Weight op Bullet.—Where the circumstantial evidence that the defendant committed the crime of murder with which he was charged was such that the jury were justified in finding that the bullet which killed the deceased was shot from a rifle borrowed by the defendant, the mere fact that the distorted bullet found in the body weighed four grains less than an intact model bullet shot from the same rifle, the loss in the weight of which was accounted for in the testimony of a gunsmith, cannot be ground for setting aside the verdict of the jury whose province it is to weigh the evidence and decide upon the credibility of witnesses.</p> <p>Id.—Tracing op Gun—Disposition by Defendant—Flight.—It was competent for the prosecution to trace the gun borrowed by the defendant from the time it came into his hands until finally located in the possession of the party producing it, and to prove the disposition made of it by the defendant in a distant town, in connection with his departure from the neighborhood immediately after the homicide, and then absenting himself from the state, as a circumstance tending to show flight and guilty knowledge.</p> <p>Id.—Admissibility op Gun.—Where the gun was fully traced and identified, and it was shown that both before and after borrowing it the defendant had threatened to kill the deceased, and was seen going with it shortly before the homicide toward the place where the homicide was committed, the gun is admissible in evidence.</p> <p>Id.—Identification op Acquaintance—Harmless Ruling.—The admission of the testimony of a witness as to his knowledge that an acquaintance was a one-armed man, in response to a question objected to as to how many arms such person had, probably asked for the purpose of identification, or to test the acquaintance of the witness, is harmless, where it is not shown and cannot be seen how the answer to the question could prejudice the defendant.</p> <p>Id.—Misconduct op Jury—Intoxication op Juror—Conflicting Evidence—Observation by Judge—Finding.—Where a new trial was sought for misconduct of the jury, in that one of the jurors became intoxicated near the close of the trial during a recess, so that he was too drunk to understand the instructions and properly to consider the case, and the evidence was conflicting, and the trial judge, having the best opportunity to observe the condition of the juror, found that he was not incapacitated, his finding will not be disturbed upon appeal.</p> <p>Id.—Evidence op Misconduct—Exclusion of Oral Testimony—Affidavits.—The exclusion of oral testimony of witnesses subpoenaed by the defendant in support of the charge of misconduct is not prejudicial, where the affidavits of each of the witnesses was presented, if there is no showing that any one of them had refused to testify fully by affidavit to all the material facts within his knowledge. The law allows no difference between affidavits or depositions or oral testimony when offered in support of motions.</p> <p>Id.—Cross-examination op Affiants—Discretion op Court.—It is in the discretion of the court to allow or to refuse to allow the cross-examination of witnesses who testify upon motion for new trial by affidavits or counter-affidavits on the question of misconduct.</p>

<p>Foreclosure of Mortgage—Receiver of Rents and Profits—Stipulation in Mortgage—Jurisdiction—Void Appointment.—In an action to foreclose a mortgage, the court has no jurisdiction to appoint a receiver of the rents and profits of the mortgaged property, based merely upon a stipulation in the mortgage for such appointment in case of default and foreclosure, without any showing of facts warranting the appointment under section 564 of the Code of Civil Procedure; and an appointment so made is void.</p> <p>Id.—Power of Court Limited—Consent Ineffectual.—The power of the court to- appoint a receiver in an action of foreclosure is limited to the cases provided for in section 564 of the Code of Civil Procedure; and in a case where the court has no authority under the statute to appoint a receiver, such authority cannot be conferred by consent or stipulation of the parties.</p>

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

<p>Premature Action—Appeal prom Judgment—Motion to Dismiss— Merits and Purpose op Appeal not Considered.—The defendants in a premature action who have prevailed in a defense thereto have a right to appeal from a judgment of dismissal thereof which is declared to be not a bar to another action, which declaration was not in accordance with the prayer of their answer and is in form a judgment against them. Upon a motion to dismiss such appeal upon the ground that the appellants are not aggrieved, and that the appeal is frivolous and taken for delay, the merits of the appeal, as respects the prejudicial character of the judgment or the frivolous character of the appeal and the purpose of delay, cannot be considered.</p> <p>Id.—Remedy foe Frivolous Appeal.—An appeal cannot be dismissed upon the ground that it is frivolous or taken merely for delay. The remedy therefor must be sought in such addition to the judgment as may be just under section 957 of the Code of Civil Procedure.</p> <p>Id.—Second Action—Plea in Abatement.—The fact that a second action has been brought for the same cause, and that the defendants have pleaded in abatement thereof the pendency of the former action by virtue of their appeal, is not a sufficient reason for dismissal of the appeal, even if such plea is well taken. Whether the appeal is sufficient to establish such plea must be determined in the second action.</p>

<p>Minins Claims—Annual Work—Tunnel Developing Overlapping Claims—Relocation.—Where the owner of a quartz mining claim is also the owner of another' ledge, the surface ground of which overlaps the other, and has driven a tunnel into the overlapping claim to develop both ledges in good faith, the work of tunneling done upon the land common to both of the claims in excess of the annual work required by law is sufficient to prevent a forfeiture of the claim overlapped; and a relocation thereof by other claimants for failure to do the annual work, made while work was progressing in the tunnel, cannot be sustained.</p> <p>Id.—Bights of Mining Claimant—Method of Developing Mine.— Where the requisite annual work is done toward the development of a mining claim within its surface lines, a court will not be permitted to substitute its own judgment as to the wisdom and expediency of the method employed in developing the mine in place of that of the owner of the claim.</p> <p>Id—Finding Against Development—Insufficiency of Evidence— Pboof of Oveblapping—Absence of Conflict—Ignorant Witnesses.—A finding that the work done in the tunnel upon the other claim did not tend to develop the claim in controversy is not sustained where the evidence shows without substantial conflict that the claims overlap, and that the work in the tunnel was actually done within the surface lines of both claims. The evidence of witnesses testifying to the contrary, who admitted upon cross-examination their ignorance of the boundaries of the claims is of no value, and is insufficient to raise a conflict.</p>

<p>Vendor and Purchaser—Assignment of Contract of Sale—Representation as to Title—Knowledge of Facts—Reformation—Rescission.—An assignment of a contract for the sale of land by a railroad company which had a patent therefor, made in consideration of the transfer of nursery stock by the assignee to the-assignor, cannot be reformed or rescinded by the assignee on the ground that the assignor represented that the title was good, and that the contract did not express the understanding of the parties, if it appears that the contract to take the assignment of the contract of sale was clear and unambiguous, and fully understood by the assignee, and that both parties knew all the facts upon which the representation was based, and believed that the railroad company had a good title to the land.</p> <p>Id.—Expression of Opinion by Vendor—Equal Means of Information—Absence of Fraud.—A mere expression of opinion by the vendor as to the sufficiency of the title, if the means of information respecting it are equally accessible to both parties, or the same facts are within the knowledge of both parties, and no confidential relation exists between them, does not constitute fraud or deceit on the part of the vendor, and does not justify the purchaser in relying thereon.</p>

<p>Criminal Law—Homicide—Support op Verdict—Instructions as to Justifiable Homicide — Appearance of Danger.—A verdict of guilty of murder in the second degree will not be disturbed as contrary to the evidence or to the instructions of the court where there is no pretense that the defendant was in actual danger at the time of the killing, and the jury might find from the evidence that he was not actuated by a reasonable fear that the deceased was about to Mil or severely injure him when he killed the deceased, and the court gave full and. correct instructions on the law of justifiable homicide and appearance of danger, and told the jury that if they had a reasonable doubt as to whether the defendant had reason to believe, as a reasonable man, that he was in danger of being killed or severely injured by the deceased at the time he shot deceased, they should acquit the defendant.</p> <p>Id.—Good Character of Defendant—Instruction.—An instruction to the effect that the good character of the defendant for peace and quietness, if proved to the satisfaction of the jury, is to be considered in connection with the other facts of the case, and kept in view in all their deliberations, and that they are to acquit the defendant if they have a reasonable doubt of his guilt in view of all the evidence, but that if the evidence convinces them beyond a reasonable doubt of his guilt, they must so find, notwithstanding his good character, is correct, and does not imply that the evidence of good character is not to be considered in determining the question of guilt.</p> <p>Id.—Familiarity of Deceased with Defendant’s Wife—Irrelevant and Hearsay Evidence—Harmless Ruling.—Irrelevant evidence as to the interchange of Christmas presents between the deceased and the wife of the defendant, and hearsay evidence as to common talk and scandal coming to the ears of a witness as to the attentions of deceased to defendant’s wife, were properly excluded. Their exclusion could not have harmed the defendant where it was abundantly shown without objection that the defendant had occasion to be and was jealous of the deceased, and the defendant had the benefit of whatever advantage might accrue to him from presenting to the jury the real or supposed wrong which deceased had done him in his domestic relations.</p> <p>Id.—Newly Discovered Evidence—Discretion.—Where it does not appear that the court abused its discretion in not granting a new trial on the ground of newly discovered evidence, its order denying a new trial will not be disturbed on that ground.</p>

<p>Receiver—Compensation from Fund—Exceptions to Rule—Personal Liability of Parties.—As a general rule, the compensation of a receiver is primarily a charge upon the fund in his possession, and is to be paid out of that fund; but if he has gained the possession of the fund through an irregular, unauthorized appointment, or if the property taken is determined to belong to third parties, and is taken from his possession by paramount authority, or if the fund is from any cause insufficient for his remuneration, he must look for bis compensation to the party or parties at whose instance he was appointed, and is entitled to hold them personally liable for the unpaid portion of the amount of compensation fixed by the court.</p> <p>Id.—Receivership of Property Subject to Mortgage—Surplus—Loss-of Title—Insufficiency of Fund.—A receiver of property subject to a mortgage in favor of one not a party to the action holds it subject to any judgment which may be rendered in an action to foreclose the mortgage; and the right of the receiver attaches only to the surplus, if there be any arising from the sale of the property. If there is no surplus, and the title is lost as the result of the foreclosure, there is a total insufficiency of the fund, which authorizes the receiver to look for his compensation to the parties at whose instance he was appointed.</p> <p>Id.—Order Settling Receiver’s Account—Expression of Liability— Dismissal by Plaintiffs—Action! by Receiver.—It is not necessary that the order settling the receiver’s account should determine or express what party is personally liable to him for the expenses and compensation allowed therein; and where the property possessed by the receiver was lost as the result of the foreclosure of a mortgage, and the action in which he was appointed was thereafter dismissed by the plaintiffs at whose instance he was appointed, so that no personal judgment could be rendered against them in favor of the receiver, he may, after the settlement of his account, maintain an action against them.</p> <p>Id.—Pleading—Liability of Other Parties—Matter of Defense— Judgment Upon Demurrer.—If the plaintiffs sued by the receiver would claim that the defendants in the original action were-liable to the receiver as well as themselves, It Is matter of defense to be pleaded by them. Where a demurrer to the complaint was sustained without any plea of nonjoinder of parties, and final judgment was passed thereupon, the question is not presented.</p> <p>Id.—Admission—Compulsory. Surrender of Possession by Receiver— Right of Action.—The general demurrer admitted the fact alleged that the receiver “was obliged to and did turn over the possession of the property to said purchaser” under the foreclosure sale; and it cannot be urged under the complaint that by surrendering possession instead of retaining it to enforce his claim the receiver lost his right of action.</p> <p>Id.—Action Against Insolvent Bank—Joinder of Trustees.—The trustees and directors of an insolvent bank are properly joined as parties codefendant with the hank in an action by a receiver to recover the compensation fixed by the court in a former action, where the complaint of the receiver alleges that he was appointed upon the petition of the plaintiffs in the former action by the insolvent hank and others, and that it was commenced by the parties who were settling the affairs of the bank in liquidation, and that the defendants other than the bank are the trustees and directors of the corporation defendant, and as such have the custody and control of its funds and assets.</p> <p>Id.—Construction of Pleading—Bank Commissioners’ Act—Request of Trustees and Directors for Appointment.—The complaint of the receiver is to be construed in the light of the provisions of the bank commissioners’ act, and as averring in effect that he was appointed at the instance and request of the trustees and directors codefendants, as well as of the hank defendant.</p> <p>Id.—Purpose of Joinder of Trustees.—Under the facts alleged the trustees of the insolvent bank were properly joined as trustees, not only that they may defend the funds of the bank against any unjust claim, but also that it may be determined whether the claim of the plaintiff is a preferred claim, and chargeable against the funds of the bank in their custody.</p> <p>Id.—Statute of Limitations—Settlement of Account—Appeal.—The statute of limitations against the action of the receiver to recover his compensation did not begin to run until his account was settled and allowed; and for the time during which an appeal from the order of allowance was pending, the running of the statute was suspended.</p>

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

<p>Taxation—Support of High School-Estimate by High School Board-Power of City Trustees—Construction of Code.—Under subdivisions 14 and 15 of section 1670 of the Political Code, providing that the high school board shall furnish to the authorities, whose duty it is to levy taxes, “an estimate of the amount of money required for conducting the school for the school year,” . and making it the duty of the board of trustees of a city, to whom the estimate is made, to levy a special tax “sufficient in amount to maintain the high school,” the power or discretion is vested in the board of trustees as the taxing body to determine what amount will be sufficient for the purpose, and they are not concluded by the estimate made by the high school board.</p> <p>Id.—Support of Common Schools—Legislative Power of Trustees— Municipal Corporations Act—Directory Statute.—Subdivision 8 of section 798 of the municipal corporations act, providing that the board of trustees is to add to the levy of taxes for city purposes “the amount so found [by the board of education] to be required,” is to be construed as directory only, and as not restricting the legislative functions of the board of trustees of the municipality to determine the amount of money to be raised by taxation for school and other municipal purposes.</p> <p>Id.—Construction of Constitution—Maxim—Power of Taxation by “Corporate Authorities.”—Under article XI, section 12, of the constitution of this state, providing that “the legislature shall have no power to impose taxes upon counties, cities, towns, or other public or municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes,” the words “corporate authorities thereof” are to be construed distributively—reddendo singula singulis—as referring to the governing body of each of the several municipalities and quasi municipalities referred to in the section, and as importing the legislative department of the municipality only, in which is intended to be vested the legislative power of taxation for all municipal purposes.</p> <p>Id.—School Districts — Classes Distinguished—Quasi Municipalities Under Code—Query.—Under the municipal corporations act, in cities of the first five classes, the educational department - has no legislative power, but that is vested is the legislative council or board of trustees of the city; but all other cases are governed by the Political Code under which the city territory with its inhabitants constitutes a school district, which is a public corporation, or quasi municipality, governed by “boards of education,” having the same functions as the “boards of trustees” of country school districts. Whether this distinction of classes is constitutionally valid is a question suggested, but not decided.</p>

<p>Contract fob Water for Irrigation—Price per Acre—Construction of Contract.—A contract to supply water for irrigation at the rate of two dollars per acre for the use of so much water as may be necessary for the reclamation and permanent irrigation for the annual production of crops upon a tract of one hundred and sixty acres, which provides that if there is not a sufficient supply of water and the crops fail no sum shall be paid, is to be construed as providing only for a price of two dollars per acre for so much of the land as is irrigated, and not for the entire tract without regard to the extent of irrigation.</p> <p>Id.—Complaint for Water Furnished and Delivered on Part of Tract—Findings — Appeal—Presumptions.— Under a complaint alleging that water was furnished and delivered on a certain part of the acreage of the tract at two dollars per acre, findings upon issues joined setting forth a less number of acres upon which water was furnished and delivered are conclusively presumed to be true upon appeal by the plaintiff from the judgment on the judgment-roll. Upon such appeal all presumptions are In favor of the judgment, and it cannot be presumed that plaintiff was injured by the failure of the defendants to irrigate more land than is specified in the findings, or to use water upon the entire tract.</p>

<p>County Government—Compensation oe Constables—Change oe Township—Construction oe Statute.—Subdivision 14 of section 183 of the County Government Act, providing for salaries in addition to fees of constables in townships numbered. 1 to 10 in counties of the twenty-sixth class, is to be construed as referring only to a subsisting system of ten townships so numbered, and not as applying to any part of a changed system of sixteen townships, notwithstanding a portion of the new townships may bear the same number and cover the same territory as before.</p> <p>Id.—Constitutional Law— Special Legislation— Mandamus.— Such provision for the salaries of constables is special legislation, in contravention of the constitution, in not providing for all of the townships and officers of auy changed system, whether it be construed as referring to those townships in the changed system bearing the same number as before or not. In either aspect, mandamus will not lie to compel the payment of a salary provided for a numbered township having the same number and covering the same territory in both systems.</p>

<p>Guardian and Ward—Note for Money Borrowed by Previous Guardian—Nonapproval op Court.—The note of a new guardian given for money borrowed for the support and care of the ward by a previous guardian, which is not approved by the court haying jurisdiction of the estate, cannot bind the ward.</p> <p>Id.—Nonliability op Guardian—Want op Consideration.—The new guardian, never having received any consideration for the note, cannot he held personally liable thereupon.</p> <p>Id.—Debt for Support and Care of Ward—Presumption Against Payment by Note—Statute op Limitations.—The note cannot be presumed to be in payment of the original debt of the estate of the ward for money borrowed for the ward’s necessary support and care. But where it appears that such original indebtedness is barred by the statute of limitations, and that statute is pleaded by the ward, the debt can neither sustain an action against the ward upon the unratified note in suit nor any possible recovery against the ward.</p> <p>Id.—Nonratification op Note by Ward.—The ward not having re- ' ceived any benefit from the note sued upon, and never having been in any manner originally liable thereupon, cannot.be subject to an action based thereupon, in the absence of proof that it was directly ratified and agreed to be paid by the ward after attaining majority. In such case it is not necessary for the ward to disavow liability upon the note after attaining majority.</p> <p>Id.—Admission of Pleading—Reception of Benefit by Ward.—An admission in the answer by failure of the ward to deny the reception of the benefit of the money borrowed for the ward’s support during minority, whatever effect it might have in an action for necessaries supplied to the ward, cannot amount to a ratification of the subsequent note sued upon.</p> <p>Id.—Oral Agreement of Defendants.—An oral agreement of the defendants that if recovery should be had against both defendants on the note sued upon the one who signed it as guardian would pay it does not show a ratification of the note by the ward.</p>

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

<p>Reclamation District—Assessment not Proportioned to Benefits.— An assessment by a reclamation district must be made in proportion to the benefits which will result to the land assessed from the works upon which the money raised thereby is to be expended. An assessment of all the reclaimable lands of the district equally for the construction and maintenance of works, which cannot result in the reclamation of more than one-half of the lands of the district, is unjust, and not permissible under the reclamation law.</p> <p>Id.—“Benefits” to be Considered.—The “benefits” which are to be taken into account by the commissioners in apportioning the charge or assessment are those benefits only which spring from the system of works which such assessment is levied to construct or maintain.</p> <p>Id.—Apportionment of Benefits from Levee—Protection of Part of District—Prospective Works Elsewhere.—In apportioning the benefits to result from the construction and maintenance of a levee along a river, which has effected the reclamation of part only of the lands of the district, prospective benefits to be derived from another prospective system of works necessary to be constructed elsewhere in the future to protect the remainder of the reclaimable lands from overflow of waters from the hills cannot be considered, notwithstanding the levee system is beneficial, when taken in connection with such prospective system of works, to reclaim such lands. [McFarland, J., dissenting.]</p>

<p>Insolvent Corporation—Appointment op Receiver—Jurisdiction op Equity—Construction of Code.—A court of equity has no inherent power to appoint a receiver of an insolvent corporation merely because of its insolvency, or to wind up its affairs, in the absence of a statutory provision. Section 565 of the Code of Civil Procedure provides only for the appointment of a receiver upon the dissolution of a corporation; and subdivision 5 of section 564 of the same code does not contemplate the appointment of a receiver of an insolvent corporation in an action brought merely for that purpose, but only as ancillary to an action instituted against the insolvent corporation by some one authorized by law to commence it.</p> <p>Id.—Receiver op Life Insurance Company—Action by Member—Insufficient Showing—Want op Jurisdiction.—The superior court has no jurisdiction to appoint a receiver of a life insurance company organized on the assessment plan under the act of 1891 (Stats. 1891, p. 126), and to take its assets from the control of its directors, at suit of a member thereof, on the alleged ground that its total liabilities exceed its assets, that nearly one-half of its assets are due on policies to deceased members, that the directors have transferred outstanding policies to another company and have ceased to issue policies, and that salaries and expenses are wasting the assets, where there is no showing of fraud or mismanagement, or that the corporation has been dissolved, or has been adjudged insolvent, or has forfeited its right to do business under the act of 1891.</p> <p>Id.—Construction op Act of 1891—Restraint op Insurance Corpora- , tion prom Doing Business—Report of Insurance Commissioner— Action by Attorney General.—Though it was not the intent of the legislature that corporations organized under the act of 1S91 should be exempt from all laws, rules, or decisions under the general laws of the state, yet that act provides a complete remedy by which the corporation may be restrained from doing business, through the machinery provided in section 10 thereof, by proceedings instituted by the attorney general, upon an adverse report of the insurance commissioner after examination into the affairs of the corporation. There is no other method provided in the act by which the authority of the corporation to do business can be revoked.</p> <p>Id.—Void Appointment op Receiver—Prohibition—Application by Judgment Oreditor op Corporation.—A writ of prohibition will issue to restrain the superior court from maintaining possession of the assets of an insurance corporation by a receiver whose appointment is void, as being in excess of the jurisdiction of the court, upon application of a creditor of the corporation who has obtained judgment against it, and who has levied an execution upon moneys, credits, and personal property held by the receiver.</p>

<p>Street Improvement—Contract—Amount op Work.—A contract for a street improvement calling for less work than that proposed in the resolution of intention of the common council is void.</p> <p>Id.—Special Permits to Lot Owners—Resolution op Intention — Assessment.—The common council has no power, intermediate the passage of a resolution of intention to order a particularly described street improvement and the passage of the resolution ordering the work, to grant special permits to individual lot owners to do such portions of the work as are adjacent to their premises; and if it does so, a contract subsequently entered into to do the work in front of the lots of owners to whom special permits had not been granted, and an assessment therefor levied on such lots alone, are void.</p>

<p>Pleading—Obdbb Upon Demurrer—Limited Ruling—Review Upon Appeal.—The court cannot limit its order upon demurrer by sustaining it in part and overruling it in part, so as to deprive the demurrants of the benefit of any of the grounds assigned; and upon appeal by the plaintiff from a judgment rendered upon demurrer to the complaint, which was sustained as to the general demurrer, and overruled in other respects, the ruling made will be considered as an entirety, and the judgment must be affirmed if the demurrer is well taken upon any of the grounds assigned, regardless of the reasons assigned by the court below for its order.</p> <p>Action to Cancel Bonds of Irrigation District—Statute of Limitations—Demurrer to Complaint.—In an action to cancel the bonds of an irrigation district, where any part of the cause of action alleged is not barred by the statute of limitations, a demurrer to the complaint pleading the statute is properly overruled. The statute does not begin to run against such cause of action from the date of the order for the issuance of the bonds, nor from the date of a contract therefor, but only from the date of the delivery of the bonds for a valuable consideration, and as to any bonds delivered within the statute and bonds not issued the cause of action is not barred.</p> <p>Id.—Complaint by Taxpayers—Offer of Restitution of Consideration of Bonds—Maxim of Equity Inapplicable.—A complaint by persons who are land owners and taxpayers in an irrigation district to cancel the bonds of the district which have been illegally ordered to he issued, and who, in the nature of the case, are unable to restore the consideration received by the district for the issuance of the bonds, need not aver or show an offer of such restitution by the plaintiffs or by the district. In such case, the maxim that “he who seeks equity must do equity” is inapplicable. The cause of action is not one for rescission; and the taxpayers are not required to do equity as a condition of the relief sought.</p> <p>Id.— Equities of Bondholders — Showing at Trial — Protection Against District.—If, at tbetrial. the bondholders should show sufficient equities against the district, assuming that the district and its directors are properly made defendants, such equities may be protected by the court while awarding to the plaintiff the relief sought.</p> <p>Id.—Demand Upon District not Required.—The taxpayers plaintiff are not required to make any demand upon the district to bring the action, and need not aver such demand in their complaint.</p> <p>Id.—Parties—Irrigation District and Directors.—-In order to secure the relief sought of restraining the levy of an assessment to pay the illegal bonds and to restrain the further disposition of unissued bonds, the district is both a proper and a necessary party defendant; and its directors are proper parties for the purpose of reaching and restraining the corporation.</p> <p>Id.—Joinder of Plaintiffs.—The taxpayers plaintiff have a sufficient joint interest to be joined as plaintiffs.</p> <p>Id.—Nonjoinder of Bondholders.—Where the complaint makes several individuals and private corporations, holders of bonds that have been issued by the district, parties defendant, under allegations that they have no equities as against the district, a demurrer for nonjoinder of other bondholders is properly overruled. The bondholders are proper, but not necessary, parties; and though no decree would bind those not brought in, the court may grant relief as to all who are made parties to the action.</p>

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

<p>Sale—Promise by Purchaser to Pay Indebtedness—Consideration— Damages for Breach—Action by Vendor—Rescission—Payment.— A promise made by the defendants to the plaintiff, upon a sale and delivery to them by the plaintiff of a half-interest in a saloon, to pay all indebtedness previously incurred in the business by plaintiff and one of the defendants to an amount specified, is part of the consideration of the transfer, and the vendor may recover the full amount of the indebtedness as damages for its breach, without being required to rescind the contract of sale, and without having first paid the indebtedness himself. The damages are the same, whether the plaintiff has already paid the creditors or must yet inevitably pay them.</p> <p>Id.—Extent of Recovery—Possibility of Nonexaction.—The extent of the plaintiff’s recovery in the full amount of the indebtedness as damages is not affected by the possibility that the creditors may not exact all that they are entitled to in discharge of their claims. The extent of the liability of the defendants to the plaintiff is the full amount agreed to be paid for the property.</p> <p>Id.—Liability of New Party to Creditors Immaterial.—Whether the defendant who came into the business as a new party and promised to pay the creditors is liable to the creditors or not, and whether he can be protected except as to costs by paying the creditors, or cannot be so protected, the position in which he is placed by his contract with plaintiff is to be deemed his own fault, and should not prevent the court from giving to The plaintiff the benefit of the contract between them where there has been no novation thereof.</p> <p>Id.—Promise to Pay Indebtedness of Others—Statute of Frauds— Contract of Sale.—The promise of such defendant to pay the indebtedness of the plaintiff and his codefendant which entered into a contract of sale, accompanied by the delivery of the property, is not a promise to answer for the debt or default of another within the statute of frauds.</p> <p>Id.—Instructions—Omission of Question of Partnership.—Where one of the defendants who had been in the saloon business with the plaintiff had made default upon the trial of issues joined by the other defendant, instructions given are not objectionable upon the ground that allusion to the defaulting defendant, and the question of partnership relation between him and the plaintiff, or between him and the defendant, are ignored and omitted.</p> <p>Id.—Harmless Instruction Against Liability to Creditors.—An instruction to the effect that the creditors could not hold the defendant liable against whom the case was tried, whether sound or not, is harmless, and could not be prejudicial to the defendant.</p> <p>Id.—Evidence—Value and Amount of Stock in Saloon.—The value or amount of the stock in the saloon at any other time than when the sale was made is not relevant to the matter in issue, and evidence thereof is inadmissible.</p> <p>Id.—Immaterial Uncertainty in Verdict—Interest on Note—Matter Without Defense.—An uncertainty in the verdict as to the matter of interest on a note, in respect to which there was no defense, is immaterial.</p> <p>Id.—Subsequent Assumption of Liability Between Defendants Immaterial.—Where the evidence clearly proves that both of the defendants assumed to pay the debts for which the plaintiff was liable in consideration of the sale to them of his interest in the saloon, evidence of any subsequent agreement or assumption of liability as between the defendants, upon a sale from one of them to the other, is immaterial, and is properly rejected.</p>

<p>Action Upon Official Bond—Delivery of Recorder’s Fee-book to Auditor—Consolidated Office—Support of Findings and Judgment. In an action by a county upon the official bond of the county recorder to recover damages for his alleged failure to deliver his fee-book to the county auditor at the expiration of his term, findings made upon sufficient evidence that the offices of county auditor and recorder were consolidated, and that the fee-hook was in its proper place among the auditor’s books when the office was delivered to his successor, sustain a judgment for the defendants, and it is immaterial whether or not findings as to the value of the book and the amount of damage from its loss are or are not supported by the evidence.</p> <p>Id.—Evidence—Rebuttal—Copying Done by Clerk—Order Striking Out—Presumption.—Evidence offered in rebuttal that copying was done in the office by a clerk at the dictation of the recorder, which was not properly in rebuttal, and which did not show that the copying was from the fee-hook in question, was properly stricken out by the court. It cannot be presumed that the hook dictated from was such fee-book, nor that the witness was making a false and pretended copy thereof, nor that the testimony was admissible for any purpose not shown by the record.</p> <p>Id.—Cross-examination of Defendant—Proper Practice—Harmless Rulings.—Where the defendant had testified in chief that he had left the fee-book in question in the usual place in the office, it would be proper practice to allow questions to be asked on cross-examination as to whether or not he kept two sets of fee-books, and whether he had not, with the assistance of a copyist, made a duplicate of the fee-book in question; but where the witness testified in other parts of his cross-examination that he never had hut one fee-hook, and never kept two sets of fee-books, and no questions were addressed to showing that he left a duplicate or a false copy in the office, a ruling against the questions asked is not of sufficient importance to justify a reversal of the judgment.</p>

<p>Reformation — Substitution of Parties to Contract.—A court of equity, in the exercise of its jurisdiction to reform written contracts, has no power to make a new contract. It can neither add additional parties to nor substitute other parties for those already appearing upon the face of the writing.</p>

<p>Mortgage—Default Judgment—Payments to Mortgagee Pendente Lite.—A mortgagee who receives the entire amount of the mortgage indebtedness from the proceeds of a foreclosure sale had under a judgment obtained upon the default of the mortgagor to answer the complaint is liable to account to the mortgagor for all moneys received by him between the filing of the complaint in foreclosure and the sale, which by the terms of the contract between them should have been credited on the mort*gage indebtedness, but for which no credit was given.</p>

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

<p>Public Lands—Railroad Grants—Void Purchase.—The grant oí lands to the Atlantic and Pacific Railroad Company bad the effect to withdraw the land granted from other disposition, while that grant remained operative, both within the primary and indemnity limits, and the Southern Pacific Railroad Company acquired no right to any of said lands under its grant, and any purchase therefrom is void.</p> <p>Id.—Restoration of Lands to Public Domain—Confirmation of Water Rights.—The restoration to the public domain by the act of Congress of 1886 of the lands granted to the Atlantic and Pacific Railroad Company by the act of Congress of 1866 operated to confirm existing water rights previously acquired by appropriation in 1870, without objection from that railroad company, and it seems that such confirmation made such water rights valid from their inception.</p> <p>Id.—Act to Relieve Purchasers of Forfeited Lands—Pre-emption Right—Subordination to Previous Water Rights.—The preemption right conferred by section 5 of the act of Congress of March 3, 1887, to relieve dona fide purchasers of forfeited lands, upon purchasers to whom they have been Improperly sold by any company as part of its grant, when not included therein, is subordinated to rights of way and ditch and water rights appearing to have been acquired in good faith under the laws of the United States prior to that act, and even prior to the inception of the grant under claim of which the improper sale was made.</p> <p>Id.—Action to Quiet Title—Findings Against Plaintiff’s Title—Unexercised Right of Pre-emption—Omissions to Find as to Defendant’s Water Right.—In an action to quiet title to land against an adverse claimant of a water right, where it appears that plaintiff had no other title or right than the pre-emption right conferred by the act of 1887, and that such right had not been exercised, and there had been no expression of an intent to exercise it, and that the plaintiff was not in possession of the land, and had never had more than a temporary possession of part thereof, the place and extent of which was not shown, a finding that plaintiff is not the owner of the land is sustained, and a judgment for the defendant for costs is supported, and it is immaterial that there is no finding or judgment as to the defendant’s title to the water right where defendant does not appeal or complain of the judgment.</p>

. APPEAL from a judgment of the Superior Court of Butte County and from orders refusing to dissolve an attachment and denying a new trial. John C. Gray,. Judge. The facts are stated in the opinion.

<p>Divobce—Custody of Children—Petition fob Modification of Decree—Refusal of Continuance—Absence of Showing.—Upon the hearing of a verified petition to modify a decree of divorce which awarded the custody of the children to the mother, so as to award the same to the father, on the ground of the mother’s alleged unfitness and immoral conduct, an application by her counsel for a continuance based merely on the certificate of a physician as to her illness, without any denial of the averments of the petition, or any affidavit or professional statement that she would testify contrary to its averments, or that her presence at the hearing was necessary, was properly refused.</p> <p>Id.—Support of Modification—Evidence of Immoral Conduct.—Testimony in support of the allegations of the petition by witnesses who were in a position to know the character of the house in; which the defendant was residing with the children that it was notoriously disreputable, that she was illicitly cohabiting therein with another man, and that the place and its surroundings were unfit for the children, sufficiently warrants the court in modifying the decree by taking the children from the custody of the mother and awarding them to the custody of the father.</p> <p>Id.—Admission of Counsel in Open Court—Review Upon Appeal— Absence of Ruling and Exception—Appellant not Injured.—The admission of the counsel for the defendant in open court as to the immoral conduct of the defendant, even if it be conceded in excess of the authority given him by section 283 of the Code of Civil Procedure, cannot be made a ground of reversal upon appeal of the defendant, where it appears that no ruling was made by the court, and no objection was made or exception taken, in respect to the consideration of the admission by the court, and where the evidence was such as clearly to show that the defendant was not injured by the admission, if it be conceded to be error.</p>

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