Volume 133 — California Reports

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

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

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

<p>Criminal Law—Rape—Order Granting Hew Trial—Review upon Appeal. — An order granting a new trial to a defendant convicted of rape will be affirmed upon appeal, if it was properly made on any ground raised in the defendant’s motion.</p> <p>Id. — Charge of Single Act—Proof of a Series of Acts—Main Act not Proved or Selected—Hew Trial. — Where the information charged a single act of rape at a particular date, upon a female under the age of consent, and a series of acts of sexual intercourse between them was proved, without proof of any main act of the date charged, the state should have been required to select the particular act relied upon to sustain the information, and if this was not done, and the court did not direct the jury to any particular act which must be proved to sustain a conviction, and the defendant was convicted, a new trial was properly granted.</p> <p>Id. — Evidence—Prior and Subsequent Acts.—It seems that where rape is charged by sexual intercourse with a female under the age of consent, evidence of acts of sexual intercourse between the parties, both before and after the particular act charged, may be introduced in evidence, as tending to sustain the main allegation. [Per Garoutte, J., and Van Dyke, J. Harrison, J., holding, contra, that evidence of subsequent acts of sexual intercourse was inadmissible, and should have been excluded.]</p>

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

<p>APPEAL from a judgment of the Superior Court of Sacramento County and from orders denying a new trial and denying a motion in arrest of judgment. Joseph W. Hughes, Judge.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Statute op Limitations—Cause of Action upon Note—Loan to Agent to Pay Judgment against Dependant—Knowledge op Dependant—Forgery—Subrogation.—A complaint which alleges that an agent for the defendant, with the defendant’s knowledge, borrowed money from the plaintiff, which was knowingly applied by the defendant to pay a judgment against himself, that the agent signed his own name and that of the defendant to a joint note for the money, which was loaned solely on faith of the defendant’s credit, that the agent was then insolvent, that the note was forged as to the defendant, and that the forgery was discovered within two years, and which sets up the note, and the amount due and unpaid thereon, and prays judgment against the defendant for that amount, and for subrogation to the judgment which was paid with the money loaned, — states a cause of action upon the note, which is not affected, as to the statute of limitations, by the incidental subrogation prayed for, and is barred in four years after the maturity of the note.</p> <p>Id.—Amended Complaint—Change op Cause op Action—Running op Statute. — Where the original complaint showed that a judgment had been rendered in favor of the defendant in a previous action on the note, and set forth a cause of action for damages on account of alleged forgery by an agent of the defendant, and the receipt and application of the money by the defendant with knowledge of all the facts, an amended complaint, omitting the judgment rendered and the claim for damages, and setting up the note, and seeking judgment for the amount alleged to be due thereon, and seeking subrogation to the judgment paid with the money loaned, states a new cause of action upon the note, as to which the statute of limitations continued to run until the filing of the amended complaint.</p> <p>Id. — Alleged Discovery of Forgery — Action not Grounded upon Fraud.—The alleged discovery of the forgery within two years prior to the commencement of the action cannot relieve the plaintiff from the operation of the statute of limitations upon the note. The cause of action set forth in the amended complaint is not for relief on the ground of fraud or mistake; and subdivision 4 of section 338 of the Code of Civil Procedure has no application.</p> <p>Id. — Recovery upon Note—Relative Position of Parties as to • ' Statute of Limitations.—As respects the statute of limitations, the plaintiff in the action to recover upon the note is in no better position because fraud was practiced upon him; and the defendant is in no worse position than he would have been if he had personally signed the note.</p>

<p>Estates op Deceased Pebsons — Claims — Gratuitous Sebvicb—Settlement op Administrator’s Account. — One who has rendered a gratuitous service to the decedent in his lifetime, with no intention to ask or receive any compensation therefor, cannot, after his death, convert such service into a charge against his estate, and a claim therefor should be disallowed, and it is error to include it in the settlement of the accounts of the administrator.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. H. Shinn, Zue G. Peck, M. E. C. Munday, and E. E. Rowell, for Appellant.</p>

<p>Life Insurance Companies — Guaranty Fund—Statute Part of Notes.—The provisions of the act of April 2,1866, relating to the establishment of a guaranty fund for mutual life insurance companies incorporated under that act, requiring such fund to consist of the notes of solvent parties, approved by the board of directors and by each other, and declaring that such notes, or the proceeds thereof, shall remain with the company, and not be withdrawn without substituting another note of equal solvency, nor without the unanimous approval of the board of directors and of all the other parties liable on the rest of the notes, must be considered as if written into each of the guaranty notes, and as giving to each note-maker the right to require their enforcement as to all other note-makers.</p> <p>Id. — Eights of Guarantors — Sureties—Non-liability to Corporation— Unprotected Successor in Interest.—The makers of the guaranty notes are the mere sureties of the corporation and its stockholders for the payment of the company’s debts, and are entitled to stand upon the very letter of their contract. They are liable to unpaid creditors of the corporation, unless discharged by non-compliance with the statute; but they cannot be held liable to the corporation merely, nor to itfe unprotected successor in interest.</p> <p>Id.—Action upon Guaranty Note—Insufficient Complaint.—In an action upon a guaranty note of a mutual life insurance company incorporated under the act of April 2, 1866, brought by the successor in interest of the insurance company, a complaint which does not show that the plaintiff is a protected purchaser of the note, or that he is a creditor of the company, or an assignee of a creditor or creditors thereof, or that any of the requirements of the statute respecting the guaranty fund were complied with, is insufficient to sustain the action.</p> <p>Id.—Findings—Violation of Statute—Discharge of Guarantor.— Where the answer in such action averred numerous departures from and violations of the statute regulating the guaranty fund, and the findings sustained the answer, and showed that numerous guarantors were discharged from liability without the substitution of any note, money, or property, and without the consent of the defendant, the defendant is thereby shown to be discharged from liability, and the action cannot be sustained.</p> <p>Id.—Purchase of Negotiable Guaranty Note at Judicial Sale— Caveat Emptor.—The purchaser of a negotiable guaranty note of a mutual life insurance company of this state, at judicial sale, takes it under the rule of caveat emptor, and holds it subject to all equities existing against it in the hands of the original maker or assignor. Such purchase is not a transfer in due course.</p>

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

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

<p>Corporations — Void Assessment—Action Relating to Stock Sold— Statute of Limitations — Construction of Code. — Section 347 of the Civil Code, and subdivison 2 of section 341 of the Code of Civil Procedure, relating to the limitation of actions to recover stock sold for delinquent assessments in cases of irregularity, have no application to an action relating to stock sold under a void assessment, which the corporation had no power to levy or enforce.</p> <p>Id. — Insufficient Subscription of Stock—Discriminating Assessment.—If one fourth of the capital stock of the corporation has not been subscribed, its directors have no power to levy an assessment ; and an assessment levied upon certain of the shareholders, and not upon others, is invalid.</p> <p>Id.—Remedies of Stockholder—Suit in Equity.—A stockholder wrongfully deprived of his shares under a void assessment may either sue the corporation in trover for the value of the shares, or may apply for a mandamus to the corporation to compel it to open its books and allow the registry, or to pay damages if registry is impossible, or he may sue in equity to vacate the sale, and to have the shares sold ordered to be delivered up and canceled, and for other relief. A court of equity has jurisdiction to give full relief to the stockholder in such case.</p> <p>Id. — Suit in Equity by Pledgee—Assignment of Certificates — Prayer for General Relief.—A pledgee of the stock, to whom the certificates were assigned as security, has the right to maintain a suit in equity against the corporation and the purchasers of the stock at the void sale, and, where the facts alleged warrant it, may, under the prayer for general relief, have the sale vacated, and his rights in the stock, and to any dividends due thereon, enforced.</p> <p>Id.—Capacity of Plaintiff — Untenable Objection.—Neither the corporation nor the purchasers at the void sale can be heard to object that the pledgee plaintiff has not the capacity to maintain the action.</p>

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

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

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

<p>Quieting Title — Finding — Prescriptive Title of Plaintiff — Conflicting Evidence. — In an action to quiet title, based upon a prescriptive title in the plaintiff as against the defendant, a finding in favor of the plaintiff will not be disturbed upon appeal, where the evidence was conflicting, and there is any substantial evidence to support it.</p> <p>Id. — Adverse Possession—Deed from Party in Possession. — An entry under a deed, purporting to convey the title to a tract of land, made by one in possession of the property, is strong evidence of adverse possession, and tends to show a claim adverse to all the world.</p> <p>Id. — Continuous Possession—Constructive Possession under Deed. — Where the land so deeded was used for the ordinary purposes of the occupant for the full period of prescription, and the occupant paid all taxes thereupon, the fact that the fence was sometimes torn down or out of repair does not show that the possession was not continuous; but, in such case, the actual possession of part of the land deeded gave constructive possession of the whole tract described in the deed.</p> <p>Id. — Amendment of Complaint after Submission—Setting aside Submission — Further Evidence. — It was proper for the court to allow the plaintiff to amend the complaint, after the submission of the cause, before the decision thereof, and to set aside the submission, and allow further evidence to be given, in furtherance of justice, and for the purpose of having the case disposed of upon its merits.</p>

<p>Sales — Statute of Frauds — Delivery and Change of Possession — Question for Jury. — Where a sale of personal property is attacked by the creditors of the vendor, the question whether the sale was accompanied by an immediate delivery, and followed by an actual and continued change of possession, is a question of fact for the jury to determine.</p> <p>Id. — Appeal — Support of Verdict—Action of Trial Court.— . Where the trial court, which had the power to set the verdict aside, though the evidence was conflicting, has affirmed the verdict of the jury by denying a new trial, it will not be disturbed' upon appeal from the order, if the verdict has any substantial support in the evidence.</p> <p>Id.—Employment of Vendor after Sale. — The employment of the vendor by the vendee, after the sale, though a suspicious circumstance to be carefully weighed by the jury, is not,conclusive, and may be explained; and where there is independent evidence tending to show an immediate delivery, and actual and continued change of possession, the employment of the vendor by the vendee is not prohibited by law, and a verdict in support of the sale will not be disturbed on that ground.</p> <p>Id.—Demand and Affidavit Served upon Constable—Absence of Issue—Copy — Waiver of Objection.—Where no issue was taken by the answer as to the demand and affidavit alleged in the complaint to have been served upon the constable, and no objection was made when they were offered in evidence, all objection thereto is waived, and it cannot thereafter be urged that the evidence shows that a copy, and not the original affidavit, was served.</p> <p>Id.—Claim and Delivery—Evidence—Value of Stock of Goods Sold—Invoice. —In an action of claim and delivery, a verdict fixing the value of a stock of goods wrongfully taken from plaintiff’s possession is sufficiently supported by uncontradicted evidence of an invoice of the goods, footing up the value, which was made by the plaintiff a few days before the goods were levied upon, and to which no objection was taken when it was introduced.</p> <p>Id.—Damages for Detention—Pleading—Evidence—Support of Verdict.—In an action to recover the possession of personal property, the plaintiff may recover damages for its detention; and where a general averment of such damages in the complaint was not challenged, and the evidence of the plaintiff in relation thereto was not objected to, and the mode of his estimation thereof was not inquired into upon cross-examination, a verdict awarding damages for the detention is sufficently supported.</p>

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

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

from an order refusing to recall and set aside an execution and order of sale. Lucas F. Smith, Judge. The facts are stated in the opinion of the court.

<p>Vrooman Act—Constitutional Law—Delegation of Authority to Contractor.—The contractor for a public improvement, under the Vrooman Act, is only the agent or servant of the city in collecting the assessment, and the delegation of authority given to him for that purpose is not the delegation of a municipal function, in violation of section 18 of article XI of the constitution.</p> <p>Id.—Formation of Assessment District — Proportion of Benefit to Burden—Eminent Domain—Abuse of Power. — Whether the property in an assessment district, formed under the Vrooman Act, will be benefited in proportion to the burden, is for the legislature ; and the formation of an assessment district thereunder is not in violation of the constitution, merely because it may result in taking private property for public use, without compensation, by a corrupt abuse of power, which is not shown to exist in the particular case.</p> <p>Id. — Vrooman Act in Force in Los Angeles — Freeholders’ Charter— Constitutional Amendment.—The provisions of the freeholders’ charter of Los Angeles, adopted in 1889, so far as then conflicting with the Vrooman Act, were annulled thereby; and being void from the beginning, were not reinstated by the amendment to section 6 of article XI of the constitution, adopted in 1896. A constitutional amendment not expressly so providing could not have the effect of enacting laws.</p> <p>Id. — Construction of Sewer—Necessity of Work—Manner of Assessing Costs and Expenses—Resolution of Intention.—The resolution, of intention to construct a sewer need not declare that the contemplated work is necessary; nor need it describe the manner in which the costs and expenses shall be assessed, which are provided therein to be assessed upon the district described.</p> <p>Id.—Discretion of Street Superintendent—Delegation of Authority.—Where there was no delegation of authority to the street superintendent, except what was necessarily involved in his power to determine, in the first instance, whether the contract has been performed, any discretion allowed him, owing to indefiniteness in matters of minute detail in the execution of the work, cannot vitiate the assessment.</p> <p>Id.—Publication of Award of Contract—Time for Privilege of Owners—Letting not Premature.—The time allowed for the privilege of the owners of three fourths of the frontage, within ten . days after the first posting or publication of the notice of award, to elect to do the work, does not require the lapse of one day before the ten days shall begin to run; and a contract let on the 19th of the month, where the first publication of the notice was on the 8th of the same month, was not prematurely let.</p> <p>Id.—Diagram of District.—Where the district itself was described in the resolution of intention, and the diagram of the district required by the act was made in time for the assessment, and to enable property owners to suggest corrections, the fact that the diagram was not made and approved before the work was let and performed does not show a violation of the statute.</p> <p>Id.—Demand by Assignee of Contractor.—An assignee of the contract may demand payment either to himself or on behalf of the contractor; and the taxpayer is not injured by a notice from the owner of the claim to make the.payment to the contractor or to any other person.</p>

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

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

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

<p>Criminal Law—Passing Fictitious Note with Intent to Defraud — Indictment—Note of “ Individual.” —An indictment based upon section 476 of the Penal Code, for knowingly and with intent to defraud a person named, passing to him as true and genuine a fictitious note, “ purporting to be the note of an individual, to wit, Leon McAbee (when in fact there was no such person in existence),” is not fatally defective for not alleging that there was no such “ individual ’ ’ in existence. A person of common understanding would know what is intended by the indictment.</p> <p>Id. — Judgment fob “Forgery”—Protection of Defendant.—The word “forgery,” if improperly used in pronouncing the judgment, cannot mislead the defendant to his injury, or vitiate the judgment, where the indictment, verdict, minutes, and judgment, taken together, show that the charge and conviction were based upon section 476 of the Penal Code, and furnish to the defendant complete protection against another prosecution for the same offense.</p> <p>Id.—Acts Constituting Forgery—Common Law—Penal Code.— The acts set forth in the indictment constitute “forgery” at common law, which is continued in this state, where not repugnant to its statutes. Those acts are classed under “ Forgery and Counterfeiting ” in the Penal Code, and are punished in the same manner as forgery is punished. They may be considered as constituting a species of forgery, where the instrument forged is wholly fictitious.</p> <p>Id.—Proof of Venue. — The venue is sufficiently proved by the testimony of the prosecuting witness, that the passage of the fictitious note and the defrauding of the witness occurred in the county of the venue.</p> <p>Id.—Proof of Non-existence of Fictitious Person—Directory.— Where there was evidence tending to show that no man having the name signed to the note resided in the county, a directory is admissible to show that his name did not occur therein.</p> <p>Id. — Fictitious Note of Male Person—Acknowledgment of Mortgage—Woman of Same Name.—Where the representations made by the defendant, and the certificate of acknowledgment of a mortgage purporting to be given to secure the note, show that the fictitious name signed to the note was that of a male person, the fact that a married woman bearing the same name came to the county after the date of the note — she never having had any property therein—does not tend to show that the note was not fictitious.</p> <p>Id. —Burden of Proof.—In such case, it was not incumbent upon the prosecution to prove that the woman of the same name did not authorize her signature to the note.</p> <p>Id.—Variance—Omissions as to Note in Indictment.—The fact that the indictment omitted to set forth the rate of interest described in the note, and a provision therein in regard to attorney’s fees, does not show a material variance, where the note corresponds with the allegations made in the indictment, so far as described therein.</p> <p>Id. — Jeopardy—Previous Conviction—Uttering op Fictitious Mortgage—Void Indictment—Prohibition at Dependant’s Instance. — Where the defendant applied for and obtained a writ of prohibition to prevent the court from pronouncing a void judgment under an invalid indictment for the uttering of a fictitious mortgage to secure the indebtedness here involved, he cannot rely upon the conviction as a bar to the present indictment. He was not in jeopardy upon a valid indictment for the same offense.</p>

<p>Action to Set Aside Judgment and fob New Trial—Equity Jurisdiction— Showing Required. — Courts of equity have jurisdiction in proper cases, which are not very numerous, to set aside judgments rendered in other actions, and to grant new trials thereof; but it must be made to appear in such cases, with reasonable certainty, that a new trial would result more favorably to the party asking it than the judgment sought to be set aside.</p> <p>Id.—Insufficient Complaint—Judgment against Receiver—Part-^ ners as Co-defendants—Dismissal.—A complaint to set aside a judgment in favor of a corporation, against a receiver of a partnership, upon a contract approved by the court, and to obtain a new trial for alleged errors of law and for insufficiency of evidence, which shows that plaintiff and his partner were made co-defendants, and that the case was dismissed as to them, on their motion, for insufficiency of proof, leaving the receiver to defend the action alone, and which does not show any fraud or collusion between the corporation and the receiver, nor allege any facts showing that the judgment was wrong, or that the result would be different upon another trial, does not state a cause of action.</p> <p>Id.'—Result of Dismissal Binding upon Plaintiff.—The plaintiff, if interested in preventing a judgment against the receiver, had ample opportunity, as a party co-defendant, to defend against such judgment; and if he had himself dismissed as to the action, and relied upon the receiver making a proper defense, he must abide the result.</p>

<p>The facts are stated in the opinion.</p> <p>J. D. Sullivan, for A. C. Freese, Public Administrator, Appellant.</p>

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

<p>Pleading—Admission—Findings.—In an action to recover a balance due on a contract, an allegation of the complaint as to the amount due, which is admitted by the answer, is conclusive, and a finding to the contrary must be disregarded.</p> <p>Id.—Findings Outside of Issues.—In such an action, findings in favor of the defendant, as to various offsets, which are entirely outside of any of the issues raised by the pleadings, must be disregarded, and cannot aid in sustaining a judgment for the defendant.</p> <p>Contract—Damages for Breach.—A contractor for the erection of a building, who has performed all the conditions of the contract, on his part, in good faith, and is prevented by the wrongful acts of the owner from completing it, is entitled to maintain an action for his damages.</p>

<p>Street-improvement—Resolution of Intention — Description of Work. — The resolution of intention to make a street-improvement must intelligibly describe the work to be done in all and each of its material parts; and a failure of description in any material part of the work vitiates the resolution as a whole, and makes void any contract and any assessment based thereon.</p> <p>Id.—Insufficient Description of Curbs and Gutters.—A resolution of intention which, though sufficiently describing the proposed grading and macadamizing of the street, and containing a reference to specifications as to the proposed culverts, macadamizing, and cross-walks, yet neither intelligibly describes nor refers to any description of the materials for the proposed curbs and gutters included in the resolution, is void, and cannot support any contract or assessment.</p> <p>Id.—Actual Description in Specifications not Referred to.—The actual description of the materials for the curbs and gutters, together with a partially detailed description of how they were to be constructed, contained in the specifications for the work, no part of which description was referred to in the resolution of intention, cannot aid the resolution nor render it valid.</p> <p>Id. — Omission of Reference Presumed Intentional.—The resolution of intention, in providing specifically only that the macadamizing, culverts,. and cross-walks shall be constructed in accordance with “the special specifications adopted for said work,” must be presumed to have intentionally omitted any such direction as to the curbs and gutters.</p> <p>Id.—Proceedings in Invitum—Dncertainty.—The proceedings being in invitum, that which is uncertain in description, in the resolution of intention, cannot be held certain.</p>

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

<p>Estates of Deceased Persons—Accounts of Executors—Attorney’s Eees. —Where the court, upon the final settlement of the accounts of three executors, allowed a reasonable sum for the services of attorneys for two of the executors, and also allowed an equal sum for all the services of the attorneys of the third executor, the allowance made to such executor will not be held insufficient upon appeal, by reason merely of the fact that one of three attorneys employed by him rendered special services to him after the other two had been discharged, where it is not found or made to appear in the record that such services were needed by the estate, and were of advantage to the estate, and were not in lieu of the duties imposed upon such executor.</p> <p>Id.—Attorney’s Services to do Work of Executor.—If an executor employs an attorney to do work for him which is included in the services for which he receives a commission, such services should be paid for by the executor himself; and the court ought not to make an allowance therefor.</p> <p>Id. — Jurisdiction of Court—Determination of Reasonableness of Attorney’s Fees. —The court has no power, in the absence of stipulation, to fix an attorney’s fee in an estate; but it can, and must, determine whether a fee charged is a reasonable sum to be charged to the estate on account of legal services rendered to the estate.</p>

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

<p>Building Contract—Invalidity — Failure of Record—Rights of Contractor — Assumpsit—Measure of Recovery — Case Overruled.—A building contract which is invalid for failure of the contractor to record it, and absolutely void as against sub-contractors and material-men, though it cannot be made the basis of recovery by the contractor, yet nevertheless constitutes the measure and test of the right of the contractor to recover in assumpsit. The case of Rebman v. San Gabriel Land and Water Co., 95 Cal. 390, is overruled.</p> <p>Id.—Proof Required from Contractor — Substantial Compliance with Contract—Recovery Limited to Price.—In an action of assumpsit, by the contractor, against the owner of the building, notwithstanding the failure to record the contract, the contractor, in order to recover, must show a substantial compliance with the terms of the contract, and the measure of his recovery must, in any event, be limited by the contract price.</p> <p>Id. — Contract to Lay New Waterproof Floor—Substantial Variance—Finding against Evidence. — Where, by the terms of the contract, as understood by both parties, and as construed against the contractor who drew it, an insufficient, leaky slate floor in the second story of a stable was to be replaced by an entire new floor, put down in deck style, and made waterproof with bitumen, the covering, by the contractor, of one fourth of the old floor with a mere surface floor nailed thereon is a substantial variance. A finding that such contract was complied with is against evidence, and the plaintiff is not entitled to recover.</p> <p>Contracts—Rules of Construction — Uncertainty of Promise — Interpretation against Promisor—Presumption.—If the terms of a promise made in a contract are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it; and the language of the contract is to be interpreted most strongly against the party who caused the uncertainty to exist, and the promisor is presumed to be such party. Such presumption is furthered where it appears that the promisor drew the contract.</p>

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

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

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

<p>Purity of Elections Act—Prescribed Oath Unconstitutional.— The oath prescribed in the Purity of Elections Act (Stats. 1893, p. 15), in so far as required of a successful candidate for office, as a prerequisite of his right to take office, is in violation of section 3 of article XX of the state constitution, making the oath there required exclusive of any other oath, declaration, or test, as a qualification for any office or public trust; and the requirement of the additional or different oath, in such case, is void.</p> <p>Id. — Validity op Other Requirements—Forfeiture of Office.— The legislature has the power to require an elected officer to make the statement prescribed therein, and to provide that for a failure to do so he should forfeit his office or his right to office.</p> <p>Id. — Contest of Election—Statement of Expenditures—Cross-examination— Other Expenditures.—Upon the contest of an election, under the Purity of Elections Law, where the defendant had testified that an item designated as ‘ ‘ Incidentals and Sundries ’ ’ was all for sums, less than five dollars, and that the vouchers had not been preserved, and that no money was paid for hacks or for signs, he cannot be questioned, upon cross-examination, about other alleged illegal expenditures; but such questions could only be asked by making the defendant a witness in chief for the contestant.</p> <p>Id. — Offending Witness not Privileged. — A witness called to prove the illegal giving by the defendant, to the witness, of money received and used by him to aid and secure the defendant’s election, and the illegal expenditure by the defendant of money paid to the witness, and other persons, in excess of the amount which he could lawfully expend, and an illegal promise by defendant to give to the witness the patronage of the office to which he was elected, cannot claim immunity from any questions relating thereto which would tend to criminate or degrade him, the witness being fully protected by the provisions of section 32 of the Purity of Elections Act.</p> <p>Id. — Preliminary Question.—No privilege can be claimed for an answer to a preliminary question which can be answered by “ yes ” or “ no.”</p> <p>Id.—Non-offending Witness.—In so far as the witness himself was non-offending, he could not claim any privilege from testifying to offenses against the Purity of Elections Act committed by the defendant.</p> <p>Id.—Proof of Excess of Expenditures—Receipt of Excess not an Offense. — No law imposes upon the recipient of the candidate’s money the duty of inquiring how much the candidate has expended or proposes to expend to secure his election; and a witness called to prove money paid to himself, which was not of itself excessive in amount, has no claim of privilege to show that the sum so paid, taken in connection with other sums proved, showed an excess of expenditure.</p> <p>Id.—Promise of Patronage—Promisee not an Offender.—A promise of patronage of the office, by a successful candidate, is an offense for which he may forfeit the office; but the promisee is not made by the act an offender, even though he may act upon the promise, and promote the election of the candidate.</p> <p>Id.—Question of Crimination — Immunity — Province of Trial Court.—Both the immunity conferred upon the witness by the act, and the province of the trial court, and not of the witness, to determine to its own satisfaction the question as to whether the evidence sought tends to criminate or degrade him, constitute it error for the trial court to exclude answers upon the naked declaration of the witness that questions asked to prove offenses by the defendant would tend to criminate or degrade the witness. That question cannot be determined in this court for the first time.</p> <p>Id. — Declaration of Attorney in Brief—Concession—Duty of Appellate Court.—A declaration of the attorney for the appellant, in his brief, that the answers to certain questions would show an offense by the witness, within the purview of the act, does not amount to a concession or admission that the witness was entitled to'claim a privilege of immunity from answer; but if it were so, it could not affect the duty of this court to declare the law as it is.</p>

<p>Action—Count upon Note — Findings — Erroneous Judgment for Value of Services. — Where the complaint in an action, in its first count, set forth a promissory note only, and the court found that, by the terms of a contract of employment between the parties, nothing was due upon the, note, a further finding, as to the reasonable value of the services rendered in such employment, was outside of the issues, and it was error to render judgment therefor upon such count.</p> <p>Id. — Count for Services—Aggregate Charge for Several Items — Findings — Segregation of Item.—Upon a second count for services as an attorney in three several matters of litigation, where the complaint made an aggregate charge for the whole, and the court eliminated two of the matters of litigation, as having been included in the special contract of employment set forth under the first count, and allowed no other claim for services under that count than for the first matter of litigation described, it was proper for the court to segregate such item, and to find the value of the services rendered therein.</p> <p>Id. — Accounting of Joint Property—Findings—Judgment. — Where the third count in the complaint set forth that defendant had been in the custody, management, and control of certain wool, sheep, and lambs, the joint property of plaintiff and defendant, and that the defendant had sold some thereof, of a value unknown to plaintiff, and sought an accounting thereof, and the recovery of the value of plaintiff’s share, findings which substantially cover all of the issues joined thereupon, and show the extent of plaintiff’s share in the property, and that a specified sum was due to the plaintiff from the defendant, upon the accounting, as plaintiff’s share of the net proceeds of sales made by the defendant, are sufficient to support a judgment for such sum.</p> <p>Id. — Association of Plaintiff with his Attorney — Harmless Irregularity. — Where the plaintiff was an attorney at law, an order allowing him to be associated with his attorney, as an attorney in the case for himself, if it he an irregularity, is harmless, and not ground of reversal of a judgment for the plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from orders denying a motion for judgment upon the findings and denying a new trial. Frank F. Oster, Judge presiding at request of D. K. Trask, 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 Diego County and from orders denying motions to vacate the judgment and to modify the same. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Action upon Injunction Bond—Damages—Loss of Profits on Contract— Written Contract for Current Season — Continuous Oral Contract — Failure of Proof — Error. — Where a corporation suing upon an injunction bond had been restrained by the injunction from using a machine for heading tin cans, and claimed damages for loss of profits on a written contract with another company for the current year, and on an indefinite oral contract claimed to have continued in the following year while the injunction was pending, and the evidence showed that the season of the current year ended about the time of the issuance of the injunction, and failed to establish the oral contract claimed, it was error for the court to admit, and refuse to strike out, evidence of conversations in support of the oral contract, which referred only to the current season covered by the written contract, and to give instructions on the theory that an indefinite oral contract was established, and not to confine the question of damages to loss of profits, if any, on the written contract.</p> <p>Id.—Damages upon Written Contract not Shown—Delivery — Purchase of Cans. — Where the written contract for the current season did not definitely determine the number of cans required to be furnished thereunder, and there was no complaint of default under the contract, and no evidence that plaintiff did not perform the contract, or that more cans were required of plaintiff than it had manufactured for the current season, by the use of the machine prior to the injunction, the facts that some of the cans so manufactured were delivered subsequent to the injunction, and that other cans were purchased by plaintiff from others to carry out the contract, which do not appear to have been demanded from the plaintiff, are immaterial; and no damages accruing under the contract are established.</p> <p>Id. — Increased Cost of Manufacturing not Clearly Shown. — Damages arising from the increased cost of manufacturing cans without the use of the machine, the use of which was enjoined, are not clearly established, where it appears that the use of the machine was confined to a particular class of cans, which was only a part of the total amount of cans used, and where the evidence was vague and uncertain as to the increased cost of manufacture by reason of disuse of the machine.</p> <p>Id. — Measure op Damages — Reasonable Certainty. — In an action upon an injunction bond, the plaintiff can recover only such direct proximate damages as he can establish with reasonable certainty and accuracy.</p>

<p>Building Contract—Price Less than One Thousand Dollars— Payments to Contractor.—A building contract, where the contract price is less than one thousand dollars, need not be in writing nor recorded, and the provisions of section 1184 of the Code of Civil Procedure, with reference to the retention of twenty-five per cent of the contract price, do not apply. The whole contract price may be paid in advance, or iipon completion of the work, or in such installments as the parties may agree upon, and the installments are subject to change by agreement, both as to time and amount.</p> <p>Id. — Abandonment of Work—Lien of Material-man—Completion of Work — Premature Payment to Contractor. — Where the contractor, in such case, abandoned the work at a time when the whole amount unpaid in the hands of the owner of the building was required to complete the contract, a material-man who subsequently gave notice of his claim of lien is not entitled to enforce it on the alleged ground that a premature payment was made to the contractor. Section 1201 of the Code of Civil Procedure has no application to the case.</p> <p>Id.—Payment for Other Materials in Excess of Contract Price — Plaintiff not Prejudiced. — The plaintiff cannot be prejudiced by the fact that the owner of the building voluntarily paid a bill for other materials, in excess of the contract price.</p>

PETITION for mandamus from the Supreme Court to the County Clerk of San Mateo County to compel execution of a judgment of the Superior Court of San Mateo County. George H. Buck, Judge. The facts are stated in the opinion of the court.

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

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

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

<p>Will—Charitable Bequest to Unincorporated Association—Subsequent Incorporation. —An unincorporated association, formed for a charitable object, composed of certain known members, and governed by a constitution and by-laws, and -having officers chosen to conduct the business affairs of the society and carry out its objects, is capable of taking by bequest; and if, intermediate the death of the testator and the distribution of his estate, the association becomes incorporated, with the same members and for the same object, distribution can be made to the incorporation.</p>

<p>Criminal Law—Embezzlement—Intrusting of Money—Question for Jury—Appeal — Support of Verdict.—Upon a trial upon a charge of the embezzlement of money fraudulently appropriated by the defendant, to whom it had been intrusted by the prosecuting witness for safe-keeping, while the owner slept, the question whether the money was intrusted to the defendant is for the jury to determine, under proper instructions; and their verdict will not be disturbed upon appeal, if the view taken by the jury is a reasonable one, though it is possible to take different views of the evidence.</p> <p>Id.—Place of Keeping Money Immaterial — Theft — Intent to Deprive Owner. — Where it appears that the owner gave up all control of the money to the defendant, while he slept, and that the defendant accepted the trust to safely keep it in the same room until morning, the place where the money was kept was immaterial; and if the defendant violated the agreement, and either stole the money, or connived at its being stolen, with the intent to deprive the owner of it, the defendant was guilty of embezzlement.</p>

<p>County Government Act — Recovery Back of Claim Allowed by Supervisors — ‘‘ Authority of Law.” — Under section 8 of the County Government Act of 1893, a claim allowed by the supervisors, which is paid by the county, cannot be recovered back, unless it was allowed and paid “without authority of law.”</p> <p>Id.—Allowance for Printing Delinquent Tax List—Jurisdiction — Conclusive Adjudication. — The action of the board of supervisors in awarding a contract for the printing of the delinquent tax list, and in allowing a claim therefor, is a conclusive adjudication of a subject-matter within its jurisdiction. In such case, the order of the board constitutes “ authority of law,” and the amount paid thereunder cannot be recovered.</p> <p>Id.—Fraudulent Collusion in Bidding — Exclusive Jurisdiction of Supervisors. —An objection that the bid for printing was excessive by reason of fraudulent collusion or conspiracy in securing the bid, or for any other reason, must be addressed to the board of supervisors, which is the proper tribunal to determine such objection. The board having duly acted in the matter, all defenses that might have been made to the claim before them are precluded, and cannot be urged in an action to recover back the money paid upon their allowance.</p>

<p>Miner’s Lien—Work Done for Agent—Insufficient Finding of Agency. — In an action to enforce a miner’s lien, under section 1183 of the Code of Civil Procedure, for work done in a mine at the instance of an alleged agent of the owner, it is necessary for the plaintiff to allege and prove that the labor was performed at the instance of one who was such agent, within the definition of that term as used in such section; and a finding that the person at whose instance the work was done was in possession of the premises under a contract with the owner, by which he was authorized to occupy and hold possession, and to make improvements and prosecute development-work and prospecting thereon, is not a finding that such person was an agent, within the meaning of that section, nor that he was a contractor, sub-contractor, architect, or builder, nor a person having charge of any mining, or the construction, alteration, addition to, or repair of any building or other improvement.</p> <p>Id. — Knowledge by Owner of Work. — In such an action, where the complaint contains no allegation that any building or other improvement was constructed upon the mining-ground with the knowledge of the owner, a finding that at the time the work was being performed, the owner had full knowledge and notice of the contract between the claimant and his employer, and of all work done thereunder, is outside of the issues, and cannot support a judgment establishing a lien, under section 1192 of the Code of Civil Procedure.</p> <p>Id.—Work Done in Mine—Notice oe Non-responsibility. — Section 1192 of the Code of Civil Procedure, providing that every building or improvement constructed upon lands with the knowledge of the owner, shall he deemed to have been constructed at his instance, and that the interest of the owner shall he subject to a miner’s lien, unless the owner gives notice of his non-responsibility, does not apply to labor done by a miner in a mine.</p> <p>Id. — Work Done under Bond—Knowledge oe Terms by Laborer. —A miner, employed to work in a mine, by a person who had a working bond thereon, with a privilege of purchase, by the terms of which his employer was to do the work at his own cost and expense, and keep the property free from all liens, is not entitled to a lien on the mining property, if he had knowledge of the terms of such working bond; and in an action to enforce a lien for such work, in which the owner sets up such knowledge by the claimant, the exclusion of evidence thereof is error.</p>

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

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

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

<p>The facts are stated in the opinion.</p> <p>William O. Parker, and Henley & Costello, for Appellant.</p>

<p>Ejectment—Location op Section Corner — Support op Finding— Conflicting Evidence. — In an action of ejectment, where the location of a section corner was in dispute, and the evidence was conflicting as to its location, a finding for the plaintiff is fully supported by evidence that the section corner found had been recognized as the true corner for many years by those residing in the neighborhood, including defendant’s predecessor, and that two apparently disinterested surveyors had located it as the true corner, and that objects intended to witness the corner indicated it to be the trué' corner.</p> <p>Id.—Importance op Witnessing Objects. — In establishing a disputed section corner, objects intended to witness the corner, which are referred to in the notes of the original survey as being nearest the corner, are, when satisfactorily established, stronger evidence than objects more remote can be, and are of controlling importance.</p>

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

<p>Building and Loan Association—Mortgage—Foreclosure — Judgment. —In an action by a building and loan association, to foreclose a mortgage made to it by one of its stockholders, which secured a promissory note and installments to become due on the mortgagor’s stock in the association, which stock was also pledged to the association, judgment may be properly rendered for the amount of the principal of the note and the unpaid interest thereon, and for the unpaid installments on the stock, without any deduction of the amount paid by the mortgagor as installments on the stock.</p> <p>Findings — Reference to Paragraphs. — A finding that certain specified paragraphs of the complaint are true is sufficient in form, and is equivalent to a finding that the averments of such paragraphs are true.</p> <p>Judgment — Entry of Amended Judgment.—The court has jurisdiction, after the entry of a judgment which does not conform to its decision, to canse the entry of an amended judgment in conformity therewith, without notice to the judgment debtor.</p>

<p>Execution—Corporate Stock — Priority between Purchaser and Pledgee. — One who purchases at execution sale shares of stock of a corporation, standing on the books of the corporation in the name of the judgment debtor, is entitled to have the certificate of such shares reissued to him as such purchaser, if at the time of the purchase he acts in good faith, and without notice that the outstanding certificate has been assigned or pledged to some person other than the judgment debtor. In order that an assignee or pledgee of a certificate may protect his rights, as against a purchaser at execution sale, he must cause a reissue to him of a certificate, or he must serve notice on the corporation that he holds the certificate as such assignee or pledgee.</p> <p>Id. — Execution Sale, how Conducted — Possession of Certificate not Essential. — Under section 688 of the Code of Civil Procedure, providing that shares in any corporation may be attached on execution in like manner as upon writs of attachment, and section 542, subdivision 4, of the same code, it is not essential to the validity of an execution sale of shares of a corporation that the sheriff should have manual possession of the certificate at' the time of the sale, nor that he should deliver the certificate to the purchaser; and if, at the time of the sale, the certificate is in the hands of a pledgee, of which fact the purchaser in good faith had no notice, the pledgee may be compelled to surrender the certificate for reissue to the purchaser. Such procedure is applicable to execution sales under judgments of justices’ courts.</p>

<p>Justice’s Court—Taking Case under Advisement.—Under section 892 of the Code of Civil Procedure, providing that when a trial is had by the justice’s court, judgment must be rendered at the close of the trial, the justice is not prohibited at the conclusion of the trial from taking- the case under advisement and afterwards rendering judgment. A judgment so rendered, even after the lapse of several months, is valid.</p>

MOTIONS in the Supreme Court to dismiss appeals from orders of the Superior Court of the City and County of San Francisco refusing to revoke the probate of a will. James M. Troutt, Judge. The facts are stated in the opinion of the court.

<p>Hobticultubal Act—Lien fob Destboying Insects — Constitutional Law. — The act of March 3, 1897, entitled “ An act to promote the horticultural interests of the state, by providing county boards of horticulture,” etc. (Stats. 1897, p. 244), and giving a lien on the land" of the owner for destroying certain scale and other insects found upon his trees, is constitutional.</p> <p>Ld.—Pleading—Notice to Desteoy Insects — Agency fob Ownee.— The complaint in an action to enforce the lien given by such statute, which alleges that the board caused a notice to be served upon a designated person, “in charge of and in possession of said premises and orchard for the defendant, as his agent, requiring said defendant and agent to eradicate or destroy the said scale and insects so found upon said trees, within ten days after the service of said notice,” shows a sufficient service of the notice, and that the person served was the person in charge of and in possession of the premises, within the meaning of said act.</p> <p>Id.—When Right to Lien Accedes.—The right of the county to a lien for the expense incurred by the board of commissioners in destroying the scale accrues to it at the time it pays the amount, and not at the time the labor of destroying is performed; and the county has thirty days after such payment in which to file its notice of lien.</p> <p>Id. — Notice of Lien—Surplusage. — The notice of lien, signed and verified by the members of the board of commissioners, stating that the county claimed a lien for the amount of the expense, and containing a description of the premises, the name of the owner, the amount claimed, that it is for labor bestowed and materials furnished in eradicating the insects upon the orchard of the defendant, is sufficient, and is not vitiated by the fact that it also states that the county claimed the benefit of the law relative to liens of mechanics and others upon real property.</p> <p>Id. — Prayer for Personal Judgment.—The complaint to enforce such lien is not affected by the fact that it also prays for a personal judgment against the defendant.</p>

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

<p>Mandamus to Auditor — Transcription of Reporter’s Notes—Preliminary Examination — Discharge of Defendant — Order of Justice. — The provision of the Penal Code for the transcription of the notes of a reporter, taken at a preliminary examination, is confined to the case where the defendant is “held to answer to the charge,” and mandamus'will not lie to compel the auditor to draw his warrant for such transcription, where the accused was discharged. The order of the examining magistrate, in such case, for the transcription, is unauthorized, and cannot make the state or county liable therefor.</p> <p>Id. — Duty of Magistrate to Indorse Order of Discharge — “Depositions”—Transcription of Notes Unnecessary. — The duty imposed upon the magistrate to indorse the order of discharge upon the “ depositions ” does not indicate that the reporter’s notes must be transcribed; but the term “depositions” applies to the testimony taken when the complaint was first presented to the magistrate before, issuing the warrant, as well as to the testimony of witnesses taken upon the examination of the accused. Where the accused is discharged, the magistrate may properly indorse the order upon the former “ depositions,” without the necessity of any transcription of the reporter’s notes taken at the examination.</p>

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

<p>The facts are stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, Dunn & Crutcher, and George P. Adams, for Appellant.</p> <p>“ In a proceeding prosecuted by the state, of the character here inaugurated, it is sufficient to allege the ultimate fact,— namely, that the defendants are exercising the franchise without authority of law.”' (People v. Reclamation District, 121 Cal. 522; People v. Cooper, 139 Ill. 461; People v. Clayton, 4 Utah, 421; State v. Dahl, 65 Wis. 510; People v. Peoria, 166 Ill. 517.) The burden of proof and of allegation is upon the defendant, to show a full compliance with the law. (Lawson’s Rights, Remedies, and Practice, sec. 4045; People v. Clayton, 4 Utah, 421; Flynn v. Abbott, 16 Cal. 359; High on Extraordinary Remedies, sec. 713; People v. Peoria, 166 Ill. 517.) No board or tribunal can obtain jurisdiction by its own recital that it has jurisdiction. (In re Madera Irrigation District, 92 Cal. 299;1 Kahn v. Board of Supervisors, 79 Cal. 400; Lent v. Tillson, 72 Cal. 422; People v. Peoria, 166 Ill. 517; Commissioners v. Griffin, 134 Ill. 330; Kump v. People, 141 Ill. 9;1 Carrico v. People, 123 Ill. 198.) Proceedings for the annexation of territory must strictly comply with the requirements of the statute. (Peru v. Bearss, 55 Ind. 576; Windman v. Vincennes, 58 Ind. 484.)</p>

<p>The facts are .stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, and John E. Raker, ex-District Attorney, for Appellant.</p>

The facts are stated in the opinion of the court. B. A. Herrington, and George W. Waldorf, for Petitioner. Habeas corpus is the proper remedy to enforce the guaranty of the constitution for a speedy trial.

MOTION to dismiss an appeal from a judgment of the Superior Court of Contra Costa County. William S. Wells, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Change ot Place op Tbial — Filing Notice and Undertaking— Dismissal.—Under sections 940 and 941 of the Code of Civil Procedure, the notice of appeal from an order changing the place of trial to another comity, and the undertaking on appeal, must each be filed in the office of the clerk of the superior court of ■ the county which made the order; if filed with the clerk of the county to. which the transfer was made, the appeal is ineffectual, and will be dismissed.</p>

<p>Receiver—Prohibition—Appeal — Jurisdiction—Adequate Remedy at Law. — Since the amendment in 1897 (Stats. 1897, p. 56) to section 939 of the Code of Civil Procedure, allowing an appeal from an order appointing a receiver, and the amendment, at the saíne time, of section 943, providing for the staying of the order by an undertaking on appeal, a writ of prohibition will not lie to arrest pro- • ceedings under such an order, as the party aggrieved has “a plain, speedy, and adequate remedy in the ordinary course of law,” within the meaning of section 1103 of that code, notwithstanding a question of jurisdiction is involved in the application for the writ.</p>

<p>The facts are stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, Lewis F. Byington, District Attorney, and I. Harris, Assistant District Attorney, for Appellant.</p>

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

<p>Building Contract—Bond Accompanying Contract—Liability of Owner — Constitutional Law.—The provision of section 1203 of the Code of Civil Procedure, requiring a building contract to be accompanied by a good and sufficient bond in an amount equal to at least twenty-five per cent of the contract price, for the benefit of any and all persons who perform labor or furnish materials to the contractor, and providing that a failure to comply with such requirement shall render “ the owner and contractor jointly and severally liable in damages to any and all material-men, laborers, and subcontractors entitled to liens upon property affected by said contract, ’ ’ places an unreasonable restraint upon the owner of property, in regard to the use thereof, and also an unreasonable and unnecessary restriction upon his power to make contracts, and is, as to such owner, in contravention with the provisions of section 1, article I, of the state constitution, and the fourteenth amendment to the constitution of the United States.</p> <p>Id.—Regulation of Police Power. — Such provision cannot be sustained as a regulation within the police power, as it is not calculated, nor was it intended, to conserve the safety, health, or general welfare of the community.</p>

<p>Judgment—Fraudulent Collusion—False Return of Summons — Appeal — Law of Case — Different Facts upon Second Appeal. — The decision, upon a former appeal, that a complaint, averring fraudulent collusion in obtaining a judgment between the plaintiff, who sought it, and the sheriff, whereby the latter made a false return of service of summons upon the defendant corporation, showed that the judgment was fraudulent and void, and subject to collateral attack by strangers whose rights were thereby affected, is not the law of the case upon a second appeal, upon which there is a finding against the existence of the alleged fraudulent collusion, and upon which the plaintiff appears to have no right to impeach the judgment.</p> <p>Id.—Jurisdiction of Person of Defendant — Presumption as to Courts of Record. — As a general rule, with a few exceptions, jurisdiction of the person of the defendant in a court of record is to be conclusively presumed, if the contrary does not appear from the record.</p> <p>Id. — Return of Service of Summons — Absence of Collusion — Jurisdiction—Adjudication of Service. — Where no fraudulent collusion appears, the return of the service of summons upon the defendant by the proper officer gives the court jurisdiction of his person, and to inquire and determine whether in fact the summons has been served upon the defendant, and its judgment against the defendant is an adjudication of such service, which, in general, can only be avoided in a direct proceeding. .</p> <p>Id. — Avoidance of Judgment by Strangers — Collateral Attack upon Jurisdiction of Person — Date of Interest. — Strangers cannot avoid a judgment not rendered void by fraudulent collusion, for want of jurisdiction of the person of the defendant, unless rights existing in their favor at the date of the judgment are injuriously affected thereby, nor unless the want of such jurisdiction appears upon the face of the record.</p> <p>Id. — Collateral Attack by Redemptioner upon Judgment of Prior Redemptioner—Irregular Service of Summons.—A redemptioner of property sold under execution, whose judgment was rendered subsequently to that of a prior redemptioner, cannot collaterally attack the judgment of the prior redemptioner on the mere ground that the sheriff’s return of the service of summons upon the corporation defendant stated that the person served was managing agent of the corporation, when he was not such in fact, in the absence of any proof of fraudulent collusion.</p> <p>Id. — Fraud upon Corporation not Impeachable by Person not Injured. — Even if there had been any fraud against the corporation defendant in rendering the prior judgment against it by default, the subsequent redemptioner, not having been injured by the judgment, is not entitled to impeach it collaterally.</p>

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

<p>Eminent Domain—Denial of Necessity—Evidence—Pleading.— In an action by a city to condemn .a strip of land for a sewer, the defendant, under the general denial of the necessity to construct the sewer over the proposed line as alleged in the complaint, may give evidence to show that' the sewer could as readily be located along a designated street of the city; but if such defense be specifically pleaded in the answer, it is not error to allow the answer to stand as against a demurrer.</p> <p>Id. — Question of Fact—Instruction.—In such an action, the question of the necessity of the condemnation is one of fact, to be determined by the jury, in view of all the evidence in the case; and where there is evidence directly in support of such issue, an instruction to the jury to find thereon in favor of the defendant, is a charge with respect to matters of fact, within the meaning of the prohibition contained in section 19 of article VI of the constitution.</p>

<p>Mobtqaqe—Time fob Redemption—Constitutional Law.—The statute in force at the time of the execution of a mortgage, fixing the period within which the mortgagor might redeem from the foreclosure sale, forms a part of the mortgage contract, and gives rise to one of the obligations thereof; and a subsequent statute, e'nacted prior to the foreclosure sale, which extends the period of redemption, impairs the obligation of such contract, and is, as to a purchaser at such - sale, unconstitutional. And this result follows, whether the purchaser be the mortgagee or a third person, or whether the sum bid be greater or less than the mortgage indebtedness.</p>

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

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

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

<p>Summons—Foreclosure of Mortgage — Direction to Defendant.— Under section 407 of the Code of Civil Procedure, as amended in 1897, the notice to the defendant in the summons in an action to foreclose a mortgage need not be in the alternative; a notice that upon his failure to appear and answer, “the plaintiff will apply to the court for the relief demanded in the complaint,” is sufficient.</p> <p>Practice — Guardian ad Litem—Notice to Ward.—It is not necessary to the appointment of a guardian ad litem of an insane defendant, that prior notice of the application for the appointment should be served upon either the insane person or his attorneys.</p> <p>Id. — Notice of Trial—Waiver by Guardian.—A guardian ad litem has power to waive the five-days’ notice of the setting of a case for trial, required by section 594 of the Code of Civil Procedure, as amended in 1899; and such waiver is had, if the guardian, on the day set for the trial, appears in court and objects to the proceeding, and the court thereupon, without further objection from him, continues the trial for three days.</p>

<p>Estates of Deceased Persons—Interest of Devisee—Decree of Distribution.—The interest in property devised, of either a devisee or his successor in interest, is to be determined by the decree of distribution.</p> <p>Id.—Trust during Minority—Bight to Income. — Where a decree of distribution distributes real property to a person as trustee for her four children, and, “ as such trustee, to have and to hold said property, and the whole thereof, and to manage the same, until the youngest of said' children shall have attained his majority, at which event said property shall vest absolutely in said four children,” the legal title to the land vests in the trustee, and, there being no provision as to incomes, carried with it the right to the rents and profits until the termination of the trust estate.</p>

<p>Estates oe Deceased Persons—Pledge by Executor — Money Borrowed to Pay Debts. — An executor has no authority to pledge the personal property of the estate as security for money borrowed by him for the purpose of paying debts against the estate. If he does so, he may recover the property pledged, in an action of replevin, and the pledgee has no lien thereon, even to the extent to which the money borrowed was used to pay the debts of the estate.</p>

<p>Common Carrier—Railroad — Delivery beyond Terminus. — A railroad company, as a common carrier, may contract to carry freight beyond the terminus of its own line of road, thereby making connecting lines its agents for that purpose; and if it agreed to make delivery to a named consignee, at a place beyond its terminus, a delivery to another person is a breach of its contract.</p> <p>Id. — Construction of Contract. — The contract of carriage in this case was as follows: “California Southern Railroad Co. Bill of Lading. Los Angeles, Cala., May 6th, 1887. Received from Ger-main Fruit Co., the following described packages, in apparent good order, . . . consigned as marked and numbered in the margin, to be transported over the line of this road to the company’s freight station as designated below, and delivered in like good order to the consignee, ... at said station, or to such company or carriers (if the same are destined to a point beyond said station) whose line may be considered a part of the route, to the place of destination of said goods or packages, it being distinctly understood that the responsibility of this company as a common carrier shall cease at the station where delivered to such person or carrier; the company being liable as warehousemen only; but it guarantees, upon the conditions expressed herein, . . . that the rate of freight for the transportation of said packages from the place of shipment to Chicago shall not exceed $1.15 per cwt. and charges advanced by this company.” Held,, that the contract was one of carriage from Los Angeles to Chicago, and that the connecting lines beyond the defendant's terminus were its agents for that purpose.</p>

<p>Estate of Deceased Person—Conflict of Jurisdiction—General and Special Administration. — The superior court of a particular county, in taking jurisdiction over the administration of the estate of a deceased person for the purposes of appointing a special administrator, does not thereby secure jurisdiction over the estate for the purposes of appointing a general administrator; and if, subsequently, the superior court of another county first acquires jurisdiction of the estate for purposes of general administration, the other court should give way, and hold the proceedings before it in abeyance, until the question of the conflict of jurisdiction between them is settled by the judgment of the court first acquiring jurisdiction of the general administration.</p>

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

<p>Action fob Possession of Personal Property—Affixing House to Land of Third Person.—An action will not lie to recover possession of a house which had been wrongfully removed by the defendant, but which at the time of the commencement of the action was affixed to the land of a third person, and in such third person’s possession.</p> <p>Ib. — Occupancy by Defendant. — The fact that at the time of the commencement of the action the house was occupied by the defendant did not give him the possession thereof necessary to sustain such action.</p> <p>Id. — Possession by Defendant.—An action to recover possession of personal property will not lie if at the time the action is commenced the defendant has not the possession, or the power to deliver it in satisfaction of the judgment for its possession.</p>

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

<p>Guardian and Ward—Account—Designation of Proceeding.—An account by a guardian, rendered after Ms resignation, and covering a period of upwards of eight years, and which otherwise shows that it was intended as a final account, and which was settled as such, will be given the effect of such an account, as against one who appeared in the proceedings for the settlement, notwithstanding it was erroneously entitled an annual account.</p> <p>Id. — Commingling of Funds — Interest.—A guardian who mingles the funds of the ward with his own, and uses them in his business, is liable, in the absence of a showing that a larger profit was realized therefrom, to legal interest thereon, compounded annually.</p> <p>Id. — Evidence—Finding—Appeal. —In the absence of the evidence, a finding, on a contest on the settlement of a guardian’s account, that all the items thereof, as presented, are true and correct, must be taken as conclusive on appeal.</p>

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

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

<p>Summons—Service by Publication—Time to Answer—Default.— Under section 413 of the Code of Civil Procedure, a publication of summons against a defendant residing out of the state must be made at least once a week for a period extending over at least two full calendar months. It is not necessary that two full calendar months should intervene between the first and last publication; but it is necessary that the summons be published once each week for those two months, and that from the day of the first publication two calendar months should intervene before the service of the summons is complete. After the completion of such service, thirty days must elapse before a judgment by default can be taken against the defendant.</p>

APPEALS from a decree settling the final account of an executor and from a decree distributing the estate of a deceased person. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

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

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

<p>The facts are stated in the opinion of the court.</p> <p>E. L. Campbell, and J. S. Spilman, for William H. Birch & Co., Appellants.</p> <p>Reddy, Campbell & Metson, for Yukon and Northwestern Dredging and Transportation Company, Appellant.</p>

<p>Claim and Delivery—Judgment for Defendant—Immaterial Omission in Findings—Right of Possession at Time of Suit.—Where the judgment in an action of claim and delivery is for the defendant, for a stipulated sum, the omission to make a finding as to the right of possession at the time of the commencement of the action is immaterial.</p> <p>Id. — Attachments in Justice’s Court—Affidavits—Docket of Justice— Secondary Evidence—Support of Finding.—Affidavits for attachments in a justice’s court are not required to be noted in the docket of the justice; and where they are lost, secondary evidence of their existence and contents is sufficient to support a finding based thereon.</p> <p>Id. — Sale in Fraud of Creditors—Sufficiency of Evidence.—A sale in fraud of creditors is sufficiently established by evidence that the debtor was insolvent, and gave a bill of sale to keep his creditors from attaching his property, and that plaintiff then knew that he was insolvent, and that the notes upon which the property was attached, though given subsequently to the bill of sale, were on account of a previous long-existing debt.</p> <p>Id.—Fraudulent Sale Void as to Subsequent Creditors. — Where actual fraud is established, the sale is void as to subsequent creditors, as well as to prior creditors.</p> <p>Id.—Declarations of Debtor after Fraudulent Transfer—Admissibility—Order Striking Out. — Where the transfer of personal property is merely colorable, with no visible change of possession or control, and there is satisfactory proof of conspiracy to defraud the creditors of the vendor, his declarations, made subsequent as well as prior to the transfer, are admissible to establish the fraud; but where, before the submission of the cau^e, all declarations made by the vendor after the sale were ordered stricken out, the vendee cannot be prejudiced by their admission.</p>

<p>Deeds Procured by Fraud and Undue Influence—Constructive Trust—Equity Jurisdiction. — Where deeds are established to have been procured by fraud and undue influence, in pursuance of a conspiracy between an elder brother and his grantee to defraud a younger brother, whose mental capacity was weak, and who was incompetent to transact business, a constructive trust arose upon their execution, and a court of equity has jurisdiction to annul the deeds, and to compel a reconveyance of the property, upon equitable terms.</p> <p>Id. — Rescission not an Exclusive Remedy for Fraud—Reconveyance from Fraudulent Grantee—Pleading.—Rescission is not an exclusive remedy in cases of fraud; and where property is obtained by fraud, a court of equity may convert a fraudulent grantee into a trustee, and direct a reconveyance from him, upon terms appropriate to the case, when justified by the facts alleged in the complaint, and by the prayer for general relief.</p> <p>Id. — Scope of Power of Cancellation — Failure to Rescind—Payment to Irresponsible Person—Encumbrance of Property by Grantee.—The power of a court of equity to cancel a contract for fraud is of wider scope than that of rescission to be effected by the acts of the parties. Although its exercise may be refused in certain cases, for failure of the injured party to avail himself of the right to rescind, yet it will not be so refused where the injured party is unable to pay back money received, as the anticipated result of its payment to him as an irresponsible person, who was deterred by .the same influences which defrauded him from seeking relief therefrom, and where the property had been encumbered by the grantee with valid mortgages in excess of the payments received, so that nothing was to be returned to the grantee.</p> <p>Id. — Recovery of Possession of Note of Fraudulent Grantee — Deed not Ratified. — The recovery, by the wife of the defrauded party, as his successor in interest, of the possession of a note given by the fraudulent grantee in consideration of the fraudulent deed, of which note such grantee had wrongfully obtained the possession, cannot be regarded as a ratification of the fraudulent deed, where it appears that at that time the property had been heavily encumbered by the fraudulent grantee. The wife was entitled, for her security, to the possession of the note, until she should obtain the equitable relief due to her, as successor of her defrauded husband.</p> <p>Id.—Fraud nr Deed of Interest in Estate—Decree of Distribution not Conclusive of Equities. — Where the fraud committed by the grantee was in the obtaining of a deed of the interest of the grantor in the estate of a deceased person, the decree of distribution of the estate to the fraudulent grantee, as successor of the defrauded party, is not conclusive of the equities between the parties, or of the constructive trust raised by the fraud, where such matter was not actually litigated in the matter of the estate; and, it seems, it was not a proper subject of consideration therein.</p> <p>Id. — Order of Defrauded Party for Distribution to Grantee— Taint of Fraud.—An order of the defrauded party for distribution of the estate to the fraudulent grantee, which was tainted with the same fraud as the original deed, can add nothing to the force of the deed.</p>

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

<p>Mortgage—Interest of Daughter—Gift by Father—Review upon Appeal — Support of Finding — Conflicting Evidence. — Where a father furnished money for an interest in a mortgage, which was taken in the name of his daughter, a finding, upon substantially conflicting evidence, that the money paid and the interest in the mortgage was a gift by the father to the daughter, will not be disturbed upon appeal.</p> <p>Id. — Parent and Child — Presumption of Gift—Trust not Implied. —In view of the relation of parent and child, the fact that the note and mortgage were taken in the-name of the daughter is prima facie evidence and raises a presumption that her father intended to make her a gift or advancement thereof; and there is no implication of a trust in favor of the parent.</p> <p>Id. — Custody of Joint Mortgage by Father—Title of Daughter not Affected. — The fact that the father continued to hold the manual custody of the note and mortgage, which were made payable to the daughter and another mortgagee, the interest of each of whom was separately defined in the mortgage, cannot affect the title and right of control vested in the daughter to her portion thereof by the gift, which was perfected when the money representing her interest was loaned by the father to the mortgagor, and the note and mortgage were taken in the name of the daughter, with the intention of the father to make a gift to her of her interest therein.</p> <p>Id. — Evidence — Repetition of Answered Question. — It was not erroneous to sustain an objection to a question which was a mere repetition of one which had already been asked and answered.</p> <p>Id.—Deeds to Other Children—Cross-examination. — Where a witness for the father had testified on his direct examination that he drew up the note and mortgage taken in the name of the daughter, and that he had before that drawn up deeds to another daughter, and to a granddaughter, such deeds, and a letter in relation thereto, when identified by the witness upon cross-examination, were properly admitted in evidence.</p>

PETITION in the Supreme Court for a writ of mandate to the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. The facts are stated in the opinion of the court.

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

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

<p>Mining Claims—Location — Posting op Notices — Non-compliance with Local Rule—Forfeiture not Expressed.—In the location of a mining claim, the posting of only one notice of location, instead of two notices, as required by a local mining rule, cannot work a forfeiture of the location, when not expressly so declared in the mining rule.</p> <p>Id.—Annual Work—Resumption op Work—Prevention of Forfeiture— Invalid Relocation. — Without deciding whether the removal of water from a mine for the purpose of examining it with a view to sale can be considered as part of annual work, within the purview of the statute, where it appears that, after an affidavit of annual labor was filed December 27th, work was resumed in good faith before the end of the year, and was thereafter continuous, exclusive of Sundays, until the requisite amount of annual work was done, exclusive of the removal of the water, such resumption prevented a forfeiture; and a relocation made early Sunday morning, January 1st, was invalid, and conferred no right.</p> <p>Id. — Liberal Construction against Forfeiture of Mining Claim— Good Faith op Possessor.—Where a mining claim has been located, and work has been done thereon in good faith, and possession maintained without abandonment, the law should be liberally construed against a forfeiture thereof.' Forfeitures of this class are deemed odious in law, and the courts are reluctant to enforce them. Id. — Burden of Proof. — The burden of proof is upon the party alleging forfeiture of a mining claim for failure to, do annual work, to establish it upon clear and convincing proof of such failure.</p>

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

<p>Marriage nr Another State — Law not Proved — Validity under California Law — Presumption. — Where a marriage was solemnized. by a justice of the peace in another state, in the absence of proof of the law authorizing such solemnization, the question of the validity of the marriage must be determined by the laws of this state. It must be presumed, in such case, that the laws of such other state were the same as the laws of this state at the date of the marriage.</p> <p>Id. — Consent Followed by Assumption of Marital Rights and Duties. — Where the evidence shows a consent to marriage, followed by a mutual assumption of marital rights and duties or obligations, and the cohabitation of the parties as husband and wife,, or mutual consent to and subsequent consummation of marriage in pursuance of sections 55 and 57 of the Civil Code as they stood at the date of the marriage, the validity of the marriage is thereby established.</p> <p>Id. — Amendments of Code not Retroactive. — The amendments of 1895 to sections 55 and 68 of the Civil Code are not retroactive, and cannot apply to a prior marriage.</p> <p>Id. — Unlawful Second Marriage — Presumption. — Where a deceased husband left his first wife in another state, and came to this state, in the absence of any proof or repute of her death, there is no presumption that he believed her dead after an absence of five years on his part, but the presumption is to the contrary; and a secon'd marriage by him, in this state, without any prior divorce or annulment of the former marriage, is unlawful.</p> <p>Id. — Estate of Deceased Husband—Distribution to Widow. — A deceased husband can leave but one widow; and where his estate is of less value than fifteen hundred dollars, it was the duty of the court to distribute the whole amount thereof to his lawful widow, to the exclusion of one claiming under an invalid second marriage. Id. — Effect of Order of Distribution—Outstanding Title. — The order of distribution- only sets apart the title and interest of the deceased, which may not be perfect, and cannot affect an outstanding title in the hands of a third person.</p> <p>Id. — Action by Administrator to Set Aside Deed—Distribution Subject to Pending Suit. — The pendency of an action by the administrator to set aside a deed from the deceased husband to the woman to whom he was unlawfully married cannot destroy the jurisdiction of the court to distribute the estate of the husband to his -widow subject to the pending suit.</p>

<p>Eminent Domain — Action by City — Disqualification of Judge — Ownership of Taxable Property. — The ownership of taxable property in a city, by the judge before whom an action is brought by the city to condemn land therein, and a possible future change in the rate of taxation in the city as the result of the condemnation, is too remote and indistinct to disqualify the judge from trying the case.</p> <p>Id. —Alleged Value of Lands—Excess over Verdict—Possible Issuance of Municipal Bonds.—The qualification of the judge to try the case is not affected by the defendants’ alleged great value of the land which was sought to be condemned by the city, in excess of the value found by jury, and the possible necessary issuance of municipal bonds, if the alleged value had been established.</p> <p>Id.—Action by Taxpayer Distinguished.—In an action by a taxpayer, directly involving the validity of a tax or burden of taxation, which affects the land of the judge, his interest is direct, immediate, and precise; but it is otherwise in an action by the city to condemn land.</p> <p>Id. — Power of Judge to Sue or Defend.—A judge who is a taxpayer has such a direct interest in a cause of action by a taxpayer to determine the validity of a tax or burden of taxation, that he might himself bring such action, or intervene in the action as a taxpayer. But, having no direct interest as a taxpayer in a cause of action by a city to condemn land, he can neither bring nor defend such action. [Per Beatty, G. J., concurring.]</p> <p>Id.—Final Judgment op Condemnation—Deposit of Money—Order of Court for Payment. — The final judgment of condemnation is not erroneous, where the money value determined by the jury was deposited with the clerk within proper time, and, upon refusal of the plaintiff to receive it, was deposited by the clerk with the treasurer, to be held subject to the order of the court', pursuant to section - 2104 of the Code of Civil Procedure, and by the terms of the final judgment was ordered to be paid forthwith by the treasurer to the defendants.</p>

<p>Sake-deposit — Bailment for Hire — Responsibility ok Bailee. — The relation between one who rents a safe, and the savings bank from which it is rented, and which carries on a safe-deposit business, is that of bailor and bailee. The bank is a depositary for hire, and is responsible for ordinary care in the safeguarding and preservation of the bailor’s property, if such responsibility has not been waived by special agreement.</p> <p>Id. — Special Agreement — Diligence against Admission ok Unauthorized Person—Construction — Non-waiver ok Bailee’s Liability.—A special agreement, that the lessor of the safe "shall use diligence that no unauthorized person shall be admitted to any rented safe, and beyond this the lessor shall not be responsible for the contents of any safe rented from it,” is not to be construed as referring merely to an unauthorized person gaining admission to the safe in the ordinary course of business, but as only intended to fix the degree of care to be used in identifying parties claiming to be its customers. Such agreement does not constitute a waiver of the liability for diligence imposed by law upon the bailee for hire, in safeguarding valuable property from thieves, whether without or within, and in employing and supervising fit men to guard the property.</p> <p>Id. — Loss ok Money on Deposit — Recovery krom Bailee—Burden ok Brook. — Where the loss of money on deposit in a safe rented by the bailor from the bailee for hire is established in an action to recover the money from the bailee, a prima facie case is shown; and the burden of proof is upon the defendant to show that proper care was used in the safe-keeping of the plaintiff’s money.</p> <p>Id.—Negligence—Failure to Deliver Keys to Box — Support ok Verdict.—The verdict of a jury, finding the defendant guilty of negligence in failing properly to safeguard the plaintiff’s money, the loss of which was established, is sustained by proof that the defendant failed to deliver to plaintiff both of the keys which unlocked his box.</p> <p>Id. — Extent ok Liability ok Sake-deposit Company — Code Provision Inapplicable. — Section 1840 of the Civil Code, which provides that “the liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth,” has no application to protect a safe-deposit company from liability for the actual value of a deposit lost by its negligence, where the very manner of the conducting of its business contemplates that it shall not know or be informed of the value or character of the thing deposited, but shall purposely close its eyes thereto.</p>

<p>State Lands—Conflicting Applications to Purchase—Demand for Reference to Court — Prepayment of Fee Essential — Mandamus. —Where an application is made to the register of the state land-office for the purchase of state lands, conflicting with prior approved applications, which were contested by the applicant, in order to make a valid demand for reference of the contest to the court, the prepayment of the fee therefor, which is due to the state, is essential. The register is not required to comply with such demand until the fee therefor is paid; and mandamus will not lie to compel the reference without first paying the fee.</p> <p>Id. — Filing Application and Protest — Fee not Waived — Noncompliance with Demand — Implied Waiver.—The mere filing of the application and protest does not constitute a waiver of the fee for certifying the contest, where the demand therefor was not complied with, and there was no prepayment of the fee therefor. There can be no implied waiver of the payment of the fee in advance until the act is done for which the fee is to be paid.</p> <p>Id. — Failure of Demand for Six Months — Cancellation of Application—Patents to Prior Applicants—Loss of Right. — Where there was a failure of the subsequent applicant for more than six months to perfect the demand for a reference of the contest by prepayment of the fee therefor, the register of the land-office was authorized to cancel the subsequent application of the contestant, which became null and void, under the statute, and to issue patents upon the prior applications, which had been approved. The right of the contestant to complete the demand for reference by payment of the fee was thereby lost, and no subsequent payment could avail him.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Foshay Walker, and Mastick, Van Fleet & Mastick, for Appellant.</p> <p>The evidence was insufficient to justify the verdict, the only negligence which proximately caused the injury being that of fellow-servants employed by the same employer. (Stevens v. San Francisco etc. R. R. Co., 100 Cal. 554; Daves v. Southern Pacific Co., 98 Cal. 19;1 Long v. Coronado R. R. Co., 96 Cal. 269; Congrave v. Southern Pacific R. R. Co., 88 Cal. 360; Fagundes v. Central Pacific R. R. Co., 79 Cal. 97; Brown v. Central Pacific R. R. Co., 72 Cal. 523.) The failure to furnish appliances, which was not the proximate cause of the injury, cannot sustain a verdict, where the negligence of fellow-servants is the promoting cause. (Kevern v. Providence G. & S. M. Co., 70 Cal. 392,) The accident could not have happened if plaintiff’s fellow-servants had exercised due care, and the company is not bound to furnish appliances to provide against the consequences of such negligence. (Fowler v. Chicago etc. Ry. Co., 61 Wis. 159.) No presumption of negligence could arise from the fact of the accident. (Sappenfield, v. Main Street etc. R. R. Co., 91 Cal. 48; Louisville etc. R.R. Co. v. Allen, 78 Ala. 494, 503; Georgia Pacific Ry. Co. v. Propst, 83 Ala. 518, 526.) Surmises cannot take the place of proof of actionable negligence. (Larson v. St. Paul etc. Ry. Co., 43 Minn. 488.) The declarations of the employees of the defendant, made after the accident, were not admissible against the defendant. (Lissak v. Crocker Estate Co., 119 Cal. 442; Durkee v. Central Pacific R. R. Co., 69 Cal. 533;1 People v. Ah Lee, 60 Cal. 85, 91; People v. Lane, 100 Cal. 379, 383; People v. Wong Ark, 96 Cal. 125.)</p>

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

<p>Water Rights—Riparian Ownership—Lower Appropriation—Prescription. — A lower appropriation of the waters of a stream by a non-riparian owner can confer no rights upon him by prescription, as against an upper riparian owner, whose rights to the natural flow of the stream over his land is not invaded by the appropriator.</p> <p>Id. — Diversion not Made on Public Domain — Act op Congress — Burden of Proof. — The lower appropriator can claim no right to divert the water of the stream, as against the upper riparian proprietor, by virtue of the act of Congress of July 26,1866, and the act of July 9', 1870, amendatory thereof, if the diversion was made upon private land, or if it is not shown that it was made upon the public domain of the Dnited States. The burden of proof devolved upon the appropriator to show the latter fact.</p>

<p>Breach of Promise of Marriage—Evidence of Promise—Support of Verdict—Question of Fact. — In an action for breach of promise of marriage, evidence of the agreement to marry is sufficiently shown to support the verdict by the testimony of the plaintiff and another witness, and corroborating evidence. The question of the existence or non-existence of the agreement was one of fact for the jury.</p> <p>Id.—Declarations of Plaintiff to Third Persons — Humiliation of Plaintiff—Damages.—The declaradons of the plaintiff, made to third persons, as to her contemplated marriage with the defendant, though not admissible as evidence of the agreement to marry, were admissible, after prima facie evidence of the agreement to marry, and of its breach, for the purpose of showing the humiliation of the plaintiff by the breach of the promise, as an element of damage to the plaintiff’s feelings.</p> <p>Id. — Declarations to Other than Intimate Friends — Weight of Evidence.—The objection that declarations of the plaintiff as to the intended marriage were made to other than intimate acquaintances or friends, goes to the weight and not to the admissibility of the evidence.</p> <p>Id.—Limitation of Evidence — Instruction not Requested — Objection upon Appeal. — Where the declarations of the plaintiff were admitted for the proper limited purpose, it was not the duty of the judge to instruct the jury as to the limitation, in the absence of a request from the defendant, and the want of such instruction cannot be objected to upon appeal for the first time.</p>

The facts are stated in the opinion of the court. Edward J. Pringle, E. J. Pringle, Jr., and Fitzgerald & Abbott, for Appellants. Upon payment of note by the accommodation indorser, as surety of the corporation, the only cause of action against the corporation was upon an assumpsit for reimbursement. (Civ.

<p>Estates of Deceased Persons — Order Settling Annual Account of Executrix — Proceeding for New Trial Inapplicable. — The proceeding of a motion for a new trial does not apply to the case of an order settling the annual account of an executrix.</p> <p>In. — Appeal from Order — New-trial Statement not Permissible. — An appeal from an order settling an account of an executor is not a final judgment upon which a statement on motion for new trial can be used.</p> <p>Id. — Dismissal of Appeal—Failure to File Transcript. — An appeal from an order settling the annual account- of an executrix must be dismissed for failure to file the transcript within forty days.; and such dismissal cannot be prevented by the pendency of an unsettled statement on motion for a new trial.</p>

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

<p>Indian War Bonds—Action upon Coupons—Liability op State.— In an action upon coupons for interest on Indian war bonds, issued by the state under the act of May 3, 1852, in which the state agreed that it would, after ten years, pay all the bonds, and interest thereon, if during that period the United States did not appropriate or donate a sufficient amount to pay them, where it appears that the United States never appropriated a sufficient amount, and that the interest sued upon is threefold greater than the unexpended sum appropriated that at one time remained in the treasury of the United States applicable to bonds and interest, and that the United States refused to appropriate the interest accruing after January 1, 1854, which was sued upon, the state is bound by its contract, and is liable to judgment for the amount of the interest sued upon.</p> <p>Id. — Delay in Payment of Federal Appropriation. — The fact that there was delay in payment of the Federal appropriation, whereby it was tied up for two years, cannot affect the liability of the state on its contract to pay interest not covered by the appropriation.</p> <p>Id. — Amount of Debt Created—Constitutional Law — Estoppel of State—Conclusive Recitals of War Bond Act. —The provisions of article VIII of the constitution of 1849, forbidding the legislature to create any debt exceeding the sum of three hundred thousand dollars, “ except in case of war, to repel invasion, or suppress insurrection,” do not affect the validity of the act of 1852 for the issuance of Indian war bonds, the recitals in which, to the effect that a state of war or insurrection existed when the expeditions against the Indians were sent out, estop the state from denying that fact. The recitals in a public statute are conclusive evidence of the facts recited, for the purpose of carrying the statute into effect.</p>

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

<p>Appeal—Appellant’s Name Omitted ebom Judgment—Nullity— Jubisdiction. — An appeal taken by a defendant whose name was omitted from the judgment as entered was a nullity, and conferred no jurisdiction upon the appellate court.</p> <p>Id.—Amendment oe Judgment Nunc pbo Tunc—Bight oe Appeal.— An amendment of the judgment as entered, nunc pro tunc, so as to include therein the name of the omitted defendant as of the date of its original entry, cannot operate to deprive such defendant of his right of appeal from the judgment then entered against him for the first time.</p> <p>Id. — Mandamus—Fixing oe Stay Bond.—Mandamus will lie to compel the judge who amended the judgment nunc pro tunc to fix the amount of a stay bond upon appeal by the defendant from the judgment thereby entered against him.</p>

<p>Escheat—Lands of Savings and Loan Corporation—Purchases under Trust Deeds — Holding beyond Five Years.—An action cannot be maintained to escheat to the state lands held by a savings and loan corporation, on the ground that more than five years have elapsed since it acquired the lands by purchase under deeds of trust for money loaned, and that it has not sold them.</p> <p>Id.— Construction of Constitution—Escheat not Provided for— Power of Legislature. — The provision of section 9 of article XII of the constitution, that “no corporation shall . . . hold for a longer period than five years any real estate, except such as may be necessary for carrying on its business,” though mandatory and prohibitory, does not provide for the penalty of an escheat to the state, nor declare what results shall follow its violation. There appears nothing in the provision so self-executing as to deny the power of the legislature to prescribe penalties for its violation.</p> <p>Id. — Legislative Construction—Savings and Loan Corporations— Sale of Lands.—The provision of section 574 of the Civil Code, requiring every savings and loan corporation to sell real estate within five years after title is vested in it under pledges, mortgages, or deeds of trust made for its benefit for money loaned, is a legislative construction of section 9 of article XII of the constitution. The provision of the constitution, that a corporation shall not hold certain classes of real estate longer than five years, contemplates that such property held shall be sold within the five years.</p> <p>In.—Remedy for Failure to Sell.—If the corporation does not sell lands which it cannot hold more than five years, penalties may be provided by the legislature for its failure to do so; or, possibly, some judicial procedure might be invoked to compel a sale of the land or a forfeiture of its franchise.</p> <p>Id.—Escheats and Forfeitures not Favored.—Escheats and forfeitures are not favored by the law; and the remedy of escheat does not exist, in the absence of an express provision therefor.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Scarborough, Matthews & Forgy, and F. O. Daniel, for Appellants.</p>

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

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

<p>Attorney and Client—Contract for Fees —Assumpsit — Reasonable Value not Considered. — An attorney who has a written contract with his client, which covers all the services rendered by him, and states the compensation to be paid therefor, cannot maintain an action of assumpsit for an increased compensation for the alleged reasonable value of the services. The fact that the attorney made a bad bargain, and that the services performed were reasonably worth more than the price agreed, cannot relieve him from his contract.</p> <p>Id. — Judgment against Attorney — Findings — Presumption upon Appeal—Affirmance. — Upon appeal from a judgment rendered against the attorney, where it appears that the contract found included the services sued upon, it must be presumed that all the facts in the case were found, that they are true, and that no other facts exist than those found; and where the judgment is supported by the facts found and the conclusions of law, it must be affirmed.</p> <p>Id. — Litigation — Extra Charge — Absence of Notice — Contract not Modified. — There can be no extra charge by the attorney for services rendered in litigation, the services for which were fairly included in the written contract, where no notice was given prior to the termination of the litigation of any extra charge therefor, and where the contract was not modified by consent of the parties in relation thereto.</p> <p>Id.—Duty of Attorney to Client—Construction of Written Contract — Understanding of Client. — Where a written contract between an attorney and client is ambiguous, it is the duty of the attorney to his client to see that the client understands it in the same sense as the attorney, and to have the contract for any further services clearly and definitely stated, and understood by the client in its spirit and practical results, as well as in its language.</p>

<p>Deed—Conditional Estate — Use for Educational Purposes—Reentry Clause not Essential — Termination of Estate. — A deed conveying to grantees named therein a joint estate, upon conditions that the premises should be used solely for erecting, furnishing, keeping, and maintaining thereon an academic or collegiate school, etc., and for no other purpose, creates a conditional estate in the grantees, and a re-entry clause is not essential to authorize the grantor to terminate the estate by re-entry after a substantial breach of the conditions.</p> <p>Id.—Action to Cancel Deed and Quiet Title—Sufficiency of Complaint—Breach of Conditions — Abandonment—Possession of Plaintiff. — A complaint of the grantor, in an action to cancel the deed, and to quiet his title against the grantees, states a sufficient cause of action, if it sets forth the deed and the conditions contained therein, and shows a total breach thereof for more than five years, an entire abandonment of the premises by the grantees, and that plaintiff is in possession thereof. Upon the re-entry by plaintiff into the alleged possession, he became seised of his first estate, and the estate of the grantees having been terminated, the plaintiff was in a position to maintain the action.</p>

<p>Gold Found upon Public Land — Ownership — Extraction by Laborer — Excavation for Mill Site — Conversion.—A laborer employed by the owners of mines to excavate and grade a quartz-mill site on public land, who discovered, and extracted from the upper edge of the sloping rock left by the excavation, a pocket of gold and gold-bearing rock, not included in any mineral location, and which he appropriated as his own, acquired title thereto, as first taker, under the laws of the United States, and can recover the value thereof from his employers, who wrongfully seized and converted the same to their own use.</p> <p>Id. — Gold not Acquired “by Virtue of Employment”—Construction of Code.—The gold was not acquired by the laborer “by virtue of his employment,” within the meaning of section 1985 of the Civil Code. It was not dug out by him in the course of his work, but independently of it, and for the sole purpose of extracting the metal; and even if it had been taken out in the course of the excavation and removal of waste material, the gold, having no other owner, would belong to the first occupant. The expression, “ by virtue of his employment,” has no application to acquisitions not coming within its scope or purpose, though they may be acquired by reason of the employment.</p>

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

<p>Trust—Support of Families of Deceased Firemen — Subscriptions Obtained by Newspaper—Discretion of Trustee. — The proprietor of a newspaper, who contributed money and received subscriptions through a published call in the newspaper for the support of the families of deceased firemen, thereby became the voluntary trustee of a private trust, vested with large discretionary powers in determining who composed the families to be benefited, and in what proportions the funds were to be distributed among them. The exercise of his discretion will not be interfered with, except in case of gross abuse.</p> <p>Id. — Object of Trust Determined by Published Call—Report of Committee — Funds Apportioned for Minor — Support during Minority. —The object and purposes of the trust are to be determined wholly by the published call for the subscription, and not by the report of a committee appointed to apportion the funds. Funds raised for the support of the families of deceased firemen, which were apportioned in part by the committee in aid of a minor beneficiary, cannot be locked up so as not to be applied to his support during minority.-</p> <p>Id.—Disposition of Fund in Event of Minor’s Death. — So long as there are families of deceased firemen to be supported as provided in the published call, the money apportioned separately for a minor cannot be disposed of in the event of his death, by being given over to the Fire Department Charitable Fund Association. [Beatty, O. J., contra.]</p> <p>Id.—Action by Guardian of Minor — Possession of Trust Fund.— The general guardian of a minor beneficiary, who is not appointed by the court as a trustee, cannot, as such guardian merely, maintain an action, either at law or in equity, to recover from the trustee the possession and control of the trust property apportioned for the support of the minor. [Temple, J., dissenting.]</p> <p>Id. — Action in Equity to Enforce Trust.—The guardian may maintain an action in equity, on behalf of the minor beneficiary to enforce the trust according to its terms, and to have a trustee or trustees appointed to fill a vacancy in the trust.</p> <p>Id.—Findings — Resignation of Trustee — Recognition of Committee as Trustees — Parties — Amendment of Answer. — Where the court found that the newspaper proprietor resigned his trust in favor of the committee, who were recognized by the court as trustees, and commended for the efficient performance of their dut es as trustees, they should be brought in as parties before final judgment ; and where such findings, if true, were inconsistent with the answer of the newspaper proprietor, who claimed therein the control and management of the trust property, the answer should be amended accordingly.</p>

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

<p>Trust Deeds—Indebtedness to Bank — Sale by Trustees Interested in Bank — Purchase by Bank—Validity. — Where a trust deed, with knowledge of the grantor, was executed to trustees, who were stockholders and directors in a bank, to secure indebtedness of the grantor to the bank, the trustees were entitled to act under the trust, notwithstanding their interest in the bank, and upon a proper sale by them to satisfy the debt, the bank, which, as such, occupied no fiduciary relation in the transaction, was entitled to purchase as the highest bidder, and a deed to it by the trustees, if regularly made in accordance with the deed of trust, is valid.</p> <p>Id. — Bulb of Equity—Void Purchase by Trustees — Exceptional Cases—Purchases under Power in Mortgage or Trust Deed — Redemption. — The rule of equity, that trustees are forbidden to .purchase at their own sale, and that such purchases are in general void, does not apply in the exceptional cases of powers of sale under mortgages and trust deeds, so as to render void the purchase by the mortgagee at his own sale under the power, or the purchase by a hank who is the beneficiary under a trust deed from trustees who are interested in the bank, and who have sold to it under the power contained in the deed. In such exceptional cases, the sale will not be set aside in equity, without an offer to redeem.</p> <p>Id. — Action to Set Aside Sale — Injury not. Shown—Redemption not Sought. — An action cannot be maintained to set aside the sale to the bank on the ground that the trustees sold the trust estate to a bank in which they were financially interested, where no injury to the plaintiff is averred, and he does not seek or offer by his complaint to redeem from the sale.</p> <p>Id. — Sale not Made by Trustees to Themselves — Rights of Bank as Purchaser. — The trustees, though stockholders and directors of the bank, were not the bank, which was a distinct entity, and the sale to the bank by the trustees was not a sale to themselves, but to a distinct purchaser, entitled to bid at the sale, and to enforce a deed to it as the highest bidder.</p> <p>Id.—Dibectobs and Stockholders Dealing with Cobpobation—Injury not Shown. — The directors of a corporation may deal with the corporation, and no stockholder can complain of the transaction, if it is not shown that he has been injured thereby. So, also, if those who are directors and stockholders have made a sale to the corporation as trustees under a trust deed, neither any stockholder of the corporation, nor the grantor of the trust deed, can complain of'the sale, if not shown to be damaged thereby.</p>

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

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

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

<p>Mortgage—Antedated Note—Recital—Delivery—Parts of Same Transaction. — An antedated note, which recites that it is secured by mortgage, and which was delivered cotemporaneously with the mortgage which secured it, must be deemed part of the same transaction with the mortgage, and must be construed together with it.</p> <p>Id. — Inseparable Connection — Non-negotiability of Note — Contingencies in Mortgage — Foreclosure — Attorney’s Fees—Defense. — Where the note was payable in ten years, to the order of the payee, with compound interest, and the mortgage provided for maturity thereof, and foreclosure upon default in payment of interest, upon which contingency foreclosure was sought, and the mortgage also provided for attorney’s fees to be included in the decree of foreclosure, the note and mortgage must be deemed inseparably connected, and the terms and contingencies specified in the mortgage must be deemed part of the note, rendering it non-negotiable, and subject, in the hands of an assignee of the note and mortgage, to the defense of total fail ure of consideration thereof, as against the payee. [McFarland, J., Henshaw, J., and Beatty, C. J., dissenting.]</p> <p>Id.—Liability of Mortgagor Contingent upon Deficiency. — There can be no independent action in this state upon a note secured by mortgage; and the personal liability of the mortgagor, whatever the form of the debt, is necessarily contingent and dependent upon the fact whether upon the sale of the mortgaged premises there shall be a deficiency.</p> <p>Id.—Note, when Negotiable — Personal Credit—Independence of Contingency or Condition — Absence of Other Contract. — A promissory note, in order to be negotiable, must carry with it a personal credit given to the maker, which does not depend upon any contingent event, and is without any condition not certain of fulfillment, and does not contain any other contract than its negotiable terms.</p>

<p>Benefit Society — Membership Subject to Rules—Non-payment of Assessments — Suspension from Beneficiary Fund. — Where a member of a beneficiary society agreed in writing to comply with its laws, and to make such compliance the condition on which he was to participate in its beneficiary fund, and his beneficiary certificate provided that it was subject to and was to be construed and controlled by the laws of the order, and such laws provided that the beneficiary certificate of each member who has not paid assessments or dues to the financier of his lodge within a specified time should by the fact of such non-payment to such financier stand suspended, and that no action of the lodge should be required as essential to such suspension, the non-payment of assessments had the effect, ipso facto, to suspend the member from participation in the beneficiary fund.</p> <p>Id.—Life Insurance—Beneficiary Society not Subject to General-Insurance Laws. — The provisions of the laws of such beneficiary society, and the fact that the beneficiary certificate issued to each member entitled the beneficiary named therein to a specified sum upon the death of the member in good standing, does not subject the association'to the operation of the general insurance laws of the state; but beneficiary societies are expressly exempt from such general laws, by section 451 of the Civil Code.</p> <p>Id.—Payment by Suspended Member—Unauthorized Reinstatement —Absence of Re-examination—Suspension not Waived. — The subsequent payment of all arrears by the suspended member to the financial agent of the subordinate lodge, and his unauthorized reinstatement by such lodge, without the re-examination by a physician, expressly required by the laws of the order, cannot constitute a waiver of the suspension, where the grand lodge, upon report of the payment, refused to receive the money, and directed the subordinate lodge to return it for want of the required re-examination.</p> <p>Id. — Subordinate Officers not Authorized to Waive Laws of Order. — Where the officers of subordinate lodges were declared by the constitution not to be agents of the grand lodge, from which the laws of the order emanated, which entered into the contract for participation in the beneficiary fund, neither the financier of the subordinate lodge nor such lodge had the power to waive those laws.</p> <p>Id. — Estoppel—Knowledge of Insured Member.—The subordinate lodge being subject to and controlled by the laws of the grand lodge, to the knowledge of the insured member, who knew that a re-examination was required by those laws, there is no element of estoppel by which the grand lodge can be affected.</p> <p>Id. — Retention of Money by Financier of Lodge.—The grand lodge cannot be estopped by the fact that the money was in the hands of the financier of the subordinate lodge when the member died, without complying with the laws of the order for a re-examination, which the financier was seeking to have him comply with.</p>