Volume 132 — California Reports

<p>APPEAL from a judgment of the Superior Court of Placer County and from an order denying a new trial. J. E. Prewett, Judge.</p>

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

<p>APPEAL from a judgment of the Superior Court of Merced County and from an order denying a new trial. E. W. Risley, Judge.</p> <p>The instructions referred to in the opinion as requested by the defendant and refused by the court were as follows: “ If you find from the evidence in this case (to a moral certainty and beyond a reasonable doubt) that the defendant set the fire charged in the information, but you find that his intention in setting the fire was to defraud an insurance company that had insured the building or the contents of the building, then you should acquit the defendant, unless you further find (to a moral certainty and beyond a reasonable doubt) that the defendant had a positive intent to destroy the building.” “ If from the evidence you find, to a moral certainty and beyond a reasonable doubt, that the defendant set the fire charged in the information, but if you have a reasonable doubt as to whether the intent was to defraud an insurer or to destroy the property, then it is your duty to acquit the defendant.” Further facts are stated in the opinion of the court.</p>

<p>Fibe Insueance—Pbovision fob Avoiding Policy—Fobeclosube of Mobtgage with Knowledge of Insubed—Reasonable Constbuction.—A policy of fire insurance providing that the policy, “ unless I otherwise provided by agreement indorsed hereon or added hereto, shall be void, ... if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy, by virtue of any mortgage or trust deed,” is to be reasonably construed, not as requiring knowledge of foreclosure proceedings before or at the exact time of their commencement, but as providing that whenever the fact of knowledge of their commencement is obtained by the insured, if the consent of- the insurer to the proceedings is not had, the policy shall be void.</p> <p>Id. — Inteepbetation of Contbact of Insueance. — A contract of insurance is to be interpreted by the same rules as other contracts, so as to give effect to the mutual intention of the parties, which is to be deduced, if possible, from' the language of the contract, reasonably construed.</p>

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

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

<p>APPEAL from an order of the Superior Court of Orange County refusing to strike from a cost-bill reporter’s fees for a transcript of evidence. J. H. Ballard, Judge. E. S. Torrance, Judge who ordered transcript made.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of El Dorado County and from orders denying a new trial and denying a motion in arrest of judgment. M. P. Bennett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>HABEAS CORPUS, in chambers of the Chief Justice of the Supreme Court, to the Sheriff of Butte County. W. H. Beatty, Chief Justice.</p> <p>The facts are stated in the opinion of the chief justice.</p>

<p>Ejectment—Adverse Possession of Plaintiff’s Grantor—Question of Fact—Support of-Finding.—Where the plaintiff in ejectment claimed title under a remote grantor, which had its origin in adverse possession, the question of fact as to the sufficiency of such adverse possession to establish title is for the trial court, and its finding will not be disturbed, where the evidence is conflicting, and there is some evidence tending to support it.</p> <p>Id.—Probate Sale to Plaintiff—Outstanding Deed of Trust — Subsequent Reconveyance. — Where the plaintiff in ejectment claimed title under a probate sale of the real property of an intermediate grantor, the fact that at the time of the sale there was an outstanding trust deed, made by the decedent to secure the payment of a debt, cannot be availed of by the defendant as an outstanding title, as against the plaintiff, where it appears that the property was reconveyed during the same year, which was eighteen years before the commencement of the action.</p> <p>Id.—Petition for Sale — Condition of Property — Objection not Taken at Trial. — Where no objection was urged at the trial to the petition for the sale of the real estate of a deceased person, that it did not contain a proper statement of the condition of tlie property, such objection cannot be considered upon appeal; but the petition must be treated as properly describing such condition.</p> <p>Id,—Probate Sale of Lot not Petitioned for—Collateral Attack. — Where the statute in force at the time of the probate sale did not control the court as to its order of sale by the desire or prayer of the executor, and the petition stated the jurisdictional facts as to the condition of the property, the court had jurisdiction to order the sale of a lot described in the petition, the sale of which was not petitioned for, and the sale under such order cannot be collaterally attacked on the ground that the petition was to sell other real estate,,and not the lot in controversy.</p> <p>Id.—Adverse Possession of Defendants — Evidence — Good Faith — Satisfaction of Judgment.—Where the defendant’s rights in the land in controversy rested upon a claim of adverse possession in himself and his predecessors, evidence of his good faith in satisfying a judgment not offered in evidence is immaterial, and was properly excluded.</p> <p>Id.—Permission to Pasture Cow—Rejection of Preliminary Question— Offer not Made—Error not Shown. — Where a witness, called for defendant, testified that his deceased brother had pastured a cow upon the lot in question for twelve or thirteen years, the rejection of a leading preliminary question, relative to the knowledge of the witness as to how and by whose permission the cow was put there, was not error, where there was no offer to show any date, or to follow up the question, or to prove that it was by the permission of the defendant, or of any one to whose rights he claimed to have succeeded.</p> <p>Id.—Declarations as to Holding under Defendant—Preliminary Question—Ineffectual Inquiry. — The rejection of a preliminary question, as to whether the witness heard an occupant of the lot declare whether he was occupying for himself or by permission, is harmless, if the inquiry was not directly followed up, and it appeared, by subsequent answers of the witness, that further inquiry as to declarations that the occupant was holding under the defendant would be ineffectual.</p>

<p>Estates of Deceased Persons—Action fob Money Deposited with Firm—Gift of Check by Testator to Member of Firm—Support of Verdict.—In an action by executors to recover money deposited by the testator with a firm, where it appeared that the testator, who had disposed of a large estate by will, gave a check for part of the money deposited, which was part of the estate devised, to one of the members of the firm, for the benefit of his children, and the evidence was uncontradicted that the testator was of perfectly sound mind when he gave the check, and until his death, and there was no evidence of fraud or undue influence in any way impeaching the action or the motives of the one to whom the check was given, the verdict of the jury, in favor of the gift, will not be disturbed upon appeal.</p> <p>Id. — Personal Friendship — Fiduciary Relation — Presumption. — Where the relation between the testator and the donee of the check was nothing more than that of warm personal friendship, there can be no presumption that the relation was fiduciary, or that there was any undue influence, or that the check was given for the use of the drawer; and where the evidence is sufficient to overcome any such presumption if it existed, the verdict of the jury cannot be disturbed on account of such presumption.</p> <p>Id.—Fiduciary Relation a Question of Law—Instruction. —Whether the facts showed such a fiduciary relation as would cast the burden upon the donee to overcome a presumption of fraud and undue influence, is a question of law, exclusively within the province of the court, and not a question of fact for the jury, and where the relation proved is not fiduciary, the court may properly so instruct the jury.</p> <p>Id. — Instructions — Gut — Delivery — Burden of Proof. — Where the court properly instructed the jury as to the burden of proof being upon the defendant, who received the gift, to show that the gift of the check was in fact made and intended by the testator, by evidence in addition to the signing and delivery of the check, an instruction which, standing alone, might have conveyed the impression that signing and delivering the check completed the gift, is not misleading.</p> <p>Id.—Burden of Proof as to Fraud and Undue Influence.—Where the evidence did not disclose the existence of a fiduciary relation between the parties, it was proper to instruct the jury that the burden of proof as to fraud and undue influence 'in obtaining the gift rested upon the executors plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. Frank F. Oster, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Contract—Certainty—Construction. — Though a contract having a single object, which is so vaguely expressed as to be wholly unascertainable, is wholly void, yet a contract assailed for uncertainty must be interpreted so as to make it effective, if possible, -without violating the intention of the parties. The words are to be understood in their ordinary meaning, and uncertain terms are to be interpreted in the sense in which the promisor believed that the promisee understood the promise when made. The contract may also be explained by reference to the circumstances under which it was made and the matter to which it relates.</p> <p>Id.—Agreement for Services in Assisting Agents “to Make a Success ” — Commissions. — An agreement by the defendants, in consideration of the plaintiff “ assisting our distributing agents ... to make a success of our line of cigars,” within limits of territory allowed as per contract with them, “and for all services necessary to represent our interest,” to pay monthly to plaintiff “ five per cent commission on all sales made” within such limits by the agents named, or any other house selected, “as long as our goods find ready sale on this Coast,” is not void for uncertainty.</p> <p>Id.—Pleading—Complaint upon Contract—Reference to Another Contract—Territorial Limits of Service.—The complaint upon the contract for the services rendered by the plaintiff does not fail to state a cause of action because it fails to set out the contract with the distributing agents of the defendants, referred to in the contract, as merely limiting the territory in which plaintiff was to give his services.</p> <p>Id. — Support of Verdict — Reduction by Court — Statements of Sales.—Where the statements of sales rendered by the defendants, as well as the plaintiff’s testimony, show a greatér amount due than was embraced in the verdict as reduced by the court, the verdict as so reduced cannot be disturbed upon appeal from an order denying a new trial, upon the consent of plaintiff to remit the amount of the reduction.</p> <p>Id. — Commissions on Gross Sales — Construction of Contract.— Under the contract, plaintiff was entitled to commissions on gross sales, and not merely on net proceeds, especially where the statements rendered by the defendants to the plaintiff show that they must have so understood the contract.</p> <p>Id. — Discharge of Defendant—Verdict of Jury.—Where, upon an issue as to whether the defendant was discharged in May, the evidence was conflicting, and sufficient to warrant the submission of the issue to the jury, and the jury found against the fact of such discharge, the verdict is conclusive thereupon.</p> <p>Id.—Irregularity—Reference of Counsel to Offer of Compromise — Record—Instruction.—The irregularity of counsel for plaintiff, in alluding in argument to an offer of compromise, is not ground for reversal, where the record does not show the language used, but shows that 'the court instructed the jury not to consider evidence relating to an offer of compromise.</p>

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

<p>Order Granting New Trial — Power and Duty of Superior Court —Conflicting Evidence — Review upon Appeal.—The superior court has power, and it is its duty, to grant a motion for new trial, made for insufficiency of the evidence to justify the decision, whenever, in its opinion, the evidence was insufficient for that purpose; and its discretion to grant a new trial on that ground is not open to review upon appeal from its order, if there is any appreciable conflict in the evidence.</p> <p>Id.—Motion upon Several Grounds—Construction of Order—Presumption.— Where the motion was made upon other grounds, as well as for insufficiency of the evidence to justify the decision, if the order granting a new trial does not expressly exclude the latter ground, it will be presumed, upon appeal, in favor of the action of the court, that its order was made upon that ground.</p> <p>Id. — Opinion Discussing Grounds.—The fact that, at the time of making the order, the court filed an opinion in support of its action in granting the new trial, wherein it discusses one or more of the grounds presented, and does not discuss the evidence, cannot affect the presumption that it deemed the evidence insufficient.</p> <p>Id.—Evidence of Action of Court—Order Entered in Minutes — Reasons Given. —The order of the court entered upon its minutes is the only evidence of the action of the court in granting the new trial, and such order is to be measured by its terms, and not by the reasons which the court may give for it. The order will not be deemed limited by any opinion filed, unless an intention to limit the order is expressed therein.</p>

<p>Taxation — Arbitrary Assessment — Action to Recover Taxes. — Upon the neglect of a taxpayer to furnish a statement to the assessor, it is his .duty, under the law, to_make_aparbitrary assessment, andj;he_taxpayer„ who pays the tax thereon under protest cannot maintain an action to recover back the taxes paid.'</p> <p>Id. — Letter Mailed with Statement — Presumption — Failure op Assessor to Receive Statement. — The mailing of a letter by the taxpayer to the assessor, inclosing a statement of property for taxation, does not relieve him of the neglect to furnish a statement to the assessor, where the presumption that the letter was received in due course of mail is overcome by the testimony of the assessor that the letter and statement were never received.</p>

<p>Ejectment — Homestead Claim — Prior Railroad Grant — Final Survey. —A plaintiff in ejectment cannot recover upon proof of a homestead claim entered in the land department of the United States, and of a receiver’s receipt for the land in controversy, where it appears that, prior to the filing of the homestead claim, the title to the land had passed from the United States by grant to a railroad company, within its primary limits, upon approval of a final government survey, made long prior to such filing.</p> <p>Id.—Decision oe Land Department—Question of Law. — The court is not governed by the decision of the land department upon a pure question of law arising upon undisputed evidence.</p> <p>Id.—Selection of Lieu Land—Power of Railroad Company.—A railroad company has no power to relinquish land to which it has a good title under a grant from the United States, within its primary limits, for the .purpose of making an indemnity selection of other land-in lieu thereof.</p> <p>Id. — Recovery in Ejectment — Strength of Plaintiff’s Title — Right of Defendant to Judgment—Prescriptive Title Immaterial.—The plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s title; and where the plaintiff shows no title, the defendant in possession is entitled to judgment, regardless of whether he has acquired a prescriptive title by adverse possession or not.</p>

<p>APPEAL from a judgment of dismissal of an action by the Superior Court of Siskiyou County and from an order refusing to vacate the judgment. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Burglary—Prior Conviction for Murder—Impaneling Jury—Number of Peremptory Challenges.—Upon a trial for a charge of burglary, under an information also alleging a prior conviction of the defendant for murder, the fact that, after conviction under the information, he was liable to be, and was in fact, sentenced to imprisonment for life, does not show that he was entitled to twenty peremptory challenges in the impanelment of the jury, under section 1070 of the Penal Code, and the court properly limited him to the exercise of ten peremptory challenges.</p>

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

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

<p>Reclamation op Swamp and Tide Land — Damming Tributary to Navigable Stream.—The owners of swamp-land, or of marsh and tide land, purchased from the state, have no rights in the reclamation of their lands, superior to the rights of the public to the use of navigable streams; and if a tributary to a navigable stream is necessary to its navigability, the owner of such land upon which the tributary is situated has no right to dam it in order to effect the reclamation of his land.</p> <p>Id.—Public Nuisance — Action by State — Findings — Omission op Material Finding. —In an action by the state to abate as a public nuisance the damming of sloughs by the owner of marsh and tide lands, seeking to reclaim the same, where it appeared that the water in the sloughs came from the ocean, over Eel River Bar and through Salt River, a navigable stream, and rose and fell with the tide, and issues were joined both as to the navigability of the sloughs, and as to whether the dam substantially interfered with the navigability of Salt River and Eel River Bar, mere findings to the effect that the sloughs were not navigable cannot support a judgment for the defendant; and the omission expressly to find upon the material ■issue as to interference with the navigable streams to which the sloughs were tributary, is ground for reversal.</p> <p>Id.—Dams upon Non-navigable Sloughs—Obstruction op Navigable Stream.—If the dams upon these sloughs, though the sloughs be not themselves navigable, result in the obstruction of Salt River as a navigable stream, they constitute a public nuisance.</p> <p>Id. — Use op Property Creating Public Nuisance.—No man may use his own property so as to create a public nuisance; and the owner of tide-lands is forbidden by section 2 of article XV of the constitution of the state to obstruct the free navigation of any navigable water in the state.</p>

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

<p>APPEAL from an order of the Superior Court of Sonoma County settling the final account of executors. S. K. Dougherty, Judge.</p> <p>The facts are stated in the opinion of the court. ■</p>

<p>Public Lands — Character as Mineral or Agricultural — Province of Land Department—Conclusive Decision—Homestead Patent. ■—It is the peculiar province of the land department of the United States, before issuing a patent to any land applied for, to determine, as a question of fact, the character of the land, as to whether it is valuable for minerals within the meaning of those terms, or agricultural land; and its determination that the land is agricultural, upon issuing a patent to a homestead settler, without reservation of mineral lands, is conclusive, as against a subsequent mineral claimant of any part of the patented land not known to be valuable for minerals at the date of the patent.</p> <p>Id.—Collateral Attack upon Patent—Absence of Connection with Paramount Title.—Persons who, at the time of the issuance of a patent, were not connected in any manner with the paramount source of title, cannot make a collateral attack upon the patent upon any other ground than the want of jurisdiction in the department to dispose of the lands, and cannot assail the decision of the department upon any question of fact within its jurisdiction.</p> <p>Id.—Known Mines at Date of Patent—Value for Minerals Unknown. — Mines, at the date of the agricultural patent, upon the land patented, which were not known nor proved to be valuable for minerals at that date, and operations upon which were then presumably abandoned, and with the attempt at the opening of " which, prior to the patent, subsequent mineral locators were not connected, were not reserved from the operation of the agricultural patent.</p> <p>Id. — Shafts — Signs of Mineral—Outcroppings. — It is not enough that- shafts were sunk in the ground, and that signs of mineral were found and were indicated by outcroppings at the surface, if no mineral was clearly found in such quantities and of such value as to show that the land was valuable for mining purposes at the date of the patent.</p> <p>Id. — Adverse Possession of Mining Claim — Payment of Taxes. — An adverse possession of a mining claim upon patented land must fail of becoming a prescriptive title, where it appears that the patentee paid all taxes assessed upon the patented land, and that the only taxes paid by the mining claimants were upon their claim in a section not included in the patented lands. It is not enough that the claimants thought or supposed they were paying taxes upon their claim in the patented land.</p> <p>New Trial—Specifications in Statement. — Specifications as to the insufficiency of the evidence, in a statement on motion for a new trial, pointing out the particular findings objected to as not supported by the evidence, cannot be objected to as not sufficient by the opposing party, where the statement recites that it “ contains all the testimony which was offered by either party, and admitted in the case.”</p> <p>Id. — Object of Specifications—Notice to Opposing Party—Accomplishment of Object. —The object of requiring specifications is to give notice to the opposing party of the grounds relied on for setting aside the decision. If, under the notice given, the opposing party has accomplished all which could he accomplished under any notice, he cannot object to any defect in the notice.</p> <p>Id. — Proposed Amendments to Statement—Notice of Settlement— Record — Appearance. — If the record fails to show affirmatively that proposed amendments made to the statement were not all adopted, it does not appear that harm could have resulted from want of notice of the settlement of the statement; hut where the record shows that the parties proposing the amendments appeared and objected to the settlement of the statement, it appears they had notice.thereof, and they should then have presented all valid objections which they had to the settlement of the statement.</p>

<p>Attachment—Bond to Prevent Levy—Construction of Code—Stay Bond upon Appeal.—A bond given to the sheriff to prevent the levy of an attachment is not within the terms of section 671 of the Code of Civil Procedure, and is not destroyed or affected by the giving of a bond to stay the enforcement of the judgment upon an appeal therefrom.</p> <p>Id.—Refusal of Succeeding Sheriff to Execute Second Writ— Action upon Official Bond. — A succeeding sheriff, having the custody of the bond given to his predecessor to prevent the levy of an attachment, was justified in refusing to execute a second writ of attachment, issued by the clerk after reversal of the judgment upon appeal, and he is not liable to an action upon his official bond for such refusal.</p> <p>Id.—Limitation of Plaintiff’s Right of Attachment. — The provision of the code that the plaintiff may have the defendant’s property attached, “unless the defendant give security to pay such judgment,” means that he cannot have the property attached, if the required security is given by a bond to prevent the attachment.</p> <p>Id. — Subsequent Insolvency of Surety not Provided for—Statutory Proceedings—Construction. — The statute may be defective in not providing for the case of the subsequent insolvency of one of the sureties on the bond to prevent the levy of the attachment, who was solvent when it was given; but the remedy is with the legislature, and not with the courts. Proceedings by attachment are purely statutory, and the statute is to be strictly construed.</p> <p>Finding after Entry of Judgment—Appeal — Stipulation.—A finding made after the entry of judgment cannot be considered upon appeal; and a stipulation, merely amounting to an agreement, that the court made the finding, and that it forms part of the record, does not show an agreement of the parties that it should be treated as part of the findings in the case.</p>

<p>Foreclosure op Mortgages—Assignment in Trust for Collection — Bight of Action—Pleading.—The assignment of mortgages, and of the debts which they secure, “ to be collected, and the proceeds held in trust” for certain purposes specified, vests the legal title to the mortgages and debts in the assignees, who have a right of action to foreclose the same in their own names, as individuals claiming as assignees, without being required to sue in their representative capacity as trustees, or to set up in their complaint the facts creating the trust.</p> <p>Id.—Attorney’s Fees not Secured.—Attorney’s fees, not made by the terms of the mortgage a lien upon the mortgaged property, must be limited in their recovery to a personal judgment against the mortgagors.</p> <p>Id.—Issue as to Attorney’s Fees — Waiver op Objection. — Where the amended complaint inartificially presented an issue upon the right of the plaintiff to recover attorney’s fees and the amount thereof, and might have been subjected to amendment upon demurrer, if the case was tried without any objection to the sufficiency of the complaint to present the issue, it must be held, after verdict, to have been sufficiently presented.</p>

<p>Unlawful Detainee—Lease—Bbeach of Covenant not to Sublet— Notice to Pebfobm Covenant.—The notice in writing provided for in section 1161 of the Code of Civil Procedure before a lessor commences an action of unlawful detainer requiring the performance of the conditions and covenants of the lease, other than for the payment of rent, has no application to conditions or covenants that cannot be performed after the notice; and such notice is not required after breach of a covenant not to sublet without the consent of the lessor, in order to support a cause of action for forfeiture of the lease.</p> <p>Id. — Evidence—Copy 'of Lease—Admission of Pleadings—Notice to Peoduce Original.—Where the pleadings are verified, and the execution of the lease and its contents are not denied, proof of a copy of the lease can add nothing to the admissions of the pleadings, and cannot be prejudicially erroneous. But if the defendant is in possession of the original lease, and after being notified to produce it, has failed to do so, and does not object to the reasonableness of the notice, the copy is admissible, and is not subject to the objection that it is not the best evidence.</p> <p>Id.—Parol Evidence to Vaby Lease—Change of Time for Payment of Rent.—Evidence of a parol agreement to change the time for the payment of rent from that stated in the lease is inadmissible. The written lease can only be altered by a contract in writing, or by an executed oral agreement.</p> <p>Id.—Answer—Extension of Timd — Failure to Allege or Prove Tender or Payment. —Where the answer alleged an agreement to extend the time of payment of the rent sued upon, which time had expired before the action was commenced, and long before the answer was filed, and there was no allegation or proof that the rent sued for was tendered or paid, no defense to the action was shown. Id. — Continuance—Diligence and Merits not Shown.—A continuance moved for upon an affidavit, which failed to show any diligence, and did not disclose any defense on the merits, was properly denied.</p>

<p>Criminal Law—Appeal prom Judgment — Limitation—Mandatory Statute—Jurisdiction—Dismissal. — .The limitation in the Penal Code, of one year after the rendition of the judgment within which “ an appeal from a judgment must be taken,” is mandatory; and this court has no jurisdiction to entertain such appeal taken after the lapse of that period, and it must be dismissed.</p> <p>Id. — Construction op Cods — Irregular Appeal — Failure to Dismiss— Consideration op Merits. — Section 1248 of the Penal Code, providing for a dismissal for irregularity in any substantial particular upon five days’ notice, does not permit the consideration of an appeal upon its merits, if no such notice is given, unless it be in cases where the objection to the appeal is not jurisdictional.</p> <p>Id. — Sentence in Felony Cases — Arraignment — Notice and Bequest—Mandatory Statute. — The requirements of the statute, that in felony cases, where the defendant appears for judgment, “ he must be informed by the court of the charge against him, and of his plea, and the verdict, if any, thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him,” are mandatory, and a substantial compliance therewith is essential.</p> <p>Id. — Correction op Minutes—Vacation op Judgment—Proper Arraignment. — Where the sentence was pronounced without a substantial compliance with the requirements of the statute, and the clerk entered up the judgment upon a stereotyped form, reciting such full compliance, the court has power, and ought on proper application, to correct the minutes, and set aside the judgment as-entered, and then proceed properly to arraign the defendant for sentence.</p> <p>Id.—Motion fob New Trial—Waiver of Arraignment. — A motion for a new trial, made by the counsel for the defendant when called for sentence, does not constitute a waiver by the defendant of the arraignment required by the statute, where he is sentenced upon denying the motion for new trial.</p> <p>Id.—Record upon Appeal—Exceptions—Appealable Orders.—The defendant, not having any means of securing a record upon appeal, which would show the error complained of otherwise than by moving to correct the minutes and to set aside the judgment, was entitled to except to the action of the court in refusing such motion, and to appeal from the orders of the court refusing them. Id.—Motion to Discharge Defendant.—A motion to discharge the defendant because not properly arraigned for sentence, was properly denied.</p> <p>Id.—'Review of Order Refusing to Arrest Judgment.—An order refusing to arrest judgment can only be reviewed upon appeal from the judgment.</p>

HABEAS CORPUS in the Supreme Court to test the validity of -a judgment of the Superior Court of the City and County of San Francisco. Frank H. Dunne, Judge. The facts are stated in the opinion of the court.

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

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

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. Edward I. Jones, Judge.</p> <p>The facts are stated in the opinion of the court and in McDougald v. Argonaut Land etc. Co., 117 Cal. 87.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Walter Van Dyke, Judge. 1</p> <p>The facts are stated in the opinion of the court.</p>

<p>Toll-bridge — Public Highway — Compensation — Absence of Property Right.—A toll-bridge, like a toll-road, is dedicated by the builder for the use of the public, and becomes a public highway, the cost, of the building and maintenance of which is reimbursed or compensated by the tolls levied by public authority; and upon expiration of the term of the franchise, or upon abandonment of its use, the public has the free use thereof; and the builder, or his grantee, has no private property in the bridge, or any part thereof, for which he is entitled to compensation.</p> <p>Id.—Failure to Rebuild Burned Bridge—Abandonment of Franchise. — The failure to rebuild a toll-bridge, burned during the term of the franchise, for a period of more than six years, or to manifest any intention to rebuild the same during that period, or at the time when the county began to rebuild it as part of a free public highway, shows an abandonment of the franchise.</p> <p>Id. — Sale of Piers and Abutments — Right of County.—The sale of the piers and abutments left by the burned bridge, to a private person, passed no title thereto; and the county had the right, after the abandonment of the franchise, to rebuild the bridge upon the same piers and abutments, as part of a free public highway, without compensation to the builder or the purchaser thereof, though the original term of the toll franchise had not yet expired.</p>

<p>APPEAL from a decree of the Superior Court of Alameda County distributing the estate of a deceased person. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Canal—Reservation in Grant—Basement — Proportionate Share of Expense—Shutting off Water—Reimbursement. — A reservation, in the grant of a canal, of a right of way to carry through the canal a specified quantity of water reserved by the grantor, subject to the payment of a specified proportionate share of the expense of maintaining and repairing the canal, gives to the grantor an easement, which constitutes property, of which he cannot be deprived by the shutting off of the water reserved for non-payment of a proportionate share of the expenses charged by the grantee, who is not the sole judge of what sum is to be paid by the grantor. The grantor’s proportionate share of the expense cannot be determined in advance; and the right of the grantee under the reservation is simply to be reimbursed by the parties having the easement, in the proportions stated in the reservation.</p>

<p>Estates of Deceased Persons — Contest of Will—Codicil—Verdict of Jury—Conflicting Evidence.—Upon the contest of a will, under a petition for the revocation of the probate thereof, a verdict that the testator was of sound and disposing mind when he made a codicil to the will cannot be disturbed upon appeal, where there is sufficient evidence clearly to support it, notwithstanding conflicting evidence to the contrary.</p> <p>In.—Privileged Communications—Attending Physician—Incompetent Evidence. — The physician who attended the testator during his last illness, and whose information as to his condition was acquired during such attendance for the purpose of prescribing for him as a physician, is incompetent to testify as to his condition, in answer to questions asked by the contestants, tending to show that the testator had not the mental capacity to make a will or a codicil thereto.</p> <p>Id. — Information for Benefit of Patient—Bequest for Disclosure not Implied. — The information which a physician acquires from his patient, for the purpose of prescribing for him, is given for the benefit of the patient alone, and not for the purpose of creating a right in others, and does not carry any implied request to disclose it in behalf of others in matters with which it is wholly disconnected.</p> <p>Id. — Communications to Attorney Belating to Will—Intention of Disclosure—Implied Bequest.—The communications made by the testator to an attorney preparatory to drawing a will or a codicil thereto, and his instructions concerning it, are not to be regarded as confidential and privileged, it being clearly manifest that it was the intention of the testator that the communication should be disclosed, if any occasion therefor should be presented, and that the attorney was impliedly requested to tell what was necessary to establish the integrity of the will.</p> <p>Id. — Construction of Code—Implied Consent of Client. — The consent of the client to the disclosure of communications made by him to his attorney, provided for by the terms of section 1881 of the Code of Civil Procedure, may be implied, as well as expressed.</p> <p>Id.—Immaterial Evidence as to Conduct of Executors — Undue Influence not Shown. — Evidence that executors named in the codicil sought prior thereto to obtain the management of the estate, is properly excluded as irrelevant and immaterial, and could not have any tendency to show undue influence over the testator, where no offer was made to show that they had any interview with the testator, or spoke with him in reference to the codicil, or to the disposition of his property.</p> <p>Id.—Instruction as to Presumption of Sanity—Burden of Proof— Verdict.—It was proper to instruct the jury that the legal presumption of sanity was matter of evidence of the testator’s sanity, in favor of the legatees and devisees under the will, until the contrary was proved by a preponderance of evidence, and that the one who alleges the testator’s unsoundness of mind must prove it. The fact that the jury found a verdict of incompetency when the will was executed, upon uncontradicted evidence, and of soundness of mind when the codicil was executed, upon conflicting evidence, cannot affect the propriety of the instruction.</p> <p>Id. — Effect of Prior Incapacity—Instructions.—Where the court instructed the jury that if they found that the testator was not of sound mind when the will was executed, they might consider that fact in determining whether he was of sound mind when the codicil was executed, it was proper to refuse a requested instruction, that if they so found, the presumption was that he was of unsound mind on the day when the codicil was executed. Suoh request improperly disregarded the evidence before the jury with reference to the capacity of the testator at the date of the codicil.</p> <p>Id. — Consistency of Verdict—Temporary Incapacity.—Where there was evidence before the jury, from which they could find that the incapacity óf the testator when he executed the will was only temporary, there was no inconsistency in finding that he was then incompetent, and in also finding that he was of sound mind three days later, when the codicil was executed.</p> <p>Id.—Harmless Error in Instruction—Scrutiny of Testimony of Subscribing Witness as to Unsoundness of Mind. — An instruction that “the testimony of a witness who has solemnly subscribed a will as an attesting witness, and afterwards endeavors to overthrow it, should be closely scrutinized,” is open to objection; but the error in giving it is harmless, as it merely stated a well-recognized rule, by which the jury would be governed in the consideration of such testimony without the instruction.</p> <p>Id.—Instructions—Testamentary Oapacity—Contents of Will not to be Considered. — It was proper to instruct the jury, that in determining the question of the testamentary capacity of the testator, they were not to consider the character of its provisions, or the reasons and motives of the testator for making the disposition of his property therein made, and that if he had ^testamentary capacity, the law must give effect to his will.</p> <p>Id. — Consistency of Instructions — Character of Will—Matter of Law.—A statement to the jury, that the will before them could not be considered, as matter of law, inequitable, was not inconsistent with the instructions to them, not to consider the character of its provisions; but merely emphasized the statement that it was not a matter to be considered by the jury; and in the absence of an ex- , ception to such instruction, it cannot be considered erroneous.</p> <p>Id.—Instruction as to Soundness of Mind — “ Extreme ” Bodily or Mental Weakness.—An instruction to the jury, that “it is soundness or unsoundness of mind, and not any particular state of bodily health,” that must control their judgment, and that “ a man may be in a state of extreme bodily or mental weakness or disease, and yet he may possess sufficient understanding to direct how his property may be disposed of,” is not rendered erroneous by the use of the word “ extreme,” which in actual use is often employed, not as a superlative, but as the opposite of “ moderate. ’ ’ The connection in which the word is used is to be considered, and not merely its philology. The jury could not be misled, where the word was used as synonymous with the possession of “ sufficient understanding to direct how his property should be disposed of.”</p> <p>Id.—Undue Influence—Want of Sufficient Evidence — Refusal of Instruction. — An instruction upon the subject of undue influence is properly refused, where there is not sufficient evidence before the jury tending to prove undue influence.</p> <p>Id. — Circumstantial Evidence—Suspicion—Conjecture—Proof of Undue Influence. — Circumstantial evidence must do more than raise a suspicion, or a mere conjecture or surmise of undue influence, in order to justify the submission of that question to the jury. In order to establish undue influence in the execution of a will or codicil, there must be more than mere proof of interest and opportunity, and of the testator’s mental weakness, and substantial proof'is required of a pressure which overpowered the volition of the testator when the will was executed.</p> <p>Id. — Order Denying Revocation of Probate—Time for Appeal— Dismissal.—An order denying the revocation of the probate of a will, taken more than sixty days after its entry, must be dismissed.</p>

<p>Foreclosure of Mortgage — Pleading—Fictitious Name of Grantee— Order Directing Amendment—Finding — Recital in Decree. — A grantee of the mortgagor, who has appeared and answered, cannot object that he is not a party to the action, because he was sued and served by a fictitious name, and the complaint was not amended to insert his true name, where it appears that the court made an order directing that his true name be inserted in the complaint in place of the fictitious name. That order was in itself a sufficient amendment; and a finding that the court by said order inserted the true name in the complaint, and a recital in the decree to the same effect, are correct.</p> <p>Id.—Immaterial Irregularity—Clerical Error. — Though it would have been more regular to have amended the complaint, the error, if any, is immaterial, and, being merely clerical, may be corrected by the court below at any time.</p> <p>Id. — Statute of Limitations — Defendant Sued by Fictitious Name — Date of Becoming Party. — Where there is nothing to make it appear that the plaintiffs knew the true name of a defendant sued and served by a fictitious name, such defendant became a party to the action from its commencement, and cannot claim that, the statute of limitations ran as to him after the commencement of the action until the date of an order substituting his true name.</p> <p>Id.—Plaintiff not Required to Search Records for Name. —A plaintiff is not required, before beginning his suit against a defendant sued and served by a fictitious name, whose true name he did not in fact know, to search the records in order that he may learn it.</p>

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Motion to Set Aside Indictment — Presence of Interpreter before Grand Jury.—A motion cannot prevail to set aside an indictment for a felony, upon the ground that an interpreter, whose presence before the grand jury was necessary to interpret the evidence of witnesses who could not speak the English language, was not a person permitted to be present before the grand jury while the charge against the defendant was under consideration.</p> <p>Id. — “Interpreter” a “Witness” — Construction of Code.—An “interpreter” is a “witness,” within the meaning of section 925 of the Penal Code. He must be sworn, and states under oath what the witnesses say, who speak in a foreign language; and the general rules which govern the testimony of witnesses apply to him.</p> <p>Id. — Murder—Evidence—Dying Declarations of Deceased.—Declarations of the deceased, proved to have been made under a sense of impending death, are admissible in evidence against the defendant charged with his murder.</p> <p>Id.—Testimony of Eye-witnesses—Inapplicable Instruction—Circumstantial Evidence. — Where it appears that the main proof of the prosecution was the direct testimony of eye-witnesses, who testified that they saw the defendant shoot the deceased, an inapplicable instruction, requested by the defendant, assuming that the main case of the prosecution rested upon circumstantial evidence, was properly refused.</p> <p>Id. —Bequest Substantially Given. — Where a requested instruction . was substantially given in other parts of the charge, it is not error to refuse it.</p> <p>Id. — Flight of Defendant—Instruction — Knowledge of Defendant as to Charge of Killing—Defendant not Prejudiced. — The court may properly instruct the jury upon the subject of the flight of the defendant. An instruction on that subject, which begins by speaking of the flight of a person immediately after “the crime has been committed, with which he knows he was charged,” is to be deemed wholly based upon that condition as to the knowledge of the defendant; and where, in view of the whole instruction, it appears that the defendant was not prejudiced thereby, it cannot constitute ground of reversal'.</p>

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

<p>Gas Companies—Rent fob Meter— Action fob Liquidated Damages. . —Abaction is not sustainable against a gas company supplying a city with gas, to recover liquidated damages for failure to supply the occupant of a building with gas, under section 629 of the Civil Code, where it appears that the gas company notified the plaintiff of its readiness to supply the plaintiff with gas, if plaintiff would furnish a meter, or agree to pay fifty cents per month as rent for a meter, and that such rent -was fair and equitable under the circumstances of the case.</p> <p>Id.—Rights of Gas Company—Compensation for Meters—Absence of Fixed Rule—Unique Case.—A gas company has the right, ordinarily, to charge rent for meters. But, although the company may ordinarily receive compensation for the meter from the return of the gas consumed, and has no fixed rule requiring specific rental for meters, it may, in a unique case, require such rental, where the value of the gas consumed for the previous year was not equal to a sixth part of the annual expense of the meter.</p> <p>Id. — Demand not Specifying Amount of Gas Needed—Previous Habit. — Where the demand did not specify the amount of gas needed, or that more gas would be required than the occupant of the house had been in the habit of using,- the gas company was justified in assuming that no more was required under the demand.</p> <p>Id.—Discrimination—Pleading—Burden of Proof. — If plaintiff's case was unique, there was no discrimination against him; and if other consumers of gas were found in the same category, and any discrimination existed, it devolved upon the plaintiff to allege and prove it.</p> <p>Id.—Liability to Penalty—Affirmative Showing.—To render one liable to a penalty, every material fact necessary to bring the case within the statute must be affirmatively shown.</p>

<p>APPEAL from a decree of the Superior Court of Solano County distributing the estate of a deceased person. A. J. Buckles, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>CROSS-APPEALS from a judgment of the Superior Court of San Diego County. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from orders denying a new trial and denying a motion in arrest of judgment. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County and from orders striking out parts of the answer and denying a new trial. J. W. Ballard, Judge.</p> <p>The facts are stated in the opinion.</p>

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

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

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Alameda County and from an order denying a new trial. F. B. Ogden, Judge. The facts are stated in the opinion of the court.

<p>Action for Death—Reckless Driving Across Track — Contributory Negligence. — Where a railroad company, sued for the death of a person killed while crossing its track, was guilty of no wanton negligence, and the deceased was chargeable with contributory negligence, as matter of law, in driving recklessly across the track, without taking ordinary precautions against meeting the train, and under circumstances indicating, in view of his knowledge of the surroundings, that he was attempting to cross the track before the cars should come along, there can be no recovery for his death.</p> <p>Id. — Nonsuit. — Where the evidence showed the reckless conduct and contributory negligence of the plaintiff, that the speed of the train was not negligent as matter of law, that the bell rang and the whistle properly sounded before approaching the crossing, and that the company was not wantonly negligent in allowing corn to be planted in its right of way, though it partially obstructed the view of the track, a nonsuit should be granted at the close of the testimony.</p> <p>Id. — Duty of Driver Approaching Railroad Crossing — Obstructed View — Knowledge of Facts — Presumption from Injury. ■—A driver approaching a railroad crossing, where the view of the track is obstructed, who has familiar knowledge of the location of the track, and of the extent of the obstruction, and of the schedule time of trains, and whose horse and wagon are under control, should, by reason of the obstruction, take the greater pains to listen and look for an approaching train, and where, if taking proper precautions, he would have seen or heard the approaching train, the very fact of injury will raise a presumption that he did not take the required precautions.</p>

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco appointing a guardian of an alleged incompetent person. James M. Troutt, Judge. The facts are stated in the opinion of the court.

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

<p>Statutes — Authentication Conclusive Evidence of Passage — Impeachment of Validity — Resort to Journals.—The authentication of a statute duly certified, approved, enrolled, and deposited in the office of the secretary of state, is conclusive evidence that it was properly passed; and its validity cannot be impeached by a resort of the court to the journals of the legislature to show that it did not receive “the concurrence of a majority of the members elected to each house,” as required by the present constitution.</p> <p>Id. — Change of Constitution.—The change from the old to the new constitution does not affect the rule that the record of the authenticated and enrolled statute in the office of the secretary of state cannot be impeached by evidence of any fact outside of such record.</p> <p>3d.—Decision of Legislative Department—Duty of Judiciary.—The respect due to the co-equal and independent departments of the government requires that the judicial department shall act on the assurance of the legislative department, by its due authentication of a bill, that that act has been passed, leaving to the courts to determine whether the act so authenticated is in conformity to the constitution.</p> <p>Id.—Mandate of Constitution—Entry upon Journals — Evidence of Passage — Function of Legislature. — The mandate of the constitution, that the yeas and nays shall be entered upon the journals of the legislature, cannot change the rule that it is the exclusive function of the legislature to determine by proper authentication that a bill has been passed, in view of the express distinctions made by the constitution between legislative, executive, and judicial functions, and in the absence of any provision of the constitution making the journals higher evidence of the due passage of a bill than the approved and enrolled statute, or of any provision empowering the courts to correct the journals of the legislature and to declare not passed a bill certified by it to have been passed, or of any provision making the power of the legislature to pass laws subject to review by the courts.</p> <p>Id. — Validity of Repealing Act—Finding as to Senate Journal.— The repealing act of February 23, 1893 (Stats. 1893, p. 5), was a valid enactment of the legislature, and cannot be impeached by a finding that the journal of the senate showed that the vote for the bill in the senate was less than a majority of the senators elected.</p> <p>Id. — Operation of Act—State Relieved from Fees and Commissions for Taxes — Mandamus by County. — Said repealing act has not been repealed, either expressly or by implication, nor have the acts repealed thereby been in any manner revived. The intention thereof, when considered in connection with prior statutes, is to relieve the state from the payment of all fees and commissions of county officers for the collection of taxes, except those allowed by the Political Code; and the county is not entitled to a mandamus to compel the state to pay to the county any part of such fees and commissions not so excepted.</p>

<p>Railroad Grant—Survey of Mexican Grant—Patent—Contract of Sale—Confirmation by Congress. — Lands which, at the time of a railroad grant1 in 1871, were within a prior survey of a Mexican grant which was not approved, but were not within a later survey thereof approved in 1879, and which were thereafter patented to the railroad company in 1894, if considered subjudice at the date of the grant, and not subject to such patent, were still subject to the disposal of Congress; and by acts of Congress limiting the time within which action would be brought to set the patent aside, and especially by the act of 1896 confirming the right and title of bona fide purchasers from the railroad company, all defect or invalidity in the title of the railroad company was cured as to land contracted to be sold by it to a purchaser from it, who made the contract of purchase in good faith in 1891, under an agreement that the railroad company-was to obtain a patent therefor, and that the purchaser would not deny its right thereto under the railroad grant.</p> <p>Id. — Rescission of Contract of Sale—Loss of Right. — The purchaser under such contract of sale, by paying part of the purchase-money, and retaining possession under the contract for more than seven years, and for three years after the patent had been issued, and until after the confirmation of her right by act of Congress, before any objection was made to the title, and by never making any offer to restore the possession, lost all right of rescission.</p> <p>Id. — Estoppel of Purchaser. — The purchaser under such contract is 1 estopped by the terms of the contract of sale, and by her conduct thereunder, to deny that she was a bona fide purchaser whose right was confirmed by the act of Congress, which conferred upon her, as such purchaser, a perfect title upon obtaining a deed from the railroad company.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. W. S. Day, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Foreclosure oe Mortgage—Suit against Receiver without Permission oe Court—Reservation in Judgment—Appeal by Mortgagor.— Although, as a rule, a receiver cannot be sued without permission of the court appointing him, yet where it appears that the court appointing him to take possession of mortgaged property ordered him to pay the mortgage, which was thereafter foreclosed, and he was made a party defendant without permission of the court, and in the action disclaimed any interest in the property, except such as was given by his appointment as receiver, and the judgment of foreclosure provided that the judgment and decree therein should in no wise affect his rights and interests as such receiver, from which judgment he did not appeal, upon an appeal taken by the mortgagor only, there is no error in the judgment prejudicial to the rights of the appellant, or calling for a reversal of the judgment.</p>

<p>Quo Warranto—Franchise of Irrigation District—Intervention by Bondholders — Appeal. — In an action of gao warranto against an irrigation district charged with the usurpation and unlawful exercise of the powers and franchise of a legally organized irrigation district, bona fide purchasers of the bonds of the district, who were allowed to intervene, and to unite with the defendant in resisting the claims of ‘the plaintiff, may avail themselves of all the procedure and remedies to which the defendant district was entitled, and may appeal from a judgment rendered against it.</p> <p>Id.—Motion of Respondent to Dismiss Appeal—Failure of District to Appeal. — A motion to dismiss the appeal of the intervening bondholders cannot he sustained on the ground that there was no judgment against them, and that no appeal was taken by the irrigation district. The defendant cannot, by its inaction, deprive them of the right to review the action of the superior court in rend*ering judgment against their claim or against the defendant.</p> <p>In. — Pleadings — Complaints in Intervention Equivalent to Answers.— Where the pleadings in intervention, though termed complaints, were in effect answers to the complaint of the plaintiff, and, in addition to their denials, contained only new matter in defense of the rights of the defendant, it cannot be claimed that their averments must be deemed admitted; but the new matter pleaded must be deemed controverted by the plaintiff.</p> <p>Id.—Decree of Confirmation—Proceeding in Rem — Res Ad judicata— Conclusiveness as to Organization. — A proceeding for the confirmation of the organization of an irrigation district, under the act of March 16, 1889, is in rem, and the decree of confirmation, while it remains in force as such, is conclusive upon the state, as-well as upon others, that all of the steps necessary for the proper organization of the district had been taken, and the contrary cannot he shown in an action of quo warranto.</p> <p>Id. — Collateral Attack upon Decree — Irregularity — Fraud.—■ The validity and force of the decree, as a judgment, can only be impeached for irregularity or fraud in a direct proceeding therefor, and cannot be collaterally assailed in an action of quo warranto by evidence or findings that there was an irregularity as to the publication of the notice of hearing, and that there was fraudulent bribery of the attorney for certain property-owners in the proceed- ■ ings for the decree.</p>

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

<p>Water-ditch—Public Land — Easement upon Patented Land — Pipe-line — Change op Servitude not Permissible. — A water-ditch upon the public domain, which extends across land subsequently patented by the United States to a private proprietor, and which is protected as an easement thereupon by section 2340 of the Revised Statutes of the United States, is subject to the same rules against any substantial change of the servitude as if the easement had been granted by such private proprietor. The mode of enjoyment of the easement cannot be changed, after the date of the patent, by the substitution of a pipe-line for the ditch, without the consent of the patentee, even though it may be less burdensome to the servient estate.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from an order of the Superior Court of San Mateo County appointing an administratrix. George A. Buck, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Order Granting New Trial — Insufficiency of Evidence — Discretion — Review upon Appeal. — A motion for a new trial, on the ground of insufficiency of the evidence to justify the decision, is addressed to the sound legal discretion of the court, and an order granting a new trial on that ground will not be disturbed upon appeal, where there is no manifest abuse of discretion.</p> <p>Id. — Conditional Order — Unwarranted Conditions — Validity of Final Order — Untenable Objection. — The fact that erroneous and unwarranted conditions were attached to the order, and that a new trial was to be denied if such conditions were complied with, and if not, a new trial was to be granted for insufficiency of the evidence, does not render the order granting a new trial for a valid reason, void. Where the appellants made no attempt to comply with the conditions, they are not in a position to object that the order was void because the conditions were unwarranted.</p> <p>Id.—Action to Determine Water Rights — Definite Settlement of Rights — Improper Conditions in Order.—In an action to determine water rights between the parties, the findings should state correctly the rights of the parties, and definitely settle them as against each other; and it is improper for the court to impose conditions to,an order denying a new trial to the plaintiffs, that the defendants should receive less water than the evidence shows they are entitled to, otherwise the order would be one granting a new trial to the plaintiffs.</p> <p>Id.—Rights of Prior Appropriators — Conduits—Beneficial Use— Waste of Water—Power of Court as to Subsequent Appropriators.— Prior appropriators of water for a useful purpose have the right to conduct it through ditches, flumes, or pipes, or the natural channel of a stream. If a portion of the water to which they are entitled is wasted in ditches, they have a right to save it by pipes or otherwise, and thus have the full benefit of all they own. If they have appropriated more water than they can use for beneficial purposes, or if they willfully waste it, the court has power to give proper relief to subsequent appropriators; but the court has no right to allow the subsequent appropriators to give to the prior appropriators a certain number of inches in lieu of the amount to which they have the right as prior appropriators.</p> <p>New Trial—Specifications in Statement—Insufficiency of Evidence —Result. — Specifications in a statement on motion for a new trial, of the insufficiency of the evidence to justify the findings, are sufficient, where they informed the opposite attorneys as to the respects wherein the evidence is alleged to be insufficient, and result in getting all of the evidence into the statement.</p>

<p>Claim and Delivery — Pleading — Cause of Action — Depriving Plaintiff of Possession.—A complaint in an action of claim and , delivery, alleging that on a day named before the filing of the complaint, the plaintiff was the owner and entitled to the possession of the property, and was then in possession thereof, and that the defendant then, without plaintiff’s consent, and against his will; wrongfully, unlawfully, and by force came into possession thereof, states, in effect, that it was thus taken from his possession, and states a cause of action arising on the day named, which continues until affirmatively shown to be extinguished.</p> <p>Id.—Joinder of Causes—Demurrer—Objection Made Immaterial—■ Damages not Given. — An objection by demurrer, that the plaintiff improperly joined a cause of action for possession of the property or its value, and for damages for ruining his business, becomes immaterial, where no judgment was given for such damages.</p> <p>Id. — Findings — Sale and Delivery of Stock of Merchandise — Good Faith — Attachment — Specifications not Inconsistent. — Where the findings show that a debtor sold and delivered a stock of merchandise to the plaintiff in consideration of indebtedness exceeding its value, and that the sale was in good faith, and without intent to hinder, delay, or defraud creditors, and that plaintiff was in possession of the merchandise, when an attachment against the debtor was afterwards levied upon it in plaintiff’s hands, specifications of insufficiency of the evidence, to the effect that the debtor’s leasehold interest of the premises was not assigned to the plaintiff, and that the debtor retained a key of the store, and that the goods were not removed therefrom, are not inconsistent with the findings.</p> <p>Id. — Damages in Claim and Delivery—Constbuction of Code—Attorney’s Fees.—In an action of claim and delivery, damages may be recovered for the detention of the property, if asked for; but section 3336 of the Civil Code, relative to the recovery, in an action for conversion, of money expended in pursuit of the property, has no application. No allowance can be made for attorney’s fees incurred in the action of .claim and delivery.</p>

<p>Attorney and Client—Action for Negligence of Attorney—Delay in Levying Execution against Husband — Separate Property of Wife—Nonsuit. — In an action by a client against his attorney for alleged negligence of the attorney in delaying a levy of execution until after the expiration of a judgment lien, and until a homestead claim was filed by the wife of-the judgment debtor, the attorney is entitled to a nonsuit, where the evidence shows that the debtor owned no property subject to execution, and that the property sought to be levied upon,, and upon which the lien was claimed by the client, was the separate property of the debtor’s wife.</p> <p>Id. — Parol Gift to Wife—Adverse Possession—Judgment Quieting Title.—An executed parol gift, made to the wife by her sister, who put the wife in possession of the property, and the adverse possession thereof by the wife, with payment of all taxes thereon, for more than five years, and a judgment in her favor quieting her title against the administrator of her deceased sister, are sufficient to prove title in the wife to the premises so given to her as her separate property.</p> <p>Id. — Husband Living with Wife — Prescriptive Title of Wife.— The fact that the husband was living with the wife under the possession given to her by her sister cannot affect the right of the wife to perfect her title by adverse possession, where the husband claimed no interest in the property.</p>

MOTION to dismiss an appeal from an order of a judge of the Superior Court of the City and County of San Francisco declaring an injunction no longer in force. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law — Capability of Committing Crime — Insanity—Unconsciousness of Act — Construction of Penal Code. — Construing section 21 of the Penal Code, which declares that “ all persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity,” with section 26 of that code, the fifth subdivision of the latter section, designating “ persons who committed the act charged without being conscious thereof ” as not being capable of committing crimes, does not include persons of unsound mind previously classed in that section as “ idiots, lunatics, and insane persons,” but only contemplates cases of persons of sound mind, such as somnambulists, or persons suffering with delirium from fever or drugs, “who committed the act charged without being conscious thereof.”</p> <p>Id. — Charge of Murder—Defense of Insanity — Applicability Of Instructions. — Upon the trial of a charge for murder, where the defense is insanity, resulting from any cause, including delirium tremens, which is but a phase or kind of insanity, the defendant is only entitled to instructions covering the various phases of insanity presented to the jury by the evidence, and it is proper to refuse or eliminate instructions based upon subdivisions 5 and 6 of section 26 of the Penal Code, where there is no evidence of the existence of the conditions therein contemplated.</p> <p>Id. — Modification of Instruction — Degree of Proof of Insanity— Reference to Definition. — An instruction requested by the defendant, containing the words, “ if the jury are satisfied bejumd a reasonable doubt, by the evidence in this case, that the defendant was either a lunatic or an insane person, etc., then the jury must acquit the defendant,” is properly modified, in the interest of the defendant, by striking out the words, “beyond a reasonable doubt,” as the law does not contemplate that degree of proof of insanity. It is also properly modified by adding after the words, “ insane person,” the words, “ as insanity is defined in these instructions.”</p> <p>Id. — Argumentative Instruction — Historical Facts as to Defense of Insanity.—An argumentative instruction, based upon true historical facts as to the defense of insanity, in which there is very little of law involved, though made entirely in the abstract, and held not prejudicially erroneous in view of former rulings of this court, is recommended not to be given in the future.</p> <p>Id. — Inapplicable Instructions as to Effect of Drunkenness — Error not Prejudicial. — Where there was no evidence in the case indicating any intoxication of the defendant at the time of the commission of the crime, and the theory of the defense was that he was afflicted with delirium tremens at the time of the killing, as the result of total abstinence from liquor for several days previous, instructions as to the effect of drunkenness in cases of crime' are inapplicable; but if they are abstractly correct, and have met the approval of this court, and show upon their face that no injury resulted therefrom to the defendant, the giving of them is not prejudicial error.</p> <p>Id. — Effect of Voluntary Intoxication—Degree of Crime — Criminal Intent. — No criminal act committed by a person in a state of voluntary intoxication can be excused or rendered less criminal on that ground. Evidence of such intoxication is only to be considered, in cases of murder, for the purpose of determining the degree of the murder, and in other cases, for the purpose of determining a particular purpose, motive, or intent, which is a necessary element to constitute any particular species or degree of crime.</p> <p>Id.—Improper Instruction as to Power of Will. — A requested instruction, intimating that if defendant’s mind was so affected that he had not sufficient power of will to abstain from killing the deceased, he should be found not guilty, was properly refused.</p> <p>Id. — Instruction as to Expert Witnesses — Error not Prejudicial. — An instruction that the value of the testimony of the defendant’s expert witnesses depended largely upon the truth or falsity of the facts given to them, and upon which their opinion was based, though erroneous in not including the testimony of expert witnesses for the people, and though it involves no principle of law, and would better not be given, even if inclusive of all expert witnesses, yet, being simply a declaration of a truism, the giving of it was not prejudicial error.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. A. L. Rhodes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Eminent Domain — Condemnation of Land by City — Head-works for Water-supply—Final Order after Judgment—Appeal— Stay of Proceedings. — In an action by a city to condemn land for the construction of head-works for its domestic water-supply, a final order of condemnation, made after the judgment awarding damages has been affirmed, adjudging that the damages and costs awarded to the defendants have been paid, is appealable by the defendants as a special order made after final judgment. The ordinary appeal bond is sufficient to entitle the appellants to a stay of proceedings pending the appeal, and the city will be restrained, until the termination of the appeal, from using the lands condemned, and constructing its head-works thereon.</p>

APPEALS from judgments of the Superior Court of the City and County of San Francisco and from orders denying a new trial. James M. Troutt, Judge. The facts are stated in the opinion of the court.

.HABEAS CORPUS in the Supreme Court to the Warden of the State Prison to test the validity of a sentence of the Superior Court of the City and County of San Francisco to commence at the expiration of a prior sentence. F. W. Van Reynegom, Judge. The facts are stated in the opinion of the court.

<p>Divorce — Presumption in Favor of Decree—Motion for New Trial—Allowance to Wife for Transcript—Inability of Husband— Dismissal for Laches. — A decree of divorce from the wife, granted to the husband for her fault, must be presumed correct; and she cannot keep open indefinitely a motion for a new trial, merely because an allowance was made to her for a transcript of the evidence, which the husband was wholly unable to pay. It was her duty to prosecute her motion with reasonable diligence; and where she made no effort to secure a settlement of a statement upon the motion for more than four years, the motion should be dismissed for laches.</p> <p>Id. — Acceptance of Money Granted by Decree — Waiver of Right. — One who receives the benefit of a decree must bear the burden thereof, and thereby waives all right of appeal therefrom; and where the wife accepted alimony granted by the decree, she thereby waived her right to object to the decree, and to move for a new trial of the action; and her motion should be d'smissed on that ground, as well as for laches in prosecuting the same.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Libel—Nominal Damages — Order Granting New Trial—Review upon Appeal.—In an action for libel, where the jury returned a verdict assessing the damages at one dollar, if the court below deemed the damages inadequate fairly to compensate the plaintiff for the injury done, it was its right and duty to grant a new trial, and its order will not be disturbed upon appeal. It is only in an exceptional case where the action of the lower court, either in approving or in rejecting the amount of the damages fixed by the verdict, will be interfered with in this court.</p> <p>Id. — Exemplary Damages—Actual Damages—Nominal Damages.— There must be malice in fact before exemplary damages may be allowed; and if there is no actual malice toward the plaintiff, the recovery is to be limited to actual damages, which are not confined to pecuniary loss, but include damages for loss of reputation, shame, and injury to the feelings, etc. A verdict for nominal damages is proper where there is neither actual malice nor actual damage.</p> <p>Id. — General Damages — Absence of Proof — Incorrect Instruction. — Genera] damages may be recovered in the absence of actual proof; and an instruction importing that direct evidence must be offered establishing actual damages before a verdict may be given therefor, is not a correct statement of the law.</p> <p>Id. — Erroneous Instruction as to Actual Damage—Pecuniary Loss. — An instruction purporting to limit the recovery of actual damages, in the absence of malice in fact, to the pecuniary loss of the plaintiff, is erroneous.</p> <p>Id. — Definition of Actual Malice. — Actual malice, in the publication of a libel, means personal hatred or ill will toward the plaintiff, or wanton disregard of the civil obligations of the defendants toward the plaintiff.</p> <p>Id. — Evidence — Bad Refutation of Plaintiff—Similar Publications.—The fact that the plaintiff had a general bad character or bad reputation before the libel was published may be given in evidence in mitigation of damages; but the admission of articles of the same general character, published in papers of another state, is erroneous, and cannot properly be considered by the jury in fixing the amount of actual damages suffered.</p>

<p>Action foe Death—Negligence—Proximate Cause of Injury — Absence of Proof.—In an action for death, assuming the negligence of the defendant to have been proved, it must be made to appear that such negligence was the proximate cause of the injury which resulted in the death; and in the absence of proof fastening the negligence to the injury, a case is not made out, and the case stands as if no negligence had been proved.</p> <p>Id.—Backing of Engine — Absence of Light upon Rear—Causal Connection not Shown—Presumption or Guess not Permissible. — Conceding that the death was caused by the backing of an engine, upon a dark and foggy morning, without any light upon the rear of the engine, in the absence of any proof tending to show any causal connection between the death and the absence of the light, none can he presumed, or conjectured, or guessed at by the jury, and a verdict and judgment for the plaintiff cannot be sustained. The deceased may have accidentally fallen upon the track, or may have been killed without fault upon his part, and under such circumstances that the absence of the light in no way tended to his death ; and it cannot he inferred as a fact that the want of the light was the proximate cause of his death.</p> <p>Id.—Killing of Another Man—Failure of Proof.—The fact that another man was killed at the same time, in the absence of proof that he was then in the possession of his faculties, cannot raise a presumption that the absence of the light upon the tender was the proximate cause of death.</p> <p>Id. — Code Rule—Support of Verdict—Slight Evidence Insufficient.— Under section 3835 of the Code of Civil Procedure, only such evidence as “ ordinarily produces moral certainty or conviction in an unprejudiced mind,” is “ deemed satisfactory,” or “ will justify a verdict.” “ Slight evidence” is insufficient; and where there is not even slight evidence to support the verdict, it must be set aside.</p>

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

<p>Park and Boulevard Act—Election for Bonds — Vote Required— Construction of Statute—Typographical Error.—The Park and Boulevard Act (Stats. 1889, p. 361), providing for an election for the issuance of bonds thereunder, and that, “ if at such an election two thirds of the qualified electors voting an assent to the issuance of the bonds,” then the municipality may-by ordinance provide for their issuance, is not to be construed as requiring the assent of two thirds of all the voters of the municipality, but only of two thirds of the electors voting. The word “ an ” is to be rejected as a typographical error; and the provision is to be construed as if it read, “If at such an election two thirds of the qualified electors voting, assent to the issuance of the bonds, then,” etc.</p> <p>Id.—Act Superseded by Charter of San Francisco—Previous Election—Issuance of Bonds—Injunction.—The Park and Boulevard Act is inconsistent with the provisions of the charter of the city and county of San Francisco, which went into effect January 8,1900, and was then superseded thereby, as applicable to that city and county. Bonds voted thereunder, at a previous election, cannot be lawfully issued after the charter took effect, and the issuance thereof may be enjoined at suit of a taxpayer.</p> <p>Id. — Scheme Provided by Charter—Notice of Election.—The San Francisco charter provides a complete scheme for the acquisition of permanent municipal improvements, which is materially different from that provided in the Park and Boulevard Act, and no bonds can be issued under the charter for park and boulevard purposes, unless the notice of election accords with the provisions of the charter.</p>

<p>Public Improvement Act Superseded by San Francisco Charter— Prior Election for Bonds — Injunction.—The Public Improvement Act, providing for elections authorizing bonded indebtedness for the construction of schoolhouses, sewers, etc., was superseded, as to San Francisco, by the taking effect, on January 8,1900, of the new charter, providing for “ permanent municipal buildings and improvements,” and stands to the municipality as if it bad been repealed. Bonds previously voted for under that act, and not authorized under the provisions of the charter, cannot be issued under the charter; and their issuance will be enjoined at suit of a taxpayer.</p>

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

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

<p>Probate op Will — Contest—Separate Issues—Burden of Proof— Instruction. —Upon the contest of the probate of a will, where the three issues of mental unsoundness, undue influence, and fraud were each separately submitted to the jury at the request of the contestants, a finding for the contestants upon either of them would entitle them to judgment; and an instruction that “the burden of proving by a preponderance of evidence that the deceased was not of sound mind, and that the proposed will was executed by reason of undue influence, or that the will was invalid for any reason, rests on the contestants,” is not to be construed as requiring a preponderance of evidence upon two of these issues conjunctively, but only upon each, of them separately. The jury could not be misled by the form of the instruction.</p> <p>Id. — Verbose Instruction as to Undue Influence—Substantial Correctness. —■ An instruction relating to the evidence of undue influence, though subject to the criticism that it is too verbose, is not for that reason necessarily erroneous; and where it was substantially correct, and in accord with the principles established by the decisions of this court, and it appears that all of the instructions taken together relating to that subject gave the law to the jury cor- . rectly, and as favorably as the appellants could have expected, they could not be prejudiced by the verbose instruction.</p> <p>Id.—Instructions not Assigned as Error.—The judgment cannot be reversed for any supposed errors in the giving or refusing of instructions which were not assigned as error.</p> <p>Id. — Sufficiency of Evidence of Undue Influence. — Evidence of mere opportunity to exercise undue influence is not sufficient; but there must be a preponderance of evidence that such influence was actually exercised, and that it bore directly on the testamentary act, and influenced the mind of the testator or testatrix at the time of the making of the will, and induced a disposition of the property that would not have been made had it not have been for such undue influence.</p> <p>Id. — Refusal to Give Requested Instructions.—It was proper to refuse to give requested instructions which were erroneous, or which involved only abstract legal propositions inapplicable to the evidence, or which were substantially included in other instructions given by the court.</p> <p>Id.—Evidence—Testimony of Physicians.—The testimony of physicians in attendance on the deceased, as to her mental condition, not based upon any information acquired in attending upon her as a patient, which was necessary to enable the physicians to prescribe or act for the patient, is not incompetent under section 1881 of the Code of Civil Procedure.</p>

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

<p>Appeal — Review — Support oe Judgment — Order Denting New Trial. — An appeal from the judgment, not taken in time, cannot be considered; and upon an appeal from an order denying a new trial, the questions whether the judgment is supported by the complaint or by the findings, or whether the findings are contradictory and inconsistent with the pleadings, cannot be reviewed.</p> <p>Id. — Evidence — Objection to Complaint.—An objection to evidence, based upon the ground that the complaint states no cause of action, is, in effect, only a demurrer to the complaint, which cannot be reviewed on appeal from an order denying a new trial.</p> <p>Id.—Variance — Refusal to Strike out Evidence — Prejudice not Shown. — An objection to testimony, on the ground of variance, could not be determined until the evidence was received. No material error was committed in refusing to strike it out on that ground, where the appellant does not show that he was misled by the ruling, to his prejudice.</p> <p>Id.—Review of Evidence—Substantial Conflict. — Where there is a substantial conflict in the evidence, the findings cannot be disturbed for insufficiency of the evidence to support them.</p>

<p>APPEAL from an order of the Superior Court of Monterey County granting letters of administration with the will annexed. N. A. Dorn, Judge.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order denying a new trial. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Action to Quiet Title — Dismissal—Affirmative Belief Prayed in Answer — Motion to Strike out. — In an action to quiet title, where the answer of the defendant sets up his title, and prays for affirmative relief to quiet the same as against the plaintiff, the plaintiff is not entitled to have such affirmative matter stricken from the answer, for the purpose of having the action dismissed, under section 581 of the Code of Civil Procedure.</p> <p>Id. — Case Overruled — Change of Code.—The case of Wood v. Jordan, 125 Cal. 263, decided on the authority of Moyle v. Porter, 51 Cal. 639, without noting the change in the code since the latter case was decided, is overruled.</p>

<p>Charter of San Francisco — Civil Service Commission — County Officers — Qualifications of Deputies.—The civil service commission established under the new charter of the city and county of San Francisco has no power to prescribe the qualifications of deputies of the county officers, such as the sheriff, county clerk, recorder, etc., and cannot compel those officers to select deputies from persons named by that commission. [Beatty, C. J., Van Dyke, J., and Temple, J., dissenting.]</p> <p>Id. — Distinction between County and Municipal Officers — Case Affirmed.— The case of Kahn v. Sutro, 114 Cal. 316, distinguishing between the functions of county officers and those of municipal officers under the consolidated municipal government of the city and county of San Francisco, was not overruled or materially modified by the case of Martin v. Election Commissioners, 126 Cal. 404, and is affirmed. [Beatty, C. J., Van Dyke, J., and Temple, J., dissenting.]</p> <p>Id. — Construction of Constitution — Power of City and County under Charter.—The power conferred by section 8% of article XI of the constitution upon a consolidated municipal government - of a city and county, under a charter framed therefor, over county officers, goes only to the extent of allowing it to provide for the manner of their election, and their terms of office and compensation, and to provide for the number of deputies that each county officer shall have, and for the compensation payable to such deputies. It confers no power upon the municipality to prescribe the qualifications of such deputies. [Beatty, C. J., Van Dyke, J., and Temple, J., dissenting.]</p>

<p>Charter oe San Francisco — Civil Service Regulations — Constitutional Law—Independent Provisions.—The provisions of article XIII of the charter of the city and county of San Francisco, under the caption of “ Civil Service,” other than section 12 of that article, are constitutional and valid; and without deciding whether that section, which prohibits the removal of incumbents in the classified civil service, except for cause, is or is not constitutional, the other sections of the article are independent thereof, and might stand if that section were stricken out.</p> <p>Id. — Untenable Action — Injunction against Auditor. — An action cannot be sustained to enjoin the auditor of the city and county of San Francisco from drawing warrants in payment of the salary and expenses of the civil service commissioners or the salaries of their employees.</p>

<p>Foreclosure of Mortgage — Death of Mortgagor Pending Suit — Abatement — Survival of Action. — An action to foreclose a mortgage does not abate by the death of the mortgagor pending the suit, but survives against his estate, and may be prosecuted against the representative of such estate, with the same effect as if the mortgagor had not died.</p> <p>Id. — Statute of Limitations — Amendment of Complaint — Appearance of Executrix within Time for Service of Summons.— Where the action was brought in time against the mortgagor, and after the amendment of the complaint against the executrix of the deceased mortgagor such executrix appeared within the three years allowed from the commencement of the action for the service of summons, the statute of limitations did not run after the commencement of the action in favor of the executrix, and her appearance waived no rights of the estate, or of the persons interested therein.</p> <p>Id.—Jurisdiction over Executrix — Effect of Appearance. — The appearance of the executrix obviated the necessity of the service of summons upon her, and gave the court jurisdiction over her, with the same effect as if she had been brought in by the service of summons.</p> <p>Id.—Mortgagor not Served with Summons — Lapse of One Year — Power to Bring in Executrix—New Summons.—The cause of action against the mortgagor not having abated by the death of the mortgagor, and having survived against the executrix, was not extinguished or affected by the fact that the summons was not personally served upon the mortgagor, and that the action was begun more than one year prior to the death. The power to continue the proceeding against the executrix carried with it the implied power to order a new summons to bring in the executrix, after the lapse of the year. [Per Beatty, C. J., upon order in Bank denying rehearing.]</p>

<p>Estates of Deceased Persons — Contingent Claims — Rejection—Action— Construction of Code.— Contingent claims against the estate of a deceased person are claims not due, within the meaning of section 1498 of the Code of Civil Procedure; and an action upon a rejected contingent claim is to be brought within two months after it becomes due, under that section. If the contingent claim never becomes due, no action is sustainable thereupon.</p> <p>Id. — Case not Followed. — Fratt v. Hunt, 108 Cal. 292, in so far as intimating obiter that section 1498 of the Code of Civil Procedure is not broad enough by its terms to include contingent claims, is mot followed, the better rule being held to the contrary.</p> <p>Id. —Premature Action. — An action upon a rejected contingent claim, brought within three months after its rejection, but before the claim has become due, is premature, and cannot be sustained.</p> <p>Id.— Subplemental Complaint. — Where the original complaint upon the rejected claim must fail because the action was prematurely brought, a supplemental complaint has no place as a pleading to sustain the action, and the privilege of filing it was properly refused.</p>

<p>Appeal—Transcript — Omission of Verification to Answer — Clerk’s Certificate—Objection not Tenable.—Where the answer printed in the transcript on appeal does not contain a verification, but the clerk’s certificate states that the transcript is correct, except the affidavit of the defendant, verifying the answer, conceding such certificate to be insufficient to show that the answer was in fact verified, the absence of the verification cannot be objected to upon appeal for the first time.</p> <p>Action to Quiet Title — Fraudulent Deed to Plaintiff — Sufficiency of Answer — Waiver of Objection.—In an action to quiet title, where the title of the defendant depends upon assailing a fraudulent deed to one of the plaintiffs from her husband, against whom the defendant acquired a deed under execution, if there was no special demurrer to the answer, in the absence of which its allegations were sufficient, and the case was tried on the assumption that the issue of fraud was properly pleaded, an objection that the allegations of fraud in the answer were not sufficiently specific is waived, and cannot be urged upon appeal.</p> <p>Id. — Title under Execution — Setting aside Fraudulent Transfer — Statute of Limitations. — The statute of limitations does not begin to run against one who has acquired the right, by virtue of a sale under execution against a husband, to set aside a previous fraudulent transfer from the husband to the wife, until the date of the sheriff’s deed under the execution.</p> <p>Id. — New Trial — Newly Discovered Evidence — Impeachment.— Newly discovered evidence, which is merely cumulative, or designed to impeach or contradict the testimony of witnesses who testified at the trial, is not ground for a new trial.</p> <p>Id.—Accident and Surprise — Enforced Changes of Counsm, — Absence of Injury — Discretion not Abused. — Accident and surprise, growing out of enforced changes of counsel during the progress of the case, is not ground for the reversal of an order denying a new trial, where it appears that the moving party was not blameless for the first change of counsel, that the facts shown to the court warrant the conclusion that no injury resulted from any of the changes made, and that there was no abuse of discretion in denying the motion as to that ground.</p> <p>Fraudulent Conveyance — Existing Creditors — Cause of Action in Tort. — One who has a cause of action in tort is a creditor of the tort-feasor before the commencement of the action, as well as after, and is entitled, as an existing creditor, upon recovering judgment, to assail a conveyance which is fraudulent as to existing creditors.</p> <p>Id. — Fraudulent Gift from Husband to Wife — Pendency of Action for Slander — Right to Assail Transfer. — Where a husband made a fraudulent gift of all of his land to his wife, pending an action for slander against him, and with the design to defeat any judgment which might be recovered against him in the action, the plaintiff therein is entitled, as an existing creditor, to assail the transfer, after obtaining judgment and title under execution sale against the husband.</p> <p>Id.—Insolvency of Fraudulent Husband — Gift—Innocence of Wife Immaterial. — Where the husband made a fraudulent gift of land to his wife, and had no other property with which to meet his liabilities, and owned no other property at the date of the judgment against him, and execution sale of the land thereunder, the fact of the innocence of the wife from any participation in the fraud, or that she did not know the condition of her husband’s affairs, is immaterial.</p>

<p>Action to Quiet Title—Answer — Fraudulent Procurement of Deed — Rescission—Cross-complaint—Judgment upon Pleadings. — In an action to quiet title, an answer which, in addition to denying the plaintiff’s title, avers fraud in the procurement of the plaintiff’s deed, and asks for a rescission thereof, is not in the nature of a cross-complaint as to such fraud, but is deemed controverted, and is not admitted by failure of the plaintiff to deny the alleged fraud; and the defendant is not entitled to a judgment upon the pleadings.</p> <p>Id. — Sufficiency of Findings — General Finding — Negation of Fraud. — Where the court found generally that all and singular the allegations of the complaint are true, and the allegations of the answer are false, and made a specific finding negativing the allegations therein of fraud and conspiracy alleged, which is supported by the evidence, the absence of other specific findings is immaterial, and the right of rescission asked for is sufficiently negatived.</p>

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

<p>Divorce — Defense of Condonation — Pleading — Duty of Court — Finding. — Condonation is a specific defense to an action for divorce; and where such action is" contested by the defendant, it should be pleaded like any other defense; though, if the evidence shows condonation, even without a pleading, it would be the duty of the court to find to that effect.</p> <p>Id. — Extreme Cruelty — Express Agreement to Condone Required —Finding against Evidence. — Where acts of extreme cruelty are established as a ground of divorce, the code requires proof of an express agreement to condone the acts of cruelty; and a finding of condonation, based on letters from the plaintiff to the defendant, showing merely conjugal kindness, from which no express agreement to condone the acts of cruelty can be inferred, is against the evidence.</p> <p>Id. — Contest by Defendant—Unsupported Finding Disregarded— Judgment Ordered for Plaintiff. — Where the action for a divorce, for the extreme cruelty proved, was contested by the defendant, and the letters were not offered by him for the purpose of showing condonation, which was not pleaded, and the defendant presumably urged all matters of defense available to him, the unsupported finding of condonation will be disregarded, and judgment will be ordered for the plaintiff under the pleadings and proofs.</p>

<p>Negligence — Fellow-servant — Employment of Inmates of Insane Asylum—Liability of Medical Superintendent. — The medical superintendent of the state asylum for the insane is not responsible for injuries sustained by a fellow-servant, through the action of an inmate of the asylum, with whom such fellow-servant had worked for several weeks, with knowledge that insane inmates were selected and employed in the same kind of work by subordinate officers of the asylum, in the absence of proof of any negligence of the superintendent in selecting unskillful and incompetent subordinates, or of any knowledge by him that the inmates selected and employed were dangerous or unskillful, or that they in fact were so, or that the accident happened through any unskillfulness of the officers or inmates.</p> <p>Id.—Absence of Pbesümption as to Insane Inmates.—There is no presumption that the inmates of the asylum were dangerous or unskillful, from the fact alone that they were insane.</p>

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

<p>Criminal Law — Trial — Impaneling Jury — Selection from Other Departments — Departure from Statute. — During the impaneling of a jury in a criminal case, an order that certain other jurors attending in other departments of the court appear to act in the case conditionally, and that their names be placed in the box, where it appeared that the jury was not selected from the regular panel then present, was a radical departure from the procedure provided by the statute.</p> <p>Id. — Regular Panel — Order of Court — Special Venire. — If the jurors so called in were a part of the regular panel, the law required that their names should be placed in the box before any names were drawn therefrom. If not a part of the regular panel, they could not be brought in to try the cause by a mere order of court; nor could they be included in a special venire.</p> <p>Id.—Evidence—Absent Witness—Testimony at Preliminary Examination—Impeachment—Subsequent Statements.—A witness absent from the state, whose testimony, given at the preliminary examination, was read to the jury, can'not be impeached by proof that since the preliminary examination the witness had made statements to third parties in contradiction of his testimony.</p>

<p>APPEAL from an order of the Superior Court of Fresno County denying a motion to set aside a sale under a decree of foreclosure of a mortgage. J. R. Webb, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Building Contract—Measure oe Owner’s Liability—Abandonment by Contractor. — A valid contract to construct, alter, or repair a building is the measure of the owner’s liability; and if the contractor abandons the contract before the completion of the work, the’ owner’s liability to claimants of liens, by persons other than the contractor, is fixed and determined by the rule expressed in section 1200 of the Code of Civil Procedure.</p> <p>Id. — Abandonment oe Contract—Finding — Entire Cessation oe Work without Completion. — A finding that the contractor entirely ceased labor on the building, without completing the building, shows an abandonment of the contract by the contractor, before completion, within the meaning of section 1200 of the Code of Civil Procedure.</p> <p>Id.—Cessation of Work for Thirty Days — “Completion” as to Filing of Liens—Completion by Owner—Bights of Lien-holders.—Though cessation of the work for a period of thirty days is deemed a “ completion ” of the building, for the purpose of entitling the lien-holders to file their liens and to foreclose the same, yet where such cessation is the fault of the contractor, and the owner afterwards completes the work provided for in the valid contract, at greater expense than the remainder of the contract price, the lien-holders are not entitled to liens for the full amount due them from the contractor, limited only by the full contract price, less payments made to the contractor, but the aggregate amount of their claims is limited by the rule established in section 1200 of the Code of Civil Procedure, and they are entitled only to a pro rata share thereof.</p> <p>Id. — Evidence—Extent of Liability—Erroneous Ruling—Review upon Appeal.—The exclusion of evidence to show the extent of the liability of the owner, measured by the rule stated in section 1200 of the Code of Civil Procedure, was an error of law; and such error may be reviewed upon a bill of exceptions, upon appeal from the judgment and from an order denying a new trial, and is not affected by the fact that the appeal from the judgment was not taken within sixty days.</p>

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

<p>Ejectment—Patent—Decision of United States Land Department — Conclusiveness — Collateral Attack.—In an action of ejectment based upon a patent from the United States, the final decision of the United States land department, made upon a contest between the plaintiffs and one of the defendants as to the right to the patent, which it had jurisdiction to issue, is as conclusive between the parties as the judgment of a court, and cannot be collaterally assailed by such defendant.</p> <p>Id. — Insufficient Cross-complaint — Evidence not Considered by Secretary of Interior—Action of Clerks.—A cross-complaint by such defendant, alleging that upon the contest between plaintiffs and the defendant as to the right to the patent issued to plaintiffs, the commissioner of the land-office decided in favor of the cross-complainant, and that the cross-complainant is informed and believes that upon appeal by plaintiffs to the Secretary of the Interior, such Secretary did not read the evidence submitted, and that his decision awarding the patent to the plaintiffs was prepared by subordinate clerks, and signed by such Secretary without proper consideration of the case, is insufficient to entitle the cross-complainant to any relief.</p> <p>Id.—Delegation of Judicial Action — Presumption — Pleading — Statements upon Information and Belief.—The judicial action of the officers of the land department, entitled to decide a contest, cannot be delegated; but the law presumes that they have discharged their duties, and this presumption cannot be overcome by loose statements in the cross-complaint, made merely upon information and belie..</p>

<p>APPEAL from a judgment of the Superior Court of Napa County. E. D. Ham, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Estates of Deceased Persons — Accounts of Deceased Administrator— Judgment — Modification upon Appeal — Bes Adjudicata — Jurisdiction. — Where a judgment upon an accounting of the estate of a deceased administrator, with the estate of which he had been administrator, established a certain total sum as due from him to the estate represented by him, including the determined value of certain articles of personal property specified in the-judgment, and the judgment was modified upon appeal by malting such total sum payable out of his estate, the judgment as so modified is a final adjudication of the rights of the parties, and the superior court is without jurisdiction to order the delivery to the estate of the specific articles named in the judgment, or to make any further . judgment or order.</p>

<p>Ejectment—Evidence of Title — Tax Deed — Widening of Dupont Street.—In an action of ejectment, a tax deed for delinquent taxes, under the act of March 23, 1876, for the widening of Dupont Street, is not, of itself, sufficient evidence of title. Such tax deed is not made prima facie evidence of all the steps recited in it, under section 3786 of the Political Code.</p> <p>Id.—Motion to Supply Proof after Submission of Cause—Inadvertence not Shown—Refusal of Motion—Discretion.—A motion for leave to supply proof of the steps leading up to the tax deed, made after submission of the cause, upon the ground of inadvertence, is not sustained, as to such ground, where it appears that plaintiff purposely took the chances of the sufficiency of the deed admitted by the court in proof of his title, after full objection and warning from defendants’ counsel of the necessity of such proof; and the refusal of the motion was not an abuse of discretion, upon the facts appearing in the record.</p> <p>Id.—Insufficiency of Affidavit as to Proof of Steps.—An affidavit upon such motion, that plaintiff “ stood ready to prove the steps leading up to the tax-collector’s deed,” without setting forth what the steps were which he stood ready to prove, and without even stating that they were such as were set forth in the tax deed, is insufficient to show that plaintiff stood ready to prove the steps required by law to be taken.</p>

• Action by William L. Wills against George K. Porter and another (Mary Pierpont and others, interveners). From a judgment in favor of plaintiff and interveners and from an order denying a new trial defendants appeal. Reversed.

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

<p>Trust—Express Trust to Convey Real Property—Invalidity.—An express trust to convey real property to beneficiaries named in the instrument creating the trust, is not lawful, under the statutes of this state, but is forbidden thereby, and is invalid and void.</p> <p>Id.—Purpose of Code Provisions as to Uses and Trusts. — The purpose of the provisions of the Civil Code relating to uses and trusts in real property is to avoid the intricacies of the old system of uses and trusts, and to confine them within very narrow limits, and to exclude all others than those specified in the title on uses and trusts.</p> <p>Id. — Will—Invalid Devise in Trust to Convey—Construction— Estate in Remainder not Created — Absence of Operative Words.—A devise, in a will, to trustees to transfer and convey the real property to beneficiaries named therein, being invalid and void, must be disregarded, and cannot be construed as creating an estate in remainder in the beneficiaries, where there are no other words in the will which, without the aid of the unlawful trust, would devise any estate to the asserted remaindermen. A will cannot be construed as creating a devise without operative words sufficient to create it.</p> <p>Id.—Liberality of Construction of Will—Intention of Testator —Language of Will — Lawfulness of Intention.—The rules that a will is to be liberally construed, to effect the intention of the testator, and that the intention of the testator must prevail, do not dispense with the other rules of construction, that the intention must be found in the language of the will, and that the intention which clearly appears therein in unambiguous language must be lawful, else it cannot be effectuated.</p> <p>Id. — English Statute of Uses Inapplicable — Invalid Trust not Executed. — The English statute of uses is inconsistent with and repugnant to our whole system of conveyancing and registry, and does not operate, in this state, to execute any use or trust. Under our statute of uses and trusts as now in force, no legal estate vests in the beneficiaries; and under any view of the law of this state, an invalid trust to convey cannot be deemed executed.</p> <p>Id.—Powers in Trust to Convey. — Powers in trust to convey are trusts within the meaning of the article of the Civil Code on uses and trusts, and, not being enumerated in that article, are forbidden by its terms. [Temple, J., Harrison, J., and Beatty, C. J., dissenting.]</p> <p>Id. — Vested Estates in Remainder — Rules Inapplicable under Trust to Convey.—The rules applicable to vested estates in remainder, under valid devises, cannot apply where there is no devise, but only a trust to convey, which can vest no present estate whatever in persons of certain classes of beneficiaries named, who . may happen to be alive at the time contemplated for the conveyance, and who can acquire no right other than a contingent right to enforce the execution of the trust to convey.</p> <p>Id. — Invalid Trust to Convey after Death op Children—Trust por Lives op Children Vitiated.—An invalid trust to convey to certain other beneficiaries who should be living at the time of the conveyance, after the expiration of a trust for the lives of his children, for their benefit, vitiates the testator’s scheme for the disposition of'his property, and carries with it the otherwise valid trust for the lives of the testator’s children.</p> <p>Id.—Estate in Fee Intended to be Vested in Trustees. — A devise to trustees, with power to sell and convey, and to apply the income of the estate of the testator for the benefit of his children during their lives, and to transfer and convey the residue of the estate to certahrgrandchildren and other beneficiaries living upon the death of the last surviving child, is intended to create an estate in fee in the trustees, and the quantum of the estate is not measured by the lives of the children.</p> <p>Id.—Legal Effect of Express Intent not to be Varied.—The legal effect of the expressed intent of a testator will not be varied under the guise of correction because the testator misapprehended the law. If an illegal mode of executing the intent is expressly provided, the court has no power to substitute a legal mode not expressed.</p> <p>Id.—Power op'Author op Trust to “Prescribe” Ultimate Ownership1—■ Construction op Code.—The power conferred by section 864 of the Civil Code upon the author of a trust, in its creation, to “prescribe to whom the real property to which the trust relates shall belong in the event of the failure or termination of the trust,” and to “transfer or devise such property subject to the execution of the trust,” cannot be construed as authorizing a void trust to convey to be transformed into "a valid prescription, which is not otherwise expressed in any manner in the trust.</p> <p>Id.—Limit of Favor of Law to Testacy — Ordinary Import of Words. —The favor of the law in the direction of supporting testacy under a will cannot go the length of wresting its words from their ordinary import, and giving them a forced meaning wholly unjustified by anything contained in the instrument.</p> <p>Id.—Tying up Large Estate, and Disinheritance op Children, not •Favored.—The law is not kindly disposed toward the tying up of a vast estate for a long period of years, by a scheme which includes the disinheritance of the testator’s children.</p>

APPEALS from judgments of the Superior Court of the City and County of San Francisco and from orders denying a new trial. Charles W. Slack, Judge. One of the appeals was taken by the trustees appointed under the will of James G. Fair, deceased, and the other was taken in behalf of Herman Oelrichs, Jr., and other minors, claiming as beneficiaries, by Van R. Paterson, guardian ad litem. Further facts are stated in the opinion of the court.

<p>Foreclosure of Mortgage—Non-negotiable Note—Assignment—Defenses against Mortgagee — Notice. — Where promissory notes secured by a mortgage sought to be foreclosed were non-negotiable, and passed by sale and assignment after maturity to the assignors of the plaintiffs, the plaintiffs took them subject to all equities and defenses in favor of the mortgagor against the original mortgagee; and it is immaterial that the plaintiffs and then’ assignors had no notice or knowledge of such equities or defenses.</p> <p>Id.—Mistake in Mortgage—Inadvertence of Scrivener—Findings —Reformation against Assignees.—Where the proofs adduced and the findings made in such foreclosure suit, under the answer and cross-complaint of the defendant mortgagor, establish a mistake in the mortgage, owing to the mistake and inadvertence of the scrivener in including property other than that purchased from the mortgagee by the mortgagor, which was alone agreed by them to be mortgaged, a finding that the plaintiffs and their assignors had no notice or knowledge of the mistake is immaterial; and on the facts found the court should have reformed the mortgage prior to foreclosure, to express the intention of the original parties thereto.</p> <p>Id.—Failure of Consideration—Fraud in Sale of Water Right— Purchase upon Independent Judgment—■ Defense not Sustained. — Where the answer of the mortgagor also pleaded a defense of fraud in the purchase of a water right by the mortgagor from the mortgagee, and a corresponding failure of consideration for the notes and mortgage sued upon, but the evidence and findings established that the corporation mortgagor in entering into the agreement of purchase acted upon its own investigation and judgment by its officers and agents, the defense is not sustained.</p>

APPEALS from judgments of the Superior Court of Sonoma County and from orders denying a new trial. S. K. Dougherty, Judge in case No. 1529. J. M. Hannon, Judge in case No. 1688. The facts are stated in the opinions.

<p>Taxation—Solvent Loans Secured by Exempt Property. — Solvent loans come within the constitutional definition of property subject to taxation, notwithstanding they are secured by pledge of property exempt from taxation.</p> <p>Id. — Omission from Statement—Duty of Assessor.—Where the taxpayer omits to include any taxable property in his statement furnished to the assessor, it is the duty of the assessor to add them to the assessment-roll.</p>

<p>APPEAL from a judgment of the Superior Court of Placer County. J. E. Prewitt, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Parol Contract—Action to Recover Money Paid—Agency op Dependant por Third Person—Written Admission of Plaintiff — Support op Finding. — In an action to recover money paid under an alleged parol contract with the defendant for the sale of land and cattle, the existence of which was denied, where there was proof tending to show that the defendant merely acted as agent for a third person, to plaintiff’s knowledge, besides evidence of a letter written by the plaintiff to such third person, requesting a deed for land stated to have been bought from him, notwithstanding plaintiff’s oral evidence to the contrary, given several years later, a finding that the defendant did not make the contract otherwise than as agent for such third person, to plaintiff’s knowledge, is amply supported by the evidence.</p> <p>Id.—Weight op Testimony — Written Admissions before Controversy— Oral Contradiction—Lapse of Time.—The written admissions of a party, made before any controversy has arisen, as to the meaning and effect of a contract, outweigh his oral testimony given in contradiction thereof, after the controversy has arisen, and the weight to be given to evidence contradicting a written instrument diminishes with its distance from the' date of the instrument which it purports to contradict or overcome.</p>

<p>Vendor and Vendee—Action by Vendee for Accounting and Specific Performance—Findings—Excessive Sum Found Due— Foreclosure—Appeal.—In an action by a vendee of real property in possession, against the vendor, for an accounting and specific performance of the contract of sale, where numerous payments, which were in fact made, and clearly established by the evidence, were not credited in the accounting, and a grossly excessive aggregate sum was found due, without any finding as to the dates of the several payments, and erroneous computations of interest were made, and an erroneous judgment of foreclosure was awarded to the defendant against the plaintiff for the excessive sum, the judgment must be reversed upon appeal.</p> <p>Id.—Payments without Receipts — Settlement—Finding against Evidence. — Where numerous installments were found to be unpaid, for which no receipts were given, and the payments were clearly established by the evidence, and the absence of receipts was accounted for by the fact that the plaintiff was in the habit of making payments without taking receipts, and a settlement was proved by the plaintiff, which was not denied by the defendant, which was inconsistent with such finding, the finding cannot be sustained.</p> <p>Id.—Subsequent Receipts Evidence of Previous Payments — Finding.— Where, by the terms of the contract, a certain number of monthly installments of purchase-money were to be paid in the form of rent, and the court found that all payments, though made in the form of rent after a certain year, were all in fact made upon a note for the residue of the purchase-money, in view of such finding, and of the circumstances of the case, receipts subsequently given and dated must — in the absence of explanation or proof of mistake—be taken as conclusive evidence of the payments of all previous installments.</p> <p>Id.—Insufficient Finding as to Aggregate Amount Paid upon Note —Failure to Specify Dates of Particular Payments.—A finding as to the aggregate amount of payments made upon the note, which bore nine per cent interest, compounding semi-annually, without any finding as to the dates of the several payments, is insufficient to determine the amount due upon the note, or to show upon what theory the aggregate amount found due was obtained.</p> <p>Id. — Erroneous Computation of Interest—Partial Payments.—It was error to charge the full compound interest on the note at the rate specified therein, without applying the partial payments made thereon, and to credit only legal interest upon such payments.</p>

<p>APPEAL from an order of the Superior Court of Alameda County denying a petition for distribution. S. P. Hall, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action upon Claims tos Labor—Oral Assignment—Clear Proof Required — Finding, t- In an action upon numerous claims for labor, alleged to have been assigned to the plaintiff, where the assignment is denied, and the plaintiff relies upon an oral assignment, the proof thereof must be clear, positive, and satisfactory, to justify the court in rendering judgment for the plaintiff; and where the evidence is only slight and vague, the court is justified in finding upon the issue in favor of the defendant.</p>

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

APPEALS from judgments of the Superior Court of Riverside County and from orders denying new trials. J. S. Noyes, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Murder—Change of Venue—Fair and Impartial Trial—Unbiased Jury not Obtainable.—A defendant accused of murder is entitled to a change of the place of trial, where it appears that a fair and impartial trial by an unbiased jury cannot be had in the county in which the homicide occurred, by reason of the coercion of public opinion throughout the county against the defendant, by means of published statements of the facts from witnesses, and published commendations of the deceased and denunciations of the defendant, made in the church pulpits and in newspapers published throughout the county, so that the people of the county were practically unanimous in the opinion that the defendant deserved the punishment of death.</p> <p>Id.—Unbiased Jury Essential to Fair Trial—Newspaper Reports —Discretion—Opinion to be Removed by Evidence.—A fair trial cannot be had, except by an unbiased jury; and jurors who have an opinion that the defendant is guilty, which it would require evidence to remove, are disqualified, no matter what was the source of their knowledge of the facts of the case. The discretion given in applying the test whether newspaper reports preclude the impartiality of a juror, is not intended to deprive the defendant of the right to be tried by a jury which is in fact unprejudiced.</p>

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

<p>Action fob Negligence—Collision of Street-car with Foot-passenger—Evidence Warranting Verdict. — In an action for negligence in causing a street-car to collide with the plaintiff, who was a foot-passenger upon the sidewalk, where the evidence showed that the car was crossing the sidewalk at the car-house at the rate of three miles per hour when the collision occurred, and that no warning or signal was given, and no lookout was kept to avoid a collision, the jury were warranted in concluding that the injury to the plaintiff from the collision was the result of the defendant’s negligence.</p> <p>Id. — Contributory Negligence of Plaintiff—Question for Jury.— It cannot be said, as matter of law, that it was contributory negligence for the plaintiff to cross the track, which ran over the sidewalk into the car-house, under the circumstances in proof; but it was a question for the jury to determine.</p> <p>Id.—Negligence, when a Question of Fact—Absence of Conflicting Evidence—Different Conclusions.—Negligence is a question of fact for the jury, even though there is no conflict in the evidence, if different conclusions upon the subject can rationally be drawn from the evidence. If one sensible and impartial man might decide under the facts that the plaintiff had exercised ordinary care, and another that be had not exercised such care, the question of contributory negligence must be left to the jury.</p> <p>Id.—Refusal of Correct Instruction — Contributory Negligence— Danger Unknown to Defendant—Charge of Court.—The refusal of a correct instruction, requested by the defendant, upon the subject of the contributory negligence of the plaintiff if there was a failure to use ordinary care in looking and listening, and the non-liability of the defendant for the injury if plaintiff was guilty of contributory negligence, and the plaintiff’s danger was actually unknown to the defendant, even, though the defendant was guilty of negligence, is not prejudicial^, where all the elements ojf such instruction were included in the charge given by the court. ‘</p> <p>Id. — Instruction as to Discovery of Plaintiff’s Danger—Neglect to Avoid Accident—Proximate Cause of Injury. — An instruction, that if the defendant’s employees discovered the plaintiff’s danger, notwithstanding plaintiff may have been negligent, in time to have avoided the accident by the exercise of ordinary care, the later negligence of the defendant’s employees, if any, is the proximate cause of the injury, was properly given, where a basis therefor was laid in the cross-examination of a witness for the defendant.</p> <p>Id.—Verdict not Excessive.— A verdict for one thousand dollars damages is not excessive, where it appears that, as the result of the defendant’s negligence, the arm of the plaintiff was broken near the wrist, and was kept in splints for two months, and at the time of the trial, eleven months after the injury, was still weak, and was subject to attacks of rheumatism upon change of the weather.</p>

<p>APPEAL from a decree of the Superior Court of Sonoma County distributing the estate of a deceased person. Albert G. Burnett, Judge.</p> <p>The facts are stated in the opinion of the court in Department One.</p>

<p>APPEAL from an order of the Superior Court of Sacramento County dissolving an injunction. Joseph W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Baileoad Commissioners — Jurisdiction — Street-railways. — The board of railroad commissioners of the state of California have no jurisdiction over street-railways operated in a municipality. [Temple, J., dissenting.]</p> <p>Id. — Construction of Constitution—Street-railway Company, not a “Transportation Company.”—A street-railway company is nota “ transportation company,” within the meaning of section 22 of article XII of the constitution, defining the powers and duties of the board of railroad commissioners, which are intended to be confined to corporations carrying freight and passengers from one portion of the state to another, or from another state into this state, and not to include local street-railways carrying passengers only within' the limits of a city. [Temple, J., dissenting.]</p> <p>Id.—Doubtful Provision of Constitution—Contemporaneous and Continued Construction by Legislature.—Although the legislature cannot authoritatively fix the meaning of the constitution, yet, where the meaning of the constitution is doubtful, the contemporaneous and long-continued construction thereof by the legislature is entitled to the greatest deference, and may be supposed to reflect the same views of policy and modes of reasoning which prevailed among the framers of the constitution.</p>

<p>Action to Quiet Title—Averment of Forged Deed—Defendant’s Claim of Title and Possession—Jury Trial.—Where the plaintiffs are in possession, an action to quiet title, under section 738 of the Code of Civil Procedure, against a defendant who is alleged to claim under a forged deed from plaintiff’s testator, is of an equitable nature; and where it appears that the defendant has never been in possession nor ousted therefrom, the equitable character of the action cannot be overthrown by the defendant’s claim of title and prayer to be let into possession, either by answer or by cross-complaint. The defendant is not entitled to a jury trial of the action by reason of such claim of title and possession.</p> <p>Id. — Cancellation of Forged Deed—Cloud upon Title—Fraudulent Acknowledgment and Record — Equitable Relief.—The cancellation of a forged deed, fraudulently acknowledged and recorded, under which the defendant claims title, and which is prima facie valid, by reason of the fraudulent acknowledgment and record, and operates as a cloud upon the title of the plaintiffs, is clearly of the nature of equitable relief, under section 3412 of the Civil Code; and the issues upon which such relief is based are not triable by jury.</p> <p>Id.—Pleading—Issues—Prayer for General Relief.—Where the facts averred by the plaintiffs entitle them to the cancellation of the deed under which the defendant claims title, and issue is joined upon such facts, such cancellation may be decreed under the prayer for general relief, though not specifically prayed for in the complaint.</p> <p>Id.—Answer to Cross-complaint—Specific Prayer for Cancellation.—Where the defendant, in a cross-complaint, set up title and claimed a right of possession, and the plaintiffs, in answer thereto, set up all the facts, showing forgery of the deed under which the defendant claimed title, and specifically prayed for its cancellation, the defendant cannot claim not to have been informed of plaintiffs’ claim for such cancellation prior to the trial.</p> <p>Id. — Order of Trial—Legal Issues Triable by Jury—Prior Trial of Equitable Issues by Court.—Though the defendant may set up legal title and right of possession in an equitable action, upon which a jury might properly pass, if they were to be reached for trial, yet the defendant cannot, by presenting such legal issues, oust the jurisdiction of the court first to try, without a jury, the equitable issues presented by the plaintiffs, which, if found against the defendant, would destroy the defendant’s claim of title and right of possession, as being based upon a forged instrument, which should be canceled in equity. The defendant cannot complain of the want of a jury trial, where the court finds the equitable issues in favor of the plaintiffs. It is sufficient if a jury be had when the legal issues come to trial. [Per Henshaw, J., concurring.]</p>

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