Volume 130 — California Reports

<p>Criminal Law—Rape—Preventing Resistance—Information—Certainty—Conjunctive Averment.—An information for rape charging that the prosecutrix was prevented from resisting the act “by certain intoxicating, narcotic, and anaesthetic substance,” administered to her by and with the privity of the defendant, is not demurrable for uncertainty by reason of the conjunctive form of the averment, contrary to the disjunctive enumeration in the statute; though it may be, in such cases, that a disjunctive allegation is permissible.</p> <p>Id.—Unconsciousness of Prosecutrix—Credibility—Province of Jury. The credibility of the testimony of the prosecutrix that she was in a state of unconsciousness before and when the act of sexual intercourse was committed was for the jury to determine, notwithstanding the testimony of other witnesses that she did not appear to be unconscious when she was seen riding with the defendant, and other evidence tending to impeach her character for chastity.</p> <p>In.—Sufficiency of Evidence to Support Verdict.—Where there was evidence that the defendant repeatedly administered intoxicating liquor to the prosecutrix, and assumed to drive her home thereafter in the evening, arid that after dark, about a mile from the starting place, she was found by witnesses lying on the ground apparently insensible, and was helped into the wagon at the defendant’s request, and was taken home in an unconscious state and it appeared that some one had had intercourse with her, and there was other evidence pointing to the defendant as the guilty • party, the verdict of guilty cannot be disturbed upon appeal for insufficiency of the evidence to support it.</p> <p>Id.—Evidence—Loaded Pistol Taken from Defendant.—Evidence is not admissible- to show that several days after the alleged offense a loaded pistol was taken from the defendant by the relatives of the prosecutrix; nor is such pistol admissible in evidence as an exhibit.</p> <p>Id.—Previous Chastity of Prosecutrix—Evidence in Chief—Inference—Rebuttal.—It is not admissible for the prosecutrix to testify upon her examination in chief that prior to the .occasion of the alleged offense she had never had sexual intercourse with anyone. The previous chastity of the prosecutrix should he inferred by the jury in the absence of evidence to the contrary, and can only be proved by way of rebuttal of attacking evidence.</p> <p>Id.—Instruction Upon Presumption of Chastity—Province of Jury— Inference—Presumption of Innocence.—It is error to instruct the jury, upon a prosecution for rape, that “the law presumes a woman to be chaste until the contrary is shown.” There may be an inference of previous chastity, and the jury should infer it in the absence of evidence; but the jury is the exclusive judge of the weight and validity of the inference. But there can he no legal presumption of chastity against the presumption of innocence, which must prevail until guilt is proved beyond a reasonable doubt.</p> <p>Id.— Improper Basis of Instruction — Language Omitted from Published Opinion—Presumption.—An instruction to the effect that the jury may find on the presumption of chastity against the declarations of any number of witnesses that did not produce conviction in their minds is improperly based on the supposed authority of language used in an opinion, which was omitted in the final publication thereof. It must be presumed that the omission was intentional.</p> <p>Id.—Instruction Upon Circumstantial Evidence—“Probabilities.”— It is error to instruct the jury on the subject of circumstantial evidence that “when direct evidence cannot be produced minds will form their judgment on circumstances, and act on the probabilities of the case.” Such instruction implies that the jury may act on less than convincing evidence or without the “moral certainty” required by law.</p> <p>Id.—Instruction Comparing Weight of Circumstantial and Direct Evidence—Matter of Fact.—An instruction relating to the comparative weight or relative value of circumstantial evidence, and the direct, evidence of eyewitnesses, improperly charges as to a matter of fact in violation of section 19 of article VI of the constitution. An instruction that eyewitnesses may. lie, though true, is not upon a matter of law, but upon a matter of fact for the consideration of the jury, and carries with it an improper implication in favor of other kinds of evidence.</p>

<p>Complaint Upon Note—Date op Execution—Clerical Error—Copt of Note—Written Notice op Payment—Presumption Upon Appeal.— In a complaint upon a note, the date of the year in an averment of its execution, which is precisely four years subsequent to the date of the note which is set out in full in the complaint, and is also subsequent to the date of a written notice of payment required by the terms of the note to be given for a period of thirty days, which described the note by its date, and which was served more than thirty days before the commencement of the action, which it appears was commenced less than thirty-days after the alleged date of execution of the note, is obviously a clerical error, which must be presumed upon appeal, in the absence of the evidence, to have been corrected by the witnesses; and the written notice of payment cannot be considered as prematurely given.</p> <p>Id.—Antedating of Note—Delivery After Written Notice—Date Immaterial—Stipulated Time op Payment—Maturity op Cause of Action.—The date of the delivery of the note was not material to the cause of action. Even if it was antedated and delivered after the written notice of the payment, the notice would still apply to the date stated in the note, and would make it payable by agreement of the parties thirty days after the written demand for payment. It is sufficient for the maturity of the cause of action that the written notice was given more than thirty days before the commencement of the action.</p>

<p>Criminal Law—Forgery.—In order to constitute the crime of forgery it is essential that there should be the making of a writing which falsely purports to be the writing of another.</p> <p>Id.—Check Drawn by Defendant. — An information charging the defendant with uttering and attempting to pass a forged and counterfeited check, which shows upon its face that the instrument alleged to be forged was a check drawn and signed by the defendant himself, does not state a public offense; and the facts that such check purported to be indorsed by the person whose check was alleged to have been forged, and that the defendant had no funds in the bank on which it was drawn, are immaterial.</p>

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

<p>Action fob Damages—Ejection of Railway Passenger—Pleading—Injury to “Good Name.”—In an action to recover damages for the unlawful ejection of the plaintiff from the passenger cars of the defendant railway company, no damages can be allowed for injury to the “good name” of the plaintiff. An averment of such injury in the complaint renders it subject to a demurrer for uncertainty, and is subject to a motion to strike it out.</p> <p>Id.—Misjoinder of Causes of Action.—Where the injury to plaintiff’s “good name” is not alleged as a separate cause of action, but only as one of several injuries alleged, the complaint is not thereby rendered subject to a demurrer for misjoinder of causes of action.</p> <p>Id.—Absence of Evidence—Finding—Harmless Surplusage.—Where no evidence was introduced at the trial to show any injury to plaintiff’s “good name,” the averment thereof in the complaint and a finding based upon such averment will be deemed harmless surplusage, which could not have prejudiced the defendant, and will not be held ground for reversal upon appeal.</p> <p>Id. —Separation op Plaintiff from Baggage—Proper Evidence—Damages Occasioned—Discretion.—In such action it is proper to show that the plaintiff’s baggage was carried away from the plaintiff when ejected from the cars, and that plaintiff was thereby compelled to buy additional clothing; and the mental and physical distress of plaintiff, and any pecuniary loss thereby occasioned, may be taken into account in fixing the damages. Such damages are not susceptible of computation, and are within the sound discretion of the judge or jury passing upon the evidence.</p> <p>Id.—Improper Items of Compensation—Price of Clothing—General Damages.—The price of the clothing purchased is not a proper item of compensation in damages, and a special allowance therefor should be omitted from the judgment. The damages for separation from the baggage and for any loss or inconvenience thereby occasioned must be deemed compensated by the finding of general damages.</p> <p>Id.—Deprivation of Through Ticket—Cost of Passage from Place of Ejection.—The plaintiff is entitled to recover the cost of a ticket from the place of wrongful ejection to the place of the plaintiff’s destination, as damages for the wrongful taking from plaintiff by the conductor of a through ticket belonging to the plaintiff.</p> <p>Id.—Damages not Excessive.—Under the circumstances of this case, an award of general damages in the sum of four hundred and sixty dollars and fifty cents for the unlawful ejection of the plaintiff from the cars of the defendant is held not excessive, without taking into account any injury to the good name of the plaintiff.</p>

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

<p>Deed from Father to Ron—Deposit With Notary—Delivery—Precedence of Trust Deed.—A deed from a father to his son, signed, acknowledged, and left with the notary under an agreement between the parties that it was not to be recorded, and was to be delivered to the son only in case of the death of the father, is not operative from its date nor prior to its actual delivery to the son; and a deed of trust given by the father for money borrowed, which was executed and recorded prior to the final delivery and record of the deed to the son, takes precedence thereof.</p> <p>Id.—Permissive Possession of Son—Yerbal Contract for Gift—Adverse Possession not Shown.—Where it appeared that the son was permitted to take possession of the land under a verbal understanding with the father that if he could make a living thereon he would give it to him, his possession is not under claim of title adverse to that of the father, in the absence of a showing that he ever asserted or claimed adversely to the father.</p> <p>Id.—Possession as Notice of Bights of Son.—The possession of the son at the time of the execution of the deed of trust could not operate as notice of any other rights of the son than those established at the trial and found by the court upon sufficient evidence, viz., that he took possession by permission of his father, that the father held the legal title to the land, and that the son would not become the owner until delivery of the deed as agreed upon.</p> <p>Id.—Equitable Bight of Son—Insufficient Proof—Merger in Deed and Agreed Conditions.—Where no consideration was paid for the right of entry upon the land by the son, and it does not appear that any improvements were made by him which were not compensated by the rents, issues, and profits, an equitable right was not shown in his favor as against the father; but any possible equitable right which he may have had to enforce a conveyance ceased upon the execution of the deed by the father under the agreement then made, and the rights of the son were thereafter measured by the terms of that transaction and the conditions then agreed upon on which the deed was to be delivered to him.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from orders denying a new trial, and denying a motion to strike out a cost bill. Walter Van Dyke, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Tuolumne County. G-. W. Nicol, Judge. The facts are stated in the opinion of the court.

MOTION to dismiss joint appeals from a judgment of the Superior Court of Orange County and from an order refusing to modify the findings and judgment. J. W. Ballard, Judge. The facts are stated in the opinion of the court.

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

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

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

W. G. Lorigan, Judge ruling upon demurrer. A. S. Kittredge, Judge rendering judgment. The facts are stated in the opinion of the court.

<p>Proposed. Constitutional Amendment—Change in Judicial System— Duty of Secretary of State—Injunction.—It was the official duty'' of the secretary of state, at least twenty-five days prior to the last general election, to certify to the several county clerks of the state the proposed constitutional amendment No. 22 to article VI of the constitution, relating to a change in the judicial system, recommended at the last regular session of the legislature on March 18, 1899; and he cannot be enjoined from such certification at suit of the people. [Temple, J., and Harrison, J„ dissenting.]</p> <p>Id.—Amendment Proposed at Special Session.—Amendment No. 1 to the constitution, relating to a change in the judicial system, proposed at the special session of the legislature on February 10, 1900, was not effective, not having been included in the proclamation convening the legislature in that session, and . that proposed amendment could not -supersede the previous amendment No. 22, proposed at the regular session of the legislature in 1899.</p> <p>Id.—Limitation of Power at Special Session.—The legislature has no power to legislate on any subjects at a special session other than those specified in the proclamation convening it in extraordinary session. Although the proposing of a constitutional amendment is not ordinary legislation, yet it is the exercise of a legislative function, and cannot be lawfully done at a special session, if not specified in the governor’s proclamation convening the legislature.</p> <p>Id.—Law for Submission of Constitutional Amendments—Repeal of Act of 1883—Unconstitutional Re-enactment—Title.—In the act of 1899 repealing the act of 1883 to provide for the submission of proposed amendments to the constitution to a vote of the people, the section purporting to re-enact the first section of the act of 1883 is unconstitutional, as not being expressed in the title of the repealing act.</p> <p>Id.—Construction of Political Code—Time for Submission of Proposed Amendment.—The amendments of 1899 to sections 1195 and 1197 of the Political Code, providing for the certification of a proposed amendment of the constitution by the secretary of state to the clerk of each county in the state “not less than twenty-five days before election,” and providing for the printing of the question of adopting or rejecting the amendment upon the ballots, are to be construed as providing for the submission of the proposed amendment at the next general election after the proposal of the amendment. [Temple, J., and Harrison, J., dissenting.]</p> <p>Id.—Reasonable Interpretation of Statutes—Presumption.—The interpretation of statutes must be reasonable, and lean strongly to avoid absurd consequences and even great inconvenience; and it is to be presumed that the legislature intended to impart to its enactments such a meaning as would render them operative and effective.</p>

<p>Unlawful Detainer—Trebled Damages — Jurisdiction of Justice’s Court.—A justice’s court has no jurisdiction of an action for unlawful detainer, though the rent is only ten dollars per month, where the whole amount of rent alleged to be due and unpaid aggregates one hundred and twenty dollars, and the complainant seeks that the same be trebled as damages for the unlawful detention.</p> <p>Id.—Test of Jurisdiction—Amount Sued for.—The test of the jurisdiction of the justices’ courts, whether exclusive or concurrent, is the same as that of the superior courts, viz., “the amount sued for, exclusive of interest.”</p> <p>J»,—“Amount of Damages Claimed.”—The provision of the constitution limiting the jurisdiction of the justices’ courts in actions for forcible entry and detainer to cases where the “whole amount of damages claimed exceeds two hundred dollars,” is intended to exclude such jurisdiction where the whole amount of the trebled damages claimed for the unlawful detention exceeds two hundred dollars.</p>

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

<p>License Tax—Business of Raising and Pasturing Sheep—Transportation Through County.—One who is engaged merely in transporting a herd of sheep across a county to his ranch in another county, and is not engaged in the business of raising, grazing, and pasturing sheep within the county, is not liable to a license tax upon that business.</p> <p>Id.—Action for License Tax—Trial—Challenge of Juror—Relationship to Interested Officer.—Upon the trial by jury of an action to recover a license tax upon such business, a juror who is shown to be the brother of an officer employed by the county to collect such taxes, who by the terms of his employment is directly and beneficially interested in the enforcement of the license tax in question to the extent of ten per cent of the recovery, is properly challenged and excused for cause.</p> <p>Id.—Pleading—Alleged Dates of Business—Limiting of Evidence.— Under a complaint in such action which charges the defendant with having engaged in the business of raising, grazing, and pasturing sheep within the county between the first day of June and the third day of July, the date of the filing of the complaint, the court properly limited the evidence to the acts of the defendant between those dates.</p> <p>Id.—Amendment of Complaint—Subsequent Cause of Action.—The cause of action to enforce a license tax must be limited to business conducted by the defendant before the commencement of the action. No amendment to the complaint can be permitted to charge the defendant upon a cause of action arising after the commencement of the action.</p> <p>Trial by Jury—Challenges for Cause—Construction of Code—Consanguinity or Affinity to “Party”—Beneficial Interest.—Subdivision 2 of section 602 of the Code of Civil Procedure relating to trial by jury, which makes “consanguinity or affinity within the fourth degree to any party” a ground of challenge of a juror for cause, is to be liberally construed. It is not in- - tended thereby to require that the “party” shall be in name a party to the litigation, but the provision is meant to cover the case of relationship to any party shown to he directly and beneficially interested in the result of the litigation, by any participation in the recovery.</p> <p>Id.—Challenge of Juror for Actual Bias—Disallowance—Discretion—Review Upon Appeal.—It is only where the evidence adduced upon the challenge of a juror for actual bias is such as plainly and clearly to show the bias of the juror, and the case' is one in which the law manifestly leaves nothing to the conscience or discretion of the court, that the action of the court in disallowing it is reviewable upon appeal; and where such state of facts is not established, the ruling of the trial court will not be disturbed.</p>

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

APPLICATION to recall and correct a remittitur originally issued herein. The facts are stated in the opinion of the court.

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

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

<p>Irrigation Act—Tax Deep—Validity of Assessment—Misnomer.— Under section 32 of the irrigation act of 1887, providing that “when land is sold for assessments correctly imposed, as the property of a particular person, no misnomer of the owner, or supposed owner, or other mistake relating to the ownership thereof affects the sale or renders it void or voidable,” an assessment made by an irrigation district to the “Escondido Seminary,” instead of to the “regents of the Escondido Seminary,” is not invalid, and cannot vitiate a tax deed made thereunder.</p> <p>Id.—Constitutional Law—Special Legislation.—Section 32 of the irrigation act is not unconstitutional, as being special legislation, but is a general law, applying equally to all persons embraced in a class founded upon a proper distinction.</p> <p>Id.—Tax Deed as Evidence—Constitutional Question—Construction of Statute.—The question as to the constitutionality of subdivision 7 of section 30 of "the irrigation act of 1887, making the tax deed conclusive evidence of the regularity of all the proceedings from the assessment to the deed, is independent of the prior provisions of the section making the deed prima facie evidence of seven specially enumerated facts, corresponding to those enumerated in section 3786 of the Political Code; though it seems that the subdivision may be reasonably construed as referring to proceedings other than those as to which the deed is made prima facie evidence, so as to relieve it from constitutional objection.</p> <p>Id.—Assessment to Pay Annual Interest—Discretion of Directors.— Section 22 of the irrigation act, providing that “the hoard of directors shall levy an assessment sufficient to raise the annual interest on the outstanding bonds,” does not confine their power of assessment to the exact amount of the interest, but allows them a reasonable discretion in the matter.</p> <p>Id.—Prolonged Effort in Collection—Slight Excess—Validity of Tax Deed.—The collection, after prolonged effort for four years, of a sum a few hundred dollars in excess of fifteen thousand dollars required to he raised by an assessment to pay the annual interest, does not show an abuse of discretion of the directors in levying the assessment, and cannot render invalid a tax deed based upon the assessment.</p> <p>Id.—Recital m Deed of Cebtificate of Sale—Appeal—Defective Recobd—Pbesumption.—If the tax deed is not printed in the record upon appeal, it must be presumed in favor of the judgment that the deed correctly recited the certificate of sale as required under the act of 1887; and a claim that the tax deed offered in evidence is void for failure to make such recital cannot be sustained. The appellants must affirmatively make error to appear.</p>

E. E. Gaddis, Judge. The complaint averred that the lands are situated in Yolo county, and are particularly described as appears by the exhibit thereto attached, marked Exhibit “A,” and made part of the complaint, which consisted of a plat and accompanying field notes showing that the land described was situated in the peninsula made by the bend in the former course of the Sacramento river, in the northwest quarter of section 19, township 11 north, range 3 east, Mt. Diablo…

<p>Warehouse Receipt—Contract to Return Wheat—Exception—“Damage by the Elements”—Act op God.—A warehouse receipt for wheat, agreeing to deliver it, “damage by the elements excepted,” upon surrender of the receipt and payment of storage charges, creates an absolute liability to return the wheat, unless prevented by the act of God. “Damage by the elements” is the equivalent of the phrase “act of God.”</p> <p>Id.—Fire op Incendiary Origin—Recovery op Value op Wheat.— Wheat destroyed or damaged by a fire of incendiary origin is not destroyed or damaged by the act of God. The owner is entitled to recover the value of the wheat so destroyed or damaged.</p> <p>Id.—Absence op Negligence of Warehouseman—Defense.—The absence of negligence on the part of the warehouseman is no defense to an action to recover the value of the wheat destroyed by an incendiary; and it is not required to be shown that the warehouseman was negligent.</p> <p>Id.—Burden of Proof.—Where no issue was raised as to the existence of the contract, the plaintiff need not produce any proof; but it was incumbent upon the defendant to prove that the wheat was in fact destroyed or damaged by the elements.</p>

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

The main facts are stated in the opinion. The first, second, and third instructions given for the plaintiff were as follows: 1. Fraud is any cunning deception or artifice used to circumvent, cheat, or deceive another.

E. T. Mastín, Judge rendering judgment. E. A. ICelley, Judge settling statement. C. E. McLaughlin, Judge granting new trial. The facts are stated in the opinion of the court.

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

<p>Water Rights—Uncertain Judgment—Reversal Upon Appeal.—A judgment in an action involving the rights of the parties in the flow of the waters of a creek, which, when its parts are read together and considered as a whole, is unsatisfactory and uncertain, and not sufflciently explicit to determine all the rights of the parties, and the amount of water to which each is entitled. must be reversed upon appeal.</p>

<p>Criminal Law—Postponement of Trial Beyond Sixty Days—Dismissal—“Good Cause”—Engagement in Another Trial.—The fact that the court is engaged in the trial of another case, the trial of which extends beyond the period of sixty days after the filing of the information, is “good cause,” within the meaning of section 1382 of the Penal Code, providing that “the court, unless good cause to the contrary is shown, must order the prosecution dismissed , ... if a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment or filing of the information.”</p> <p>£d.—Consent of Defendant to Postponements.—The consent of the defendant to postponements of his trial made from time to time, if not equivalent to a delay granted at his request, Is “good cause” for the delay within the meaning of section 1382 of the Penal Code.</p> <p>Id.—Rape—Cross-examination of Prosecutrix Under Age—Want of Chastity—Impeachment.—Where the prosecutrix is under the age of consent, her testimony to a forcible rape committed by the defendant, and that no one else had had carnal intercourse with her, cannot be impeached by evidence that she had led an unchaste life.</p> <p>Id.—Misconduct of District Attorney—Harmless Action.—Alleged misconduct of the district attorney in stating that the defendant’s attorney knew he could not prove want of chastity of the prosecuting witness, is harmless; and alleged misconduct on his "part in argument in calling the attention of the jury to the fact that certain witnesses were not called for the defense, is not prejudicial, where the statement was stricken out by the court and the jury were instructed to disregard it.</p> <p>Id.—Evidence—Unusual Appearance of Prosecutrix—Nearness to Event.—The evidence of a member of the family, who had left the house where the alleged rape was committed early in the morning and who returned to the- house within one hour after the occurrence, that he noticed that the appearance of the prosecutrix was unusual, that her hair was tousled, her face was red, and that she seemed nervous, was admissible as bearing on the effects of the act charged upon her person, and the time of observation was not so remote from the event as to make the evidence immaterial.</p> <p>Id.—Testimony of Physicians — Subsequent Condition of Sexual Organs.—The testimony of physicians as to the condition in which the sexual organs of the prosecutrix were found some four to six days after the alleged rape is admissible, the remoteness of the evidence going merely to its probative force, of which the jury were the judges.</p> <p>Id.—Expert Evidence — Possibility of Forcible Rape — Evidence Stricken Out.—The testimony of a physician as to the possibility Of forcible intercourse between a man and a well-developed girl, weighing one hundred and thirty-eight pounds, without her consenting to the act, was properly excluded, as not being the subject of expert evidence; and an opinion given by a physician that a man, however strong, cannot commit the act of coition with a vigorous, well-developed woman, while she is struggling to prevent it, which was not responsive to the question asked, was properly stricken out.</p> <p>Id.—Proportion of True to False Charges of Rape—Incompetent Evidence—Remark of Court.—The statement of a physician on cross-examination, though not objected to, that medical authorities place the proportion of true to false charges of rape as one to twelve, was so clearly incompetent and improper as-to render a remark by the court that that statement would have nothing to do with any particular case, which must stand on its own merits, not legally prejudicial to the appellant.</p> <p>Id.—Reopening Case for Prosecution—Discretion.—The court had discretion to allow the district attorney to reopen the ease of the prosecution for further testimony; and there is no error in so doing where no abuse of discretion appears.</p> <p>Id.—Harmless Instructions—Mode of Exercise of Powers of Jury— Determining Credit of Witness.—Instructions relating to the mode of the exercise of the powers of the jury, in determining the credit of a witness or the corroboration of the prosecutrix, which are not untrue or erroneous, extifept as they may infringe the province of the jury, are harmless, and not prejudicial error, where they merely tell-the jury what they evidently knew, or would evidently do, without being so told.</p> <p>Id.—Requested Instructions Substantially Given.—It is not error to refuse to give proper instructions requested where the court gave instructions to the same effect of its own motion.</p> <p>Id.—Opportunity for Rape—Refusal of Instruction.—An instruction requested by the defendant that “the fact that the defendant may have had an opportunity to commit the rape .... can have no weight, unless it excludes all reasonable opportunity for its commission by another, and standing alone is insufficient to sustain conviction,” was properly refused, because the first part of it is incorrect, and because the instruction infringed upon the province of the jury.</p> <p>Id.—Consent and Force — Instructions Refused.—The prosecuting witness being under the age of consent, requested instructions involving the subjects of consent and force were properly refused.</p> <p>Id.—New Trial—Newly Discovered Evidence.—Where the prosecutrix testified that she scratched the face of the defendant, and the case had been twice tried, affidavits of persons who met the defendant from one to three days after the event that they saw no scratches on his face, which do not satisfactorily meet the requisites of newly discovered evidence, do not render the denial of a new trial on that ground an abuse of discretion.</p> <p>Id.—Sufficiency of Evidence to Support Verdict — Testimony of Prosecutrix—Alibi.—Where the testimony of the prosecutrix, if believed, is sufficient to support the verdict, they may convict on her evidence alone; and the truth or falsity of the evidence being a matter exclusively for the jury, a new trial cannot be granted because the testimony for the defendant tends strongly to prove an alibi, and because the jury might properly have discredited the prosecutrix.</p>

<p>Estates of Deceased Persons —Sale of .Land—Action for Purchase Price.—The personal representative of the estate of a deceased person may maintain an action against a purchaser of land belonging to the estate, and which was bought by him at a probate sale, to recover the purchase price. The remedy provided by the probate law for a resale of the property is not exclusive.</p> <p>Id.—Discretionary Power of Sale—Administrator With Will Annexed.—A power to sell lands of the testator given by a foreign will to the executor named therein, the exercise of which is discretionary with him, does not vest in an administrator with the will annexed appointed in this state as to lands there situated, so as to validate a sale of such lands made without a prior authorization of the probate court, and for a purpose not administrative. And this is so, although by the laws of the state of the domiciliary administration an administrator with the will annexed is given the same power to sell and convey real estate that the person named in the will as the executor could have had in executing the will.</p> <p>Id.—Equitable Conversion.—In this state, the fact that the entire estate of a testator, both real and personal, is distributed as one fund does not raise any presumption of an equitable conversion of land into money.</p>

<p>_ Negligence—Jolting of Electric-car—Defective Cattle-guard.—In an action for damages for injury by being thrown from an electric-car, evidence tending to show that the track was not in proper repair at a cattle-guard rapidly crossed by the car, which by a lurch or jerk threw plaintiff from the car to his injury, is sufficient to enable the jury to infer negligence; and it is error for the court to take the case from the jury.</p> <p>Id.—Contributory Negligence—Crowded Car—Sitting Upon Platform—Questions for Jury.—It is not contributory negligence, as matter of law, for the plaintiff to sit upon the platform of a crowded car, with bis feet upon the step, from which position he was jerked to the ground to his injury; but the question is for the jury. It is for the jury to determine whether or not the defendant, by ciowding the car, caused the plaintiff to take such seat, and whether or not the seat was such as to endanger the life or safety of the plaintiff, provided the defendant exercised due care.</p>

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

PETITION for mandamus from the Supreme Court to the Superior Court of Stanislaus County. J. K. Law, Judge. The facts are stated in the opinion of the court.

<p>Action Against Corporation—Place of Trial—Principal Place of Business—Contract Made in County of Venue.—In an action against a corporation upon a contract made in the county of the venue, the corporation is not entitled to change the place of trial to another county in which it has its principal place of business.</p> <p>Id.—Order Changing Place of Trial—Reversal Upon Appeal—Affidavits Without Substantial Conflict—Knowledge of Affiants.— An order changing the place of trial to the county where the corporation defendant has its principal place of business will be reversed upon appeal, where the affidavits show without substantial conflict that the contract sued upon was made in the county of the venue. An affidavit by one having no knowledge of the place where the contract was made does not substantially conflict with the positive affidavits of persons who made the contract that it was made in the county of the venue.,</p>

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

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

<p>APPEAL from a judgment of the Superior Court of San Joaquin County and from 'an order denying a new trial. Joseph H. Budd, 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>APPEAL from a judgment of the Superior Court of Napa County. E. D. Ham, Judge.</p> <p>The right of way over the defendant’s lands, set forth in the deed from the defendant to the plaintiff, was described as follows: “Commencing at a point where the old road, as now ns'ed, crosses the boundary line between onr said lands, and running thence easterly on the line of said old road to the east line of my land, said roadway or right of way to he eighteen feet wide, with such additional width as may be necessary at the curves or turns thereof.” Further facts are stated in the opinion.</p>

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

<p>APPEAL from a judgment of the Superior Court of Yolo County and from an order denying a new trial. F. T. Nilón, •Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Building Contract—Payment of Bills — Substantial Compliance with Law.—A building contract providing that “all bills for mate rials and labor, when indorsed by the contractor, will he paid on demand, provided said bills do not exceed seventy-five per cent of the whole value of materials and labor employed in the erection of the building to the date of the bills,” and that a fixed sum, “upward of twenty-five per cent of the contract price, is to be paid thirty-five days after the building is completed,” does not substantially depart from the provisions found in section 1184 of the Code of Civil Procedure.</p> <p>In.—Action on Contractor’s Bond—Voluntary Payment of Liens by Owners—Excess of Sum Due Contractor—Surety not Liable.— The owner of the building, who neglected to avail himself of a valid defense to the foreclosure of liens filed in excess of the amount due the contractor, under a valid contract, and paid a judgment foreclosing the same, must he deemed to have made a voluntary payment of such excess, and cannot maintain an action to recover the excess so paid against a surety on the contractor’s bond, whose liability covered only claims accrued against the building, and did not extend to the releasing of the building from invalid liens.</p> <p>Id.—Pleading—Conclusion of Law—Right to Liens—Immaterial Admission—Facts Supporting Judgment for Surety.—An averment in the complaint in such action that the claimants whose liens were paid by the owner were entitled to their liens, is of a conclusion of law, and an admission thereof in the answer may he disregarded as immaterial. The validity of a judgment in favor of a surety cannot be affected by such averment and admission, but depends upon facts pleaded and found which support the judgment.</p>

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

<p>Pledgor and Pledgee—Bailment of Pledged Notes—Collateral Security—Unauthorized Delivery to Pledgor.—Notes pledged by the maker of another note to the payee, who indorsed the secured note to a bank, and deposited the pledged notes as collateral security, are subject to the rule declared in section 2996 of the Code of Civil Procedure, that “the pledge holder must enforce all the rights of the pledgee unless authorized by him to waive them.” The bank, in such case, has no right, without the consent or authority of the original pledgee, to deliver the pledged notes to the pledgor.</p> <p>Id.—Action for Possession or Value of Notes—Prior Surrender— Pleading—Demand and Refusal—Unlawful Detention.—An action may be maintained by the pledgee against the bank for the possession or value of the pledged notes, notwithstanding their surrender to the pledgor by the' bank prior to the commencement of the action, where the complaint avers the facts in regard to the deposit of the pledged notes, and alleges a demand upon the bank and its refusal to deliver them, and that it unlawfully withholds and detains them to plaintiff’s damage in the alleged value of the notes.</p> <p>Id.—Detinue—Trover—Possession at Commencement of Action not Essential.—Such complaint states facts sufficient to constitute a cause of action both in detinue and in trover, in each of which actions possession of the subject of the action at the time of its commencement is not essential to recovery.</p> <p>Id.—Action to Recover Personal Property—Claim and Delivery— Auxiliary Remedy—Pleading and Practice.—Claim and delivery, under our code, is not properly a form of action, but an auxiliary remedy provided for in an action for the recovery of personal property. Where the auxiliary remedy is not invoked in such an action, the provisions for claim and delivery have no application, and the action must be governed by the ordinary rules of pleading and practice.</p> <p>In.—Form of Action—Pleading—Facts Appropriate to Common-law Actions—Principles Applicable.—Though there is but one form of action in this state, yet when the facts stated in a complaint are substantially those required to support a particular common-law action, the principles of pleading and practice which apply to such common-law action, are applicable to the facts pleaded.</p> <p>Id.—Bailment—Unlawful Detention—Common-law Action of Detinue —Insufficient Defense—Disposition of Bailed Property—Breach of Duty.—The action in this case being based upon a contract of bailment, in which the original taking was lawful, but the detention was unlawful, the wrong is one for which the common-law action of detinue is especially appropriate. In such action, it was no defense that the defendant had voluntarily disposed of the bailed property before the commencement of the action, in breach of his duty as bailee.</p> <p>Id.—Cessation of Possession Before Suit—Burden of Proof.—In an action of detinue, where the possession of the bailed property had ceased before the commencement of the action, the burden of proof is upon the defendant to show that it ceased by accident, death, or by some means beyond his control.</p> <p>Id.—Alternative Judgment in Detinue—Possession or Value—Judgment for Value Only.—The usual judgment in an action of detinue is in the alternative, that the plaintiff recover the possession of the property, or its value, in case delivery cannot be had; but where it appears that delivery cannot be had, the defendant is not prejudiced by a judgment for the value only, without any alternative.</p> <p>Id.—Facts Showing Conversion — Demand and Refusal—Trover — Judgment for Value.—Under a complaint stating a demand before suit for the possession of property to which the plaintiff was entitled, and a continuous refusal of the defendant to deliver the property, a conversion is shown, which supports a recovery, in the common-law action of trover, of a judgment for the value of the property converted.</p> <p>Id.—Detention of Property—Immaterial Averment in Trover.—In an action of trover, where the complaint is sufficient to support a judgment for value, an averment of the unlawful detention of the property is immaterial, and cannot invalidate the judgment.</p> <p>Id.—Relief Embraced in' Issue—Defendant not Prejudiced.—Under the code, the court, upon the trial of an action, may grant any relief consistent with the case made by the complaint, and embraced within the issue; and where the issue related to the right of the defendant to surrender the pledged notes to the pledgor, and upon that issue the defendant had scope fully to present his defense, he cannot be prejudiced by the averments of the complaint, nor hy the form of the judgment in favor of the plaintiff for the value of the pledged notes unlawfully surrendered.</p>

<p>Agency—Ostensible Authority to Draw on Principal—Evidence.— Upon a, review of the evidence as to the prior course of dealings between the parties, the defendants are held to have made the drawer of the drafts sued on their ostensible agent in drawing, presenting, and cashing such drafts, and that the plaintiff was not guilty of ordinary negligence, within the meaning of section 2334 of the Civil Code, in cashing them.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of -San Francisco and from an order denying a new trial. J. 0. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation—Action Against Stockholder—Pleading—Creation of Indebtedness of Corporation—Balance Due—Ambiguity—Waives. An averment in a complaint against a stockholder for his proportionate share of the indebtedness of a corporation that the corporation became indebted in a certain amount on a sped-' fled day, being a balance due for certain work, is a sufficient averment of the creation of the indebtedness on the day specified as against a general demurrer; and the statement as to its being a balance due creates only an uncertainty or ambigúity as to the mode in which the indebtedness was incurred, which is waived by failure to demur on that ground.</p> <p>Id.—Averment of Common Ownership of Stock—Evidence and Finding of Exclusive Ownership.—An averment that a certain amount of stock was held in common by the defendant and others when the indebtedness was incurred, warrants the admission of evidence, and a finding based thereon, that that amount of stock was then entirely owned by the defendant.</p> <p>Id.—Immaterial Variance—Amendment of Complaint not Required.— The variance, in such case, between the pleading and the proof, not being such as to mislead the defendant in maintaining his defense, was immaterial, and the court was authorized to find the fact according to the evidence, without an amendment of the complaint.</p> <p>Id.—Ownership of Stock in Name of Another.—Under section 322 of the Civil Code, a stockholder is liable for his proportionate amount of the indebtedness of the corporation, not only for the stock standing in his name on the books, but also for all of the stock owned by him which stands on the books in the name of another person.</p>

<p>Claim and Delivery—Alternative Judgment—Tender of Property— Execution for Value—Denial of Motion for Recall—Appeal— Relief in Equity.—Where the defendant in an action of claim and delivery recovered judgment for the return of the property or its value, and the plaintiff tendered the property and costs in satisfaction of the judgment, which was refused, and the defendant issued execution for its value, which the court refused to recall on plaintiff’s motion, the plaintiff who has appealed from the order denying such motion may maintain an action in equity to enjoin further proceedings under the judgment, . pending the determination of the appeal.</p> <p>Id.—Effect of Denial of Motion—Authority of Equity.—The denial of the motion to recall the execution in the action of claim and delivery gives to the court of equity the same authority to interfere as if the court in that action was powerless to render aid.</p>

<p>Municipal Corporation—Election for Issuance of Bonds—Mandatory-Ordinance— Misdirection to Voters—Clerical Error—Control of Ballots.—At an election for the issuance of the bonds of a municipal corporation for public improvements, the ordinance providing for the manner of voting is mandatory, and must control the voters, notwithstanding a misdirection to them caused by a clerical error in drafting the ordinance.</p> <p>Id.—Vote Upon High School and General Public School Bonds— Contrary Direction in Ordinance—Carried Vote Defeated.— Under an ordinance providing for high school bonds, “to be voted for or against as ‘general public school bonds,’ ” and for bonds for public school buildings other than a high school, “to-be voted for or against as ‘high school bonds,’ ” the contrary directions in the ordinance are deemed to be followed by the voters, and where the “high school bonds” on the ballots cast are defeated, and the “general public school bonds” on the ballots are carried, no bonds can be lawfully issued for public school buildings, other than a high school.</p>

<p>APPEAL from an order of the Superior Court of Yolo County directing a dividend out of the individual estate of an insolvent copartner. E. E. Gaddis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Ventura County and from orders denying a new trial and denying a motion to retax costs. B. T. Williams, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contempt—Bias and Prejudice of Judge—Motion fob Change of Judge.—Since the amendment of 1897 to section 170 of the Code of Civil Procedure, making the bias and prejudice of the judge a ground of objection to his competency to try a cause, a party making such an objection may file affidavits in support of his motion for a change of trial judges without being guilty of a contempt, unless he purposely includes matters wholly irrelevant and immaterial, and which are justly offensive to the judge who must pass upon the motion.</p> <p>Id.—Hostility of Judge to Attorney.—Since the passage of such amendment, an attorney at law who appears for a party objecting to a trial judge on the ground of his alleged bias and prejudice is not guilty of contempt in causing to be inserted in the moving affidavits the fact that he, as the attorney for the moving party in another case, had filed a brief in the supreme court which the trial judge had regarded as a reflection upon himself, and that the judge had since refused to speak to the attorney. Such fact, though by no means conclusive, is relevant and material on the question of bias and prejudice.</p>

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

<p>Estates of Deceased Persons—Trust Fund—Identity—Presentation of Claim.—Where a trust fund held by a deceased person is susceptible of identification, the trust may be enforced without the presentation of a claim against the estate; and it is only where the trust fund cannot be identified that the presentation of a claim against the estate, within the time limited by law, is essential.</p> <p>Id.—Trust Fund Created by Will—Investment in Drug Business— Identification of Fund—Finding Against Evidence.—In an action to enforce a trust against the estate of a deceased husband, created under the will of his deceased wife, for the support, maintenance, and education of their children, evidence showing that he received two thousand five hundred dollars from her estate as trustee thereof, and added thereto five hundred dollars intended as an advance for the children, and invested the whole in a drug store and business, which he conducted until his death, sufficiently establishes the identification of the trust fund, and a finding that neither the property purchased nor the proceeds thereof were traced and‘identified as constituting the trust fund is against the evidence.</p> <p>Id.—Effect of Advance Made by Husband—Intention—Proportionate Interest—Mingling of Funds—Accession to Trust Fund.—The effect of the money advanced by the husband, though not passed upon in the findings, could not, in any aspect, materially affect the identity of the trust fund. The evidence was sufficient to support a finding that it was intended as an advance to the children; but if it were otherwise, he could have only a proportionate interest in the fund, and if he mingled his money with the trust fund, it would become part of it by accession.</p> <p>Id.—Accounting at Death of Husband—Balance of Fund—Repayment of Advance.—The advance by the husband cannot be material, where the evidence shows that upon an accounting of the business at his death the balance would be largely against him, after deducting and repaying all money advanced by him.</p> <p>Id.—Identity of Drug Store and Business—Change of Materials— Permanent Entity.—The question of identity of the trust fund invested in the drug store does not relate to the specific items of stock, fixtures, etc., constituting the store at the time of the purchase, but relates to the drug store or business regarded collectively as a thing or entity, distinct from the mutable and transitory materials belonging to the concern, which collective thing constituted the trust fund and remained the same, though the materials, like the particles of water in a river, were continually changing.</p> <p>Id.—Rights of Beneficiaries Against Estate—Creditors of Deceased. The beneficiaries of a trust fund held by a deceased person, which is satisfactorily identified, may enforce it against the administrator; and the creditors of the deceased who merely loaned him their money on the fictitious credit of the trust fund held by the deceased cannot successfully resist an action to enforce the trust.</p> <p>In.—Limited Trust not Terminated—Appointment of Trustee.—The limited trust created by the will of the deceased wife for the maintenance, support, and education of the children did not terminate upon the death of the husband; and in enforcing the trust against the estate upon their suits, another trustee will be appointed to take charge of the trust fund, as successor to the deceased.</p> <p>Id.—Trust Limited to Lives—Remainder Undisposed of—Succession.— The trust so created under the will of the deceased wife cannot extend beyond the lives of the children; and the remainder, not being disposed of by her will, passed by intestate succession, one-third to the father and two-thirds to the children.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of Yolo County. Frank Moody, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Quieting Title—Incompetent Dependant—Deed to Plaintiff—■ Trust Relation—Findings Against Evidence.—In an action by a sister of a defendant adjudged incompetent, to quiet title derived from his deed to her, findings that he was competent 'when he made the deed, that it was not procured by fraud or undue influence, and that plaintiff paid an adequate consideration therefor, are against evidence which shows that defendant’s habits of intoxication had long before impaired his capacity to manage his property, that he reposed special confidence in his sister, that he made the deed to her without consideration, other than an expectation of support, that she declared that the property was to be managed by her for his benefit, and that for a long time she regarded herself and acted as his trustee of the property, to be accounted for with vouchers, until she finally repudiated the trust.</p> <p>Id.—Definite Agreement fop. Support as Oonsideration—Failure of Proof.—Evidence showing a mere expectation on the part of the brother that the sister was going to pay for his support the sum of seventy-five dollars per month, without any testimony of the plaintiff that there was such an agreement, and without the production of any written contract to that effect, does not establish such an agreement as a consideration for the deed.</p> <p>Id.—Brother and Sister—Fiduciary Relation — Special Trust and Confidence.—The mere relationship of brother and sister is not of itself fiduciary, but it is a material circumstance in determining whether, as matter of fact, a fiduciary relation existed between them, which is more easily superinduced by reason of the blood relationship; and where it appears that special trust and confidence is reposed by one of them in the other, the one who occupies the superior position has the duties and responsibilities of a trustee, with the attendant consequences of the trust relation.</p> <p>Id.—Deed from Beneficiary to Trustee—Want of Adequate Consideration—Presumption—Constructive Fraud—Undue Influence —Burden of Proof—Finding Against Evidence.—A deed from a beneficiary to a trustee without adequate consideration is presumed invalid and constructively fraudulent, and to have been obtained by undue influence. The trustee has the burden of proving the contrary, and of showing a compliance on his part with every equitable prerequisite to the validity of the deed; and in the absence of such proof, a finding that the deed was not obtained by fraud or undue influence is unsupported by the evidence.</p> <p>Id.—Statute op Limitations — Parol Continuing Trust not Constructive — Repudiation — Knowledge op Beneficiary.—A parol trust, voluntarily assumed, which, by the understanding of the parties, was to be a continuing one, is not merely constructive; and the statute of limitations does not begin to run in such case against the beneficiary until a repudiation of the trust by the trustee has been brought home to the knowledge of the beneficiary.</p>

<p>Will—Contest of Probate — Unsound Mind of Testator—Insane Delusions—Showing Required.—In order to sustain a contest of the probate of a will for the unsoundness of the mind of the testator, by reason of insane delusions, it must be shown that the delusions were not merely temporary hallucinations, or unfounded dislikes or antipathies, or false opinions and beliefs, but were spontaneous and firmly fixed beliefs of a diseased mind, which no argument or evidence could convince to the contrary, and which a rational mind would not entertain, and also that the Insane delusions operated to cause the production of the will under attack.</p> <p>Id.—Verdict Against Evidence.—The evidence reviewed, and'held to be insufficient to sustain the verdict of the jury that at the time of the making of the will the testator lacked testamentary capacity by reason of unsoundness of mind. [McFarland, J., dissenting.]</p> <p>Id.—Undue Influence—Change of Will—Support of Verdict.—A verdict that the will was obtained by undue influence is supported by evidence showing that it was changed in favor of a niece who was well to do, from a previous will in favor of a sister who was poor and had a large family, and that the testatrix, after * having suffered a paralytic stroke, sent for the niece to induce her to support the previous will, and to make her a present in that view, and that the niece, after learning of the will, spoke against the sister to the testatrix, and had repeated and long conversations with her just before the will was changed, after which conversations the testatrix, while in an enfeebled condition, put herself in the hands of the niece to be controlled by' her in the change of the will.</p> <p>In.—Issue of Fraud not Submitted—Misleading Instruction.—Where the only issues submitted to the jury were insanity and undue influence, an instruction upon the question of fraud, which the court had refused to submit to the jury, was confusing and misleading.</p> <p>In.—Erroneous Instructions — Insane Delusions—Definition—Consequences.—Instructions on the subject of insane delusions, which omit from the definition thereof the element that it must be adherefl to against reason and evidence, and which omit from the declared consequences thereof in vitiating the will the important qualification that the jury must find that the particular will in question was caused by, or was the product of, one or more insane delusions, are erroneous.</p> <p>Id.—“Insane Prejudice”—Misleading Instruction.—An instruction which predicates unsoundness of mind of the testatrix upon the possession of an “insane prejudice” which influenced her will in the disposition of her property, is confusing and misleading in not using the recognized term “insane delusion,” which has a well-defined and exact meaning.</p> <p>Id.—Undue Influence—Proof—Definition—Improper Instruction.— An instruction upon the subject of undue influence, which is argumentative and which purports to enumerate circumstances proving undue influence, which may merely tend to show undue influence, but which are in nowise conclusive thereof, and which declares it not possible with exactness to define or describe undue influ'ence except in general and approximate terms, and seems to leave to the jury the determination as to what may constitute undue influence, is erroneous.</p>

<p>Private Way—Action to Remove Gate—Former Judgment—Action to Abate Private Nuisance.—A former judgment for the defendant in an action to abate as a private nuisance alleged to be specially injurious to the plaintiff a gate placed across a private road at its connection with the public highway, is a bar to another action by the same plaintiff against the same defendant to have it adjudged that plaintiff is entitled to the free use of the same private road, and that the gate he adjudged an obstruction, and that the defendant be compelled to remove it, and be restrained from placing or maintaining across said road a gate or other obstruction, where it appears that substantially the same issues were involved in both actions, and both depend upon the same evidence.</p> <p>Id.—Dedication oe Private Road not Involved—Abatement of Nuisance in Private Way.—It was not necessary for the plaintiff, in order to maintain the former action, to prove that the private road had been dedicated to the public and had been used and accepted by the public as a highway, and that plaintiff was specially injured by the obstructions in a manner different from the public at large. A nuisance in a private way may be enjoined or abated under section 731 of the Code of Civil Procedure.</p> <p>Id.—Dispute of Right to Maintain Gate.—Where the real contention in both actions related to the right of the defendant to maintain the gate in question, and did not relate to the character of the road in which it was maintained, and that contention was. tried in both cases on the same facts and the same evidence, the judgment in the first case on that subject matter is conclusive in the second case.</p> <p>Id.—Nature of Action—Change of Name of Thing Objected to.—The nature of an action cannot he changed by changing the name of the thing objected to; and an action to abate a gate as a nuisance is of the same nature with an action to remove the same gate as an obstruction.</p> <p>Id.—Sufficiency of Width of Gate—;Issue not Concluded—New Trial. Where there’ has been no previous adjudication of the question whether the gate is wide enough for the convenient use of the plaintiff’s property as farming land, and there was evidence that it may be made wider, and that it is not wide enough to atmit a self-hinder harvesting machine, though wide enough for ordinary travel, a new trial will be granted to determine the question whether a wider gate should he provided.</p>

<p>'APPEAL from an order of the Superior Cóurt of Santa Clara County appointing a guardian for a minor. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Costs—Amendment op Memorandum.—After the expiration of the time limited by section 1033 of the Code of Civil Procedure for serving and filing a memorandum of costs, an amendment of such memorandum cannot be had so as to insert additional items of disbursement, nor can a judgment for such additional items be rendered, in the absence of a showing that the omission was excusable on some of the grounds mentioned in section 473 of that code.</p> <p>Id.—Insurance on Attached Property.—Expenditures made by a sheriff for fire insurance premiums on property attached are not proper items of costs.</p>

<p>Homestead—Mobtgage by Wife to Husband—Estopped.—Under sections 1242 and. 1243 of the Civil Code, community property on which a homestead has been declared cannot be mortgaged by the wife to her husband, to secure an indebtedness from her to him, by a mortgage in which she alone joins'. Such a mortgage is void, even in the hands of an assignee, and the wife is not estopped to deny its invalidity.</p>

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

<p>Appeal—Order Granting New Trial—Affirmance—Law of the Case —Duty of Lower Court.—The decision of this court upon questions of law, in affirming upon appeal an order granting a new trial, is the law of the case; and it is the duty of the lower court not to depart from the decision of this court upon the new trial.</p> <p>Id.—New Trial in Foreclosure—Marshaling Securities— Sale of Purchased Land—Error as to Power.—Upon affirmance of an order granting a new trial of a foreclosure suit, a decision upon appeal that a decree in favor of the plaintiff, who, as a vendor of land, holds the title as security for the purchase money of land sold, foreclosing only a lien upon other lands held by him as collateral security for the purchase money, was erroneous as against the holder of a subsequent deed of trust of such other lands, and that the purchased land should be first sold, before the sale of the other lands, is the law of the case, which it is the duty of the court to enforce upon the new trial; and it is error to decide that the court had no power to order such sale, by reason of the finality of the former judgment as a bar thereto.</p> <p>Id.—Power of Court—Belief Consistent With Facts Alleged—Pleading—Original Complaint—Prayer.—The court had power where th e original complaint was answered by the purchaser as well as by the subsequent lienholder, to grant any relief consistent with the facts alleged and embraced within the issues. It had power to order that the purchased lands be first sold as against the subsequent lienholder, under the original' complaint, where it stated all the facts of the case, and set forth the contract of sale, containing a description of the property sold, as well as of the other lands, and asked not only for the foreclosure of the lien upon the other lands, but “for such other and further orders, judgments, and decrees as may be equitable.”</p> <p>Id.—Amended Complaint—Foreclosure of Vendor’s Security—Stipulation as to Answer of Purchaser—Judgment-roll.—Where an amended complaint was filed, expressly seeking a foreclosure of the vendor’s security held by reservation of the title of the property sold, and seeking a first sale thereof, a stipulation made between the attorneys for the plaintiff and the attorney for the purchaser, that the answer of the latter “now on file to plaintiff’s amended complaint be his answer to said amended complaint, when amended as hereinbefore specified,” and entered upon the minutes of the court, is binding, and is part of the judgment-roll, and proves an answer of the purchaser to the amended complaint.</p> <p>Id.—Construction of Finding—Filing of Purchaser’s Answer.—A finding that the purchaser “appeared and filed an answer in this action” must be presumed correct, and to refer to the amended complaint, upon which the court was acting.</p> <p>Id.—Statute of Limitations—New Cause of Action not Stated.— The amended complaint did not bring in new parties or state a new cause of action; and the cause of action in the original complaint not being barred by the statute of limitations, it cannot apply to the amended complaint.</p> <p>Id.—Waiver of Vendor’s Lien—Title Held as 'Security — Lien Upon Other Lands—Judgment Upon Foreclosure.—The title held by the vendor in trust for the purchaser, as security for the unpaid purchase money, was not waived by the taking of collateral security upon other lands, nor by the original judgment foreclosing the lien only upon the other lands, which was set aside by the order granting a new trial. The vendor did not, by so doing, evince a determination to waive the title held as security; nor did he put himself in such a condition that it would be inequitable upon the new trial to enforce the vendor’s security, which was ordered to be first enforced in the decision upon appeal.</p> <p>Id,—New Trial Granted Upon Motion of Lienholder—Finality of Judgment as to Purchaser—Power of Court.—The fact that the new trial was granted upon motion of the subsequent lienholder only, and that the purchaser did not move for a new trial, or appeal from the judgment, and that it was final as to him, cannot deprive the court of power to correct the error made in the former decree, even though such correction ■ may incidentally affect the purchaser.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco. A. A. Sanderson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEALS from an order of the Superior Court of Santa Clara County granting a new trial as to the corporation appellant and denying it as to the defendant respondent. A. S. Kittredge, Judge.</p> <p>’ The facts are stated in the opinion.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County denying the probate of a will. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Mexican Gbant to Husbands—Conveyance and Patent to Wives— Sepabate Pbopebty—Poweb of Htjsbands.—Where a Mexican grant of a rancho to two husbands was conveyed by them to then-wives, in whose names the grant was confirmed and patented, the land so conveyed, confirmed, and patented is the separate-property of the wives, which the husbands, as such, had no-power to alienate.</p> <p>Id.—Deed of Patented Land by Husbands and Wives—Exception— ' Effect Upon Title.— An exception in a deed of the patented rancho executed jointly by the husbands and their wives does not inure to the husbands and wives jointly, nor create a title in the husbands which they did not possess immediately before the deed was executed. It leaves the title to the excepted land in the wives, as their separate property, as fully as if no deed had been executed.</p> <p>Id.—Reservation of Tract to be Selected and Located—Exception— Proof in Ejectment.—A deed of the patented rancho by the husbands and wives, “reserving and saving from the effect and operation of this conveyance four square miles in two separate parts, to he selected and located by the parties of the first part,” has the effect of an exception of the land reserved. But the exception does not show a title upon which an action of ejectment can be maintained, without proof that the excepted land has been selected and located.</p> <p>Id.—Power of Attorney from Husband—Sale and Conveyance — Selection and Location not Included—Title not Shown.—A power of attorney from one of the husbands subsequent to such deed to sell and convey any portion of the rancho does not include power to select and locate the excepted tract of four square miles, nor can a deed by the attorney in fact of such husband of a larger tract operate either as a selection of such excepted tract or to prove any title to the land conveyed.</p> <p>Id.—Exception in Deed from Grantees—Recital of Reservation by Husbands—Title not Conferred Upon Strangers.—An exception made by the grantees of the husbands and wives, in a subsequent conveyance, limited by its terms to land “heretofore disposed of and reserved” by the husbands named, cannot operate to confer title upon the husbands or upon' any strangers to the instrument.</p> <p>Id.—Admission or Estoppel by Recital—Failure of Proof.—Though, such recital in the deed might, under certain circumstances, operate as an admission or estoppel in favor of the husbands named or their grantees, it cannot have that effect, where there is a failure to prove that the husbands named, or either of them, had disposed of or reserved any land prior to the conveyance.</p> <p>Id.—Ejectment—Refusal of Amendment to Complaint—Rent—Title not Proved—Nonsuit.—A plaintiff in ejectment, whose proof of title has failed, is not injured by the refusal of the court to permit an amendment to the complaint, claiming rent of the demanded " premises; and a nonsuit is properly granted for failure of the plaintiff to prove title.</p>

<p>'APPEAL from a judgment of the Superior Court of Santa Clara County. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Railroad Company—Operation of Opposing Trains—Gross Negligence. A railroad company operating a single track so that two trains áre running thereupon in opposite directions at the same time, so as to threaten a collision, is guilty of gross negligence.</p> <p>Id.—Escape of Passenger to Avoid Threatened Collision—Resulting Injury — Contributory Negligence — Question of Fact.—A lady passenger, who jumped with other passengers from a train going from eight to ten miles per hour, under an apprehension of great danger from collision with a freight train, discovered to be rapidly approaching from around a curve toward the passenger train, and fell face downward upon the track, from which she rolled to escape being run over, and was carried down an embankment, to her serious injury, cannot be charged with contributory negligence, as matter of law; but it is essentially a question of fact whether her acts were justified in view of all the surrounding circumstances.</p> <p>Id.—Responsibility of Railroad Company — Escape of Passengers Caused by Perilous Operation of Trains.—If a railroad company so operates its trains as to place its passengers in situations apparently so dangerous and hazardous as to create in their minds a reasonable apprehension of peril and injury, and thereby excite their alarm and induce them to make efforts to escape, and if, in such efforts to escape, they receive personal injuries, the railroad company is responsible in damages for its negligence.</p> <p>Id.—Alighting of Passenger in Dangerous Spot.—The fact that a passenger-, in the hurry and excitement of an attempt to escape from the peril of a threatened collision of trains, alights upon an unsafe and dangerous spot, will not, of itself, necessarily defeat a right of recovery, although a safe and secure spot was at hand and equally ready of access.</p> <p>Id. — Pleading and Evidence — Charge of Being “Thrown Upon Track”—Proof of Single Act—Evidence not Objected to.—Under a count in the complaint averring that plaintiff, “in her effort to escape from said car and avoid probable injury and death, was thrown with great violence and force upon the track of defendant’s railroad, and was greatly and severely injured,” proof may be given of her jumping from the train, her falling or being thrown upon the track, and her rolling from the track down the embankment, which may be regarded as a single act • whereby she was injured, filling the measure of the averment, especially where the evidence was not objected to as not being within the pleadings.</p> <p>Id.—Refusal of Instruction—Applicability to One Count, and not to Another.—Where the complaint in the first count alleged that the injury was the result of a collision of the trains, but in the second count alleged that it resulted from an escape from the car to avoid peril of death from the threatened collision, in which, she was thrown upon the track with violence to her Injury, the cause of action in the second count in no way depends upon, an actual collision; and a requested instruction that plaintiff cannot recover unless she has proved by a preponderance of evidence that the collision caused her injury is properly refused.</p> <p>Id.—Injury Resulting to Passenger—Prima Facie Case—Burden of-Proof Upon Carrier.—Evidence that plaintiff was a passenger in,- • defendant’s car, and was injured as the result of the operation by the defendant of colliding trains, makes a prima facie case against the defendant. The burden of proof is then thrown upon the defendant, as a carrier of passengers, to overcome such prima facie case; and if such burden is not sustained, the verdict should be for the plaintiff.</p> <p>Id.—Crudeness of Train—Rights of Passenger not Waived—Responsibility of Carrier.—The plaintiff by riding as a passenger for hire in a car which, with the locomotive attached, was a crude affair, waived none of her rights as a passenger. The defendant, in transporting her as a passenger for hire, was subject to all of the rules of law which bind common carriers of passengers; and the plaintiff was entitled to the same care of the-defendant for her safety as though she were a passenger upon a Pullman train.</p> <p>ID.—Evidence—Complaints of Pain and Suffering to Nurse—Expert— Hearsay.—Evidence that during the first week after the injury of the plaintiff she made complaints of pain and suffering to the nurse attending upon her is admissible. It involves no principle of expert evidence, and is not objectionable as hearsay.</p> <p>Id.—Declarations Indicative of Present Physical Condition.—Involuntary declarations and exclamations indicative of a present physical condition are competent evidence, as distinguished from objectionable declarations, only amounting to the statement of a past condition.</p>

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

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

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

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

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

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

APPEALS from judgments of the Superior Court of Tulare County in appeals numbered Sac. 728, 729, and 730, and from a judgment of said court and from an order denying a new trial in appeal numbered Sac. 756. W. B. Wallace, Judge. The facts are stated in the opinion, and in the opinion in Ellis v. Jejferds, ante, p. 478.

<p>Res Adjtjdicata—Parties and Privies Bound—Different Cause of Action.—The right, question, or fact definitely put in issue, and finally determined by a court of competent jurisdiction, cannot be contested in a subsequent action between the same parities or their privies, even if the second suit | is for a different cause of action. j</p> <p>Id.—Action to Quiet Title—Former Adjudication—Ejectment Suit by Plaintiff’s Grantor.—In an action to quiet title, the principles adjudicated in a former action of ejectment brought by plaintiff’s grantor against the same defendant are binding upon the plaintiff, where it appears that substantially the same evidence, documentary and parol, was introduced and considered in both eases, and the plaintiff relied upon the same title which was adjudicated against his grantor in the action of ejectment.</p>

APPLICATION to the Supreme Court to set aside a judgment of disbarment. The facts are stated in the opinion of the court.

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

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. W. H. Clark, Judge.</p> <p>The original complaint, in addition to the averments of conversion of personal property set forth in the i opinion, alleged that defendants wrongfully, willfully, and maliciously entered her house, which she held under leasehold, by force, and tore up the carpets and draperies, and injured the plaintiff’s property. Further facts are stated in the opinion.1</p>

<p>. APPEAL from an interlocutory judgment: 'of th'e Superior Court- of Ventura County. B. T. Williams, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Reclamation District—Money in Possession of President—Payment to County Treasurer—Mandamus.—A writ oí mandate will not lie, at the instance of a creditor of a reclamation district, the lands of which are situated in different counties, against the person who is the president of the board of trustees of the district, to compel him to pay to the treasurer of one of such counties a portion of the district funds, collected by him and in his possession as agent of the board. The making of such payment is no part of the official duty of the president, and a writ of mandate will only lie to compel the performance of an act which the law specially enjoins as a duty I resulting from an office, trust, or station.</p>

<p>■APPEAL from a judgment of the Superior (Wrt of Humboldt County. G. W. Hunter, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgages to Secure Same Indebtedness—Foreclosure—Mistake nr Assignment—Relief in Equity—Subsequent Judgment Creditor. Where two successive mortgages are given toj secure the same indebtedness, the latter of which includes mortgaged property-in addition to that included in the first mortgage, and subsequently the indebtedness is assigned by the mortgagee, but through mistake of fact as to the existence of ¡the second mortgage the first mortgage alone is assigned, instead of the second, and is foreclosed, the assignee is entitled, upon a discovery of the mistake, and a showing that the mortgaged property included in the first mortgage is insufficient to pay the mortgage indebtedness and that the mortgagor is insolvent, to maintain a suit in equity to set aside the judgment of foreclosure, and for a foreclosure of the second mortgage, as1 against a judgment creditor of the mortgagor, whose judgment lien is subsequent to both mortgages, but prior to the ^ first foreclosure, and who purchased at execution sale with full knowledge of the existence of the mortgage lien.</p> <p>Id.—Remedy by Motion—Erroneous Judgment—Unprejudicial Error. In such a case, where the mistake is discovered after the expiration of six months after the decree of foreclosure in the first action is entered, the assignee is not limited to the remedy by motion under section 473 of the Code of j Civil Procedure; and a judgment of foreclosure in the second action, without formally vacating the decree in the first action, although erroneous under section 726 of the Code of Civil Procedure, is without prejudice to such judgment creditor and is not a reason for a reversal on his appeal. 1</p>

<p>Reversal of Decree of Distribution—Restitution to Executors—Assigned Part of Estate.—Upon the reversal of a decree of distribution of the estate of a deceased person, the executors are entitled to restitution of the whole estate, including any part thereof which has been assigned or transferred hv the distributee.</p> <p>Id.—Assigned Property not Subject to Mortgage.—In an action to-obtain the restitution of property of the estate which was assigned by the distributee, it is no defense that the assigned property was not subject to an outstanding mortgage, owing to the existence of which the decree of distribution was reversed-</p> <p>Id.—Consideration for Assignment—Purchaser not1 Protected—Presumption.—It is immaterial whether there was or was not a consideration for the assignment made by the distributee. The purchaser could only acquire the title of the distributee, and must be presumed to know the nature of the title purchased,, as shown by the records.</p> <p>Id.—Plea in Abatement—Prior Action Pending for Restitution of ¡Stock—Second Action Against Corporation and Transferees.—A prior action pending for the restitution of stock to the executors brought against a distributee and assignee of the shares, is not for the same cause of action, nor agaihst the same parties, as a second action by the executors against the corporation and two transferees of the stock upon its books, who took the transfer, pending an appeal in the prior action, to cancel the certificates and to compel issuance of certificates of stock to the executors. The pendency of such prior action cannot be successfully pleaded in abatement of the second action.</p> <p>Id.—Cause of Action Against Corporation—Cancellation of Certificates Wrongfully Issued—Knowledge of Stay Bond—Necessary Parties.—The executors had a cause of action against the corporation to cancel the certificates of stock, where it appears that they were wrongfully issued in violation of the rights of the executors pending their appeal in the prior action, with, knowledge by the corporation that they had given a stay bond upon the appeal. To such cause of action the transferees of the-stock were necessary parties codefendant.</p> <p>Id.—Cause of Action for Transfer of Stock—Ownership.—The executors had also an independent cause of action against the corporation and the transferees of the stock owned by the estate, by reason of such ownership thereof, to compel a transfer of the stock to their names as executors.</p> <p>Id.—Equitable Action — Trial by Juey.—The action to cancel the shares of stock and to compel their transfer from the corporation to the executors, however regarded, is an equitable action, in which it is not error to refuse a demand of trial by jury.</p>

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

<p>Contract for Life Tenancy—Personal Services—Specific Performance—Remedy at Law.—An oral agreement between a father and daughter that he would give her and her family the; rent of his home free for life, and would leave her by will the residue of his estate, subject to certain bequests, in consideration of her promise to provide him a home therein and supply his personal wants for life, is a contract on her part to render personal services during the life of her father, and eanncjt be specifically enforced by either party. For any breach of the contract while unperformed on her part, the parties must be left' to their remedy at law.</p> <p>Id.—Breach of Contract—Tenancy at Will—Notice to Quit—Unlawful Detainer—Injunction.—Upon breach of the contract by the father, in refusing to remain to be provided for, and treating the occupation of his house by the daughter and her family thereafter as a tenancy at will, and, after giving them notice to quit, bringing an action of unlawful detainer against them, the daughter, not being entitled to a specific performance of the contract, cannot defend such action as a life tenant, and is not entitled to an injunction to restrain interference of the father with her occupation of the premises. ,</p>

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

G. W-. Hunter, Judge. The testimony of J. M. Melendy, the attorney referred to in the opinion, was to the eifeet that he had known J. S. Murray,, for twenty-one years, was familiar with his handwriting, and knew the pass-book in question to be in his writing; that it. had been shown to him by Archibald Nicholson, for whom he was drawing a will, and whom he advised with reference to the account; and that the pass-book was in Nicholson’s possession when it was shown to him.

<p>Foreclosure of Mortgage—Appeal by Claimant op Interest in Land— Notice—Failure to Serve Mortgagor—Dismissal.—Upon appeal by the claimants of an undivided interest in mortgaged land, alleged to be not subject to the mortgage, from a decree adjudging the mortgage a lien thereupon and foreclosing it upon the entire premises, and providing for the docketing of a judgment against the mortgagor for any deficiency, the mortgagor has an interest adverse to the appellants, which would be injuriously affected by a modification or reversal of the judgment, and must be served with the notice of appeal. Upon failure to serve him therewith, the appeal must be dismissed for want of jurisdiction to entertain it.</p>

<p>Insolvent Bank—Preference of Depositors not Stockholders—Loan to Bankby Stockholder.—In an insolvent bank incorporated under the act of April 11, 1862, the claims of depositors not stockholders are preferred over those of depositing stockholders, in the absence of a by-law entitling them to share equally with them. But if the stockholder is not a depositor, and has loaned the money to the bank, he is entitled to share equally in the assets with other creditors.</p> <p>Ed.—Construction of Act of 1862—“Depositors”—Ordinary Certificates of Deposit—Loan not Represented.—In the act of 1862, the term “depositors” is intended to include not only those who have made deposits in the bank subject to check, but also the • holders of ordinary certificates of deposit, not subject to check, which are in the nature of a r.eceipt for a deposit executed by the bank, reciting that a sum specified has been deposited in the bank by the depositor payable to himself or order, upon return of the certificate properly indorsed. Such certificates, though negotiable and payable immediately, are not notes, and do not .represent a loan, nor bear interest not stipulated, but represent the money deposited in the bank to be retained until demanded.</p> <p>Id.—Constitutionality of Act of 1862—Classification of Depositors.— The act of 1862 is constitutional and valid, and is not subject to the objection that it improperly classifies the depositors in a bank, and subjects individuals of the class who are stockholders - to special burdens, from which other depositors are exempt. The stockholders constitute the corporation, and are entitled to share in the profits derived from deposits made by those not stockholders, who are merely creditors of the bank; and depositors who are stockholders are not in the same class with depositors who are not stockholders.</p> <p>Id.—Finding of Insufficient Assets—Judgment Upon Stockholder’s Certificate—Provision for Stay.—In an action against the bank by the assignee of a certificate of deposit issued to a stockholder, where the court found that the bank was insolvent, and that its assets were insufficient to pay the preferred depositors not stockholders, in rendering judgment for the plaintiff, such preference could not be secured otherwise than by a stay of the judgment until the preferred creditors should be paid, and it is not objectionable to insert such provision for stay in the judgment. If it amounts to a perpetual stay, because of the insufficiency of the assets, plaintiff is not injured thereby.</p> <p>Id.—Change of Loan to Ordinary Certificates — New Deposit.—A stockholder who had made a loan to the bank, and received a time certificate, payable in one year, bearing interest, and after its maturity and part payment had surrendered it as paid, and then received an ordinary certificate of deposit for the balance, and upon further payment received another like certificate, which was outstanding when the bank became insolvent, cannot then be considered as a lender of money to the bank, or entitled to share in its assets with preferred depositors not stockholders. The legal effect of the transactions was that each ordinary certificate of deposit issued represented a new deposit made at its date.</p> <p>3d,—Assignment of Certificate—Knowledge of Insolvency of Bank— Assignee not Protected.—Where the certificate of deposit held by thp stockholder when the bank became insolvent was assigned thereafter to the plaintiff, who took the assignment with knowledge that the bank was insolvent, and was in liquidation under the bank commissioners’ act, it being admitted that the assignor was a stockholder, the plaintiff is not protected, and is not entitled to share equally with preferred creditors not stockholders.</p> <p>Id.—Protection of Depositing Stockholders Under By-law—Change of By-law — Revision.—Where an original by-law of the bank entitled stockholders, who were depositors, to share equally in the assets with other depositors, and a subsequent revision of the by-laws was made, in which that by-law was omitted, and the revised by-laws, when adopted, were declared to be the by-laws of the bank, without suggestion that the new by-laws, were amendatory of the former by-laws, such original by-law ceased to exist, and did not thereafter apply to the protection of depositing stockholders.</p>

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

<p>Broker’s Commission—Sale by Owner—Validity of Contract—Continuance of Employment.—A contract between the owner of real estate and a firm of brokers, making them exclusive agents to sell, and agreeing to pay them a specified commission upon any sale made by them, or by anyone else, including the owner, during the existence of the contract, which was to continue for thirty days and until withdrawn by the owner in writing, is valid and binding upon the owner according to its terms. In the event of a sale by the owner after the thirty-day period, the employment not having been previously withdrawn in writing, he is liable for the agreed commission.</p> <p>Id,—Construction of Contract—Sale not a Withdrawal in Writing, The contract cannot be construed to allow that a sale and deed by • the owners should constitute a withdrawal in writing pursuant to the terms of the contract, so as to defeat the broker’s commission, which was expressly to be paid in the event of such sale before the withdrawal; and the sale could not constitute a withdrawal before the sale was made.</p> <p>Id.—Consideration—Services op Brokers—Finding of Purchaser.— The consideration for the contract of the owner to pay a commission upon their own sale during the existence of the contract consisted of the agreed services of the brokers in attempting to find a purchaser. If they performed such services, the fact that no purchaser was found by them cannot defeat the contract, which was more than an ordinary broker’s contract. The parties were at liberty to make the compensation of the broker depend upon any lawful condition agreed to in the contract; and the only question in such case is as to what the contract provides.</p> <p>Id.—Fraud or Mistake—Neglect of Owner to Read Contract—Reliance Upon Statements of Brokers.—The neglect of the owner, who had the ability to read the contract and who was furnished with a copy thereof, to read it in its entirety before signing it, and her reliance upon'the statements of the brokers as to its contents, is only proof of negligence upon her part, and cannot entitle her to set aside the contract on the ground of fraud or mistake. There was no special relation of trust or confidence between the owner and the brokers; and'she was not entitled to rely upon their statements as to the contents of the contract. .</p>

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

<p>Insolvency—Petition by Assignee to Sell Estate—Title of Assignee. By an adjudication in insolvency the property passes from the insolvent debtor, and comes under the control of the court; and a petition for the sale of the estate of the insolvent, which alleges that the petitioner is the duly appointed, qualified, and acting assignee of the estate of the insolvent, and as such assignee has taken possession of . all the estate described in the petition, schedule, and inventory of the insolvent, is no(t objectionable for not alleging specifically that the property of the ' insolvent has been assigned to the petitioner.</p> <p>Id.—Description of Personal Property in Petition—Reference to Schedule and Inventory.—A petition by the assignee for an order to sell the property of the insolvent need not describe the personal property in detail; but it is sufficient to refer to the schedule and inventory on file.</p> <p>Id. —Requirement of Sale—Showing of Necessity.—The insolvent law is distinct from the probate law in requiring that all of the property of the insolvent shall be sold and converted into money; and, in case of a petition for an order to sell the property of the insolvent at public sale, as dis.inguished from a private sale, no necessity need be shown to justify an order of sale thereof.</p> <p>Id.—Public Sales—Directions by Court—Sale bn Masse—Notice.— The only requirement of the insolvent law in reference to public sales of the estate of the insolvent is that such sales shall be made “as ordered by the court”; and the court has power to direct that the property shall be sold together and not separately, and to direct in what paper and for what period notice of the sale shall be published.</p> <p>Id.—Jurisdiction oe Judge Presiding in Another County—Presumption.—A "judge of the superior court of one county presiding in another county, upon proper request, has jurisdiction to make an order for the sale of the property of an insolvent debtor, in such other county; and in the absence of a showing to the contrary, it must be presumed that he was requested to preside, either by the judge of the superior court of such county or by the governor in accordance with section 8 of article VI of the constitution.</p>

<p>Arrest—Use op Unnecessary Force—Liability op Officer and Sureties.—An officer who, in making a lawful arrest, uses excessive and unnecessary force, is liable Upon his official bond for damages thereby caused to the person arrested.</p> <p>Id.—Construction of Finding — “Willful” Shooting by Deputy— “Malice” not Imported—“Intentional” Act.—A finding that a deputy officer, in making the arrest, “willfully shot plaintiff in the back,” is not to be construed as importing that the deputy acted “maliciously,” and that his action was therefore extra-official, for which the officer was not liable, but is to be construed as employing the term used in its ordinary sense, and importing that the deputy “intentionally” or “willingly” shot the plaintiff.</p>

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

<p>APPEAL from a judgment of the Superior Court of Contra Costa County and from an order denying a new trial. Joseph P. Jones, Judge.</p> <p>The facts are stated in the opinion,</p>

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

<p>MOTION to dismiss an appeal from the judgment of the Superior Court of Sacramento County. Matt. F. Johnson, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Joaquin County and from an order denying a new trial. Joseph H. Budd, Judge.</p> <p>The evidence showed that the basement of the adjoining store where the arson was attempted was partly underground. It had walls of brick, and was used for the storage of merchandise. It had a window in the rear, but was otherwise dark, and was lighted by gas. There were pillars in it for the support of the floor above. Shelves were built in it where merchandise was stored; and it had a floor and a partition. It was frequently spoken of by several witnesses as the “cellar,” and also as “the bas'ement.” Further facts are stated in the opinion of the court.</p>

<p>Reclamation District—Validity oe Organization—Quo Warranto.— A reclamation district regularly organized under section 3446 of the Political Code has a legal existence which cannot be successfully assailed in quo warranto if there is no existing swamp land or reclamation district within its limits.</p> <p>Id.—Defunct Swamp Land District—Repeal of Organic Act—Failure to Reorganize.—A swamp land district organized under the act of 1861, and failing to take any steps to reorganize under the act of 1868, which substituted a new scheme for the reclamation of swamp land's, and contemplated a reorganization of existing districts thereunder and expressly repealed the act of 1861, ceased thereafter to exist, and is not an obstacle to the subsequent organization of a reclamation district including its original limits.</p> <p>Id.—Repealing Act—Construction of Proviso.—The proviso in the act of 1878, which repealed the act of 1861, that “until such organization said districts now formed shall proceed under the laws now in force,” is to he construed as applying to existing districts reorganizing under the repealing act, and as allowing them to proceed under the laws theretofore in force, during the period of transition, and not as intended to apply to an existing district which took no steps to reorganize under the act of 1878. [Beatty, C. J., dissenting-.]</p> <p>Id.—Former Reclamation District Illegally Organized — Failure of Petition to Describe Lands.—A former reclamation district illegally organized, under the Political Code, owing to the failure of the petition for its organization to set forth “a description of the lands by legal subdivision or other boundaries,” is not a bar to the regular organization of another reclamation district.</p> <p>Id.—General Objection to Petition—Jurisdiction oe Supervisors— Objection Upon Appeal.—The fact that the defective petition 'was objected to generally at the trial, and upon other grounds than that it did not confer jurisdiction upon the supervisors to act thereupon, cannot preclude tlie urging of such objection upon appeal.</p> <p>In.—De Facto District—Support of Finding.—The de facto existence of the former reclamation district which has no de jure existence may be controverted; and a finding against its de facto existence is sufficiently sustained by proof that after the board of supervisors had approved the insufficient petition nothing further was done for over fifteen years, when it first began to act as a corporation, and acted for about one year, when it ceased to act entirely, and its members and officers long subsequently united in the regular organization of the reclamation district respondent.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing . a new trial. J. C. B. Hebbard, 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>APPEAL from a decree of the Superior Court of Nevada County settling the account of an executor. F. T. Nilón, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Judgment Foreclosing Mortgage—Motion to Vacate—Lapse of Time.— A motion to vacate a judgment foreclosing a mortgage not void on its face, made more than six months after the entry of the judgment, is too late, and must be denied.</p> <p>Id.—Jddgmentnot Void—Absence of Separate Findings.—The absence of separate findings, or the incorporation of findings in the judgment of foreclosure, cannot render the judgment void upon “ its face.</p> <p>.Id.—Premature Entry of Default—Amendment not Served—Error— Validity of Judgment.—The premature entry of default against defendants in the foreclosure suit who made default and did not ask to have their default set aside, and the failure to serve them with a copy of an amended complaint, renders the judgment against them merely erroneous and subject to reversal upon appeal, but in the absence of an appeal does not render the judgment foreclosing the mortgage void upon its face.</p> <p>Id.—Sale Under Foreclosure of Mortgage—Motion to Vacate—Commissioner’s Oath — Filing.—A motion to vacate a sale under a judgment not void foreclosing a mortgage, made after the judgment had become final, cannot be entertained upon the ground that no written oatli or affidavit of the commissioner who made the sale is on file in the clerk’s office. The law does not require the commissioner to make a written affidavit, or to file it anywhere; and it is sufficient if the record shows that he was sworn.</p> <p>Id.—Prior Invalid Sale—Publication of Notice—Amended Notice.— The fact that the commissioner made a prior invalid sale, which was set aside for insufficiency of notice, cannot invalidate a sale subsequently made upon due notice; and the fact that a wrong date "was first published cannot affect the sale where an amended notice was sufficiently published prior to the sale.</p> <p>Id.—Inadequacy of Price.—Mere inadequacy of price is not of itself sufficient ground for vacating a sale regularly made under foreclosure of a mortgage, and a motion to vacate such sale not presenting that ground, and having meager evidence of inadequacy of price to support it, cannot be granted on that ground.</p>

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

<p>Eminent Domain — Public Use—Judicial Questions.—The question whether the uses for which property is sought to be taken, in the exercise of eminent domain, are in fact public is a judicial question, to be determined by the court; and if it can be shown that the end sought is solely for private purposes, condemnation must be denied.</p> <p>Id.—Highway a Public Use—Burden of Proof.—A highway or public road is prima facie a public use, for which land may be condemned; and if it would be claimed otherwise in any particular case, or that the road is in fact for private use, the burden of showing such fact rests upon the contestant.</p> <p>Id.—Necessity—Instrumentalities—Extent of Right—Political and Legislative Questions.—Where the use is in fact public, the necessity or expediency of taking private property therefor, the instrumentalities to be used, and the extent of the right to be delegated are political and legislative questions.</p> <p>Id.—Demand fob and Location of Highway—Exclusive Jubisdiction of Supeevisobs.—Whether a public highway is demanded in any particular region, as well as its location and extent, are questions referred by the legislature te the board of supervisors; and where the hoard, by taking proper steps under the law, has acquired jurisdiction to determine those questions, its jurisdiction is exclusive, and its determination is not subject to collateral attack or to review by the courts.</p> <p>Id.—Damage to Land not Taken—Deduction fob Benefits—Action by County.—In an action by a county to condemn private property for a public highway, damages to the land not taken must be allowed without any deduction for benefits to such land by the opening of the road.</p> <p>Id.—Compensation Ibeespective of Benefit—Constbuction of Constitution—County not a “Municipal Cobpobation.”—A county is a governmental agency or a political subdivision of the state, and if it be a corporation, it is a political corporation, and is. not a “municipal corporation” within the meaning of section 14 of article X of the constitution, which declares that “no right of way shall he appropriated to the use of any corporation other than municipal, until full compensation therefor he first made in money, or ascertained and paid into court, for the owner, irrespective of any benefit from any improvement proposed by such corporation.”</p> <p>Id.—Ebroneous Judgment— Obdeb fob Possession—Revebsal Upon Appeal.—Where the final judgment for damages must be reversed for error in not allowing sufficient compensation, an order for possession of the property sought to be condemned resting upon the erroneous judgment must also be reversed.</p>

<p>Divorce—Extreme Cruelty—Evidence—Appeal.—In an action for a divorce, brought by the husband, on the ground that certain alleged conduct of his wife, with respect to her intimate association with another man, had caused him grievous, mental anguish, the question whether her conduct had such effect is one of fact for the trial court; and on an appeal from a judgment in his favor, taken without any bill of exceptions, and without any findings, the supreme court must presume that there was evidence sufficient to support the allegations of the complaint.</p>

<p>Jury Trial—Partition—Failure to Deposit Jury Fees—Waiver.—A defendant in an action of partition, which had been on the trial calendar for several weeks prior to the time at which it was actually tried, marked as a court case as distinguished from a jury case, in accordance with the custom of the court, ami which at the time it was first called for trial had been answered as “ready,” without any request for a jury, is not entitled to a jury merely because he demands it at the time of the trial, in the absence of an offer by him to deposit the jury fees, as required by a rule of the court.</p>

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

<p>Action for Money Fraudulently Appropriated—Prayer fob Imprisonment—General and Special Findings—Money Judgment.— Under a complaint alleging fraudulent appropriation of plaintiff’s money received by defendant as plaintiff’s agent and clerk, and praying judgment for defendant’s imprisonment until it is paid, a general finding in favor of the defendant for a less sum is not inconsistent with a special finding against the alleged fraud, and a money judgment may be entered upon such findings, without judgment for imprisonment.</p> <p>Id.—Instructions Construed Together—Burden of Proof—Verdict not Against Law.—The instructions are to be construed together as a whole, and where, so construed, they import that plaintiff has the burden of proof upon the whole case, and must win or lose accordingly, but that the verdict may be against him upon the issue bf fraud, if he fails to prove it, and yet may be for him upon the money demand, if money had and received by defendant to plaintiff’s use is proved, a verdict against the fraud and for a money demand is not against law, though it may be seemingly inconsistent with part of the instructions taken separately.</p>

<p>Contract to Pay Judgment—Assignment of Contract and Judgment— Action by Assignee—Statute of Limitations.—An action by the assignee of a written contract by which the defendant agreed, in consideration of the transfer of a mine to him by plaintiff’s assignor, to pay a judgment against such assignor in favor of a third person, who also assigned the judgment to the plaintiff, does not rest upon the judgment, but upon the written contract, and is not barred by the lapse of five years from the entry of the judgment, if commenced within four years from the date of the contract.</p> <p>Id.—Contract not One of Indemnity—Originad Promise.—The contract to pay the judgment in consideration of the transfer of the mine is not one of indemnity, but is an original promise upon which an action may be brought by the owner both of the contract and judgment, without having first, or at all, to look to the judgment debtor.</p> <p>Id.—Action Upon Contract—Demurrer as to Limitation of Judgment—Question not Presented.—In an action upon the written contract, to pay the judgment, a demurrer improperly pleading the limitation of five years applicable to an action upon a judgment does not present the question whether the defendant can, by proper plea, urge against his liability on the contract that the judgment was barred before it was assigned to the plaintiff.</p>

<p>Telegraphs—Mistake in Message—Care and Diligence—Construction of Finding.—In an action for damages caused by a mistake in a telegraphic message sent in reply to a message from the plaintiff, a finding that the telegraph company was not guilty of gross or any degree of negligence in the transmission and delivery of the message, or in the error or mistake therein, is to be construed as equivalent to an express finding that the company used great care and diligence in its transmission and delivery, in pursuance of section 2162 of the Civil Code.</p> <p>Id.—Stipulation in Requested Message—Limitation of Liability— Unrepeated Message—Parties Bound by Contract.—A stipulation in the message transmitted to the plaintiffs in answer to their request therefor, limiting the liability of the telegraph company for mistakes or delays in transmission of an unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, is valid and binding equally upon the sender and receiver of such message, in the absence of proof of willful misconduct or gross negligence of the telegraph company in the performance of its duty.</p> <p>Id.—Agency of Sender for Receiver.—The sender of the message In response to a message from the plaintiffs was the agent for the plaintiffs in sending it, and the plaintiffs receiving the message are bound by the contract of the sender with the telegraph company as principal.</p> <p>Id.—Privity of Contract—Cause of Action in Tort.—The addressee of a message, where there is no privity of contract, may rest his action upon tort for a breach of public duty by the telegraph company; but in a case where lie is party to a special contract, either directly or indirectly through the sender as his agent, in an action against the company he must stand upon his contract rights.</p> <p>Id.—Absence of Misconduct or Gross Negligence—Mistake Caused by Atmospheric Disturbance.—Where it appears that there was no willful misconduct, and that the mistake complained of was caused in an unrepeated message requested by the plaintiffs, by reason of atmospheric disturbance during a prevailing storm, causing the line to work badly, the line being otherwise in good working order, when the message was sent, a finding that there was no gross negligence in the" sending of the message will not be disturbed for insufficiency of evidence.</p> <p>Id.—Duty of Telegraph Company—Presence of Storm.—It was the duty of the telegraph company to forward the telegram at the earliest practicable moment; and the fact that a storm was prevailing over the route and that the action of the elements upon the wire could not be overcome by care and diligence, does not of itself convict the telegraph company of gross negligence in sending the message during such storm, and in not waiting for climatic changes for the better before sending it.</p>

'APPEAL from an order of the Superior Court of Kern County setting aside a judgment by default. J. W. Mahon, Judge. The facts are stated in the opinion of the court.

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

J. W. Harrington, Judge issuing alternative writ. N. D. Arnot, Judge presiding upon denial of writ. The facts are stated in the opinion of the court.

E. P. Hnangst, Judge. The description 'of the property stolen was as stated in the first syllabus. Further facts are stated in the opinion.

<p>Criminal Law—Grand Larceny—Indictment—Description of Stolen Property—Certainty.—In an indictment for grand larceny, the description of the property stolen as “four calves, then and there the property of Anton Luchessa,” is sufficient.</p> <p>Id.—New Trial—Newly Discovered Evidence—Branding of Calves— Absence of Defendant—Presumption Upon Appeal.—Where the evidence adduced at the trial is not set forth in the record upon appeal, and an affidavit on motion for a new trial for newly discovered evidence sets forth the presence of the affiant at the marking and branding of calves by the father and brothers of defendant about a week before the date of the alleged larceny, and that the defendant was not then present, it cannot he presumed upon appeal, in favor of the materiality of the evidence, that the larceny was shown to have been committed at the time of such marking and branding.</p> <p>Id.—Insufficient Showing for New Trial.—A motion for a new trial upon the ground of newly discovered evidence is looked upon with disfavor; and where it appears, in view of the affidavit and counter-affidavits, that there is not a sufficient showing of diligence or of the truth and materiality of the evidence to make a strong case in favor of the motion, it is properly denied.</p> <p>Id.—Possession of Stolen Property—Modification of Requested Instruction—Possession by Consent and Will of Accused.—An instruction requested by the defendant, upon the subject of the possession of stolen property as a circumstance tending to prove guilt, that “the possession must be personal and exclusive, and must be such as to preclude the inference that the stolen property was in the possession of any other person than the defendant,” is properly modified by striking out all after the word “exclusive,” and inserting in lieu thereof, “or it must be the possession of some person or persons by the consent and will of the accused, and in either case the possession must involve a distinct and conscious assertion of possession by the accused.”</p> <p>Id.—Aiding and Abetting Crime—Cure of Erroneous Instructions.— An erroneous instruction to the effect that persons who have “aided or abetted” in the commission of a crime may he punished as principals is cured by correct instructions upon the sub-ject of aiding and abetting in its commission and as to the burden of proof thereof, where the jury could not, in view of the instructions as a whole, have been misled into the belief that the defendant could he found guilty for an innocent aiding in the commission of the offense.</p>