Volume 134 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>Garter, Dozier & Wells, and Jackson Hatch, for Appellant.</p>

George H.‘ Buck, Judge settling account, with reservation of compensation of attorney for absent heirs. James M. Troutt, Judge settling compensation. The facts are stated in the opinion of the court.

<p>Will—Contest of Probate—Special Verdict — Answers to Questions — Ultimate Facts — Authentication. —Upon a contest of the probate of a will, it is proper for the court to submit to the jury questions relating only to the ultimate facts to be found, covering the issues growing out of the contest; and the embodiment of such questions and the answers thereto as the verdict of the juiy, followed by a certificate signed by the foreman, showing that the jury '■ do And the foregoing facts and verdict,” constitutes a special verdict of the jury properly authenticated.</p> <p>Id.—Evidence—Mental Capacity of Testator—Qualification of Witnesses — Intimate Acquaintances — Discretion. — The qualification of witnesses, as “ intimate acquaintances,” to testify to the mental capacity of the testator leaves the question of sufficient acquaintance largely in the discretion of the court; and its ruling thereupon will not be disturbed upon appeal, unless there is a clear abuse of discretion.</p> <p>Id.—Appearance and Action of Testator at Particular Time. — Any witness acquainted with the fact may testify as to the appearance, demeanor, and action of the testator at a particular time, and as to whether, at that time, he acted rationally, or appeared rational to the witness.</p> <p>Id.—Instructions — Practice. — It is better practice that instructions should not be numerous, and that those given should be as simple and plain as possible, and cover the issues, so that the jury may fully understand them.</p>

<p>Statute of Limitations — Barred Note and Mortgage—Action upon New Promise — Consideration — Sufficiency op Complaint.—A complaint setting forth a note and mortgage, and alleging that in an action to foreclose the mortgage it was adjudged that they were barred by the statute of limitations, and that they were so barred, and that subsequent to the bar of the statute the defendant, on certain dates specified, in writings signed by him, acknowledged the indebtedness and promised to pay the same, is not upon the note, but upon the new promise, of which the barred note and mortgage set forth constituted the consideration, and the complaint states a sufficient cause of action upon the new promise, as against a general demurrer.</p> <p>Id. — New Promises Prior to Foreclosure Suit — Res Adjudicata — Matter not in Issue.—The fact that the new promises, in writing, declared upon, though made after the bar of the statute, were made before the commencement of the foreclosure suit, does not make the adjudication in that suit, that the note and mortgage were barred by the statute of limitations, an adjudication against the cause of action upon the new promise, which was not in fact pleaded or placed in issue in the former suit.</p> <p>Id. — Evidence of New Promise—Letters—Part Payments — Implied Promise. — Letters signed by the defendant; asking plaintiff to send a statement of his affairs, and inclosing part payments upon his indebtedness to the plaintiff, and expressing a hope to send more, and to pay the interest, it appearing that there was no other indebtedness from defendant than the barred note and mortgage, are evidence of an implied promise to pay that debt.</p> <p>Id. — Formal Acknowledgment or Promise not Required — Recognition of Subsisting Debt. — The statute does not prescribe any form in. which the new acknowledgment or promise shall be made. It need not be formal; and it is sufficient, if the writing shows that the writer regards or treats the indebtedness as subsisting; and from the acknowledgment of a subsisting indebtedness the law implies a promise to pay it, based upon the consideration of the old debt.</p> <p>Pleading—Amendment of Complaint—Omission of Cause of Action.. —The plaintiff, when granted leave to file an amended complaint, may entirely omit one of the causes of action set forth in the original complaint. The defendant cannot be prejudiced by the abandonment of a cause of action alleged against him.</p>

<p>Sales — Failure of Entire Contract—Delivery and Acceptance of Part—Waiver — Action for Goods Sold and Delivered. — Notwithstanding the failure of an entire contract for the sale of a specified quantity of goods, yet if the vendee accepts and retains part thereof delivered to him, he thereby waives the condition precedent as to the delivery of the remainder, and the vendor may recover the value of the part delivered, in an action for goods sold and delivered.</p> <p>Id.—Sale of Minimum Quantity of Fruit—Failure from Drought — Impossibility of Full Performance — Non-liability for Damages.— Where a sale was made by plaintiff to defendant under a written contract for a minimum quantity of specific varieties of peaches growing and to be grown on specific orchards, which defendant’s agents inspected, and which were so affected by an unespected drought as to render full performance of the contract impossible, the non-performance thereof in full was excused, and the plaintiff is entitled to recover the value of all of the peaches grown, which were' delivered to and retained by the defendant, with knowledge of the facts-, and is not liable in damages, by way of counterclaim or otherwise, for failure fully to perform the contract, owing to vis major, without his fault.</p> <p>Id. — Substitution of Other Peaches. —The defendant could not require the plaintiff to substitute other peaches than those contemplated in the written contract, in performance thereof; nor thereby preclude a recovery for peaches already received and retained by the defendant.</p> <p>Id. — Parol Evidence — Identifying Subject of Contract—“Sundry Orchards.” — Where the written contract of sale called for a certain quantity of fruit from “ sundry orchards in Ontario and Cucamonga,” parol evidence was admissible to identify the subject of the contract, and to explain what orchards were meant.</p> <p>Id.—Parol Agreement as to Quantity — Harmless Ruling —. Implied Condition. — The admission of oral evidence, that it was agreed that the minimum quantity was not to be delivered unless it was grown on the plaintiff’s orchards, is not prejudicial error. It could do no harm to prove by oral evidence that which was an implied condition of the agreement.</p>

<p>Estates op Deceased Persons — Claim—Maturity op Contract—: Statute op Limitations. — A claim against the estate of a deceased woman, for services rendered to her in her lifetime, which were agreed to be paid for out of the proceeds of the sale of certain parcels of real estate, which remained unsold at her death, shows no matured cause of action against the decedent in her lifetime, and cannot be barred by the statute of limitations, which did not begin to run until the claim could be enforced.</p> <p>Id. — Certainty op Claim—Real Estate not Described. — The claim against the estate of the decedent was not rendered void for uncertainty, because not describing the real estate, the proceeds of the sale of which were therein referred to as “ arising from the sale of certain pieces of real property belonging to said decedent,” which remained unsold at the time of her death. The only necessity for any reference to the land was to show that the claim was not barred by the statute, and the description of the land was not essential for that purpose.</p> <p>In. —Action upon Claim—Pleading op Particular Details. — In an action upon the claim, it is necessary to plead particular details, which are not required to be inserted in a presented claim upon a demand which is due; but even if the details alleged be more particular than is necessary, if the complaint is upon the same cause of action set out in the claim, sets forth the same services, and states the same agreement referred to in the claim, it will support a recovery thereupon.</p> <p>Id. — Services Rendered Prior to Agreement—Statute op Limitations— Subsequent Oral Promise. — With respect to services rendered prior to the making of the contract claimed, the statute of limitations began to run as soon as they were performed, in the absence of any agreement as to the time or manner of payment therefor; and the cause of action therefor could not be taken out of the operation of the statute by any subsequent oral promise as to a future time or mode of payment.</p> <p>Id.—Evidence—Memorandum-book oe Decbdent.—A private memorandum-book of the decedent, containing items of money collected and paid out, including items paid to plaintiff, is not admissible in evidence against the plaintiff; and if admitted, it was properly stricken out on plaintiff’s motion.</p>

W. G. Lorigan, Judge rendering original and modified judgments. A. L. Rhodes, Judge refusing to set aside sale and granting writ of assistance. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>William T. Baggett, J. Q. White, Walter H. Linforth, and George E. Whitaker, for Appellant.</p>

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

<p>Costs — Failure of Plaintiff to Recover—Defeat of Counterclaim — Discretion. —A plaintiff who fails to recover against a defendant is not entitled to any costs against him, notwithstanding his costs were largely incurred in defending against a counterclaim of such defendant, upon which the defendant also failed to recover. In such case the court is allowed no discretion as to the costs.</p> <p>Mining Claim — Option to Purchase—Expense of Prospecting— Consideration of Option — Reasonable Requirement. — Where an option is given to purchase a mining claim, an agreement that the proposed purchaser shall expend money in prospecting the mine by the sinking of a shaft, to enable him to exercise his option, is a pledge of good faith, and is a reasonable requirement; and the expenditure made in exploiting the mine is in consideration of the option.</p> <p>Id. — Option not Exercised — Failure of Title — Refusal of Deed — Expense not Recoverable — Value not Enhanced.—Where the proposed purchaser does not appear to have exercised his option by tender of the purchase-money or otherwise, he cannot, merely because he refused the tender of a deed by the vendor for failure of title to one half of the mine, recover from the vendor the money expended in sinking the shaft, which is not shown to have discovered that the mine was of any value, and which is found not at all to have enhanced its value.</p>

<p>Public Lands — Criterion of Swamp-land Grant—United States Patent to Settler. — The criterion of the state’s title to swamp and overflowed land granted by the act of September 28,1850, is that the greater part of the smallest legal subdivision, consisting of forty acres, was too wet for cultivation. If the greater part thereof was fit for cultivation, the subdivision was not included in the grant, and the patent of the United States to a settler thereupon will confer upon him the legal title.</p> <p>Id. — Abandonment of State’s Claim in Favor of Settlers and Patentees. — By the act of March 10, 1874 (Stats. 1873-74, p. 137), the state expressly abandoned all claim to lands,' as swamp and overflowed, which had been patented to pre-emption or homestead settlers by the United States, or which were then occupied by such settlers in good faith under declaratory statements filed thereupon.</p> <p>Id. — Swamp-lands Excepted by State—Nearness to Town—Void Certificate of Purchase. — By the act of April 4, 1870 (Stats. 1889-70, p. 875), all swamp and overflowed lands situated within two miles of any town or village -were excluded from grant by the state; and, upon supposition of the state’s title to lands so situated, a certificate of purchase thereof by the register of the state land-office, as swamp-land, is void.</p>

<p>New Trial — Statement Prepared Too Late — Void Extension op Time—Appeal prom Order.—An extension of time, by the judge, in which to prepare a statement on motion for a new trial, though within the limit of thirty days, is void, if the time previously allowed to the moving party had fully elapsed while the mover was in default. The judge has no authority thereafter to settle the statement ; and if settled, it cannot be considered upon appeal from the order denying the new trial.</p>

<p>Police Department — Membership of Retired Officer. — A police-officer of San Francisco, retired from active service on account of age, who has not resigned or been dismissed from the department, still remains a member of the department.</p> <p>Id.—Police Pension Fund—Widow of Retired Officer—Vested Rights — City Charter.—The widow of a police-officer of San Francisco, who had been placed upon the retired list, and pensioned under the act of 1889 creating the police pension fund, and who died from natural causes, prior to the adoption of the city charter, has vested rights in the pension fund, which cannot be affected by the subsequent adoption of the city charter revising the law governing police pensions in San Francisco.</p>

<p>County Government Act — Invalid Limitation of Supplies and Printing— Constitutional Law.—That portion of section 25 of subdivision 21 of the County Government Act which provides that “no supplies, printing, stationery, or books shall be procured of any person or firm whose paper has not been, established or whose place of business has not been established in the county for one year or more prior to the time of fixing said prices,” is unconstitutional and void. It violates section 11 of article I of the constitution, requiring that “all laws of a general nature shall have a uniform operation,” and section 21 of the same article, which forbids that “ any citizen or class of citizens be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.”</p> <p>Id. — “ Uniform Operation ” of Law—Classification — Duration of Business not a Proper Basis. —In order that a general law may have a uniform operation, it must be based upon a classification which is not arbitrary, but founded upon some natural or intrinsic or constitutional distinction. All merchants and publishers of newspapers stand in the same relation to supplies and advertising for the county; and they cannot be arbitrarily classified by the period of time during which they have engaged in business in the county.</p> <p>Id. — Printing for County Officers — Separation of Valid from Invalid Provisions — Repeal of Code Section. — The provisions of section 25 of subdivision 21 of the County Government Act relating to supplies furnished and printing and advertising done for county officers by a person or newspaper, to be designated by them, at prices fixed for the county printing, are valid, and separable from the invalid provisions of that section, and being inconsistent with section 3766 of the Political Code, and later in date, have worked a repeal of that section.</p> <p>Id. — Printing Delinquent Tax List — Payment by Supervisors — Injunction against Auditor. — When the delinquent tax list was published by the tax-collector in the only newspaper that was willing to publish it at the prices fixed by the supervisors for county advertising, and the county had allowed the claim therefor upon the certificate of the tax-collector, an injunction will not lie to restrain the county auditor from drawing the warrant for the allowed claim on the ground that such newspaper had not been published in the county for one year prior to the advertising.</p>

<p>The record shows that, pending the action of ejectment in which the stay bond in suit was given, one of the plaintiffs, William P. Todhunter, died, August 13, 1896, before the action was tried, and that the judgment was nominally in his favor as one of the plaintiffs. Further facts are stated in the opinion.</p>

<p>School Funds — State and County Taxes — Support of Common Schools.—The' school law contemplates and requires that all school funds raised from state and county school taxes shall be applied exclusively to the support of common schools, consisting of primary and grammar schools in each school district.</p> <p>Id. — Apportionment by County Superintendent—“Average Daily Attendance” in District — Special Schools not Included.—The apportionment required to be made by the county superintendent of the unapportioned residue of the school funds “ to the several districts, in proportion to the average daily attendance in each district during the preceding year,” must be based upon the “ average daily attendance ” in the common schools of the district, not including attendance upon any high school or evening school established therein.</p> <p>Id. — Statutory Construction — Legislative Intent—Absurdity.— In the interpretation of a statute the court must look at the context, ' and the result that would follow, in order to arrive at the legislative intent. A literal construction will not always obtain, particularly when such construction leads to an absurdity.</p>

HABEAS CORPUS in the Supreme Court to test the validity of an ordinance of Ventura County passed by vote of the electors of the county. conviction of the petitioner was had in the justice’s court of Saticoy township, before W. D. Wright, justice of the peace, for alleged violation of an ordinance entitled “An ordinance prohibiting the business of selling and the sale of vinous, spirituous, distilled, malt, mixed, and other intoxicating liquors within the county of Ventura,”…

<p>The facts are stated in the opinion of the court.</p> <p>Gibbon, Thomas & Halstead, Cheney & Taylor, and J. W. McKinley, for Appellant.</p> <p>The plaintiff was injured by the neglect of a fellow-servant, and cannot recover. (McLean v. Blue Point Gravel Mining Co., 51 Cal. 255; Fagundes v. Central Pacific R. R. Co., 79 Cal. 97; Alaska Mining Co. v. Whelan, 168 U. S. 88; Daves v. Southern Pacific Co., 98 Cal. 19;1 Long v. Coronado R. R. Co., 96 Cal. 269; Mast v. Kern, 34 Or. 247;2 Stevens v. San Francisco etc. R. R. Co., 100 Cal. 554; Trewatha v. Buchdnan Gold Mining etc. Co., 96 Cal. 495; Central R. R. Co. v. Keegan, 160 U. S. 259; Martin v. Atchison etc. R. R. Co., 166 U. S. 399; Donovan v. Ferris, 128 Cal. 48;3 Callan v. Bull, 113 Cal. 602.) Whether the injury was received from a fellow-servant is a question of law to be determined by the court, and not by the jury. (Donnelly v. San Francisco Bridge Co., 117 Cal. 424; Callan v. Bull, 113 Cal. 593; Crispin v. Babitt, 81 N. Y. 516; 4 Moody v. Hamilton Mfg. Co., 159 Mass. 70.5)</p>

<p>Estates of Deceased Persons — Possession of Realty—Rights of Heirs. — Though the heirs of a deceased person, prior to distribution, have no right of possession and control of the realty as against the administrator, yet, as against strangers who do not claim under the administrator, the heir is entitled to the possession of lands belonging to the estate.</p> <p>Id. — Undivided Interest — Distinct Leases by Different Heirs — Oil Lease—Covenant against Saloon—Lease for Saloon.— Where the decedent owned an undivided third interest in land, and one heir only joined with the other owners in a lease thereof as oil-land, covenanting with the lessees not to build a saloon thereupon, the remaining heirs are entitled to be let into possession jointly with the lessees, who do not claim under the administrator, and may lease to third parties the right to buihTa saloon upon the premises, which does not directly disturb the operations of the first lessees.</p> <p>Id. — Injunction—Menace to Oil Property.—Whatever rights of injunction the first lessees may have against their lessors for breach of their covenant, they cannot enjoin the lessees of the other heirs from maintaining the saloon, on the alleged ground that it is a menace and danger to their oil-tanks and other inflammable property, with which it does not directly interfere.</p>

<p>Mortgage—Cotemporaneous Instrument—Void Contract—Payment of Mortgage Tax — Forfeiture of Interest. — Where a note and mortgage bore interest at one per cent per month, a cotemporaneous instrument, signed by the mortgagee, agreeing to exact no more i interest than eight per cent per annum, and to refund all interest : paid over eight per cent, after he had paid the mortgage tax out of said one per cent per month, is to be construed as one with the note and mortgage, and as constituting an agreement that the mortgagors would pay the mortgage tax, not exceeding four per cent upon the amount of the note, in addition to the exacted interest of eight per cent. Such contract is void, under section 4 of article XIII of the constitution, and forfeits all unpaid interest upon the note and mortgage.</p> <p>Id. —Payment of Taxes by Mortgagors — Credit upon Mortgage. — Where the taxes upon the mortgage were in fact paid by the mortgagors out of their own money, and the mortgagee simply remitted the four per cent of interest-money to the mortgagors, the mortgagors are entitled to be credited upon the mortgage with the amount of taxes paid by them; and the mortgagee is not entitled to recover the unpaid interest.</p>

<p>Divorce—Desertion — Sufficiency of Compliant—Absence of Demurrer— Objection upon Appeal. — A complaint for divorce by A wife against her husband, alleging that on a certain day the defendant voluntarily separated himself from the plaintiff, without any fault on her part, and with intent to desert her, and has continued since, and still does continue, to desert her,, in the absence of a demurrer for a defective statement of the facts, is not subject to the general objection, upon appeal, that it does not state a cause of action for desertion.</p>

<p>APPLICATION for supersedeas to prevent a sale under execution, pending an appeal from a judgment of the Superior Court of the City and County of San Francisco. William R. Daingerfield, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence — Personal Injuries — Elements of Compensation — Damages—Instruction. — In an action to recover damages for personal injuries, caused by the negligence of the defendant, it was proper to instruct the jury that the measure of recovery was compensatory damages, the elements of which were expenses paid by plaintiff for care and nursing while disabled, and the value of the time lost while disabled, to be determined from direct evidence before the jury, and such reasonable compensation for impairment of his earning power, and for his pain and anxiety, as the jury might, in their sound discretion, determine, not exceeding, in all, the amount alleged.</p> <p>Id. — Compensation for Inabtlity to Attend to Business—Refusal of Instruction.—An instruction requested, to the effect that the jury could not award any damages for loss which the plaintiff might have suffered because of inability to attend to his business after the accident, was properly refused.</p> <p>Id. — Earnings not Proved — Earning Capacity — Discretion of Jury. — Where the evidence showed that the plaintiff was accustomed to attend to his own business, the general nature of which appeared, and that as the result of the injury his capacity for attending to his business was seriously impaired, the fact that there was no proof of earnings, or of any specific amount that he was capable of earning, cannot deprive him of the right to compensation for his earning capacity, of which the jury may judge, and, in the exercise of a wise discretion, fix the amount of damages to be recovered therefor; and their verdict thereupon will not be disturbed, if it does not appear to be excessive.</p> <p>Id.—Evidence—Matters of Common Knowledge. — No testimony is required upon matters which are presumably within the knowledge or observation of all men of common intelligence.</p>

<p>APPEAL from an order of the Superior Court of Sutter County denying an application to set apart a probate homestead to the widow of a deceased person. E. A. Davis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Fresno County. E. W. Risley, Judge. The facts are stated in the opinion of the court. George E. Church, Henry U. Brandenstein, and Percy Clarke Church, for Appellant.

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

HABEAS CORPUS from the Supreme Court to the Sheriff of the City and County of San Francisco to test the validity of a municipal ordinance under which petitioner was convicted in the Police Court. Charles T. Conlan, Judge. The facts are stated in the opinion of the court.

<p>Guardian and Ward — Misappropriation by Father. — A father, who is the guardian of the estate of his minor child, who misappropriates it to his own use, is properly charged therewith in his account, and cannot claim credit for expenses paid by him for the maintenance of the child after such misappropriation.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Elliott & Elliott, Theodore Elliott, and J. B. Webster, for Appellants.</p>

<p>Appeal—Order Settling Receiver’s Account—Final Judgment.— An order settling the accounts of a receiver, and directing the payment of his compensation by one of the parties, although made before there has been a final judgment in the action in which he was appointed, is a final determination of the rights of the parties to the matter then before the court, and an appeal therefrom, as from a final judgment, may be taken within six months after its entry.</p>

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

<p>Lien upon Proceeds op Mine—Advances by Part Owner — Contract Excluding Personal Liability—Absence op Breach—Foreclosure. —Under a contract which gave the management of a mine to one part owner, and a right to reimbursement for all advances from the proceeds of the working of the mine, but which expressly excluded any personal liability of the other part owners for any part of such advances, and did not guarantee any sufficiency of proceeds, so long as the contract is not broken by the other part owners, no lien arises for advances against their interests which can be enforced otherwise than by working the mine, and no action will lie under the contract for the foreclosure of a lien upon and sale of their interests.</p>

<p>Water Rights—Injunction—Pleading — Prescriptive Title—Findings Outside of Issues—Judgment Enforcing Contract.—In an' action to enjoin interference with the water rights of the plaintiff, where the sole theory of the complaint was that the plaintiff had acquired a prescriptive title to the water rights by adverse user, but the findings and decree were wholly outside the issues tendered, and were based solely on the theory that the plaintiff’s user of the water and ditch was with the consent of the owners, and under an oral license and agreement, which is specifically enforced by the judgment, the judgment cannot be upheld, and must be reversed.</p> <p>Id.—Failure to Prove Complaint—Inconsistent Case in Proof-Failure to Object to Variance—Non-waiver.—Where the plaintiff .wholly failed to sustain the burden of proof as to the allegations of his complaint, and proved an inconsistent case, going to show that the case alleged did not exist, the failure of the defendant to object to such proof cannot be deemed a waiver of the variance, so as to support findings and a decree for the plaintiff upon the inconsistent case not alleged.</p> <p>Id. — Recovery Limited to Cause of Action Alleged. — A plaintiff can only recover upon the cause of action alleged, and not upon some other cause of action which may be developed by the proofs.</p>

<p>Criminal Law — Evidence—Cross-examination of Defendant — Residence — Collateral Questions — Impeachment — Prejudicial Error.— Where a defendant, accused of crime, testified only as to his present residence out of the county of the venue, he cannot be properly cross-examined as to his residence in the county at a time long prior to the date of the offense charged ; and his answers to collateral and irrelevant questions about such prior residence"are conclusive, and cannot be contradicted for the purpose of impeachment. The admission of the testimony of the sheriff in contradiction of the defendant, that he was at such prior date in the county, at the county jail, was prejudicially erroneous, and the error was not cured by striking out the allusion to the county jail.</p>

APPLICATION to the Supreme Court for writ of habeas corpus to the Chief of Police of the City of Los Angeles. The facts are stated in the opinion of the court. Taylor & Mason, Frank James, and Frank G. Finlayson, for Petitioner. Thomas P. Boyd, City Attorney of San Rafael, Guy R. Kennedy, City Attorney of Chico, and A. Webster, City Attorney of Paso Robles, amici curiae, for Petitioner.

<p>The facts are stated in the opinion.</p> <p>Carlton W. Greene, and Burbank G. Somers, for Appellant.</p>

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

<p>■Criminal Law—Setting Aside Information—Preliminary Examination— Time to Procure Counsel — Presumption. — An information will not be set aside for refusal of the magistrate conducting the preliminary examination to grant the defendant further time in which to procure counsel, where it appears that he had been granted one week in which to procure counsel and prepare for the hearing. In the absence of evidence to the contrary, it will be presumed that he was duly informed by the magistrate of his right to the aid of counsel in every stage of the proceeding.</p> <p>Id.—Rape—Evidence—Use of Diagram. — Upon the trial of a defendant accused of rape, it was not objectionable for the prosecuting attorney to draw upon a blackboard a diagram of the scene of the crime and its surroundings, and to prove by a witness familiar with the locality that it was a substantially correct representation thereof, and to use it in the examination of the witness, in the usual way, asking him to state the distances between the objects indicated thereon.</p> <p>Id. — Condition of Person and Clothing of Child—Best Evidence. — The mother of a child six years old, charged to have been outraged by the defendant, was entitled, after testifying that within a few minutes after the commission of the crime she inspected the child’s person and clothing, to describe their condition. The" condition of the clothes at the time of the trial, even if left unwashed, were not the best evidence, or any evidence, of their condition immediately after the outrage.</p> <p>."Id. — Complaint of Child Incompetent to Testify. — The general rule that evidence of the complaints of the prosecuting witness, in cases of rape, are only admissible as corroborative of her testimony, does not apply to complaints made by a child six years of age, who is incompetent to testify. In such case, the fact of immediate complaint by the child is admissible, as tending to show her physical condition at that time, though any narrative of what the child said is inadmissible.</p> <p>.Id. — Absence of Expert Medical Witness — Failure of Sheriff to Serve Subpoena. — The mere absence of a physician desired by the defendant as an expert witness, owing tb the failure of the sheriff to serve a subpoena upon him, is not ground for reversal of the judgment of conviction, where no other effort appears to have been made to have the subpoena served by some other person, and no continuance was asked until the attendance of a physician could be procured.</p> <p>Id.—Rebuttal—Contradiction of Witness as to Conversation.— It was proper for the parents of the injured child to testify in rebuttal in contradiction of a witness who testified concerning a conversation between them, about which they were not examined in chief, but which was inconsistent with their original testimony.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William A. Bowden, and Edward E. Cothran, for Appellant.</p>

<p>Foreclosure of Mortgage — Stipulation for Default Judgment — Authority of Attorney — Presumption. — Where it appears that an attorney for the defendant in an action to foreclose a mortgage was employed to secure delay, and after securing all the delay practicable, waived further right to answer, and stipulated for a default judgment, it must be presumed that such stipulation was within the scope of his authority.</p> <p>Id. — Refusal to Set Aside Default — Presumption upon Appeal — Conflicting Evidence. — Upon appeal from an order refusing to set aside the judgment by default, all presumptions are in favor of the order, and where the evidence was conflicting as to the authority of the attorney to stipulate for the judgment, the order must be affirmed.</p> <p>Id.—Affidavits of Plaintiff — Immaterial Affidavit of Merits.— Affidavits for the plaintiff were properly read on the motion to set aside the default, for the purpose of showing that the default should not be opened. If the stipulation for the default was authorized as found by the court, the defendant’s affidavit of merits was immaterial.</p> <p>Id. — Evidence of Authority —Testimony of Attorney—Privileged Communication. — The testimony of the attorney was admissible to show his authority to stipulate for the default. His employment was not a “privileged communication,” within the meaning of the statute.</p>

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

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

MOTION to dismiss an appeal from an order of the Superior Court of Santa Clara County to sell an appraised excess of homestead value under execution. W. H. Lorigan, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—-Larceny of Cow — Participation of Defendant — Sufficiency of Evidence. — The fact that another person than the defendant was the leading actor in the larceny of a cow, of which •the defendant was convicted, cannot relieve the defendant from the verdict against him, where there is evidence that the defendant not only participated in the killing of the cow, but that both parties rode out together into the field where it was, and drove the animal to the corral where it was killed. The subsequent conduct of the defendant in attempting to dispose of the carcass was evidence that his original taking was larcenous.</p> <p>Id.—Instructions Requested by Defendant—Statement to Jury not Prejudicial. — The statement to the jury that certain instructions given at defendant’s request were asked for by the defendant, is unnecessary; but the defendant could not be prejudiced by such statement.</p> <p>Id.—Distrust of Witness—Instruction. — The instruction that “a witness who willfully testifies falsely as to one fact in giving his testimony is to be distrusted in other parts of his testimony,” is in substantial accord with the Penal Code. The addition thereto, “If you find that a witness has deliberately testified falsely in one part of his testimony in this case, you have the right to reject the whole testimony of that witness which is not shown by other evidence to be true,” though it could well be omitted, leaves the credibility of the witness with the jurors, and is not substantially erroneous.</p> <p>Id.—Circumstantial Evidence — Instruction not Prejudicial. — An instruction that “there is nothing in the nature of circumstantial evidence that renders it any less reliable than other-classes of evidence,” and that “ a man may as well swear falsely to an absolute knowledge of the facts as to a number of facts from which, if true, the facts on which the guilt or innocence depends must inevitably follow,” is of doubtful character, as a declaration of law, but is not prejudicially erroneous.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank H. Short, E. B. & George H. Mastick, and W. B. Treadwell, for Appellant.</p>

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

<p>Public Lands—United States Survey—Location of Township—Determination by Monuments in Field. — The location of a township upon the public land of the United States is where the government •surveyor has actually lined it out, and is to be determined by the monuments placed by him in the field.</p> <p>Id. — Control of Plat by Field-notes — Correction of Plat.—In case of discrepancy between the field-notes and the plat, the plat must give way to the field-notes; and the land department may properly correct the plat so as to conform to the field-notes. The plat as corrected supersedes the original.</p> <p>Id.—Ejectment—Failure of Plaintiff’s Title—Swamp-land Patent — Tract not Included in Government Survey. — A plaintiff in ejectment must fail, where he claims under a swamp-land patent from the state, which confers no title,-where the.field-notes of the government survey of the township and the corrected plat thereof show that there is no such tract of land as that described in the patent; and it is immaterial that such tract appears upon the original plat of the survey.</p> <p>Id. — Evidence — Location of River as Boundary — Change not Proved—Harmless Ruling.—Where the Sacramento River formed a boundary of the land claimed by the plaintiff, and the case was tried and findings made on the theory that there had been no change in the location of the river since 1850, a change thereof will not be presumed. The refusal to allow a witness for plaintiff to prove its location since 1850 will be deemed harmless, where no offer appears to prove a change of location by the witness.</p> <p>Id.—Proof of Field-notes—Certified Copy — Harmless Exclusion of Original. — A certified copy of the field-notes of the government survey is competent evidence thereof, and if placed in evidence by the defendants, the exclusion of the original notes, when offered in rebuttal, was harmless, where no discrepancy between them was made to appear.</p>

<p>Criminal Law — Evidence—Declarations of Third Persons. — Upon the trial of defendants accused of felony, the declarations of third persons, not made in the presence or hearing of the defendants, are hearsay and incompetent; and where such declarations' were.'admitted upon insistence of the district attorney, and were of such a character that they might have tended to prejudice the jury, to the ‘ injury of the defendants, their admission will be deemed prejudicial error.</p> <p>Id.—Impeachment of Witness—Indictment and Trial for Same Offense. — A witness for the defendant cannot be impeached, upon cross-examination, by showing that he had been indicted and tried for the same offense, without seeking to show that he had been convicted of a felony.</p>

<p>Divorce—Delay of Findings — Order Denying New Trial—Review upon Appeal. — A delay of more than six months in the filing of findings, in. an action of divorce, after judgment was ordered for the defendant, is not ground for a new trial, and cannot be considered upon.appeal from an order denying a new trial to the plaintiff.</p> <p>Id. — Sufficiency of Findings — Ultimate Facts.—Findings upon the ultimate facts in issue in the action for divorce, as to the grounds of divorce alleged and denied, are sufficient, and decisive of the case. It is not necessary to find upon facts merely probative of the ultimate facts found.</p> <p>Id.—Desertion—Driving Plaintiff from Home by Cruelty—Finding against Cruelty.—A finding which negatives every charge of cruelty alleged in the complaint must be treated as negativing a charge of desertion by driving the plaintiff from her home by cruelty.</p> <p>Id. — Support of Findings—Conflicting Evidence.—The testimony of the defendant, in contradiction of that of the plaintiff, is sufficient to support findings for the defendant.</p>

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

<p>Building Contract for Schoolhouse—Agreement for Payment of Material-men — Lien upon Money Due—Appeal of Contractor. —A building contractor, who agreed that money due for building a schoolhouse should" be applied by the school district first to pay all claims for materials furnished, and that he should receive the residue only, cannot complain of a judgment properly rendered against himself in favor of material-men, merely because the amount is made by the judgment a lien and charge upon the unpaid moneys in the hands of the school district and its trustees, from which no appeal is taken by them. The contractor cannot avail himself of ■ technical error against defendants not appealing.</p> <p>Id. — Order of Contractor — Effect of Payment by School Trustees. —The contractor, having expressly ordered the trustees of the school district to pay the claims of material-men, will be discharged from further liability to the plaintiffs, who are material-men, if such trustees should voluntarily pay the judgment properly rendered against him in favor of the plaintiffs, and cannot complain of such payment.</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 of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County and from an order denying a new trial. W. B. Wallace, 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>

The court found that the defendant was competent to contract when the note sued upon was executed, though subsequently committed to an insane asylum. Further facts are stated in the opinion.

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

<p>Criminal Law — Murder — Instructions — Absence of Intention to Kill—Request Covered by Charge. — Upon a trial for murder, it is not error to refuse an instruction applicable to the defendant’s testimony, that if the jury should find from the evidence that at the time when the defendant assaulted the deceased he did not intend to kill him, they could not find the defendant guilty of murder in the first degree, where it appears that such requested “instruction was fully covered by the other instructions given in the charge of the court.”</p> <p>Id. — Cause of Death — Requested Instruction Inapplicable to Evidence.—Where there was no evidence which would authorize the jury to find that deceased came to his death by reason of any neglect or unskillful treatment on the part of the surgeons, a requested instruction upon that subject was properly refused.</p> <p>Id. — Discretion of Jury as to Penalty—Control by Instruction Improper—Reasonable Doubt.—The discretion given to the jury by section 190 of the Penal Code, in determining the penalty for murder in the first degree, is to be exercised upon their own consideration of the evidence, without other instruction than to call the attention of the jury to its provision. Their discretion cannot be controlled by instructions presenting reasons for its exercise in one mode rather than another; and a requested instruction, that in case of their finding murder in the first degree, they should, in their discretion, as to fixing the penalty therefor, give the defendant the benefit of a reasonable doubt, in favor of imprisonment for life,, rather than the death penalty, was properly refused.</p> <p>Id. — Indictment—Circumstances of Offense.—An indictment sufficiently charging the defendant with the crime of murder is not impaired by the manner in which the facts constituting the crime, or the circumstances under which it was committed, are subsequently stated therein.</p> <p>Id.—Motion to Set Aside Verdict — Misconduct of Jury—Newly Discovered Evidence — Continuance for Affidavits not Supported. — Where the defendant, upon an adjourned day for pronouncing judgment, moved to set the verdict aside for misconduct of the jury, and for newly discovered evidence, and asked for a continuance for a reasonable time in which to procure affidavits of witnesses upon both grounds, but presented no affidavit whatever in support of the motion, the continuance was properly refused.</p>

<p>Bailment—Storage of Spirits in Warehouse—Failure to Redeliver —Prima Facie Case—Burden of Proof—Excuse of Failure.— Where barrels of spirits were stored in a warehouse, proof of the deposit, and of failure of the bailee to redeliver in accordance with the terms of the contract, makes a prima facie case for the bailor, and the burden of proof is upon the bailee to excuse the failure to redeliver.</p> <p>Id. — Leakage—Shifting of Burden.—Where the bailee shows a return of the barrels stored, and that the contents have been lost by-leakage, the burden shifts upon the bailor to prove affirmatively that the leakage was caused by the fault of the bailee.</p> <p>Id. — Stipulations Limiting Liability of Warehousemen — Public Policy. — There is no public policy to be infringed by stipulations limiting the liability of warehousemen for loss or deterioration caused by the inherent qualities of the articles stored, or by defects in the vessels containing them, not caused by fault of the warehousemen.</p> <p>Id.—Warehouse Receipt—Printed Stipulation—Leakage at Owner’s Risk—Failure of Warehousemen to Inspect. — Where the warehouse receipt contained a printed stipulation that leakage was to be at the owner’s risk, the owner of the spirits stored is conclusively chargeable with knowledge thereof, and is bound thereby. In view of such stipulation, it was not actionable negligence for the ware-housemen merely to fail to inspect for leakage the barrels of spirits, though they were stored two tiers high, with no passageway between the tiers.</p> <p>Id. — Duty of Bailor to Inspect—Mode of Piling Barrels. — Under the warehouse receipt, it was the duty of the bailor, and not of the bailee, to inspect the barrels for leakage. For the purpose of such inspection, he could have required a removal of the barrels, or a ; different mode of piling them. In the absence of any attempt of the bailor at inspection, the mode of the piling of the barrels by the bailee, which does not appear to have been otherwise than customary, is immaterial, even if it be assumed to be improper, as preventing convenient inspection.</p> <p>Id. — Negligence — Erroneous Instructions. — Instructions to the effect that even if the leakage was due to the original negligence of the plaintiffs in storing the spirits in leaky casks, the defendant was nevertheless liable for the loss, if by ordinary care he could have discovered and cured the defect, and prevented the loss by leakage or shrinkage of the barrels, from defective cooperage, and allowing to the defendant no benefit whatever from the stipulation against loss from leakage, were erroneous, and require a reversal of the judgment.</p>

<p>Former Judgment—Res Adjudicata—Demurrer—Statute of Limitations — Action upon Additional Promise.—A former judgment, rendered upon demurrer to a complaint, on the ground that the action appeared upon the face of the complaint to have been barred by the statute of limitations, is not a bar to a new action based upon an additional promise, preventing the bar of the statute. [McFarland, J., dissenting.]</p> <p>Id.—Judgment upon Demurrer, When and Whe^e not a Bar.—A judgment rendered upon the sustaining of a demurrer to a complaint will be a bar to another action for recovery upon the same facts; but if other facts are stated, which supply the defects of the first complaint, or which present a different cause of action, the judgment upon the demurrer 'will not be a bar to the second action.</p> <p>Mortgage by Deed—Statute of Limitations—Renewal of Note Secured—Effect as to Third Parties.—The renewal of a note secured by a deed intended as a mortgage, before the statute of limitations had run against the original note, had the effect to continue the original liability for the term named in the new note, and the effect of such renewal, with reference to third parties dealing with the land as that of the mortgagor, is the same as if the mortgagor had then executed a mortgage for the amount of the renewed note, and it could not be impaired by any subsequent acts of third parties.</p> <p>Id.—Lien of Judgment Creditor Subordinate to Mortgage—Execution Sale—Notice to Purchaser—Facts Putting upon Inquiry.— The lien of a creditor of the mortgagor, whose judgment, was rendered against the mortgagor subsequent to the date of the renewal of the mortgagor’s note, was subordinate to the lien of the mortgage; and where such creditor subsequently became purchaser at an execution sale under the judgment, after notice of the original terms of the mortgage by deed, he is chargeable with notice of all the facts which he might have obtained by inquiry relative to the renewal by the mortgagor of the original note prior to his judgment.</p> <p>Id. — Estoppel in Pais—New Matter—Pleading.—An estoppel in pais, arising from the conduct and representations of the plaintiff, is new matter, and the facts constituting it must be specially pleaded, in order to be relied on in bar of the action.</p> <p>Id. — Silence in Former Action not an Estoppel. —The mere silence of the plaintiff in the former action, in not stating the fact of the renewal of the note secured by the deed, and his merely allowing judgment to go against him, without an amendment of the complaint setting up such fact, does not constitute an estoppel inpais, which could preclude the statement of the fact of such renewal in a new action. The plaintiff owed no duty to the judgment creditor of the mortgagor to inform him of that fact in the prior action.</p>

<p>Negligence—Collision op Electric Car with Wagon—Questions for Jury—Nonsuit—Support of Verdict. — In an action for injuries, caused by the negligence of the defendant in causing an electric car to collide with plaintiñ’s wagon at a regular crossing, where the evidence was conflicting, and that adduced on the part of the plaintiff tended to show that the car was running at an excessive rate of speed, and that the plaintiff was driving slowly and using due care, the questions whether, upon the whole evidence, the collision was inevitable, or defendant was guilty of negligence, and whether the plaintiff was chargeable with contributory negligence, were properly submitted to the jury. A motion of the defendant for a nonsuit in such case was properly denied; and a verdict for the plaintiff will not be disturbed upon appeal.</p> <p>Id.—Evidence—Speed of Car—Distance — Schedule Time — Cross-examination.—Where some of defendant’s witnesses testified to the rate of speed of the car, questions asked them, on cross-examination, as to the distance between the termini, and the schedule time for that run, were within the range of proper cross-examination, and being preliminary, could not be prejudicial to the defendant. Id.—Requested Instructions Substantially Included in Charge. — The refusal of the court to give requested instructions, substantially included in the charge, which, as a whole, stated the law correctly, is not erroneous, and the fact that the precise language of the requests was not given, and that some of them were modified, cannot prejudice the rights of the appellant.</p>

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

<p>Pledge of Note and Mortgage — Collateral Security—Remedy— Power of Sale—Foreclosure. — A power of sale given upon a pledge and assignment of a note and mortgage as collateral security by a vendee of the mortgagor, who had assumed such note and mortgage, and given his own note and mortgage to the mortgagee as principal debtor, does not make a sale under the power an exclusive remedy of the pledgee, and he may bring an action in equity to foreclose the collateral security.</p> <p>Id. — Execution by Wife of Vendee—Mark—Support of Finding. — A finding that the wife of the vendee of the mortgagor executed the principal note to the plaintiff, and the assignment of the note, and the vendee of the mortgagor, by making her mark, with the proper attestation by a witness, is sufficiently proved by the testimony of such witness, and of the husband that he and his wife “ went in and signed the note.” The execution of the note by her is also admitted by her denial to a verified complaint, that she, “ for any consideration whatsoever, made, executed, and delivered to the plaintiff that certain promissory note,” which denial takes issue only upon the consideration, and not upon the making, execution, and delivery, of the note.</p> <p>Id.—Express Agreement to Pay Deficiency—Omissions in Foreclosure Suit—Liability of Vendee and Wife. — Where the vendee and his wife, who were principal debtors, in their assignment, as security for their debt, of the collateral note and mortgage, expressly agreed “to pay on demand whatever balance may be due after sale of the securities and application of the proceeds,” the omission of the pledgor to make the wife of the vendee a party defendant in the foreclosure suit, and his omission to take a deficiency judgment therein against the original mortgagor, and the taking of such judgment only against the vendee, who had assumed payment of the mortgage debt, cannot release or affect the liability both of the vendee and his wife upon their express agreement to pay the amount of the deficiency.</p>

PETITION for writ of mandamus to a Judge of the Superior Court of the City and County of San Francisco. Frank H. Dunne, Judge. The facts are stated in the opinion of the court. W. B. Bosley, John S. Drum, J. R. Pringle, Stafford & Stafford, and D. C. Deasy, for Petitioner.

<p>Criminal Law—Sufficiency of Information — Substantial Conformity to Statute — Use of Equivalent Words. — An information for a felony is sufficient if it substantially conforms to the statute, and uses words equivalent in meaning thereto, though not the precise words employed in the statute.</p> <p>Id.—Information for Embezzlement—Change of Form of Expression in Statute.—An information for embezzlement which shows that the defendant received funds by virtue of his trust as the financial secretary of a corporation, and embezzled and converted the same to his own use, “contrary to his said trust,” is not defective because not using the statutory words, “ not in the due and lawful execution of his trust.” The two expressions are equivalent, and convey the same meaning.</p> <p>Id.—Proof of Incorporation—De Facto Existence.—It is sufficient to prove the de facto existence of the corporation, the funds of which were embezzled by the defendant; and proof that it was a corporation de jure is not essential.</p> <p>Id. — Demand for Money Embezzled—Authority of Treasurer. — A demand, by the corporation, for the money embezzled is not an indispensable requirement of the law, to constitute the offense, which ■ may possibly be proved without a demand, though a demand and refusal, if other essential facts exist, is evidence of embezzlement. A demand by the treasurer of the corporation, who was also a member of a special committee to investigate the alleged embezzlement, was made by sufficient authority.</p> <p>Id.—Disproved Denial of Receipt of Embezzled Money—Evidence of Offense.—Where the defendant not only refused to comply with the demand for return of the money, but denied that he ever received any part of the money, alleged to be embezzled, and such denial was disproved, and it was found by the jury that he did receive it, the fact of such receipt renders the denial thereof convincing evidence of the offense charged.</p> <p>Id.—Evidence of Other Moneys Drawn by Defendant.—Evidence is admissible that other moneys of the corporation were drawn by the defendant, upon similar orders, from the same and other banks, and were delivered to the defendant, and that they were not drawn for the protection of the corporation, or because of its wishes.</p> <p>Id.—Proof of Corpus Delicti—Order of Evidence.—Proof of the corpus delicti does not necessarily involve or require proof that the crime was committed by the defendant. The proper order of evidence is, that there should be, first, independent proof of the body of the offense, but a case should not be reversed, merely because of a departure from such order. In this case it is held that the corpus delicti was sufficiently proved, before proof of the obtaining of other moneys by the defendant.</p> <p>Id. — Impeachment of Witness — Conviction of Felony — Absence of Sentence. —A witness may be impeached by showing that he has been convicted of a felony by the verdict of a jury, and the fact that no sentence had yet been pronounced upon the witness is immaterial, where the verdict does not appear to have been set aside.</p> <p>Id. — Evidence of Reputation — Personal Knowledge — Striking Out Testimony. — The testimony of witnesses called to prove the reputation of a witness, who testified from personal knowledge only, was properly stricken out.</p> <p>Id. — Refusal of Inapplicable Instructions. — Requested instructions which are inapplicable to the evidence are properly refused.</p> <p>Id. — Authority to Draw Money to Delay Creditors — Defense to Embezzlement. — The fact that the corporation gave authority for the withdrawal of money from the bank, for the purpose of hindering and delaying its creditors, cannot constitute a defense to an indictment for the embezzlement of its funds.</p> <p>Id. — Requested Instruction as to Testimony of Accomplice. —Where the case was not tried on the theory that the treasurer of the corporation was an accomplice with the defendant in the embezzlement charged in the information, it requires something more than suspicious circumstances connected with other transactions to justify a requested instruction predicated upon his being an accomplice with the defendant; and where such requested instruction was also inaccurate and misleading, it was properly refused.</p> <p>Id.—Argument of Counsel—Vituperative Epithets — Charge to Jury — Presumption. — Counsel for the prosecution ought not to indulge in extravagant vituperative epithets against the defendant, but where the court charges the jury in relation thereto, that they must not consider the personal views and opinions expressed by counsel, it is not to be presumed that the jury disregarded the charge, nor that the defendant was prejudiced.</p>

<p>The facts are stated in the opinion of the court.</p> <p>D. N. Burnett, Frank H. Short, and H. E. Wilcox, for Appellant.</p>

<p>The facts are stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, and George L. Hughes, for Appellant.</p>

<p>• Will—Construction — Death of Legatee—Bequest to “Revert ” to “ Children of the Family.” — Under the will of a testator who had never married, and had no family of his own, and whose father’s family had ceased to exist as such before the will was made, a provision that in case of the death of any legatee before distribution, “the portion so bequeathed to such legatee shall revert to the family of which such legatee is a member, share and share alike,” the word “revert” is not to be construed in the legal and technical sense of “ coming back ” to its original position as part of the testator’s estate, but in the sense of the word “go,” and the “family” referred to is that of the deceased legatee, and not that of which the testator had been a member.</p> <p>Id. —Meaning of “ Family.”—The word “ family ” is not a technical word. It is of flexible meaning, which is to be determined from the context and the subject-matter to which it relates, and depends upon the particular circumstances of the case. In common parlance, it imports those who live under the same roof with the paterfamilias; and those who branch out and become members of new establishments cease to be a part of the father’s family, in the common meaning of the word. The word may import parents with their children, whether living together or not, or the offspring of a common progenitor, if such intention is manifested from the context.</p> <p>Id. — Construction of Code—Death of Devisee or Legatee during Life of Testator—Substitution—Power of Provision. — Section 1343 of the Civil Code, providing that “if a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place,” only declares the effect of such death, where the testator makes no provision for the contingency, and is not a limitation upon his power to make such a provision, by devise or bequest over to the children of the devisee or legatee.</p>

<p>Action fob Personal Injuries — Defective Bolt and Nut in Harvester— Expert Evidence.—In an action for personal injuries, caused by reason of the separation of a defective bolt and nut used to connect the header and separator in a side-hill combined harvester, manufactured for and sold to the plaintiff by the defendant, the question whether the bolt and nut were proper and sufficient for the coupling together of the parts of the harvester is peculiarly one for the evidence of a qualified expert, experienced in the construction of such machinery for the purpose intended.</p> <p>Id.—Written Contract of Sale—Evidence—Circumstances Attending Sale — Intention of Partees.—The written contract of sale of the harvester may be explained by reference to the circumstances under which it was made, and the matter to which it relates; and evidence of the circumstances attending the sale is admissible to aid the court in arriving at the intention of the parties in the purchase and sale of a harvester manufactured by the vendor, of a peculiar build, and intended for a particular purpose.</p> <p>Id. — Warranty of Harvester—Code Provisions Part of Contract. — Where the contract expressly warranted the machines “to be made of good material, and durable with proper care,” and the circumstances proved showed that the machine was manufactured and sold by the vendor for a particular purpose, the provisions of section 1769 of the Civil Code, warranting the sale of an article of the seller’s manufacture “to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture,” and of section 1770 of the same code, that “one who manufactures an article for a particular purpose, warrants by the sale that it is reasonably fit for that purpose” are applicable, and enter into and form part of the contract of sale.</p> <p>Id. — Questions for Jury — Negligence — Contributory Negligence — Patent Defect. — The questions whether the defendant was guilty of negligence in the construction and manufacture of the machine, and whether the defect was sufficiently patent to charge the plaintiff with contributory negligence, were questions of fact for the jury to determine, and not questions of law for the court, where different conclusions upon those questions might be rationally drawn from the evidence.</p>

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

<p>Estates op Deceased Persons—Partial Distribution — Petition by Widow—Continuance — Appeal prom Judgment — Estoppel.— Upon petition by the widow for partial distribution of real property of her deceased husband, alleging that the property was community property, and that under the will' she had a life estate in the interest devisable by her husband, an application for a continuance by a grantee of one of the devisees, on the ground that an appeal was pending from a judgment adjudging that she had only a life estate in the entire property, in an action brought by such grantee to cause the executrix widow and other devisees to make redemption of such real property from a sale under the foreclosure of a mortgage thereupon, or be forever barred from such right, was properly denied. Such judgment, if it should be affirmed, could not be pleaded or admitted in evidence as an estoppel upon the widow to claim more than a life estate upon distribution of the estate.</p> <p>Id.—Action to Foreclose Right of Redemption—Title Incidentally Involved. —In the action to compel redemption, or a foreclosure of the right of the defendants to redeem the property, the respective rights of the parties in the property were only incidentally involved. The executrix could make the redemption to protect the estate, and where she did so, the judgment fixing the rights of the devisees to contribute toward the "redemption could not be a conclusive adjudication of their respective interests in the property of the estate.</p> <p>Id.—Exclusive Jurisdiction over Estate.—The court, in the action to foreclose the right of redemption, had no jurisdiction to determine the matter involved in a distribution of the estate of the decedent. The court, having probate jurisdiction over the estate, has exclusive jurisdiction over the question of distribution thereof, and to determine the interests of the distributees in the property distributed.</p> <p>Id.—Improper Decree op Partial Distribution — Order op Sale — Appeal.—A decree of partial distribution of real property is improper, where the court has ordered such property to be sold to pay debts and the expenses of administration. The fact that such order is suspended by an appeal would not justify a distribution which would defeat the order of sale if it should be affirmed.</p>

<p>Action upon Firm Note — Evidence of Copartnership—Support of Finding.—In an action upon a firm note, executed in the name of one of the defendants by him, evidence that such name was a firm same, and that the.defendants were associated together in such same for the purpose of carrying on business together, and dividing the profits between them, and that the defendant who executed the note in such name was the managing partner, and that the note in suit was made by him as a member of the firm, and that the other defendant recognized the copartnership, is sufficient to support a finding that they were copartners under that firm name when the note was executed.</p> <p>Id.—Indirect Finding as to Execution of Note by Firm—Adverse Complete Finding—Prejudice not Presumed.—The finding that, as a member of the firm of copartners, the defendant named executed the promissory note sued upon, is the equivalent of a finding that the copartners made it; and the failure to find directly and positively that the note was executed by the firm cannot be presumed prejudicial to the appellant, where it is evident that a more complete finding would be adverse to the appellant.</p> <p>to. — Construction of Findings—Inferential Findings.—The findings, in so far as they are not positive and certain, should receive a construction which will uphold rather than defeat the judgment; g,nd where, from the facts found, other facts may be inferred which will support the judgment, the inference will be deemed to have been made by the trial court.</p> <p>Id.^Setting Aside Findings and Judgment—New Findings and Judgment — Power of Court — Void Action — Appellant not Prejudiced. — Where the court in such action set aside the findings and judgment, and made new findings and a new judgment, conceding, as contended by the appellant, that, the court had no power to do so, the appellant could not be prejudiced thereby, where it appears that the conclusion and judgment were the same upon both sets of findings. If the court had no such power, the order setting aside the first findings and judgment must be deemed void, and the first judgment must be deemed the only valid judgment, and it is sufficient, if the first findings support it, and are sustained by the evidence.</p> <p>Id. —Omission in Transcript — Description of Mote — Objection upon Appeal.—The omission of the printed transcript, by a clerical error, to show that the copy of the note sued upon, appended as an exhibit to the complaint, contained a promise to pay, or the name of the payee, though the certified record must be accepted as correct, cannot be objected to upon appeal for the first time, where no objection to the sufficiency of the note was interposed in the court below, either by demurrer or by objection to evidence.</p>

order of the Superior Court of Del Norte Gounty granting a writ of assistance to obtain possession of premises under a commissioner’s deed upon sale of mortgaged premises. F. A. Cutler, Judge. The facts are stated in the opinion.

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

<p>Findings—Decision by Different Judge—Stipulation — Review upon AppealPresumptions— Sufficiency of Evidence. — A judge, other than the trial judge, who passes upon the evidence stands in the shoes of the trial judge; and the fact that the judge who, by stipulation of the parties, decided the cause and made the findings was not the one before whom the witnesses appeared at the trial cannot change the presumptions, upon appeal, in favor of the decision of the trial court, nor affect the rule that this court will not disturb a. finding, if the evidence relating thereto is substantially conflicting, nor unless there is either an entire absence of evidence to support it, or so slight evidence as to show an abuse of discretion.</p> <p>Mortgage of Corporation — Foreclosure — Absence of Resolution of Authority—Estoppel. —A corporation defendant, against whom a mortgage is sought to be foreclosed, is estopped to deny its validity, notwithstanding the absence of a proper resolution of authority therefor, where it is made to appear that the plaintiff conveyed land thereto, and took the mortgage in part payment thereof, believing that the corporation had legally executed it, and that the latter retained the possession and benefits of the land and sold part thereof, and recognized its indebtedness therefor, which was acquiesced in, and not disputed by the directors or any stockholders until the mortgage was foreclosed, five years after the purchase.</p> <p>Id.—Agency—Employment of Broker by Plaintiff—Subscriptions to Stock — Good Faith—Trust—Estoppel not Affected.—The employment, by the plaintiff, of a real estate broker to negotiate a sale of the land, before its conveyance to the corporation, which employment was known to the directors and promoters of the corporation, but was unknown to some of the stockholders thereof, and a subscription by such broker to the stock of the corporation, and his becoming secretary thereof, do not show him to be a trustee of the corporation, nor affect the estoppel of the corporation to deny its mortgage to the plaintiff, where it appears that all of the subscriptions to stock were in good faith, that the plaintiff was not a director, promoter, or trustee of the corporation, and that none of the stockholders were deceived or misled by any misrepresentations or concealment by plaintiff or his agent, nor by any of the subscriptions to the stock.</p>

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

<p>New Trial—Premature Proceedings — Minute Entry — Proceedings after Findings and Judgment — Mandamus to Settle Statement. —Proceedings on motion for a new trial, based solely upon a minute entry of a decision, which did not purport to be a judgment, and was not signed, it appearing that no findings or judgment had been filed or entered, were premature and invalid; and where findings were filed and judgment entered after denial of the premature motion, new proceedings for a new trial, thereafter instituted in due form, were the only valid proceedings. It is no defense to mandamus to compel the settlement of a statement upon such new proceedings, that a statement had been settled and certified upon the premature proceedings.</p> <p>MANDAMUS in the Supreme Court to compel the settlement of a statement on motion for a new trial in the Superior Court of, Sonoma County. S. K. Dougherty, Judge.</p>

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

<p>Setting Aside Judgment of Dismissal—Mistake of Plaintiff — Settlement of Action—Oversight of Assigned Claim—Appeal. —A plaintiff who, by mistaken oversight of a small assigned claim, included in the complaint, but not in the prayer for judgment, settled the action for the amount of the principal claim and costs, and consented to a judgment of dismissal thereof, may, upon exercising diligence and taking proper steps after discovery of the mistake, be relieved against the judgment of dismissal, under section 473 of the Code of Civil Procedure; and an order granting such relief will not be disturbed upon appeal.</p> <p>Id. — Construction of Code—Consent to Judgment — Belief against Mistake—Mutuality — Jurisdiction. — Section 473 of the Code of Civil Procedure is remedial, and is to be liberally construed, so as to include a judgment in favor of as well as against the moving party, and to include a judgment of dismissal against the moving party, consented to by him to his injury, under a mistake of fact, which is excusable under the terms of the statute. The mistake relieved against need not be mutual; nor can the entry of the dismissal by the consent or order of the plaintiff under the mistake of fact on his part, whatever effect it may have as a retraxit in bar of another action, affect the jurisdiction of the court to grant relief against the mistake, by vacating the judgment under the code provision.</p> <p>Id. — Discretion of Trial Court—Appeal.—Applications for relief under section 473 of .the Code of Civil Procedure are addressed to the sound legal discretion of the trial court, and its action in granting or refusing such application will not be disturbed upon appeal, unless it clearly appears that the court has abused its discretion.</p>

<p>Criminal Law—Grand Larceny—Taking Stolen Goods into Another County — Venue — Jurisdiction of Offense — Information. — Under section 786 of the Penal Code, providing that “ when property taken in one county by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county,” an information for grand larceny, charging that the property described was stolen by the defendant in another county, and that the property so stolen was brought by the defendant into the county of the venue, shows jurisdiction of the original offense in the latter county. Such information need not allege that any larceny was committed in the county of the venue, nor that the taking of the goods into that county was felonious.</p>

<p>Vendor and Purchaser—Verbal Contract—Action to Recover Back Money Paid — Sufficiency of Complaint.—A purchaser of land under a verbal contract, who has paid part of the purchase-money, cannot recover it back from the vendor, merely because the contract is verbal; but, to sustain an action therefor, he must allege and prove full performance or tender of performance of the terms of the verbal contract on his part, and the default of the vendor in refusing to convey upon proper tender and demand for a deed, or that the vendor had become unable to carry out the contract ; and if the complaint fails to show such facts, it does not state a cause of action.</p> <p>Id.—Answer of Vendor—Evidence.—The vendor was entitled to give evidence to prove an answer setting up continual readiness and willingness to convey the land by sufficient deed upon full performance of the contract on the plaintiff’s part, and that plaintiff has refused fully to perform the contract; and it was error for the court to refuse to hear such evidence.</p>

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

<p>Action' upon Street-assessment — Sufficiency of Complaint—General Demurrer—Grounds of Special Demurrer—Objection upon Appeal.—In an action upon a street-assessment, where the complaint states a cause of action sufficient to support the judgment, a general demurrer thereto was properly overruled; and grounds of special demurrer not urged in the trial court, relating to the manner in which the facts are stated, cannot be urged upon appeal from the judgment.</p> <p>Id.—Prima Facie Case—Burden of Proof.—Under a complaint sufficient to sustain a judgment for the enforcement of the lien of the assessment, a prima facie case for a recovery by the plaintiff is made by the production, at the trial, of the assessment, with the documents connected therewith, and of the affidavit of demand and non-payment ; and the burden is upon the defendant to allege and affirmatively prove any error, defect, or irregularity that may have supervened in the proceedings subsequent to the ordering of the work.</p> <p>Id. — Description of Work — Constitutionality of Law — Cases Affirmed. — Held, upon the authority of Saughawout v. Subbard, 131 Cal. 675, that the work contracted for in.this case, and for which the assessment was made, was sufficiently described in the resolution of intention, and, upon the authority of Sadley v. Bague, 130 Cal. 207, that the Street-improvement Act is constitutional and valid.</p> <p>Id.—Notice for Sealed Proposals—Fixing of Time bt Clerk — Absence of Order of Council—Presumptions. — The fact that the-clerk fixed the time in the notice calling for sealed proposals, which was posted and published, and that the city council made no order. fixing such time, does not vitiate the notice, conceding it to be unauthorized, where it does not appear that the limitation so fixed prevented any one from presenting a proposal. Such prevention is not to be presumed; and if the limitation made by the clerk was unauthorized, all persons must be assumed to have known that fact.</p> <p>Id. — Fictitious Names — Dismissal — Finding — Failure to Amend Complaint.—Where the action was dismissed as to defendants sued by fictitious names, and the court found that the appellant was at all times the owner of the land, the appellant is not prejudiced by the failure of the plaintiff to file a formal amendment of the complaint striking out the fictitious names.</p>

<p>Husband and Wife — Community Property — Presumption — Burden of Proof. — All property acquired after marriage by either husband or wife, not included in the statutory exceptions, is presumed to be community property, and whether it has undergone changed conditions or not, the burden of proof is upon the party claiming it to be separate property, to establish that fact by clear and convincing evidence, and the separate property must be clearly traced and located, by plain and connected channels, and not by way of surmises and probabilities.</p> <p>Id. — Construction of Code — Power of Married Women—Rule as to Community Property not Affected. — Section 575 of the Civil Code, providing that “ married women and minors may, in their own right, make and draw deposits and draw dividends, and give valid receipts therefor,” does not repeal or abrogate or in any way affect the rule established by section 164 of the Civil Code, concerning the community property of the husband and wife.</p> <p>Id. — Repeal by Implication. — The repeal of a law by implication is not favored; and it requires language of unmistakable meaning, or a direct statutory enactment, to accomplish a repeal.</p> <p>Id. — Deposit in Bank by Wife—Action by Administratrix against Bank — Evidence — Former Judgment in Favor of Husband — Error without Prejudice.—In an action by the administratrix of the deceased wife to recover a deposit made in a bank in the name of the wife, evidence of a former judgment against the bank, in favor of the husband, is not admissible; but where the evidence is full as to the history of the account kept by the deceased wife, and sustains the findings that the money left in the bank was community property, the plaintiff could not be prejudiced by the admission of such judgment in evidence.</p> <p>Id. — Will of Wife not Admissible Evidence.—The will of the deceased wife, disposing of the amount deposited in bank, together with other property, is not admissible in evidence against the defendant. Declarations in her will, made without the knowledge of her husband, were not competent proof that the property was her separate property.</p> <p>Id. — Testimony of Husband—Impeachment—Rebuttal. — Where the husband testified for the defendant that he did not know until after his wife’s death that she had a bank account, testimony in rebuttal, relative to a statement made by him on the morning after her death, that she kept her own bank account, is not admissible as impeaching testimony, where no foundation was laid therefor, and plaintiff could not be prejudiced by a ruling excluding the evidence as rebuttal.</p>

<p>Corporations—Transfer of Stock — Decree of Distribution—Appeal—Reversal—Action by Executor to Recover Dividends. —The transfer of stock in a corporation to a distributee, which derives its efficacy solely from the decree of distribution, is suspended as to its efficacy, and as to the power of further transfer thereof, by an appeal from the decree, and upon reversal thereof the executor is entitled to the stock, and may maintain an action against the corporation to recover dividends thereon, though-he does not appear to be owner on the books of the company.</p> <p>Id.—Transfer of Stock by Indorsement and Delivery—Rule of Corporation-t-Protection as to Dividends. — In this state, title to stock passes, as between the parties, by indorsement and delivery; and any rule of a corporation requiring the stock to be transferred upon the books goes no further than to protect the corporation in paying dividends to a recorded stockholder, in the absence of notice of transfer or other right.</p> <p>Id.—Title of Executors—Improper Transfer on Books.—The corporation could not take advantage of its own wrong in transferring the stock on the books from the distributee of the stock, pending an appeal from the decree of distribution, nor can the assignees derive any rights thereunder, and the title of the executor, upon reversal of the decree, revived, and if not a strict legal title, was, in its legal consequences, equivalent thereto.</p> <p>Id.—Parties to Action for Dividends — Assignees of Stock — Waiver of Objection — Representation by Attorneys. — It seems- that the assignees of the stock should have been made parties to the action by the executors to recover the dividends, but objection on that ground is waived if not taken by demurrer or answer. Where the assignees were represented by the same attorneys who represented them in a former action to recover the stock, and might have intervened in this action, they cannot be prejudiced by the omission to make them parties.</p>

<p>Eminent Domain—Action to Condemn Land eor Railroad—Pleading— Construction oe Code. — A railroad company organized to construct and operate a steam-railroad to carry passengers and freight for hire, is a common carrier, and is authorized by the Code of Civil Procedure to condemn land for" its use; and it need pot aver in its complaint that it was organized for “public transportation,” as mentioned in subdivision 4 of section 1238 of the Code of Civil Procedure. The clause in which those words occur was intended to qualify only the words, “canals, ditches,'” and has no application to railroads.</p> <p>Id; — Location, General Route,, and Termini of Road — Certainty. —A complaint showing an incorporation for the purpose of constructing a railroad, ‘ ‘commencing at the city and county of San Francisco, ’ ’ and “running in a general easterly direction to Stockton, and thence in a general easterly and southerly direction to a point in the vicinity of Bakersfield,” shows the location, general route, and termini of the road with sufficient certainty.</p> <p>Id. — Findings — Admissions—Evidence—Error without Prejudice. — Where the court, in the action to condemn land, found that all of the allegations of the complaint were true, and the findings of the court and verdict covered all of the issues, and were sustained by the evidence, an erroneous finding, that certain allegations of the complaint were admitted by the defendant in open court, is not prejudicial to the defendant.</p> <p>Id.—Interest—Costs — Condition of Condemnation. — The code does not provide for interest on the verdict; and does not require the payment of costs as a condition of the final order of condemnation. The only condition imposed is the payment of the sum of money assessed, within thirty days after final judgment, and that excludes any other condition.</p>

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

<p>Ejectment—Pleading—Homestead—Statement of “Cost” Value. —In an action of ejectment by a wife to'recover the possession of a homestead, of which the husband had made a lease without her signature, where the complaint set forth a copy of the declaration of homestead, attached as an exhibit to the complaint, which purported to state the actual “ cost ” value of the property, instead of its actual cash value, as required by the statute, such complaint does not state a cause of action, and a demurrer thereto should have been sustained.</p> <p>Id. — Compliance with Homestead Law Essential.—The right to a homestead, with the privileges and immunities incident thereto, is of statutory creation, and exists only upon compliance with the requirements of the statute.</p> <p>Id.—Amendment of Complaint — Service—Improper Judgment by Default.—The amendment of the complaint so as to conform to the declaration of homestead, which in fact stated the actual cash value of the premises, was in matter of substance, and had the effect to set aside a default of the defendant, previously entered, and no judgment by default could be entered upon the amended complaint without proof of service thereof upon the defendant, and a default thereafter occurring. The court erred in rendering judgment against the defendant without proof of such service.</p> <p>Id. — Amendment Written in Original Complaint.—The writing of an amendment in the original complaint, so as to change it in matter of substance, makes it none the less an amended complaint, a copy of which must be served upon the defendant.</p>

<p>Street-assessment—Date oe Warrant—Record—Notice — Limitation oe Time for Appeal.—Under the provisions of the Street-improvement Act, the limitation of “ thirty days after the date of the warrant ” in which to appeal from the assessment is to be counted from the date of the record of the warrant, and not from its actual date, if different therefrom. The date of the record of the warrant is that from which notice is imputed to those who have the right to appeal.</p> <p>Id.—Delivery and Return oe Warrant. — The warrant cannot be • delivered to the contractor, and has no operative function, until it has been recorded; and it is the intention of the legislature that the time within which an appeal might be taken from the assessment, and within which the warrant should be returned to the superintendent, should be the same, — viz., thirty days from the time when he was entitled to receive the warrant.</p> <p>Id. — Statutory Construction — Rights oe Parties — Intention oe Legislature as to Date oe Warrant. — The Street-improvement Act ought not to be construed as placing it within the power of the superintendent of streets, by failure to record the warrant, essentially to impair or destroy the rights of the parties. The legislature contemplated that the date of the warrant, and the record of the warrant, should be the same.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a motion for a writ of execution and refusing to vacate the judgment and stay the execution. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco dismissing an action. The notice of the motion was addressed to Louise R. Chevassus, executrix of the estate of Edouard Chevassus, de- ceased, appellant, and she acknowledged, in writing, service of the motion, in pro. per., as such executrix. Further 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 of the court.</p>

The facts are stated in the opinion of the court. Henry C. Campbell, and Donald Y. Campbell, for Appellant. A proposition in writing to sell land at a certain price, within a given time, is a continuing offer, which may be retracted at any time before acceptance, in the absence of consideration for the offer.

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. The facts are stated in the opinion of the court. Graves, O’Melveny & Shankland, for Andrew J. W. Keating, Appellant.

<p>Action for Conversion—Interest Limited „ to Percentage—Breach of Contract to Deliver Prunes—Damages not Within Jurisdiction. — A complaint which sets forth a contract limiting the interest of the plaintiff in a crop of prunes, to be delivered by the defendants to the plaintiff at its packing-house, to two per cent of the prunes, and alleging a breach of the contract, and a conversion by the defendants of the entire crop of prunes, of the alleged value of seven hundred dollars, shows only a cause of action for the recovery of fourteen dollars damages, which is not within the jurisdiction of the superior court, and a demurrer thereto for want of jurisdiction of the subject-matter was properly sustained, and the action dismissed.</p> <p>Id.—Measure of Damages for Conversion.—Where the plaintiff is the general owner, or is accountable over to a third person for goods converted, the measure of damages is their value at the time of the conversion; but if the plaintiff has only a special interest or limited property in the goods, he can recover from the owner of the remaining interest only to the extent of his interest therein.</p> <p>Id.—Circuity of Action—Policy of Law—Accountability of Plaintiff as Trustee—Breach of Contract for Possession.—To avoid circuity of action, it is the policy of the law that the rights of both parties shall be settled in one action; and where, if the contract were carried out, the plaintiff would be accountable as a trustee of the defendants for their interest in the property, hé cannot recover the value of such interest, notwithstanding their breach of an agreement for possession thereof by the plaintiff.</p>

<p>Mortgage — Accounting of Mortgagee in Possession — Rents and Profits — Security for Future Advances. — A mortgagee in possession is chargeable, upon an accounting with the mortgagor, for the rents and profits arising from the land mortgaged; and where the possession of the mortgagee was taken under a deed, and cotemporaneous agreement expressly providing for the repayment of future advances with interest, it is immaterial that there was no actual indebtedness at the date of the mortgage.</p> <p>Id. — Moneys and Choses in Action Turned over to Mortgagee — Note of Mortgagee to Mortgagor — Payment — Decree for Accounting. — Where it appears that the plaintiff, at the time of the mortgage, turned over notes, moneys, and choses in action to the mortgagee, who was the sister of the mortgagor, in whom he had great confidence, such notes, moneys, and choses in action were properly included in the decree for the accounting; and the defendant cannot complain that one of the notes so included was a note given by the mortgagee to the mortgagor, and that it should not be in-eluded because possession thereof was prima facie evidence of payment. The mortgagee, upon the accounting, may show his right to the note; and it will be time enough to complain when the mortgagee is finally adjudged responsible to the mortgagor for the amount of such note.</p>

<p>Action upon Judgment — Accrual op Cause op Action — Finality — Statute op Limitations. — A cause of action upon a judgment does not accrue until the judgment becomes final, and admissible in evidence. The statute of limitations does not begin to run against an • action upon the judgment from the date of its entry, but only after the lapse of the period within which an appeal might be taken from the judgment, if none is taken therefrom, or after the final determination following an appeal so taken.</p>

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

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

PETITION in the Supreme Court for writ of mandate to the Judge of the Superior Court of Sonoma County. A. G. Burnett, 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 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>The facts are stated in the opinion of the court.</p>

<p>Finding—Construction—General and Special Finding.—A general finding that certain averments of the complaint are true will be controlled by a special finding inconsistent with such general finding.</p> <p>Bond to Release Attached Property — Judgment in Favor of . Owner and against Co-dependant — Liability of Surety. — Under our statute, the condition of a bond given to release attached property requires the redelivery thereof to the sheriff, if the plaintiff recovers any judgment in the action, notwithstanding it appears that judgment was rendered in favor of the owner of the attached property, and against a co-defendant who had no interest therein; and in default of such redelivery, a surety on the bond is liable to pay the full value of the property to the plaintiff, not exceeding the amount of such judgment.</p> <p>Id. — Ownership of Attached Property Immaterial to Surety.— The actual ownership of the property attached is no concern of a surety on the bond to release the attachment. Whether it belongs ■ to a third party, or for any legal reason is subject to attachment, is a question to be litigated between the plaintiff and the adverse claimant, and does not affect the express covenant of the surety to restore the property.</p>

<p>Foreclosure of Mortgage by Receiver—Notes Levied upon under Execution—Evidence—Void Personal Judgment—Publication of Summons against Non-resident.—In an action by a receiver to foreclose a mortgage securing notes which were levied upon under execution, evidence of the judgment roll under which the execution was issued is inadmissible to support the foreclosure, where it appears upon the face thereof that it was a void personal judgment rendered against the owner of the notes, who was a non-resident of the state, and did-not appear in the action against him, and that the service of summons upon him was made by publication only, so that the court acquired no jurisdiction of his person.</p>

<p>' CROSS-APPEALS from a judgment of the Superior Court of Los Angeles County and an appeal from an order denying a new trial. J. W. McKinley, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>R. E. Houghton, and J. S. Chapman, for Plaintiff, Respondent and Appellant.</p> <p>Rodgers & Paterson, and Curtis & Curtis, for Defendants, Appellants and Respondents.</p>

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

<p>Criminal Law—Murder— Challenge to Panel — Open Venires — Bias of Sheriff—Continuance of Jurors Sworn—Extra Challenges— Waiver of Right to Object. — Upon a prosecution for murder, where two separate challenges to the panel of talesmen summoned upon open venires to complete the jury, for bias of the sheriff, were overruled, and three jurors were impaneled and sworn, and five peremptory challenges exercised thereunder, and a third challenge under the third venire was sustained upon further evidence of bias, after which the privilege was conferred upon the defendant to use five additional peremptory challenges, of which he availed himself, without removing any of the three jurors impaneled, such voluntary continuance of those jurors proves conclusively that he preferred them, and deprives him of the right to object to the rulings of the court upon the previous challenges.</p> <p>Id. — Challenges by People — Implied Bias of Jurors — Opposition to Circumstantial Evidence — Disqualification. — Upon challenges by the people for implied bias of jurors, who stated that they would not base a verdict of guilty upon circumstantial evidence, it cannot be assumed that the case for the people would derive no sup- ■ port from circumstantial evidence. Jurors whose conscience would not permit them to act upon legal evidence in a capital case are disqualified.</p> <p>Id. —Allowance of Challenge not Subject to Exception. — The ruling of the court allowing a challenge for implied bias of a juror is not the subject of exception.</p> <p>Id. — Evidence — Dying Declaration of Deceased — Preliminary Proof.—The dying declaration of the deceased is admissible evidence, where there is clear preliminary proof that the declaration was made under the solemn belief of impending death, after all hope of recovery had been resigned, and that every precaution was taken to get the written statement correct.</p> <p>Id. — Accusation by Deceased against Defendant after Arrest — Failure to Reply — Tacit Admission — Question of Fact. — Evidence that the defendant, after he was arrested, was brought before the deceased prior to his death, and that the latter pointed to him and said, “There is the man that hit me with a club and shot me,” and that the defendant, though fully understanding what was said, and free to reply thereto, made no reply, is admissible, as tending to show a tacit admission of the accusation, the weight of which was a question of fact for the jury.</p> <p>Id. — Accusation of Crime Calling for Reply — Opportunity and Freedom to Reply—Arrested Person. —An accusation of crime, not replied to, to be admissible, must be made under such circumstances as to afford the accused person an opportunity to act or speak with freedom, and the statement must be one naturally calling for some action or a reply. In this state, an accusation of crime calls for a .reply, even from a person under arrest, where the circumstances sur-' rounding him indicate that he was entirely free to reply, if he had chosen to do so.</p> <p>Id. — Statement in Presence of Arresting Officer.—An arrested de-, fendant is not called upon to make any reply to any question or statement directly from the arresting officer; but the fact that he was under arrest, and that an incriminating statement was made by the deceased in presence of the arresting officer, does not make the failure to reply thereto inadmissible evidence, though the im-' portance thereof is to be determined by the jury, in view of all the surrounding conditions. [Per McFarland, J., concurring specially.].</p> <p>Id. — Cross-examination—Impeachment of Dying Declaration. — On cross-examination of a witness, who merely testified to what occurred at the bedside of the deceased, it is not proper to show previous contradictory statements of the deceased, made when he first discovered his wounded condition. Such impeachment can only be made by offering the evidence as part of the defendant’s case to contradict, the dying declaration.</p> <p>Id.—Presence of Another Defendant on Night of Shooting — Conspiracy—Cries of Murder—Bes Gesta:.—Evidence that the deceased and another defendant, separately accused of the crime, were playing cards on the night of the shooting, about eleven o’clock, and that about one hour thereafter, cries of murder were heard from the deceased, is admissible, both on the ground of conspiracy, where the dying declaration is evidence of such conspiracy, and as part of the res gestx, to establish the time of the assault upon the deceased.</p> <p>Id. — Misconduct of Prosecuting Attorney — Unproved Motive of Crime—Beference to Club Testified to, but not Produced —Becriminations between Counsel.—An unfounded argument of the-district attorney, as to the defendant’s motive for the crime being a robbery, is not misconduct. He was justified in alluding to a blood-stained club, proved to have been found in the saloon immediately after the assault, where the testimony shows that the defendant struck and wounded the deceased with a club, though the club was not placed in evidence, or formally offered as an exhibit. Ill-timed recriminations between the district attorney and the counsel' for the prisoner are not ground of reversal, where no prejudice to the defendant appears to have resulted therefrom.</p> <p>Id.—Instruction—Presumption of Truthfulness of Witness—Be-butting Proof—Interest and Bias. — It is not error to instruct the jury that the presumption that a witness speaks the truth may be repelled by “ his interest in the case, or his bias or prejudice against one of the parties,” as well as “ by the manner in which he testifies,” by the character of his testimony, or by evidence affecting. his character for truth, honesty, or integrity, or by contradictory evidence.</p> <p>Id. —Instructions as to Dying Declaration. — An instruction stating, in effect, that the jury were not bound by the fact of the admission by the court of the dying declaration of the deceased to conclude that it was made in view of impending death, but that it was for them to determine whether it was so made, and whether it had been correctly reported, is correct, and favorable to the defendant. A requested instruction for the defendant, as to the weight and conclusiveness of dying declarations, and that a dying declaration, alone, will not support a verdict of guilty, was properly refused.</p> <p>Id. — Support of Verdict — Dying Declaration — Silence of Defend- ' ant when Accused. — The dying declaration of the deceased, and the silence of the defendant when accused by the deceased, are sufficient to support a verdict of guilty of murder in the first degrees, though there is no other tangible evidence against the defendant.</p>

The main facts are stated in the opinion of the court in the case of People v. Amaya, ante, p. 531. Further facts are stated in the opinion of the court in the present cause.

MOTIONS to dismiss appeals from a judgment of the Superior Court of Lassen County and from an order denying a new trial. F. A. Kelley, Judge. The facts are stated in the opinion of the court.

<p>Appeal — Motion to Dismiss — Extensión of Time to File Undertaking—Power of Court.—The court or judge has power to extend the time allowed by statute in which to file the undertaking on appeal, and the fact that it was not filed until thirty days after the service of the notice of appeal is not ground for a motion to dismiss the appeal, where it appears that it was filed within the time properly allowed by order of the judge of the court.</p> <p>Id. — Proof of Service of Notice—Amendment of Defect. — A defect in proof of the service of the notice of appeal may be supplied by leave of the court at the hearing of a motion to dismiss the appeal.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Franklin K. Lane, City and County Attorney, and Hugo K. Asher, Assistant, for Appellant.</p>

<p>Action for Death — Collision of Street-railway Car with Brewery Wagon—Instruction — Presumption of Negligence — Question of Fact.—In an action by an administratrix against a street-railway company and a brewery company to recover damages for the death of a passenger upon a street-car, resulting from a collision between the car and a brewery wagon, it was proper to refuse an instruction that there was a presumption of negligence against both companies defendant from the fact of the injury to the deceased, in the absence of a concession that the instrumentalities of both defendants caused the injury. In such case, what instrumentality or instrumentalities caused the injury is a. question of fact for the jury.</p> <p>Id.—Basis for Presumption of Negligence from Injury—Applicability of Presumption—Independent Defendants—Open Question.—The presumption of negligence from the fact of injury is based upon probability, and only arises where the injury results from the management and .control by the defendant of the thing which caused the injury, and’canpot apply as against a defendant who did not have such management and control, nor in favor of a plaintiff who seeks to recover damages for injuries against'two de-, • fendants who are wholly independent of each other, where it is an open question as to which defendant had control of the particular instrumentality that caused the injury.</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>Mine upon Homestead — Improvements under Oral Contract — Refusal to Sign Agreed Writing — Recovery of Improvements — Findings — Conflicting Evidence. — Mining machinery and other-improvements erected by the plaintiffs upon a mine situated upon the homestead of the defendants, under an oral contract therefor, and for possession and an interest in the mine, which it was agreed should be written and executed by the parties, but which, when drafted by the plaintiffs, and orally assented to as correct by the defendants, who agreed to sign it, they finally refused to sign, and thereupon ousted the plaintiffs, after the improvements were completed as agreed, may be recovered by the plaintiffs, under findings, upon substantially conflicting evidence of such facts alleged in the-complaint, which showed that the plaintiffs, as tenants at will under the oral contract, were entitled to remove the improvements, and. to have possession for that purpose, and that'the improvements were not so constructed as to be an integral part of the mine, and could be removed without injury to the realty.</p> <p>Id.—Recovery of Improvements as Personal Property—Possession —Tenancy at Will. — The machinery and other improvements,. under the facts of the case, may be recovered as personal property, upon demand therefor, and refusal to deliver the same without temporary possession of the premises, and without reference to any tenancy at will upon the homestead premises, which could be created only as provided by law, by a properly acknowledged instru■snent. - [Per Temple, J., specially concurring.]</p>

<p>Insane Person—Liability for Necessaries at State Hospital—Order for Payments by Guardian. —An insane person is liable for the reasonable value of necessaries furnished for his support at the state hospital, as required by the law of the state; and where hia • estate is sufficient for his support, an order may be made by the superior court requiring the guardian to make payments for his care and support at the state hospital. .</p> <p>Id. — Constitutionality of Statute — General Law — Taxation — Support of Hospital.—The law requiring that patients at the hospitals for the insane shall be there supported out of their own estates is wise and reasonable, and does not violate the constitution.1 The law is general, and is based upon a proper classification. It does not impose double taxation, or any taxation; and the money ordered paid goes to the support of the hospital, only because th^i patient is there supported.</p>

<p>Knight & Heggerty, and William M. Madden, for Appellant.</p>

<p>Action fob Death—Runaway Horse—Bubden of Proof — Negligence not Presumed—Nonsuit.—In an action by an executrix to recover for the death of the testator, caused from being struck by a wagon drawn by a runaway horse, the burden of proof is upon the plaintiff to show the negligence of the driver. In the absence of such proof, there is no presumption of negligence arising from the fact that the horse ran away; and the burden is not thereby cast upon the owner of the team, sued as defendant, to explain how or why the runaway occurred; but the defendant is entitled to a non-suit.</p> <p>Id.—Evidence—Verdict of Coroner’s Jury not Admissible—Hearsay.— The verdict of the coroner’s jury is not admissible to prove that the death of the plaintiff’s testator was caused by the negligence of the defendant. The verdict could not bind the defendant, who was not a party to it, and upon the question of negligence the opinion of the coroner’s jury was inadmissible hearsay.</p> <p>Id.—Expert Evidence—Competency and Skillfulness of Driver— Hypothetical Question — Proper Exclusion.—The competency and skillfulness of the driver of the wagon was not a proper subject for expert evidence; and where the only issue related to the negligence of the driver, a hypothetical question addressed to a witness, calling for his opinion as to the competency and skillfulness of the driver, which assumed facts not alleged or proved, was properly excluded.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. Ruef, E. A. Holman, Welles Whitmore, and E. B. Mering, for Appellant.</p>

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

<p>Action between Corporations — Injury to Land — Principal Place of Business — Venue — Change of Place of Trial. — In an action brought in the city and county of San Francisco, between corporations, each of which has its principal place of business therein, to recover damages for injury to real property situated in Kern County, the defendant is not entitled to demand, as matter of right, to have the cause tried in that county, under section 392 of the Code of Civil Procedure, without any showing of grounds “to change the place of trial, as in other cases,” as contemplated by section 16 of article XII of the constitution.</p> <p>Id. — Construction of Constitution. — Section 16 of article XII of the constitution, which provides for the venue of actions against corpo. rations, and permits the action, at the election of the plaintiff, to be prosecuted “ in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases,” is self-executing, and applies to actions of tort, as well as those founded in contract. Though it is in the nature of a code provision for procedure, it cannot be repealed or limited in its operation by statute, and any statute inconsistent therewith must give way.</p>

PETITION for writ of mandate to a Judge of the Superior Court of the City and County of San Francisco to settle a bill of exceptions. Frank H. Kerrigan, Judge. The facts are stated in the opinion of the court.

<p>School Distbict—Credit of Money in Treasury—Transfer by Superintendent of Schools — Action upon Official Bond.—A school district has no proprietary right to the money standing to its credit in the county treasury, and has no right to recover it, and cannot maintain an action against the county superintendent of schools, and his sureties upon his official bond, to recover money to its credit which the superintendent is alleged to have transferred wrongfully to the unappropriated school funds of the county, without authority of law to reapportion the same.</p> <p>Id. — Mistaken Performance of Duty — Discretion — Superintendent of Schools not Liable in Tort—Correctness of Judgment not Determined.— The superintendent of schools cannot be sued personally, in tort, for a mistaken performance of an official duty, involving the exercise of judgment and discretion. The question whether his judgment was rightly exercised will not be determined in an action upon his official bond, involving the transfer of school moneys.</p>

<p>Tax Deed—Insufficient Notice to Redeem. — A tax deed cannot be ! i sustained where it appears that the property was unoccupied, and that, the notice to redeem was posted on the premises too late to bring it within the period of thirty days next previous to the expiration of the time for redemption, and that the notice was not ’ published in every issue of a newspaper published during said period, nor during the period of thirty days next before the purchaser ap- , ■ plied for a deed, as required by law.</p> <p>Id.-—Affidavit of Purchaser—Rebuttal — Support of Finding.— Though the affidavit of the purchaser established the fact prima . facie qí a publication in the first paper published after the posting of the notice, evidence in rebuttal thereof is admissible; and the testimony of a witness, that he made a close examination of the newspaper of that date, and that the notice was not published therein, is sufficient to sustain a finding that there was an issue of the paper published on that day, and that the notice was not published therein.</p> <p>Id,—Issue of Paper Next Prior to Tax Deed—Unsupported Finding ■ ■—Absence of Proof—Claimant under Deed not Injured. — One who claims under the tax deed is not injured by an unsupported finding that there was a regular issue of the paper on July 4th, next prior to the tax deed dated July 11th, and that the notice of redemp- - tion was not published therein, where such claimant failed to prove either a publication of the notice on that date, or that there was no issue of the paper thereon.</p> <p>Id.—Burden of Proof upon Claimant under Deed—Finding in Absence of Proof.—The burden of proof is upon the claimant under the tax deed to show a compliance with the statute as to the notice of redemption; and where there is an entire absence of proof in relation to the last publication required by the law to support the deed, it is the duty of the court to find against him on that fact; and the absence of proof in such case does not make the finding against evidence.</p>

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

<p>Husband and Wife—Community and Separate Property—Presumption— Gift from Husband to Wife— Conveyance by Third Party.- — The presumption that property acquired by either spouse during marriage is community property cannot apply where the transaction was, in effect, a gift from the husband to the wife, and the conveyance was made to her with the husband’s consent, by a third party, in pursuance of the husband’s agreement with the grantor for an exchange of his separate property for the lot deeded by him.</p> <p>Id. — Payment of Consideration—Resulting Trust not Presumed— Presumption of Advancement or Gift. — The presumption of a resulting trust in favor of one who advances the consideration for a conveyance taken in the name of another, only applies between strangers to each other, and does not apply where the conveyance is to any person for whom the person paying the consideration is under some natural, moral, or legal obligation to provide. In such case, the presumption is, that the purchase and conveyance was intended to be an advancement or gift for the benefit of the nominal purchaser or grantee.</p> <p>Id.—Finding against Evidence.—A finding that property proved to have been deeded to the wife by a third party, at the husband’s request, in exchange for the separate property of the husband, conveyed to the grantors, is the community property of the husband and wife, is against the evidence.</p> <p>Id.—Appeal—Staleness of Demand not Shown. — Where the complaint does not show a stale demand, and there is nothing in the findings or conclusions of the court to support such a defense, the point that the plaintiff’s demand is stale cannot be sustained upon appeal.</p>

<p>Dedication op Plaza — Recorded Plat and Map — Conveyances oe Lots — Rights oe Public — Offer to Dedicate — Acceptance — Revocation.—The description of a plaza upon a recorded map and plat of land, according to which lots were sold and conveyed, whatever rights may be thereby conferred upon the purchasers of lots, only constitutes an offer to dedicate the plaza to public use, so far as the rights of the public are concerned. An acceptance of the offer by the public is essential to constitute a dedication as to it, and the offer may he revoked, as to the public, at any time before its acceptance thereof.</p> <p>Id.—Action by City to Quiet Title — Pleading—Adverse Claim — Revocation of Offer. — Where it appears that the offer to dedicate the plaza was made twenty years before the commencement of an action by the city to quiet title thereto, during which period there was no express or implied acceptance of the offer by the public, and the complaint alleges an adverse claim of the defendant to the land involved, such allegation indicates a revocation of the offer prior to-the filing of the complaint.</p> <p>Id.—Finding against Dedication—Absence of Proof of Acceptance. — In the absence of proof of an acceptance by the city of the offer to dedicate the plaza prior to the commencement of the action, the court was justified in finding that there was no dedication of the-plaza to public use.</p>

<p>Appeal — Judgment por Costs — Test op Jurisdiction — Amount Claimed in Complaint.—In an action in the name of the people upon the official bond of a county treasurer, the amount claimed in the complaint is the test of jurisdiction; and where that amount was sufficient to give jurisdiction to the superior court, and to this court upon appeal, and the action was wrongfully dismissed on the ground of want of authority of the district attorney to prosecute it, a judgment rendered against the district attorney for costs in the sum of $18.75 was part of the general judgment, which this court has jurisdiction to review and reverse upon appeal.</p>

<p>Injunction against Disposition op Husband’s Property—Exception op “Ordinary Business”—Deed in Good Faith to Pay Debt— Presumption.—An injunction restraining the defendant in a divorce suit from disposing of his property, real or personal, pending the suit, excepting that he was permitted to carry on his usual and ordinary business, will, in the absence of proof to the contrary, be presumed to include within the exception of “ordinary business” a conveyance made in good faith by the defendant to pay an honest debt, of long standing, to a creditor, who accepted the same in good faith, in satisfaction of his demand.</p> <p>Id. — Specific Findings—Incorrect Conclusion op Law—Violation op Injunction—Bight to Judgment. — In an action involving the validity of such deed, where the court made specific findings as to the absence of fraud, and as to the good faith of the parties, to the conveyance made and taken in satisfaction of such debt, a further finding made, that the transaction was not in the ordinary course of business, and was in violation of the injunction, and void, must be regarded as of a mere conclusion of law incorrectly drawn from the specific facts found, and inconsistent therewith, and the holder of the deed is entitled to judgment upon the findings.</p>

<p>Ejectment—Landlord and Tenant—Attornment.—The holder of the legal title may maintain ejectment against a tenant who has denied his title and wrongfully attorned to another claimant, who has no title to the demanded premises.</p> <p>Id.—Attornment to Divorced Wife—Injunction against Husband — Exception of “Ordinary Business”—Deed to Plaintiff to Pay Debt—Case Affirmed.—Where the defendant had attorned to a divorced wife, who had sold her husband’s property in a divorce suit, in which the husband had been enjoined from disposing of his property pending the suit, with the exception that he might carry on his “ usual and ordinary business,” and the court found against the defendant on the denials of his answer, and on the defense of attornment found that the husband had, pending such suit, conveyed the property in dispute to the plaintiff, without fraud, to pay a bona fide debt, such finding shows title in the plaintiff, and not in the wife, and the attornment of the defendant to her is not a sufficient defense. ( White v. Wise, ante, p. 613, affirmed.)</p>

<p>Criminal Law — Trial—Evidence—Testimony upon Preliminary Examination— Conflicting Testimony at Former Trial—Impeachment.— Upon the trial of a defendant accused of felony, where the prosecution introduced the testimony of a witness taken upon the preliminary examination, and the defendant, for the purpose of contradicting the witness, introduced his evidence taken upon a previous trial, the witness did not thereby become the witness for the defendant, within the rule that a party cannot impeach his own witness, and it was error for the court to refuse to allow the defendant further to impeach the witness by evidence of his bad character.</p> <p>Id. — Impeachment by Party Calling Witness — Construction of Code—Exceptions to Rule. — Section 2049 of the Code of Civil Procedure, forbidding a party, in general terms, to impeach his own witness by evidence of bad character, is but the enactment of the previously existing general rule, which allowed of exceptions thereto. The rule does not apply where the calling of the witness is not voluntary, or where it becomes necessary to call the adverse party, or where the witness was first called by the adverse party, and is called by the other party for purposes connected with his original testimony, and especially where he is entitled to prove his different sworn statements, without opportunity of cross-examination with reference thereto.</p>

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

<p>APPLICATION for a writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p> <p>R. Clark, for Petitioner.</p>

<p>APPEAL from a judgment of the Superior Court of Riverside County and from an order denying a new trial and from an order striking out a cost-bill. J. S. Noyes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

The record shows the consolidation of three several actions, numbered 4343, 4532, and 5268, in each of which W. S. Chapman was plaintiff and is appellant, and in each of which Thomas E. Hughes was a defendant. In the action numbered 4343, E. W. Chapman is a party defendant and appellant. Other defendants were joined in each of the actions, the most numerous' defendants being made such in the action numbered 4343. Further facts are stated in the opinions of the court.

<p>APPLICATION for a writ of prohibition to the Superior Court of the City and County of San Francisco. Frank H.. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Probate of Will—"Destroyed Olographic Will — Signed Copy— Fraudulent Destruction not Shown. — An olographic will destroyed in.the lifetime of the testator cannot be admitted to probate, if not “fraudulently destroyed.” Such a will, if destroyed by a friend in the presence of the testator, as being, in his expressed opinion, of no further use after the testator had, under the friend’s advice, executed a typewritten copy, signed by the friend as a witness, was not “ fraudulently destroyed,” within the meaning of section 1339 of the Code of Civil Procedure.</p> <p>Id.—Fraud — Untrue Assertion — Matter of Opinion. — The 1 ‘ assertion of that which is not true,” in order to constitute fraud, under subdivision 2 of section 1572 of the Code of Civil Procedure, must be of some fact not warranted by the information of the person making it, and cannot be held to include the opinion of the person, however erroneous it may be, or however positively asserted.</p>

<p>’Insolvency—Action by Assignee — Preference of Creditor—Notice . of Insolvency — Verdict against Evidence.—In an action by an assignee in insolvency to recover the value of goods of the insolvent attached and sold by a creditor, a verdict for the defendant is against the evidence, where it appears without conflict that the creditor either knew or had reasonable cause to believe that the debtor was insolvent within the meaning of the statute, and that the debtor also knew that fact, and that the purpose of both of the parties in procuring the attachment, judgment, and execution was to give a preference to such creditor, and prevent the property of the insolvent from being distributed ratably among his creditors.</p> <p>Id. — Means of Knowledge of Insolvency—Creditor Put upon In- • quiky. — Where the creditor had full means of knowledge of the debtor’s insolvency, and ample opportunity to discover the facts from the books of the debtor, placed in his hands, if he failed to investigate when thus put upon inquiry, he is chargeable with all the knowledge of the insolvency which he would reasonably have acquired if he had performed his duty.</p> <p>Id. — Willful Ignorance Equivalent to Knowledge.—A creditor ■ " cannot willfully shut his eyes to the means of information known to be at hand, and if he does so, his willing ignorance must be regarded as equivalent to actual knowledge.</p>

<p>Declamation Districts—Legal Interest upon Unpaid Warrants— Application op Statutes. — The unpaid warrants of reclamation districts bear legal interest, under sections 3456 and 3457 of the Political Code, which is to be computed at the rate of seven per cent per annum, as fixed by section 1917 of the Civil Code. Section 71 of the County Government Act, providing for five per cent interest upon warrants not paid for want of funds, applies to county warrants, and does not include the warrants of reclamation districts.</p>

<p>The facts are stated in the opinion.</p> <p>Whitworth & Shurtleff, B. S. Gregory, and Walter H. Linforth, for Appellant.</p>

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