Volume 131 — California Reports

<p>Estates of Deceased Persons—Orders Modifying Family Allowance—Undecided Question as to Original Order—New Orders not Void.—Without deciding the question whether an order making a family allowance until further order of the court became void ipso faoto upon the return of the inventory, or expired by limitation one year from its date by reason of the insolvency of the estate, an order, made more than three years from the date of the original allowance, modifying it, and a subsequent order of modification thereof, are not void upon their face, and may be considered as new and independent orders, within the jurisdiction of the court.</p> <p>Id.—Solvency of Estate—Bes Adjudicata—Payments by Executrix —Collateral Attack by Creditors.—Each of such orders constitutes an adjudication that the estate was solvent when it was made; and where no direct attack was made upon such adjudication by appeal or motion to set it aside, it cannot he collaterally attacked by the creditors by impeaching payments made in pursuance thereof by the executor, on the ground that the, estate was then insolvent, and that the court lacked jurisdiction to make the order.</p>

<p>The facts are stated in the opinion.</p> <p>Henley & Costello, and Crittenden Thornton, for Appellant.</p>

<p>Foreclosure of Chattel Mortgage—Answer—New Matter—Parol Agreement—Waiver of Findings—Presumption.—In an action to foreclose a chattel mortgage, new matter in the answer setting up a parol agreement, made when the mortgage was executed, that the plaintiff would not foreclose so long as defendant paid) the interest, and that the interest was tendered and refused, is deemed controverted, and where findings were waived, it must be presumed in favor of the judgment foreclosing the mortgage that the court found against the existence of the agreement.</p> <p>Id.—Cross-complaint—Reformation of Note and Mortgage—Harmless Ruling Upon Demurrer.—When the defendant also filed a cross-complaint seeking a reformation of the note and mortgage, based upon the same alleged paról agreement, an order sustaining a demurrer thereto is harmless, In view of the implied finding against the existence of such agreement.</p> <p>Id.—Appointment of Commissioner to Sell—Order for Possession. In the decree of foreclosure, where a commissioner was appointed by the consent of the parties, to sell the personal property covered by the chattel mortgage, it was proper for the court to order that the commissioner take immediate possession of the encumbered property, and proceed to sell so much as may be necessary to satisfy the judgment and costs.</p> <p>Id.—Commissioner a Substitute for Sheriff—Delivery to Purchaser. The commissioner is a substitute for the sheriff, who must have the custody of personal property capable of manual delivery, and in making a sale thereof must deliver the property to the purchaser.</p>

<p>Pleading—Complaint—Construction—General and Special Demurrer—Review Upon Appeal.—Upon appeal from a judgment rendered after refusal to amend a complaint to which a general and special demurrer has been sustained, all ambiguities and uncertainties found in the pleading must be construed against the pleader.</p> <p>Id.—Ambiguous and Insufficient Complaint—Action Upon Garnishment—Purchase of Mortgaged Cattle—Agreement to Pay Mortgagees.—In an action by a judgment creditor of a mortgagor of cattle, upon a garnishment of the defendant who had purchased the cattle, a complaint averring that the mortgagees consented to such sale to said defendant, “provided the money derived therefrom was paid to them,” must as against a general demurrer and a demurrer for ambiguity as to who was to make the payment, he construed as importing an agreement that the defendant was to pay the mortgagees, and that he became their debtor, and not the debtor of the mortgagor, and as stating no cause of action against the defendant.</p> <p>Id.—Novation—Equitable Assignment—Subsequent Garnishment. The complaint may be fairly construed either as importing a tripartite agreement constituting a pure novation, in which the direct promise of the purchaser to pay the purchase money to the mortgagees formed part of the contract of novation, or as, at all events, Importing an agreement between the mortgagor and mortgagees that the purchaser was to pay the money to the mortgagees, which agreement, without reference to an agreement of the purchaser, would constitute an equitable assignment to the mortgagees of the claim of the mortgagor for the purchase money, conferring upon them an equitable right thereto which must prevail over a subsequent garnishment of the purchaser.</p> <p>Id.—Lien of Chattel Mortgage — Proceeds of Sale.—The lien of a chattel mortgage attaches to the proceeds of sale of the mortgaged property, and the mortgagee has the right to insist upon payment out of such proceeds.</p> <p>Id.—Equitable Assignment, How Constituted.—In order to constitute an equitable assignment of a debt, no express words to that effect are necessary; but it is sufficient if from the entire transaction it clearly appears that the intention of the parties was to p'ass title to the chose in action, and that payment should be made to the one who becomes the equitable assignee.</p>

<p>Quartz Mining Claim—Proceedings Under Acts of 1866 and 1872— Rights of Owner.—The owner of a quartz mining claim patented after the passage, of the act of 1872, but located, applied for, entered, and paid for under the act of 1866, is entitled to all of the rights which attached to the original location of the lode under the act of 1866 and to any additional rights conferred upon the owner by the act of 1872.</p> <p>Id. — Presumption Against Forfeiture — Presumption of Previous Rights.—The presumption is very strong against the forfeiture of rights secured to the owners of quartz lodes located under the act of 1866; and the act of 1872 is to be construed against such forfeiture. . The rights of locators under former laws were expressly confirmed to them by the act of 1872.</p> <p>Id.—Parallelism of End Lines—Extralateral Rights.—The end ' lines of the surface location of a quartz lode located under the act of 1866 and patented under the act of 1872 need not be parallel in order to insure extralateral rights to the owner.</p> <p>Id.—Divergence of End Lines—Measure of Extralateral Rights.— Where the end lines of such lode diverge from each other, extralateral rights on the dip cannot exceed the stated number of feet on the lode at any depth. Such rights are not measured upon the dip by a plane coincident with the first end line of the patented surface location and another one drawn parallel thereto at the other end of the ledge, but exist between vertical planes drawn perpendicular to the general strike of the lode through the extreme points of its length.</p>

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

<p>Appeal—Stay Bond—Motion fob Judgment Against Sureties—Protection of Principal.—The sureties upon a bond to stay execution upon appeal cannot be liable to any motion for entry of judgment against them, so long as the principal is protected against the issuance of execution against him.</p> <p>Id.—Separate Stay Bonds—Dismissal of Appeal from Judgment— Appeal from New Trial Order.—The dismissal of an appeal from a judgment, upon which a. stay bond was given, cannot render the sureties liable to a motion for judgment if, before the dismissal, a separate stay bond was given upon a separate appeal from an order denying a new trial, which was operative to stay execution against the principal when the motion was made.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William H. Jordan, for Appellants A. P. Talbot and George A. Pope.</p>

<p>Mandamus to City Auditor—Powers Under Charter—^Rejection on Illegal Claim—Judgment and Discretion.—The powers conferred and duties imposed upon the auditor of the city of Oakland by its charter are not clerical or ministerial, but require the exercise of judgment and discretion in order to satisfy himself whether the money claimed is legally due. He cannot be compelled by mandamus to draw a warrant for a claim which the charter authorizes him to reject, or for -one which the council has no authority to allow.</p> <p>Id.—Licenses Outside op City—Voluntary Payments—Protest—Void Ordinance.—Payments of moneys into the city treasury under licenses issued by the city for the sale of liquors at a place afterward discovered to be outside the city limits are voluntary, and cannot be recovered back from the city, though made under protest and under illegal licenses. An ordinance providing for the repayment of such moneys is void, and cannot authorize the auditor to draw a warrant therefor.</p>

The following are the findings of the court in reference to the settlement and dismissal of the action referred to in the opinion: “That on the fourteenth day of August, 1896, there was pending in this court a certain action, Ho. 6452, in which action Louisa A. Oppenheim was plaintiff and Philip Oppenheim, Emanuel Oppenheim, and California Thompson, defendant herein, were defendants.

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

<p>The facts are stated in the opinion of the court,</p> <p>Lippitt & Lippitt, and Myrick & Deering, for Appellants.</p>

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

<p>Taxation—Assessment of City Lots—Mistake in Name of Owner.— In an assessment of city lots made after the amendment of I860 to section 3628 of the Political Code, no mistake in the name of the owner or supposed owner of the property can render the assessment invalid. The assessment is of the property, and not against the owner.</p> <p>Id.—Want of “System” as to Subdivision of Blocks—Assessment of Lot—Determination of Assessor.—There is no regular system in San Francisco for the subdivision of blocks into lots, and where the proper block is given, the assessment of any lot therein may be according to its individual ownership, and the determination of the assessor as to such ownership is not open to review, and any mistake or error therein cannot invalidate the assessment.</p> <p>Id.—Ownership of Part of Lot—Errors in Description.—The failure of the assessor to describe part of a lot by the metes and bounds described in a conveyance thereof to the owner, as well as his assessment of the entire lot to the wrong person, are only mistakes in the name of the owner, which cannot vitiate the assessment of the lot as a whole.</p> <p>Id.—Variance as to Land Sold—Error in Copying Description—Tax Deed Conclusive.—A variance between the description of the land assessed contained in the certificate of sale and tax deed, and that entered in a book of descriptions kept for that purpose by the tax collector, cannot affect the title of the purchaser or render the certificate and tax deed ineffective. The tax deed is, by section 3787 of the Political Code, “conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed,” which includes the act of the tax collector in copying the description from the certificate.</p> <p>3d.—Location of Lot by Street.—Where there is a dispute as to the size of the block, the question whether the lot included in a tax deed, commencing at a greater distance from a specified street than the lot claimed by a defendant, in fact includes such defendant’s lot, is to be determined by ascertaining the actual location of the street relatively to such lot.</p>

<p>Execution—Levy and - Sale of Note and Mortgage.—A note and mortgage of which the sheriff can obtain the peaceable possession is personal property, capable of manual delivery, which may be levied upon by taking them into custody, and may be sold by the sheriff under execution.</p> <p>Id.—Mode of Taking Custody—Order of Court.—It is immaterial whether the taking of the note and mortgage was done by order of the court or otherwise, if the sheriff had a right to levy thereupon under execution. An order of court to deliver to the sheriff a note and mortgage in the custody of the clerk, to be levied upon under execution, if unnecessary, can do no harm.</p> <p>Id.—Fraudulent Sale of Note and Mortgage—Judgment for Rescission—Order Permitting Execution Sale—Estoppel of Defendant.—Under a judgment rescinding a fraudulent sale of a note and mortgage by defendant to plaintiff, and adjudging repayment of the purchase money by the defendant, and the return of the note and mortgage, deposited in court by plaintiff, to be delivered up upon such repayment, where the defendant has persistently refused to comply with its terms, and the note and mortgage are about to outlaw, the defendant cannot be heard to complain of an order permitting the delivery of the note and mortgage to the sheriff to be sold under execution upon the judgment, and of the purchase thereof by the-plaintiff thereunder for the purpose of foreclosure.</p> <p>Id.—Untenable Motions.—Motions made by the defendant, after such execution sale and purchase of the note and mortgage by the-plaintiff, and the commencement of an action to foreclose the-same, to set aside the order of the court, and to set aside the levy and sale and recall the execution, and that the judgment in the action to rescind be declared paid, satisfied, and discharged, are properly denied.</p>

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

<p>Municipal Corporation—Liability—Grading op Street—Stoppage op Watercourse—Injury to Lot Owner.—A town is liable to the owner of a lot for damages resulting from the grading of a street in such a manner as to stop the flow of water in a channel leading to a river and to cause the water to back up and overflow such lot.</p> <p>Id.—Immaterial Questions.—The questions whether the channel or waterway in which the water was accustomed to flow to the rivei" was natural or artificial andwhether the water flowed therein only during rainy weather, or whether it was only surface water, are immaterial to the cause of action for causing it to accumulate and overflow plaintiff’s lot to his damage.</p> <p>Id.—“Natural Channel”—Surface Water—Duty op Town.—The term “natural channel” may be construed as including all channels through which, in the existing condition of the country, the water naturally flows; and where surface water has a definite channel in which it is accustomed to flow, the town through which it flows is bound to provide means for its escape in grading its streets.</p> <p>Id.—Source op Water Immaterial.—No matter from what source or by what means the water which flowed through the channel was received therein, the town had no right to turn it upon the land of the plaintiff.</p> <p>Id.—Consequential Damages from Grading—Direct Invasion of Rights.—The principle that the town, in the regular performance of its official functions in grading the street, is not responsible for consequential damages, has no application to the stoppage of a watercourse which causes a direct invasion of the plaintiff’s rights.</p>

<p>Appeal from Judgment—Notice—Certainty.—Where there is but one judgment appearing in the record upon appeal, a notice of appeal “from said judgment made and entered in said action in favor of the defendants and against the plaintiff” is not ineffectual for uncertainty, in failing to give the date of the judgment or other identification thereof.</p> <p>Ejectment—Pleading—Complaint—Broad General and Special Demurrer.—Where the complaint, drawn by the plaintiff as a layman, appeáring in bis own behalf, states a cause of action ini ejectment which is not the subject of a special demurrer, though it contains numerous other irrelevant allegations which should be stricken out, and which are the proper subject of a demurrer especially addressed thereto, it is error to sustain a general and special demurrer to the entire complaint.</p> <p>Id.—Proper Ruling on Demurrer.—The court should have overruled the general demurrer, and sustained the special demurrer only as to the objectionable parts of the complaint, which are obnoxious to the special demurrer, with leave to amend.</p> <p>Id.—Special Demurrer.—A special demurrer should be directed to specific portions of the complaint, and the grounds thereof should he specifically pointed out.</p> <p>Id.—Ambiguity.—If enough appears to make the pleading easy of comprehension and free from reasonable doubt, a demurrer on the ground of ambiguity should be overruled.</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>Criminal Law—Appeal" from Order Setting Aside Information—Absence of Bill’ of Exceptions—Affirmance.—Upon appeal by the people from an order granting a motion to set aside an information for want of a legal commitment, in the absence of a bill of exceptions to authenticate the papers used on the hearing of the motion, as provided by rule XXXII of this court, the mere printing in the record of affidavits and testimony taken and proceedings had at the preliminary examination cannot be considered, and the order must be affirmed.</p>

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

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

The facts are stated in the opinion of the court. Chickering, Thomas & Gregory, and B. McFadden, for Appellants. The escape of steam through the safety valve, as incident to the use of the engine, raised no presumption of negligence. (Hahn v. Southern Pac. R. R. Co., 51 Cal. 605; Omaha etc. Ry. Co. v. Clarke, 39 Neb. 65; Howard v. Union Freight Ry. Co., 156 Mass. 159; Duvall v. Baltimore etc. Ry. Co., 73 Md. 516; Wabash etc. Ry.

The facts are stated in the opinions rendered in Bank and in Department. William H. Jordan, and Coglan & Harvey, for Charlotte A. Hutton, Appellant. Raleigh Barcar, for Continental Building and Loan Association, Appellant, and Mary E. McClain, Respondent.

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

<p>Action Upon Sheriff’s Bond—Sale of Exempt Property— New Trial—Newly Discovered Evidence—Resale by Purchaser.—In an action by an administrator upon the official bond of a sheriff for attaching and selling property of the decedent which was exempt from execution, where the administrator has recovered its full value, a new trial should be granted for newly discovered evidence by the sheriff that the execution creditor to whom the exempt property was sold, together with other property not exempt, had resold the entire property to the decedent for a sum less than the value of the nonexempt property, where no lack of diligence appears in the discovery of such new evidence.</p> <p>Id.—Appeal—Reversal of Order Denying New Trial—New Evidence—Different Result — Diligence.—Although, upon appeal from an order denying a new trial for newly discovered evidence, it is usually to be presumed that the discretion of the court has been properly exercised, yet where it appears that the newly discovered evidence is such as must, if proved upon a new trial, change the result, and the new fact discovered is of such a character that it might have remained undiscovered by the defendant even after the most extraordinary diligence, and was known to and suppressed by the plaintiff at the trial, an order denying the new trial must be reversed upon appeal.</p> <p>Id.—Measure of Damages fob Returned Property.—Where the property whose value is sued for has been returned to the owner, he is considered as having received it in mitigation of damages; and the measure of damages in such case is the expense ■of procuring its return with interest, together with any special damage which may be shown.</p> <p>Id.—Apportionment of Value of Repurchased Property.—The whole amount paid on the repurchase of the exempt property, whose value is sued for, and of the nonexempt property sold therewith, should be apportioned between them according to their relative value, and the sheriff and his bondsmen should be charged only with the amount so apportioned to the exempt property, with legal interest from date of sale, and any special damages which may be shown.</p>

<p>Quo Warranto—Corporation—Commencement op Business—Injury not Shown.—In an action of quo warranto to deprive a corporation of its charter, upon the alleged ground that it did not commence the transaction of its business Within one year from its date, where the court finds upon sufficient evidence that the corporation organized and commenced the business for which it was incorporated immediately after the issuance of its certificate of incorporation, and thereafter continued to operate the same, and that none of its acts were injurious to the public, nor to any persons interested in the corporation, the corporation and its organizers are entitled to judgment.</p> <p>Id.—Levy op Assessments—Illegality.—The levy of assessments upon the shareholders for the purpose of compelling them to contribute money for the benéfit of the corporation, even if it be assumed that they are illegally levied, is not cause for dissolving the corporation.</p> <p>Id.—Evidence — Testimony op Stockholder—Amount op Interest. Where a stockholder of the corporation was called as a witness for the plaintiff, it is not error to overrule a question as to the amount of his interest in the property of the corporation.</p> <p>Id.—Records of Corporation—Competency of Evidence—Good Faith. The minute-book of the corporation, and testimony relating to resolutions, meetings, adoption of by-laws, and as to who were the stockholders and the shares held by each, are competent evidence as tending to show that the corporation was organized and doing business, and to show its place of business, the nature of the business transacted, the meetings of the directors, and other matters indicating the good faith of the corporation.</p>

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

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

<p>■The facts are stated in the opinion.</p> <p>Sheffield S. Sanborn, and William B. Bosley, for Appellants.</p>

<p>The facts are stated in the opinion.</p> <p>James A. Devoto, Devoto, Richardson & Long, and Devoto & De Martini, for Appellant.</p> <p>The license, having been given to plaintiff upon a valuable consideration, and money having been expended by the plaintiff upon the faith of it, is not revocable. (Flickinger v. Shaw, 87 Cal. 1261; Grimshaw v. Belcher, 88 Cal. 2172; Buck v. Foster, 147 Ind. 5303; Los Angeles etc. Co. v. Los Angeles, 88 Fed. Rep. 744; Foster v. Bear Valley Irr. Co., 65 Fed. Rep. 836; Dickerson v. Colgrove, 100 U. S. 583.) Plaintiff has acquired rights with the approval an!d sanction of the supervisors which cannot be annihilated. (Mayor of Athens v. Georgia R. R., 72 Ga. 800; Atlanta v. Gate City Gas Light Co., 71 Ga. 106; Thomas v. West Jersey R. R. Co., 101 U. S. 71; Hovelman v. Kansas City R. R. Co., 79 Mo. 632.) A municipality may be estopped by its acts. (Sacramento County v. Southern Pac. Co., 127 Cal. 217; Brown v. Atchison, 39 Kan. 374; Dillon on Municipal Corporations, sec. 444.) The ordinance prohibiting further interment is in conflict with the general law, and is void. (Pol. Code, sec. 3025; Const., art. XI, sec. 11.)</p> <p>Franklin K. Lane, City Attorney, W. I. Brobeck, and Garrett W. McEnerney, for Respondents.</p> <p>The city could not make any valid grant of any property held by it in trust for public uses. (San Francisco v. Itsell, 80 Cal. 58; Hoadley v. San Francisco, 50 Cal. 275; Sawyer v. San Francisco, 50 Cal. 375; Hoadley v. San Francisco, 70 Cal. 324; Hoadley v. San Francisco, 124 U. S. 646; Home etc. of Inebriates v. San Francisco, 119 Cal. 534; California Academy of Sciences v. San Francisco, 107 Cal. 334, 339.)</p>

<p>Foreclosure of Mortgage—Conflicting Claims to Junior Mortgage —Pledge—Findings—Appeal—Partial Reversal.—In an action to foreclose a mortgage, where there are conflicting claims to a junior mortgage sought to be foreclosed by separate cross-complaints of the mortgagee, and of one claiming as assignee of the mortgage by way of pledge, if there is no finding as to the issue of pledge, and findings in favor of the junior mortgagee as against the pledgee are not sustained by the evidence, there must be a partial reversal of the judgment for new trial of the issues between them.</p> <p>Id.—Findings Against Evidence—Absence of Argument for Respondent—Presumption.—In the absence of a brief or argument for the respondent, upon specifications by appellant of the insufficiency of the evidence to sustain the findings, it will be presumed that the evidence is insufficient to support the findings, and a reversal for such insufficiency will be justified.</p> <p>Id.—Construction of Findings—Pledge not Negatived—Conclusions of Law.—A finding that the appellant, who claims as pledgee, is not and never was the owner of the mortgage, does not negative the assignment by way of pledge; and findings that the appellant has no interest in the mortgage or its proceeds, based upon the finding against his ownership, and that the amount of the mortgage note is due to the mortgagee, are of conclusions of law. (</p> <p>Id.—Pledge by Corporation—Question as to Power—Retention of Benefits.—It seems that the reception and retention by a corporation of the benefits of a pledge precludes question as to the power of the corporation to make the pledge.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Tulare County. W. B. Wallace, Judge. The facts are stated in the opinion of the court.

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

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

<p>The facts are stated in the opinion.</p> <p>W. B. Mathews, and Charles H. McFarland, for Appellants.</p>

<p>Contract to Supply Water to Rancho—Consideration —Construction—Notice of Rights of Owners—Order of Application.—A contract by a ditch owner always to allow the use of water upon a rancho upon the most favorable terms and conditions upon which the use of water should be allowed to others, in consideration of a grant by the owners of the rancho of a right of way for the ditch for the conveyance of water for irrigation, is to be construed, not as placing the owners of the rancho in the same category with others as respects the right of use of the water in the order of application therefor, but as a promise in advance for a valuable consideration, conferring rights of which others desiring to use the water are chargeable with notice, and over which they can claim no priority.</p> <p>Id.—Rights op Lessees op Rancho.—Lessees of the rancho whose lands can be irrigated from the ditch, to whom the owners have leased portions thereof, with the water rights appurtenant thereto, at the charge of the lessees, are entitled to demand and receive upon their lands sufficient water to irrigate them, upon offering to comply with the terms and conditions imposed upon the owners of the lands- under the contract.</p> <p>Id.—Measure op Damages por Breach—Difference in Rental Value op Land.— The measure of damages to the lessees for refusal of the defendant to supply the water according to his contract with the owners of the land is the difference between the rental value of the land with and without water for irrigation.</p>

<p>Action by County Upon Treasurer's Bond—Loss of Money Deposited in Bank—Statute of Limitations.—.- the statute of limitations began to run against a cause of action in favor of a county upon the bond of its treasurer, for the loss of moneys deposited by him in a bank which suspended, at least as early as his loss of the control of the funds was known to the county, and an action thereupon was barred at the expiration of four years from that time.</p> <p>Id.—Dismissal of Former Action—Knowledge of County—Bar of Second Action.—Where an action previously commenced by the county upon the official bond of its treasurer to recover the moneys so lost was dismissed, the commencement of such action shows knowledge by the county of the existence of the cause of action, and a second action commenced to recover such moneys more than four years thereafter is barred by the statute of limitations.</p> <p>Id.—Failure of Treasurer to Pay Moneys to Successor.—The failure of the treasurer, at the conclusion of his official term, to pay to his successor the funds lost by reason of such bank deposit did not constitute a new or different cause of action, nor extend the period of limitation of an action upon his official bond to recover the moneys so lost.</p>

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

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

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

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

<p>MOTION to dismiss appeals from a decree of the Superior Court of Marin County distributing the estate of a deceased person. F. M. Angellotti, Judge.</p> <p>The facts are stated in the opinion of the court.:</p>

<p>Mechanics’ Liens—Validity of Claim—Name of Reputed Owner.—A claim of lien for work and materials is sufficient, though it gives only the name of the reputed owner of the premises, without stating- that he is the owner thereof in fact. If, in good faith, he gives the name of a reputed owner, he would not lose his lien, even if it should he ascertained that some other person was the owner.</p> <p>Id.—Foreclosure—Pleading—Averment of Ownership—Demurrer.— Where the complaint foreclosing such claim of lien avers that the defendant, who was named in the claim of lien as the reputed owner, was the owner and reputed owner, and in possession of the premises, at all of the times mentioned in the complaint, a demurrer thereto admits his ownership, and that he could not have been misled by the description contained in the claim of lien.</p> <p>Id.—Time of Paymenov-Oonstruction of Claim—Consistency With Complaint.—A claim of lien, stating that “there was no time specified in the contract for the commencement or completion of the work,” and further stating that payment was “to he made upon the completion of the work or as required in its progress,” is to he construed as requiring payment upon the completion of the work, though not fixing- any date of payment; and such claim is not inconsistent with an averment of the complaint “that no time for payment was or is stated or set forth in said contract or agreement.”</p> <p>Id.—Description of Work—Cement Sidewalk and Curb—Demurrer for Uncertainty.—A complaint stating that the contract was for the construction of a cement sidewalk and cement curb “in front of and adjoining” the lot described, and attaching as an ex-Mbit a. claim, of lien stating that the contract was to construct the same “around” the premises, and also a diagram showing the curb and sidewalk along the side, and across the end of the property, being all of it that bordered on the street, is not subject to a demurrer by the owner for uncertainty in the description of the work.</p> <p>Id.—Owner’s Personal Knowledge of Work—Estoppel.—The owner, having personal knowledge of the work done, cannot avail himself of a demurrer upon the ground that the description of the work is ambiguous, where he can have no doubt as to its meaning.</p> <p>Id.—Location of Lot in Incorporated City—Absence of Express Averment—Judicial Notice.—The failure of the notice of lien and of the complaint to allege that the lot of land improved by the sidewalk and curb is “in an incorporated city or town” does not fail to show a lien, therefor under section 1191 of the Code of Civil Procedure, where the lot is described as being situated “in the city of San Diego,” etc. The court will take judicial notice the city of San Diego is incorporated.</p>

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

<p>The hill of exceptions stated: “For the purpose of this hill of exceptions this was all the evidence offered by the prosecution that hears upon the defendant’s exceptions 'hereinafter to he stated. But other evidence was introduced which with the 'evidence herein set forth was sufficient to sustain the verdict.” Further facts are stated in the opinion of the court.</p>

<p>Action for Conversion—Attachment of Restaurant Property—Finding of Ownership—Purchase by Plaintiff—Option to Attachment Debtor—Agency.—In an action for the conversion of restaurant property taken under attachment against another person who was in possession and was running the restaurant, a finding that plaintiff was the owner is sustained by evidence that plaintiff acquired the property by bill of sale from a restaurant company, upon advancing money to settle with its creditors, and had given to the attachment debtor, who had been an attaching creditor of the restaurant company, an option to purchase the restaurant within fifteen days, and had allowed him possession meanwhile as plaintiff’s agent, and that the property was attached in his hands before the option to purchase had been exercised.</p> <p>Id.—Declarations of Ownership by Attachment Debtor.—Declarations of ownership of the property made by the attachment debtor while in possession of the restaurant can have but little weight against the proof of plaintiff’s title, and cannot overthrow the finding in favor of plaintiff’s ownership.</p> <p>Id.—Amendment of Answer After Submission of Case—Refusal of Leave—Harmless Ruling.—It is harmless for the court to refuse to allow an amendment of the answer after submission of the cause to the court for its decision to conform the pleading to the. proof, where it does not appear that any evidence was excluded at the trial on account of any defect in the answer, or that the defendant’s situation would be bettered if his answer were changed, or that he was in any way injured by the ruling.</p>

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

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

<p>Exchange of Lands—Delivery of Deeds—Escrow—Relation—Rights of Parties.—Deeds placed in escrow upon an exchange of lands, when finally delivered after all the conditions of the agreement have been fulfilled, relate to the date of their execution, and the rights of the parties are'the same as if the deeds had been fully delivered on such date.</p> <p>Id.—Delivery of Possession of Ranch—Title to Crop.—Where, at the time of the placing of the deeds in escrow, possession was delivered to the plaintiff of the land exchanged by the defendant. upon which a prune crop was then growing, and plaintiff thereafter defrayed the expenses of caring for and gathering the crop, he is the owner thereof, and entitled to its proceeds as against the defendant.</p> <p>Id.—Action fob Pboceeds of Oeop—Counteeclaim—Expense Incurred by Defendant—Amendment to Ansxvee.—In an action to recover the proceeds of a prune crop belonging to the plaintiff, which was taken and sold by the defendant, where it appears that the defendant had expended a certain sum for labor and supplies in. raising the crop, and sought to have it considered as an offset or counterclaim to plaintiff’s demand, it is error to refuse to allow an amendment to the ansxver to plead the same upon such terms as may be just under the circumstances.</p>

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

CERTIORARI in the Supreme Court to review an order of the Superior Court of Lassen County striking out the costs from a judgment. E. A. Kelley, Judge. The facts are stated in the opinion of the court.

<p>CERTIORARI from the Supreme Court to review and annul orders of the Superior Court of the City and County of San Francisco punishing a witness for contempt. William T. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. J. Guilfoyle, and F. W. Van Reynegom, for Petitioner.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge. The facts are stated in the opinion of the court.

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

<p>Municipal Corporation—Excess of Indebtedness Over Revenue—Construction of Constitution.—The inhibition of the constitution against the incurring of indebtedness or liability by a city “exceeding in any year the income’ and revenue provided for it for that year,” is to be naturally and reasonably construed as providing that all legitimate indebtedness of the municipality must not exceed all the revenues and income provided for that year.</p> <p>Id.—Rights of Creditors—Contracts in Relation to Revende—Special Funds.—The creditors of a city have the right to contract with reference to its entire revenue, except in so far as the charter expressly otherwise provides in the case of special funds, such as the school or library fund.</p> <p>Id.—Transferable Surplus in Special Funds—Validity of Indebtedness.—In determining the validity of a particular indebtedness incurred in any year, not only is the condition of the general fund and of any particular fund out of which such indebtedness is primarily payable to be considered, but also all surplus moneys remaining at the end of the fiscal year in other special funds, not primarily applicable thereto, which might lawfully be transferred to an applicable fund, after meeting all claims specially chargeable to such funds, must be taken into consideration.</p> <p>Id.—Percentage of Tax Levy Named for Each Fund—Apportionment— Transfer of Surplus not Prohibited.—A provision in a city charter that “the percentage of each annual tax levy shall be named for each fund and the whole amount of taxes and revenue of the city apportioned to said several funds accordingly,” is not equivalent to the declaration of a purpose to limit any particular class of expenditure to the apportionment made for that class, and to prohibit the transfer of a surplus from one fund to reinforce another exhausted fund.</p> <p>Id.—Exhausted Fund—Refusal to Transfer—Claim not Defeated.— A city cannot defeat a claim primarily payable out of an exhausted fund by refusal to transfer the surplus from another fund thereto, the transfer of which is not prohibited by its charter.</p> <p>Id.—Subsequent Loss of Depositor’s Funds—Failure of Bank—Liabilities not Affected.—Moneys provided by the city for the revenue of a current year become part of its funds against which liabilities may accrue, and the validity of those liabilities cannot be affected by any subsequent loss caused by a deposit made in a bank, owing to the failure thereof and a final partial collection of the money.</p> <p>Id.—Obder of Payment of Claims—Time of Account—Presentation.— In the absence of a provision in a city charter making the city liable in the order in which claims accrue against it, there is no priority of right among the claimants, except in the order of their presentation for immediate payment.</p> <p>Id.—Construction of Charter—City Becoming “Owner” of Water Supply—Water Fund—Preferred Payments.—Under a city charter providing that when the city becomes “the owner of any water-supply” it shall establish a water fund, and make the salaries of the commissioners and the operating expenses of the water-plant payable before the monthly rental, the word “owner” Is to be construed, not in the sense of title, but in the sense of having control of a water supply.</p> <p>Id.—Void Lease—Control of Plant—Legality of Fund and Payments—Claim "for Water Used.—The fact that the city held a void lease of a water plant, over which it exercised control, does not make the creation of a water fund and the making of preferred payments therefrom illegal or void as against a claim of the water company for the reasonable value of water used by the city.</p> <p>Id.—Payment of Salary Out of General Fund.—The payment of the legal salary of a city justice out of the general fund, instead of out of the salary fund, is not an illegal payment which can be complained of by a water company in an action for the reasonable value of water used by the city.</p> <p>Id.—Special Funds not Primarily Liable.—Neither the “street fund” nor the “street sprinkling fund” can he held primarily liable to the payment of a claim for the reasonable value of water used by the city, where there is no evidence that any of the water supplied by the plaintiff was used upon the streets, and the charter does not make those funds primarily liable for plaintiff’s claim.</p>

<p>Criminal Law—Homicide—Review Upon Appeal—Bill op Exceptions— Recitals op Evidence not Introduced.—Upon an appeal from á judgment of conviction of murder, recitals made in the bill of exceptions of the contents of a; dying declaration of the deceased used on the preliminary examination, and of other evidence and facts stated by the judge when he pronounced sentence, which do not appear to constitute part of the evidence introduced at the trial, cannot be considered by this court.</p> <p>Id.—Support of Verdict — Request for Help by Police Officer— Murderous Pursuit of Deceased.—The evidence reviewed, and the request of a police officer to the defendant for help from a supposed present danger from the deceased held not sufficient to justify the defendant in a murderous pursuit of the deceased, the evidence of which supported the verdict of the jury.</p> <p>Id.—Instructions—Refusal of Requests—Arrest—Rights of Citizen Called to Aid Officer.—Where the instructions given fully informed the jury as to the rights, duties, and immunities of a citizen called upon to aid a peace officer in making an arrest, the refusal of'requested instructions upon that subject substantially included in those given cannot he prejudicial to the defendant.</p> <p>Id.—Murder in Second Degree—Sentence—Imprisonment for Life.— Under sections 190 and 671 of the Penal Code, a defendant convicted of murder in the second degree may be sentenced to imprisonment for life.</p>

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

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

The complaint alleged: “That on or about the first day of Majrch, 1895, defendant Lena D. Mattern duly made, executed, and delivered to the plaintiff herein her certain promissory note, in words and figures the following, to wit: “$3500.00. First Mortgage Beal Estate Mote.

<p>Conversion—Lost Shares of Stock—Identity—Conflicting Claims— Burden of Proof.—In an action for the alleged conversion of shares of stock lost by the plaintiff, where it appears that one of the defendants found certain shares of stock, which were claimed by a codefendant, and were disposed of by such codefendant through his broker, and the title of the plaintiff thereto is denied, the burden of proof is upon the plaintiff to show that the identical certificates lost by him were found by such defendant.</p> <p>Id.—Support of Verdict.—Where the jury found for the defendants, under an instruction of the court not excepted to as to the burden of proof resting upon the plaintiff to show identity of the certificates lost and found, and the evidence for the plaintiff is such that the jury might disregard it on the question of identity, its verdict and the action of the court in refusing to set it aside will not be disturbed upon appeal.</p>

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

MOTION to dismiss appeals from a judgment of the Superior Court of Butte County and from an order denying • a motion to set aside the judgment. John C. Gray, Judge. The facts are stated in the opinion of the court. T. F. Batchelder, J. G. Severance, and E. L. Foster, for Appellants.

<p>Criminal Law—Conviction of Manslaughter—Insufficiency of Evidence—Whisky Given Under Physician’s Instruction.—A conviction for manslaughter grounded on the criminal purpose or criminal negligence of the defendant in giving whisky to the deceased, which caused his death, cannot be supported where there is no evidence that defendant ever gave any whisky to the deceased except as a nurse in pursuance of the instruction of the attending physician, or that the deceased came to his death by reason of any act of the defendant.</p> <p>Id.—Last Illness of Deceased—Keeping Liquor for Medicinal Use.— Where it appears that the deceased lay confined to his bed in a very weak condition in the last stages of Bright’s disease, the jury were not authorized to hold that it was criminal negligence for the defendant, as a nurse, to keep whisky in the room for medicinal use, or to keep a. flask thereof beneath the mattress for such use, where there is no evidence that the deceased drank any of it other than as prescribed by his physician, and the testimony of the physician renders it improbable that he did so.</p> <p>Id.—Procuring of Check from Deceased—Taking Advantage of Weakness.—The procuring of a check from the deceased by the defendant by taldng advantage of the weakness and the impaired condition of the mind of the deceased, for mere purposes of greed, and the unsuccessful endeavor to cash the same, does not tend to show that whisky was given to him for that purpose, or that any act of the defendant caused his dearth.</p>

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

<p>Certiorari—Order Creating Sanitary District—Annulment—Return not Showing Evidence of Jurisdictional Facts.—An order of - a board of supervisors purporting to create a sanitary district must be annulled upon writ of review where the return to the writ does not show that any evidence was taken or heard to prove the jurisdictional facts that the signatures to the petition were genuine, that twenty-five of them were resident freeholders within its proposed boundaries, and that the order calling the election was posted in three public places in the proposed district for four weeks, as required by law.</p> <p>Id.—Pleading—Answer to Petition for Writ—Return.—An answer to the petition for the writ of review denying its allegations is irregular. The return to the writ constitutes the answer, as well as the evidence, and the case is heard thereon unless upon motion an additional or amended return is made.</p> <p>Id.—Judicial Action of Supervisors—Proof of Jurisdictional Facts— Rules of Evidence.—The board of supervisors exercises judicial power in determining the facts upon which its jurisdiction depends to create a sanitary district; and as the statute does not prescribe by what proof they should be determined, they must be established in accordance with the rules of evidence recognized by the courts and the common law.</p> <p>Id.—Review Upon Writ—Evidence Before Board—Questions of Jurisdiction.—It is only the evidence heard by the board of supervisors upon questions essential to their jurisdiction that can be considered by the court in determining whether the hoard acquired jurisdiction to make the order creating the sanitary district; and the sufficiency of the evidence to establish the jurisdictional facts Is reviewable upon the writ.</p> <p>Id.—Unsworn Statements Before Board—Hearsay—Incompetent Evidence.—Unsworn statements made before the board of supervisors as to the qualifications of the signers to the petition were incompetent, and their repetition in court is of mere hearsay, and does not tend to show that the board ascertained the jurisdictional facts which it was bound to ascertain by com-' petent and sufficient evidence.</p> <p>Id.—Failure to Post Notice—Void Election—Void Declaration of Supervisors.—A failure to post the notice required by law renders the election for the organization of a sanitary district void; and where there is no evidence of such posting, and no recital thereof in the record, a subsequent declaration of the supervisors that the sanitary district was duly organized is a nullity.</p>

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

'After the overruling of the demurr'er to the complaint issue was joined by answer, and the plaintiff recovered a verdict for one thousand dollars damages. Further facts are stated in the opinion of the court.

<p>Note—Fraud in Procurement—Election of Remedy—Rescission—Damages—Defense.—Where a note is procured by the fraud of the payee, the maker may elect either to rescind, the contract or to seek affirmative relief of compensation in damages, without rescission, or to set up the fraud by way of defense to an action upon the note by the maker, and it cannot be objected to such defense that no rescission or offer to rescind or damages eo nomine is alleged.</p> <p>Id.—Pleading — Damage by Way of Defense — Consideration of Notes—Worthless Stock—Alleged Fraud — Omission in Findings.—In an action upon notes where the answer sets up facts constituting fraud in their procurement, in consideration for wholly worthless stock, concerning which fraudulent representations were made, and also pleads a want and total failure of consideration for the notes, the fact and extent of the damage for the alleged fraud sufficiently appears for the purposes of defense; and a failure to find upon the issue of the fraud alleged, owing to an erroneous theory of the case, is ground for reversal.</p> <p>Id.—Recoupment of Damage.—The defendants are entitled under such pleading, upon proof "of the facts and of the fraud alleged, to recoup against the notes the whole amount thereof if the stock is valueless, or, if not wholly valueless, such part of the notes as the proofs may warrant.</p> <p>Id.—Purchase of Business and Stock—Written Contract for Aggregate Sums—Separate Consideration—Parol Evidence.—Under a written contract for the purchase of a business and the stock of a corporation for an aggregate sum, parol evidence is competent to show that a cash payment made was wholly for the business, and that the sole consideration for the balance of the purchase money taken in notes was the stock of the corporation. The effect of such proof is the same as if the separate consideration were recited in the contract, making it, not an entire, but a separate contract of purchase.</p> <p>Id.—Pleading—Consideration of Notes — Evidence — Omission in Finding.—Where the answer alleged that the consideration of the notes was the stock of the corporation, and that it was entirely without value, and it appeared from the evidence of both parties that the property other than the stock was estimated to be of the value of the cash payment, and that the stock was estimated at a price per share equaling the amount of the notes, and there was other evidence that the consideration of the notes consisted exclusively of the stock, the defendant is entitled to a finding upon that issue, and the omission to find thereupon is ground for a reversal.</p> <p>'Id.—Insufficient Finding—Value of Property Purchased.—A finding that the properties purchased were not valueless, without referring specifically to the stock, is not a sufficient finding upon the issue tendered by the answer as to the worthlessness of the stock as the alleged consideration of the notes.</p> <p>Id.—Worthless Stock—Rescission Without Return—Total Failure of Consideration.—If a finding were made that the stock was the sole consideration for the notes in suit, and that it was wholly worthless, the defendants would be entitled to rescind the purchase without a return of the stock, and would be entitled to judgment in the action upon the notes on the ground of a total failure of consideration therefor.</p>

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

<p>Estoppel of Former Judgment—Different Cause of Action—Res Adjudicata.—A former judgment between the same parties is an estoppel in another suit between them upon a different cause of action as to points or questions actually litigated and determined in the former action; but it is not an estoppel as to questions not raised upon the record, though necessarily involved, nor as to defenses which might have been but were not made.</p> <p>Id.—Mandamus Against Auditor—Salary—Defense—Termination of Office—Former Adjudication.—A former judgment upon mandamus compelling an auditor to draw his warrant in favor of an assistant district attorney for salary then claimed, adjudging as insufficient a defense then interposed by the auditor that the office was terminated by rescission of the order authorizing the appointment, is an estoppel as to such defense, however meritorious, in a subsequent proceeding in mandamus to compel ■' warrants for further installments of the salary of the same officer.</p> <p>Id.—Constitutional Question Involved—Auditob not Estopped.—A constitutional question necessarily involved in the former proceeding in mandamus, but not raised upon the record therein, does not estop the auditor from urging it by way of objection to another proceeding upon a different cause of action to compel warrants for subsequent installments of the same salary.</p> <p>Id.—Assistant District Attorney—Deputy — Constitutionality of County Government Act fob Payment.—The assistant district attorney provided for in subdivision 36 of section 25 of the County Government Act is but a deputy, whom the district attorney is authorized to appoint under section 61 of that act, and the provision for his payment under the former section is not unconstitutional.</p> <p>Id.—Poweb of Supervisors.—If the assistant district attorney were not considered a deputy, the board of supervisors had power to authorize his appointment when, in their judgment, the public interest required it; and it seems that they could also cause the appointee to be discharged when, in their judgment, his services were no longer required, though that question cannot be raised in this proceeding.</p>

<p>Negligence—Derailed Cab—Testimony as to Speed—Question fob Jury.—In an action for damages for alleged negligence in the collision of a derailed electric-car with a car approaching upon the other track, it cannot be said, as matter of law, that the jury should disregard the testimony of the passengers as to the speed of the derailed car, and accept only the testimony of the experienced railroad men. Where no objection was made to the testimony of the passengers, it was a question for the jury to determine what witnesses they would believe.</p> <p>Id. — Conflicting Evidence as to Negligence—Conclusiveness of Verdict.—Where the evidence is conflicting upon different hypotheses as to what .caused the derailment of the ear, and as to the negligence of the motorman. upon either or both of the colliding cars in running at an excessive and dangerous rate of speed, and in not stopping his car in time to avoid the collision, to plaintiff’s injury, and there is no question of contributory negligence, the verdict of the jury in favor of the plaintiff is conclusive, and will not be disturbed upon appeal.</p> <p>In.—Proximate Cause of Injury—Gravel Upon Track—Excessive Speed—Application of Rule.—The correct rule that the breach oí duty complained of must be the proximate cause of the injury to the plaintiff, operating in a natural and continuous' sequence, unbroken by any new cause, to produce the event, and without which it would not have occurred, cannot be necessarily applied on the assumption that the collision was proximately due to an obstruction of gravel placed upon the track by others, where the evidence conflicts as to whether the derailment of the car did not cause the piling up of the gravel, and as to . whether the collision would have occurred with force if the car were not running at an excessive speed over the gravel, assuming that it had been previously placed upon the track.</p> <p>Id.—Evidence—Comparison as to Equipment of Road.—Evidence is not admissible to show a comparison between the equipment of the defendant’s road with that of other roads in the same city.</p> <p>Id.—Rate of Safe Speed—Harmless Ruling. — The exclusion of a question as to the possible rate of speed with which cars could be run over the road with safety is harmless, where the only objection made was to the form of the question, and the witness immediately thereafter was allowed to testify to that subject matter.</p> <p>Id.—Duty to Passengers—Utmost Care of Extremely Cautious Persons—Modification of Requested Instructions.—A railroad company is bound to its passengers for the utmost care and diligence of extremely cautious persons, and is responsible for the slightest negligence. Requested instructions to the effect that the standard, of care and foresight to be used by the motorman of an electric-car is that of “the average prudent man standing in his shoes and compelled to exercise care in the same situation and circumstances,” are properly modified by substituting “an extremely cautious person,” instead of “the average prudent man.”</p> <p>Id.—Province of Court and Jury.—It is the province of the court, and not of the jury, to say whether a failure to exercise the utmost care, or the care which an extremely cautious man would, under the same circumstances, have exercised, constitutes negligence; while it is for the jury to say whether such care was m fact exercised.</p> <p>Id.—Presumption of Negligence from Accident to Passenger.—The rule that “the proof of the occurrence of the accident, without fault of the passenger, is prima facie proof of negligence on the part of the company,” is applicable in the ease of street railways operated by electricity or steam power.</p> <p>Id.—Obstruction Upon Bails—Part op Instruction Inapplicable to Evidence—Prejudice not Presumed.—An instruction to the effect that if there was an obstruction upon the rails, without which the accident would not have occurred, the plaintiff cannot recover unless it is proved that defendant or its servants placed it there, or unless its servants could, by the exercise of the care of a very cautious person, have discovered the obstruction in time to have avoided the accident, is not presumed prejudicially erroneous merely because there was no evidence that defendant or its servants placed the obstruction upon the rails.</p>

<p>Swamp Land Fund—Mandamus by Purchaser—Appeal—Argument— Objection not Urged — Assignment of Right not Pleaded—Reversal With Leave to Amend.—Upon appeal by a purchaser of reclaimed swamp lands from a judgment refusing mandamus to the county treasurer for a proportion of the swamp land, fund, where the only question argued was upon an untenable plea of the statute of limitations, and the interest of the appellant was not questioned or objected to in either court, and appellant represented to this court that an assignment of the rig-ht to the fund not pleaded was in fact made by appellant’s grantor, who reclaimed the land, held that the judgment should be reversed, with leave to the plaintiff to amend the petition and submit additional evidence in support thereof.</p> <p>Id.—Statute of Limitations—Oause of Action Upon Contract and not Upon Statute.—A cause of action to recover a proportion of the swamp land fund is not founded upon a liability created by statute, and is not subject to the limitation of three years prescribed by subdivision 1 of section 338 of the Code of Civil Procedure; but it is based upon a contract between the state and the purchaser who has reclaimed the land and his assigns, to repay part of the reclamation money, and is subject to the limitation provided for actions upon contracts.</p> <p>Id.—Obligation of Contract Evidenced by Statute.—The fact that, the obligation of the contract on the part of the state is evidenced by statute, and arises upon the acceptance by the purchasers of the offer made by the state, and the performance of the work prescribed as a condition of the payment agreed to, does not render the cause of action one created by statute.</p>

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

<p>Compensation of Constables—Lee Law of 1895—County Government Act—Constitutional Law.—The fee law of 1895 is unconstitutional and invalid in so far as it assumes to limit the amount of compensation in fees which constables of the thirty-fourth class are entitled to receive under the County Government Act of 1893, conferring upon them “such fees as are now or may be hereafter allowed by law,” and also in so far as it assumes to give the district attorney supervisory control over fees in criminal cases; but it is nevertheless valid and binding in so far as it fixes the fees to be paid to constables in civil and criminal cases.</p> <p>In.—Change op Measure op Compensation—Power op Legislature— Classification op Counties.—The legislature cannot change the measure of compensation of officers fixed by the County Government Act otherwise than by an amendment of it, preserving the standard fixed by the constitution of the classification of counties according to population for the purpose of fixing the compensation of officers.</p>

<p>The facts are stated in the opinion of the court.</p> <p>N. A. Hawkins, Craig & Hawkins, and Thomas B. Bond, for Appellant.</p>

<p>Corporations—Note of President for Corporate Debt—Payment for Corporation by Beal Estate Agents—Extinguishment—Untenable Action.—The individual note of the president of a corporation given for its obligation, benefit, and. account, and paid with money advanced by real estate agents of the corporation, under an agreement with it for such advance, and for reimbursement out of sales by them of its lands, and which was marked “paid” by the bank that held the note for collection, and without other agreement was handed so marked to the person making the payment, was extinguished by such payment, and could not thereafter be made the basis of an action thereupon in favor of the payor against the maker of the note.</p> <p>Id.—Possession Held by Payor—Bight of Betention—Beimbursement by Corporation.—The fact that the note was not surrendered to the maker, but that possession thereof was retained by the payor, cannot affect the extinguishment of the note by the payment made pursuant to the contract, in fulfillment of the duty to pay the note. The payor had the right to retain it until the corporation should comply with its agreement for reimbursement, and as evidence in support of a claim for reimbursement.</p> <p>Id.—Findings Against Evidence.—The evidence reviewed, and held insufficient to sustain findings that the note was not paid, and that the plaintiff took it up at the special instance and request of the maker of the note personally.</p>

<p>Estates of Deceased Persons—Settlement of Account of Executor — Conclusiveness.—An order settling any account of an executor of the settlement of which proper notice has been given, if not appealed from, is conclusive as to all “items contained therein” except as to persons under legal disability.</p> <p>Id.—Settlement of New Account—Invalid Order Setting Aside Previous Settlement — Jurisdiction. — Upon the settlement of a new account of the executor, the court has no jurisdiction to set aside the settlement of any previous account and to reopen the same, and adjudicate against the executor items which had been conclusively adjudicated in his favor.</p> <p>Id.—Order Directing Payment of Claim—Dependence Upon Erroneous Order.—An order directing the payment of a claim which depends for payment upon the improper settlement of the accounts of the executor, which involved setting aside the settlement of a previous account and changing the items therein, so as to make a sufficient balance to pay the claim, must fall with the erroneous order of settlement.</p>

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

<p>Estates of Deceased Persons—Succession—Property Inherited from Father—Half-sisters on Mother’s Side.—Property inherited from the father of a wife who has died intestate, leaving as sole heirs a husband and two half-sisters on the mother’s side, must be distributed one-half to the husband and one-half to such half-sisters.</p> <p>Id.—Construction of Code—“Brothers and Sisters of Decedent.” Subdivision 2 of section 1386 of the Civil Code must be construed in their proper sense, and according to the approved usage of the language, as including in the expression “brother and sisters of the decedent” those of the half blood as well as those of the whole blood.</p> <p>Id.—“Kindred of the Half Blood”—“Blood of Ancestors ”—Ex-. CLUSION FROM INHERITANCE—IDENTITY OF DEGREE.—The exception in section 1394 of the Civil Code excluding kindred of the half blood in favor of kindred of the whole blood, where the former are not of the blood of the ancestor from whom the estate came by descent, devise, or gift, applies only where such kindred are “in the same degree,” and has no application to any case where the degrees are not the same. It does not apply to a case where a surviving husband and half-sisters of the decedent are sole heirs, though such half-sisters are not of the blood of the ancestor from whom the property was inherited.</p>

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

<p>Cancellation of Note—Cross-complaint to Enforce Note—Refusal to Permit Amended Answer—Harmless Ruling.—In an action to cancel a promissory note, the refusal to permit an amended answer to be filed by the plaintiff to a cross-complaint to enforce the note is harmless where the additional matter alleged therein was permitted to be fully proved upon the trial, and upon the entire evidence a verdict was properly rendered for the cross-complainant for the amount due upon the note.</p> <p>Id.—Failure of Consideration—Sale by Partner to Copartner— Guaranty of Book Accounts—Conflicting Evidence—Support of Verdict.—Where such note was part consideration for the purchase by plaintiff of defendant’s interest in a lumber firm, and the evidence showed a good and valuable consideration for the note, and was substantially conflicting upon the question whether the accounts forming part of the consideration were falsely represented to be collectible, and were guaranteed to be so, the verdict against the contention of plaintiff that there was a failure of consideration is sufficiently supported.</p> <p>Id.—Value of Book Accounts—Opinion—Mistake—False Representation.—Statements made as to the value of book accounts upon a sale by one partner to another of his interest in the firm could not amount to more than an opinion, which cannot support the defense either of mutual mistake or false representation to a note given for the purchase money, or justify a rescission or cancellation thereof upon those grounds.</p> <p>Id.—Coercion — Threat to Sell Interest in Violation of Contract.— The threat of a partner to sell his interest to a stranger in violation of the contract for a five years’ partnership, does not amount to coercion in law, of a purchase made by his copartner, and is not a defense to a note given therefor.</p>

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

Charles W. Slack, Judge setting aside sale. James M. Trontt, Judge confirming sale. The facts are stated in the opinion of the court.

<p>Action fob Death—Explosion in Distillate Tank—Negligence of Servant of Independent Contbactors.—A firm of dealers in hardware, tinware, plumbing, etc., engaged, by the defendant to repair a tank used to store distillate on his fruit farm, are independent contractors, and not servants of the defendant, and the defendant is not liable to an action for the death of his employee caused by the explosion of the tank through the negligence of a servant employed by such contractors.</p> <p>In.—Dual Capacity of Defendant’s Manager—Membership in Firm Repairing Tank.—The fact that the manager of defendant’s firm acted in a dual capacity, and was also a member of the firm employed to repair the tank, and instructed their servant to repair the same, cannot change the contractual relations between the parties, nor make the defendant responsible for the negligence of such servant, who, as the servant of the firm, stood in the position of an independent contractor, and was not the servant of the defendant.</p> <p>Id.—Verdict of Jury—Acting Capacity of Repairer of Tank—Matter of Law—Province of Appellate Court.—The verdict of the jury in favor of the plaintiff against the defendant is not conclusive that the servant engaged in repairing the tank was acting in the capacity of a servant of the defendant where the evi- . dence shows without conflict that he was the employee of the . firm engaged to repair the tank. In such case it is the province of the appellate court to decide as matter of law what the facts prove.</p> <p>Id.—Evidence—Declarations of Deceased—Res Gestae.—In an action for the death of defendant’s servant the declaration of the deceased made to third parties after the accident, constituting no part of the res gestae, are not admissible against the plaintiff.</p>

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

<p>APPEAL from an order of the Superior Court of Kings County granting letters of administration upon the estate of a deceased person. J. W. Mahon, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Contest of Will—Right of Heir-Beneficial Interest.—An heir at law of a deceased person may contest a will offered for probate without any other showing of beneficial interest than such heirship, although the will may provide for the contestant a larger share of the estate than would be received as ah heir at law.</p> <p>Id.—Trial of Contest—Submission of Issues—Questions for Jury— Ultimate Facts.—Upon the trial by jury of a contest of the probate of a will, the proper procedure and the best practice in submitting the issues to the jury is to submit with proper instructions questions as to the ultimate facts involved in the issues, such as whether the deceased was competent to make a will and whether at the time of its execution he was free from fraud practiced upon him by the person charged therewith.</p> <p>Id.—Effect of Verdict—Probate of Will.—If the verdict of the jury condemns the will upon either of the ultimate facts charged as grounds of contest, its probate must be rejected. If it supports the will, the court should take evidence upon matters not involved in the contest, and upon the joint findings of the jury and of the court in favor of the will, it must be admitted to probate.</p> <p>Id.—Submission of Questions as to Probative Facts. — The submis-' sion of questions to the jury as to probative facts, in addition to the ultimate facts, is allowable, but is not necessary.</p> <p>Id.—Findings Upon Probative Facts Only—Legal Conclusion as to Ultimate Fact.—Where the ultimate fact upon any issue involved in the contest is not submitted to the jury, and only probative facts are submitted and found, the ultimate fact cannot be considered as established, unless it necessarily results as a legal conclusion from the probative facts found.</p> <p>Id.—Inference of Fact not Permissible—Rejection of Probate.— The court must not make any inference of fact from the probative facts found by the jury, in order to support the judgment which it renders; and in order to justify the rejection of the probate of the will upon probative facts found, it must be " able to declare as matter of law from those facts that the judgment must be one rejecting the probate.</p> <p>Id.—Insufficient Findings as to Fraud — Fraudulent Intent not Shown.—Findings merely of probative facts bearing upon the ques. ti on of actual fraud, charged upon a proponent of the will, .do not legally show a case of actual fraud as defined by section 1527 of the Civil Code, where there is no finding that there was any intent of the proponent to deceive the testator, or to induce him to make the will, or that false representations made by him which controlled the action of the testator were known by him to be false, or were not believed by him to be true. Such findings cannot justify a denial of the probate of the will on the ground of fraud.</p> <p>Id.—Control of Testator—False Representations Honestly Made.— It is not fraudulent to seek to control a testator in making a will, with proper purpose and effect; and if false representations are honestly made, with a belief that they are true, and with good motives, they are not fraudulent, nor would the will in this respect be executed by reason of any fraudulent representation.</p> <p>Id.—Alternative Finding.—A finding that representations were false or fraudulent is not a finding of fact upon either alternative, and amounts to nothing.</p> <p>Id.—Representations'.not Shown to”’be Effective.—Findings as to representations not shown to have been made prior to the execution of the will, or as to representations which could have had no effect upon the mind of the testator, or which are not shown to have been believed or acted upon by him, are not indicative of fraud.</p> <p>Id.—Fraud in Execution of Will—Immaterial Finding—Material Omission to Find.—A finding that no fraud or misrepresentation was practiced by any person at the very time the testator signed the will and codicil is immaterial on the issue of fraud, and is not equivalent to a declaration that the proponent was not guilty of fraud practiced upon the testator in the execution of the will; and where there is no direct finding upon that subject matter, the omission is material, and a judgment rejecting the probate of the will must be reversed.</p> <p>Id.—Evidence—Divorce Suit—Testimony of Testator—Reporter’s Copy.—A reporter’s copy of the testimony given by the testator in an action for divorce is not admissible upon the contest of the probate of his will. Its admissibility is not justified by section 275 of the Code of Civil Procedure.</p> <p>Id.—Declarations of Testator—Testimony of Reporter—Refreshment of Memory.—If the declarations of the testator made in the divorce suit were for any reason competent and admissible, they must be proved as declarations, by oral testimony of the reporter who heard them, who could refresh his memory from his notes taken at the time.</p> <p>Id.—Kindness of Contestant to Proponent’s Family.—Evidence as to the kindness of the contestant shown to the family of the proponent is irrelevant and inadmissible.</p> <p>Id.—Immaterial Documentary Evidence.—A [deed of trust executed by the testator, and a lease made by him to the proponent are immaterial, and not admissible evidence for the contestant.</p>

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

<p>Foreclosure of Mortgage—Order Vacating Sale Under Decree— Jurisdiction.—The jurisdiction o£ the court in actions for the foreclosure of a mortgage over the parties and the subject matter continues until the foreclosure is completed by failure to redeem from the sale under the decree; and it has power to vacate an irregular sale before the expiration of the time for redemption, as against the purchaser, who by his bid submits himself to the jurisdiction of the court.</p> <p>Id.—Sale not Authorized by Decree—Foreclosure of Prior Lien— Subsequent Judgment in Different Action.—A sale under the foreclosure of a mortgage, not authorized by the decree which required the payment, first, of a prior lien foreclosed in the action by cross-complaint, and, secondly, the plaintiff’s mortgage, but made in pursuance of a subsequent judgment rendered in a different action brought by the wife of the mortgagor, as an alleged homestead claimant, against the sheriff and the prior lienholder, by which a temporary injunction was dismissed and the sheriff was directed to proceed with the sale, and first to pay the plaintiff’s mortgage and then to bring the remainder of the proceeds into court, at which sale the mortgagee became the purchaser for the" amount only of his debt, is grossly irregular, if not void, and should be set aside.</p> <p>Id.—Invalidity of Subsequent Judgment—Decebe of "Foreclosure not Modified.—The subsequent judgment in the action by the wife of the mortgagor had no validity as against the parties to the foreclosure, and could not properly be regarded as a modification of the decree rendered therein.</p> <p>Id.—Parties to Foreclosure—Cross-complaint by Prior Lienholder ■—Foreclosure of Lien.—A prior lienholder is a proper, though not a necessary, party to an action to foreclose a mortgage; and when made a party, he may seek the foreclosure of his lien by, cross-complaint.</p> <p>Id.—Defects in Cross-complaint—Service—Jurisdiction.—Defects in the cross-complaint as to parties and service thereof, where all the parties were in court, and their presence is recited in the decree, cannot affect the jurisdiction of the court to foreclose the prior lien asserted therein; nor could jurisdiction be affected by the insufficiency of the cross-complaint, if it alleges the existence of the lien and prays for general relief.</p>

<p>Foreclosure op Chattel Mortgages—Decision Upon Former Appeal— Estoppel.—The decision upon the former appeal of this case (115 Cal. 677) upon the question of estoppel only involved the estoppel of the plaintiff to foreclose the chattel mortgages sued upon, as respects a quantity of mortgaged wire, sold for the account of the mortgagors with the consent of the mortgagee, and does not preclude the foreclosure of the chattel mortgages as to other property included therein and not involved in the • decision upon the former appeal.</p> <p>Id.—Novation—Sale Consented to by Mortgagee—Payments to Account op Mortgagors.—A sale by the mortgagors of part of the mortgaged property, consented to by the mortgagee, with a provision that payments were to be made by the purchasers to the mortgagee for account of the mortgagors, does not show a novation, involving a release of the mortgage debt, where there was no proof of an agreement or intent to release it, or to extinguish the obligation of the mortgagors, and to look alone to the purchasers for payment.</p> <p>Id.—Inconsistency in Findings.—The mere presence of an inconsistency in findings, in relation to property not included in the decree of foreclosure, does not constitute reversible enror.</p> <p>Id.—Decree op Foreclosure—Description op Property—Presumption Upon Appeal.—When the description of the property included in the decree of foreclosure coincides with the description found in the chattel mortgages, the decree will be presumed to be correct upon appeal, in the absence of a bill of exceptions or any showing to the contrary.</p>

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

<p>Nuisance—Use of Open Sewer by City.—The use of an open sewer by a city in. the vicinity of the land of the plaintiffs, upon which they reside with their family, constitutes a nuisance, which the plaintiffs are entitled to have abated.</p> <p>Id.—Damages—Presentation to Board of Trustees not Esquired.— The damages caused by a nuisance maintained by the city are not required to be presented to the board of trustees; and are not included in a provision requiring “demands” against the city to be “presented and audited by the board of trustees,” which refers to demands arising upon contract for a determinate sum, and not to those arising from torts.</p> <p>Id.—Insufficient Evidence as to Damages.—Although the plaintiffs were damaged by the nuisance, yet where they failed to show that they were damaged in the amount found, or in any other ascertainable amount, a new trial must be granted, unless the plaintiffs prefer to release the judgment for damages.</p>

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

<p>Criminal Law—Assault With Intent to Commit Eape—Age op Consent.—A girl under sixteen years of age is legally incapable of consenting to sexual intercourse, and an assault upon her with intent to have sexual intercourse with her is, in law, an assault with intent to commit rape.</p> <p>Id.—Indecent Advances—Intent—Question op Fact—Support op Verdict.—The question whether the intent with which the defendant made indecent advances to the prosecuting witness was to have sexual intercourse with her or was only to gratify an unnatural desire, is a question of fact to be determined by the jury in view of all the cicumstances of the case and the acts of the defendant. Where the evidence is such as to justify a reasonable conclusion of the former intent, a verdict of guilty of the offense charged will not be disturbed.</p> <p>Id.—Abandonment of Attempt.—One who has made an assault with intent to have sexual intercourse with a girl under the age of consent cannot purge himself of the offense of an assault with intent to commit rape by a voluntary abandonment of the attempt.</p> <p>Id.—Unconditional Intent not Essential—Completion of Offense.— It is not necessary to such offense that the accused should be shown to have intended to gratify his passion at all events, or to use any force; but it is enough to constitute the offense if he intended to have sexual intercourse with the child, and took steps looking toward such intercourse; and the fact that he ceased the attempt for any reason would not alter the completed offense of an assault with intent to commit rape.</p> <p>Id.—Evidence—Impeachment of Witness by Paety Calling Him— Subpbise.—Parties may be permitted to impeach their own witnesses by proof of counter-statements when they are honestly surprised at adverse testimony given by them.</p> <p>Id.—Testimony of Pkosecuting Witnesses at Pbeliminaby Examination—Haemless Ruling.—The defendant is not harmed by permission given to the prosecuting attorney to read questions and answers given by the prosecuting witnesses a.t the preliminary examination and to question the 'witnesses thereupon, against an objection that the prosecution was trying to impeach his own witnesses, when the statements about which the witnesses were questioned were substantially the same as those given at the trial.</p>

<p>Building Contract—Bond of Contractor — Liability of Sureties.— The sureties on the bond given for the performance of a building contract by the contractor are bound only by the express terms of their contract, and have a right to stand upon its precise terms.</p> <p>Id.—Abandonment of Work—[Completion by Owner—Architect’s Certificate—Condition Precedent.—Where the work was abandoned by the contractor, and the owner completed it at an increased expense, and the contract provided that the expense incurred by the owner in such case should he audited and certified by the architect, whose certificate should he conclusive, such certificate is a condition precedent to a recovery of such expense against the sureties on the contractor’s bond.</p> <p>Id.—Contractor’s Repudiation of Contract—Condition not Impaired as to Sureties,—Where the sureties did not repudiate the contract, nor waive any condition stated therein, the repudiation of the contract by the contractor could not, as to the sureties, impair the condition that the owner who completed the work must procure a certificate from the architects as- to the expense incurred.</p> <p>Id.—Discharge of Architects by Owner—Finding—Breach of Condition not Excused.—A finding that the owner discharged the architects on the ground that they were careless, incompetent, and dishonest, without a finding that the grounds were true, and without any allegation or finding showing an excuse for breach of the condition, does not relieve the plaintiff of the condition stated in the contract as against the sureties.</p> <p>In.—Excuse, How Shown—Pleading and Proof.—The plaintiff might have relieved himself of the condition, by alleging and proving, as an excuse therefrom, that the architects had refused to act in the matter, or, if they had acted, that they had acted fraudulently or corruptly or through mistake.</p>

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

<p>Action to Quiet Title—Transfer in Fraud of Creditors—Void Sale to Execution Purchaser—Order Granting New Trial—Appeal. In an action to quiet title, where a former conveyance to the plaintiff by a. debtor was assailed as a fraud upon his creditors by the defendant, who claimed as subsequent purchaser at sheriff’s sale under execution upon a judgment against the debtor, and a new trial was granted to the defendant for insufficiency of the evidence to justify findings that the conveyance to the plaintiff was not in fraud of creditors, the order will be reversed upon appeal if the sale to the defendant, as execution purchaser, was void. In such case the question of fraud upon creditors is immaterial, and does not affect the plaintiff’s ownership.</p> <p>Id.—Void Execution—Subscription in Name of Ex-clerk.—An execution issued in the name of an ex-clerk, instead of that of the incumbent, is void, and not amendable; and a sheriff’s sale under such void execution is void, and passes no title to the purchaser.</p> <p>Id.—Power to Amend Execution.—The power to amend a writ of execution is limited to the amendment of the writs of the court, which can only he authenticated, under a law such as ours, by the subscription of the clerk, which subscription is an essential part of the writ, without which there is no execution to be amended.</p> <p>In.—Effect of Seal.—Whether the seal of the court is or is not essential to the writ is not determined; but the seal alone, without the subscription of the clierk, is insufficient to authenticate the execution. ' '</p>

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

<p>■County Government Act—Fees Collected by District Attorney— Payment to County Treasurer.—Under the County Government Act of 189.8, the salaries of district attorneys are the full measure of their compensation, and all fees and costs collected by a district attorney must be paid to the county treasurer, and no fees can be lawfully retained by him.</p> <p>Id.—Collection of Costs and Fees Upon Foreclosure of School Land Certificates—Implied Repeal of Code Provision.—The County Government Act of 1893 does not necessarily repeal by implication section 3553 of the Political Code, in reference to the payment of costs and fees allowed in suits by the district attorney upon foreclosure of school land certificates; but he is required to pay them into the treasury.</p> <p>Id.—Fees and Costs Illegally Paid—Estoppel of District Attorney. If section 3553 of the Political Code were impliedly repealed, the district attorney could not be heard to say that costs and fees collected thereunder in his official capacity were paid to him illegally, and that he therefore has the right to retain them.</p>

<p>Subsequent Purchaser.—A mortgage of land erroneously recorded in a book of “Bills of Sale and Agreements” does not give • constructive notice to a subsequent purchaser of the land at sheriff’s sale. Such purchaser is protected, in the absence of actual notice of the mortgage, and has a right to rely upon the absence of constructive notice on the face of the proper hook of record.</p> <p>In.—Agency of Recorder fob Party Recording—Errors and Omissions.—For the purpose of correct transcription of an instrument into the appropriate hook of record, the recorder is the agent of the party recording the instrument, and errors or omissions in the record are, in law, his errors and omissions.</p> <p>Id.—Construction of Code — Filing and Record of Instrument.— Section 1170 of the Civil Code, providing that a properly framed instrument is “deemed to be recorded” when “deposited in the recorder’s office with the proper officer for record,” must he read with section 1213 of that code, making the instrument “acknowledged or proved and certified and recorded as prescribed by law” constructive notice of its contents, and each is to be construed with reference to the purposes for which it was enacted. The instrument cannot be constructive notice of its contents unless “recorded as prescribed by law,” which cannot take place, under section 1171 of the Civil Code, construed with sections 124 and 125 of the County Government Act, until the instrument has been transcribed into the proper book.</p> <p>Id.—Title by Prescription not of Record—Mortgage and Sheriff’s Deed—Registry Law—Effect of Possession.—The fact that the corporation whose property was mortgaged, and subsequently sold and conveyed under execution by the sheriff’s deed to another party, held a title by prescription, which was not recorded, cannot affect the provisions of the recording act as between the mortgagee and the sheriff’s 'grantee. The possession of the land by the corporation at the time of the sheriff’s deed was prima facie evidence of its title.</p> <p>Id.—Subsequent Foreclosure of Mortgage—Paramount Title of Purchaser.—The paramount title of the purchaser at sheriff’s sale is not a proper subject of litigation in a subsequent action to foreclose the mortgage, and if not expressly adjudicated in such action cannot be affected by the decree of foreclosure, nor by the sheriff’s sale under the decree.</p> <p>Id.—Date of Mortgage as to Purchaser—Relation of Title Under Decree.—The mortgage, being void as to the purchaser for want of proper record had no existence as to him until the commencement of the action to foreclose it; and the title under the decree cannot, as to the paramount title of the purchaser, if not expressly adjudicated by the decree, be deemed to relate back of the commencement of the suit to the actual date of the mortgage.</p> <p>Id.—Parties to Foreclosure—Issue as to Purchaser’s Right—Reservation in Decree—Estoppel—Action to Quiet Title.—Where the purchaser at the sheriff’s sale was made a party defendant to the foreclosure suit, under an averment that his interest was subject and subordinate to that of the mortgagee, and he took issue upon that averment, and pleaded his title as paramount thereto, and all paramount rights of defendants, excepting the defendant mortgagor, were reserved in the decree, | such purchaser is not estopped by the decree from asserting his' paramount right in an action by him to quiet his title against the purchaser under the decree of foreclosure.</p>

<p>Mining Claims—Validity of Location Under State Statute—Prior Valid Location.—A location of a mining claim made subsequent to the passage of the state statute of March 27, 1897, “prescribing the manner of locating mining claims,” must depend for its validity upon a compliance with the provisions of that act, if the ground was open to location; but if a valid location was made prior to that statute, and remained in force, no valid location could be made under the statute.</p> <p>Id.—Location Under Act of Congress—Marking of Boundaries.—A location made prior to the passage of the act of March 27, 1897, in the absence of local usages or customs, must he governed as to its validity exclusively by the Revised Statutes of the United States, and especially by section 2324 thereof, requiring that “the location must be distinctly marked on the ground so that its boundaries can be readily traced.”</p> <p>Id.—Ultimate Fact—Identification of Claim—Question for Jury.— The ultimate fact to be determined as to a location made exclusively under the act of Congress is the placing of such marks upon the ground as will identify the claim, by being of such character that its boundaries- can be readily traced; and it is a question for the jury, or for the court sitting as a jury, to determine whether this has been effected.</p> <p>Id.—Sufficiency of Findings — Masks of Location — Tbacing of Boundaeies.—Where marks of location specifically found by the court are of such a character that it is evident that the “boundaries can he readily traced,” the findings will he sufficient, though they do not state that fact in express words.</p> <p>Id.—Monuments on the ©bound.—In considering the question whether the boundaries of the claim can be readily traced, not only are monuments placed at the corners of the claim at the inception of the location to be considered, but also all other objects or monuments placed on the ground prior or subsequent -to the location, for the purpose of marking or identifying it, without regard to the mode of identification.</p> <p>Id.—Sufficiency of Masks and Monuments.—Where the plaintiff located two adjoining quartz claims, each marked at the corners by four oak stakes, two of the stakes being On the dividing line, in the center of which was an oak tree blazed on each side, upon each side of which the ledge was uncovered, and upon which tree notices of location were placed, describing each claim by courses and- distances from the tree and from stake to stake, to the place of beginning, and deep cuts were subsequently made in the ledge, and a house was built near the dividing line, in which the plaintiff’s men were living, the location is sufficiently marked upon the ground.</p> <p>Id,—Notices of Location.—The posted notices of location cannot he substituted for the marking; but they may be an aid in determining the situs of the monuments, and constitute a part of the marking, and are not of minor importance where the location is followed by the actual and continued working of the claim.</p>

<p>Building Contract—Extra Work—Written Order Required.—Whereby the terms of a building contract it was provided that “no extra work shall be allowed except where a written order from the architects is procured, approved by the building committee,” and all increases of expenditure were required to be in writing, the owner of the building cannot be charged with extra work which the contractor was orally requested by the-architects to perform, of which request the owner and the building committee were ignorant</p> <p>Id.—Provision for Arbitration—Value of Extra Work.—Where the contract provided that, in case a dispute should arise between the parties respecting the valuation of any extra work, two-arbitrators should he appointed, with power to choose an. umpire, the decision of any two of whom shall be final, and such dispute arose, and no request or attempt for arbitration was made-by the plaintiff, and no excuse was shown by him for not having made such request or attempt, the plaintiff is precluded by the terms of the contract from maintaining an action for the alleged value of extra work.</p>

<p>APPEALS from orders of the Superior Court of Sacramento County denying new trials of special issues. Joseph W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Dismissal—Want op Prosecution—Discretion.—The superior court.has authority to dismiss an action for laches of the plaintiff in prosecuting it; and its discretion in making such dismissal will not be disturbed in this court unless it is made to appear that there was a gross abuse of discretion.</p>

<p>The facts are stated in the opinion.</p> <p>E. L. Webber, C. J. Beerstecher, and Webber & Rutherford, for Appellant.</p>

<p>Insolvency—Opposition to Discharge—Defects in Proof of Notices —Appearance of Creditor—Estoppel.—A creditor who has made a general appearance and become an actor in an insolvency proceeding, has filed his claim in due and proper form, and has voluntarily appeared in opposition to the discharge of the insolvent, cannot then be heard for the first time to object against the discharge that there were defects in the proof of publication of notices to the creditors, which did not give the court jurisdiction to grant the discharge.</p>

<p>Negligence of O arries—Loss of Trunk—Pleading—Value—Damages-—Waiver of Special Demurrer.—In an action against a transfer company tor alleged negligence in the loss of a trunk, where the complaint sufficiently charged the negligence and loss, and set forth the reasonable value of the trunk and its contents in a specified sum, which the defendant refused to pay upon demand, and prayed judgment for said sum and interest, the failure of the complaint specifically to aver damages in that sum is merely ground of special demurrer, for the defective pleading of a material averment, which is not entirely absent, and, in the absence of such demurrer, the objection cannot be heard after issue joined and verdict and judgment had for the plaintiff.</p> <p>Id.—Limitation of Liability—Construction of Code—Knowledge of Limitation—Constructive Notice.—Section 2176 of the Civil Code, providing for a. limitation of liability in a contract for carriage of packages, trunks, or boxes, if accepted “with a knowledge of its terns,” when the value of such property is not named, is not to be construed as requiring actual knowledge of its terms, but the limitation in the contract is operative if the person accepting the contract has actual notice of circumstances sufficient to put a prudent man on inquiry as to the existence of the limitation, in which case he is legally chargeable with knowledge thereof by constructive notice.</p> <p>Id.—Question fob Jury—Erroneous Refusal of Instruction.—It is a question for the jury, upon proper instructions, to say whether, under all the circumstances as disclosed hy the evidence, the plaintiff, in. accepting a receipt or contract signed by the agent of the transfer company, had actual or constructive knowledge of the limitation of liability contained therein; and it was error to refuse to instruct the jury properly upon the subject of constructive notice of the limitation, and that, if they found he had such notice, it was no excuse for plaintiff to say that he diid not read the limitation, if he had the free opportunity to do so.</p> <p>Id.—Gross Negligence of Defendant—Limitation of Liability Overcome—Question for Jury—Appeal.—Under section 2175 of the Civil Code, if the defendant was guilty of gross negligence, the limitation of liability is thereby overcome, and the limiting clause does not exempt the defendant from the full measure of his liability, notwithstanding the actual or constructive knowledge of the limitation on the part of the plaintiff. But the question of gross negligence is one for the jury, under proper instructions, and this court cannot assume upon appeal that the case is one of gross negligence, rendering harmless the improper refusal of an instruction upon the question of constructive notice or knowledge of the limitation.</p> <p>Id.—Evidence—Expenditures for Wearing Apparel.—In the action for the loss of the trunk and its contents evidence is not admissible to show the expenditures made by the plaintiff for the wearing apparel contained in the trunk.</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>Mortgage—Leasehold Estate in Hotel Property.—A mortgage oí a leasehold estate in hotel property for a term of eleven years, and of the hotel building and fixtures which the lessee has the right to remove at the end of the term, is of an interest in real estate, within the provision of section 2947 of the Civil Code.</p> <p>Id.—Mortgage of Personal Property—Nonconformity to Statute —Validity Between Parties.—A mortgage of personal property not enumerated in the statute, and not accompanied by the affidavit, acknowledgment, and record provided for in cases of chattel mortgages allowed hy the statute, is valid between the parties.</p> <p>Id.—Mortgage for Purchase Money — Vendee in Possession—Defective Title.—The vendee who has received possession and maintains it without rescission of the contract of sale cannot, while in possession, defend against a mortgage given for the purchase money on the ground of an alleged defect in the title.</p> <p>Id.—Evidence as to Contents of Letter—Harmless Ruling.—Where the recipient of a letter from the defendant was permitted to testify without objection to the contents of the letter, and was fully cross-examined hy the defendant as to such contents, error in permitting another witness to testify as to its contents, on the ground that the loss of the letter had not been proved, is harmless.</p> <p>Id.—Proof of Title—Bill of Sale.—A bill of sale, which was a link in the chain of title to the mortgaged property, which the defendant objected to as defective, was properly admitted in evidence.</p>

<p>Partition—Appeal prom Order Confirming Sale—Error in Decree not Review able.—Upon appeal from an order confirming a sale in an action for partition, any error occurring in or prior to the decree of partition, which is appealable, cannot he reviewed; and the question whether the complaint does or does not state facts sufficient to support that decree, or whether the court failed to find upon a material issue tendered in an answer of the appellant, cannot be considered upon such appeal.</p> <p>Id.—Order Fixing Attorneys’ Fees—Final Judgment.—Where the fixing of attorneys’ fees was reserved in the interlocutory de•cree for future consideration, and was passed upon at the time of confirming the sale, such order may he treated as a final judgment as to the attorneys’ fees.</p>

<p>Taxation—Loans Secured by Nontaxable Pledges.—Loans or solvent credits secured by pledges of nontaxable stocks and bonds are taxable as property within the meaning of section 1 of article XIII of the constitution.</p> <p>Id.—Assessment—Assessor not Bound by Verified List.—The assessor is not bound by a verified list of property furnished to him by the taxpayer, and it is his duty to assess to the owner any taxable property that has for any reason escaped assessment.</p> <p>Id.—Supplemental Assessment After Payment.—The assessor may make an additional or supplemental assessment after the taxpayer has paid the original assessment made to him. No assessment is illegal because not completed within the time required by law.</p>

MOTION to correct the record upon appeal from an order of the Superior Court of Merced County denying a new trial. B. R. Rector, Judge. The facts are stated in the opinion of the court. J. W. Knox, P. F. Dunne, and W. D. Crichton, for Appellants.

<p>Appeal—Review of Order Upon Motion to Dismiss.—Where a motion to dismiss an appeal has been disposed of by dismissing it as to one respondent and denying it as to another, it would be improper for the court again to reconsider it upon the final hearing of the appeal.</p> <p>Action for Slander Upon Title—Title Incidentally Involved—Failure of Evidence.—In an action for slander upon plaintiff’s title to real estate, his title is incidentally involved, and upon his failure to produce any evidence upon issue joined by the defendant, plaintiff’s title ceases to be in any way involved.</p> <p>Id.—Answer—Plea of Defendant’s Title— Surplusage—Erroneous Adjudication—Appeal.—A plea of defendant’s title in an answer joining issue upon the allegations of the complaint, and praying judgment for costs and that plaintiff take nothing, is of matter of surplusage, not involved in the action or defense, and upon failure of evidence for the plaintiff, an adjudication of title in the defendant is erroneous, and upon plaintiff’s appeal the judgment will be modified by striking out such adjudication.</p>

<p>CERTIORARI from the Supreme Court to annul orders of the Superior Court of the City and County of San Francisco adjudging the petitioner guilty of contempt. J. V. Coffey, 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>

MOTION to dismiss appeals from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial, and from an order modifying the judgment. Waldo M. York, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Stay op Execution—Function of Wbit of Supersedeas— Direction to Court or Officer.—If execution has been stayed pending an appeal, the function of the writ of supersedeas is limited to a direction to the court below or to its officer to prevent the attempted enforcement of the judgment by the order or process of the court.</p> <p>Id.—Injunction Against Trespass of Parties not Permissible—Jurisdiction.—The writ of supersedeas can only prevent the parties t» the action fronj improperly using the process of the court, and cannot be used to perform the functions of an injunction to restrain a trespass by the parties, for which the appellants must seek another remedy. This court has no jurisdiction to issue an original injunction to restrain the commission of a. trespass.</p> <p>Id.—Judgment Against Use of Dam—Appeal Bond—Petition to Pkevbnt Removal by Respondents:—Upon appeal írom a judgment which adjudicates against the right of appellants to maintain an existing dam or other obstruction in the channel of a creek, or diverting water from the creek by means thereof^ upon which an ordinary appeal bond has been given, this court, without deciding whether or not proceedings upon the judgment are stayed by the appeal, will not issue a restraining order upon petition, of the appellants to prevent the respondents from removing the dam pending the appeal, where it does not appear that the superior court is seeking to enforce the judgment, or has issued any process for that purpose.</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 the City and County of San Francisco. Edward A. Belcher, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Murder—Sufficiency of Evidence—New Trial—Duty of Trial Judge—Jurisdiction.—Where the judge before whom a defendant convicted of murder was tried is convinced that the evidence was not sufficient to warrant the verdict, it is his duty to grant a new trial; and he ought not, in such case, to deny the new trial, and leave it to this court upon appeal to pass upon questions of fact, upon which the trial court alone has jurisdiction to pass. This court has appellate jurisdiction in criminal cases on questions of law alone, and cannot pass upon the insufficiency of the evidence unless, as matter of law, there is no evidence tending to support the verdict.</p> <p>Id.—Opinion of Judge—Review Upon Appeal.—The opinion of the trial judge is not properly a part of the record; and his action cannot be set aside merely because a wrong reason was given for it; yet where his opinion contained in the record shows that he ought to have granted a new trial for insufficiency of the evidence, although this court cannot say, as matter of law, that there was no evidence tending to support the verdict, the record will be closely scrutinized to ascertain errors of law, for which a new trial should be granted.</p> <p>Id.—Evidence—Corpus Delicti — Admissions of Defendant.—The corpus delicti involving all the elements of the crime, must be established independently of evidence which merely tends to connect the defendant with the crime charged; and the admissions or confessions of the defendant cannot be considered as evidence of the corpus deUcti, nor used to establish any necessary element in the commission of the crime.</p> <p>Id.—Refusal to Instruct as to Corpus Delicti—Request Subject to Criticism—Prejudicial Error.—Where, from the peculiar state of the evidence, it appears that the jury may have considered, and probably did consider, evidence of the defendant’s confessions in determining that the corpus delicti had been sufficiently proved, it was prejudicial error for the court to refuse wholly to instruct the jury as to the necessity for independent proof of the corpus delicti; and notwithstanding the fact that requested instructions on that point were subject to criticism, if they would not have prejudiced the prosecution, it was the duty of the court either to give them as requested, or to give them as correctly modified. j</p> <p>Id.—Duty of Court as to Instructions—Paramount and Vital Question.—It is the duty of the court, in charging the jury in a criminal case, to instruct them as to “all matters of law necessary for their information.” Although, ordinarily, a judgment will not be reversed for want of full instructions upon points upon which no instruction is asked, yet the court is not justified in refusing to instruct at all upon a paramount and vital question in a case involving the life or liberty of the accused, merely because a. particular form of instruction asked by defendant’s counsel might be safely refused.</p> <p>Id.—Inapplicable Instruction—Burden of Proof—Assumption of Proved Homicide—Case of Disputed Homicide—Error not Harm:less.—An inapplicable instruction as to the burden of proof of circumstances of mitigation, or that justify or excuse the homicide, proceeding upon the assumption that the commission of the homicide is proved, is not to be considered harmless in a case where the commission of any homicide is in doubt, and the only question in the case is as to whether the defendant committed a homicide.</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 orders of the Superior Court of the City and County of San Francisco, directing the sale of the real estate of a deceased person, settling the annual account of the executrix, and directing the mortgage of real property. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Hart H. North, Henry E. Monroe, and W. B. Treadwell, for Appellant.</p>

<p>The action was brought to foreclose an assessment for the construction of a public sewer in the city of Los Angeles, which, by the terms of the ordinance, was required to “be constructed in accordance with the plans and profiles on file in the office of the city engineer, and specifications on file in the office of the city clerk of the city of Los Angeles, said specifications being designated C and D.” Further facts are stated in the opinion of the court.</p>

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