Volume 135 — California Reports

MOTION to dismiss appeals from a judgment of the Superior Court of San Joaquin County and from various orders. Edward I. Jones, Judge. The facts are stated in the opinion of the court.

<p>Justice’s Court—Overruling Demurrer—Time to Answer—Con tinuance—Mandamus—Judgment by Default.—A justice’s court, after overruling a demurrer interposed by the defendant to the complaint, has the power, under section 874 of the Code of Civil Procedure, to allow the defendant two days in which to answer the complaint, and to postpone the trial for that period; and the justice cannot be compelled by mandamus to render judgment by default against the defendant. 1</p> <p>Id.—Construction of Code—Remedial Statute.—Section 874 of the Code of Civil Procedure is remedial in its nature, and is to be liberally construed, with a view to effect its object, and give the parties an opportunity for a hearing upon the merits of their controversy. It is general in its terms, and controls other sections of the code in relation to the subject-matter of its provisions.</p>

<p>Estates op Deceased Persons—Appointment op Administrator— Nominee op Foreign Executor—Public Administrator—Discretion op Court.—A foreign executor, though having the right to apply for letters testamentary in this state to himself, has no legal right to nominate an administrator with the will annexed; but where he joined in the petition of his nominee, upon the filing of an authenticated copy of the will, and requested his appointment, the court had discretionary power to appoint him, and was not legally bound to appoint the public administrator.</p>

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

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

<p>Estates of Deceased Persons—Ancillary Administration—Power of Foreign Executor—Sale of Stock in National Bank.—A "> foreign executor, appointed at the place of the domicile of a deceased person who died in another state, has no power as against an administrator with the will annexed, appointed in the ancillary administration of his property situated in this state, to sell and assign certificates of stock in a national bank located in this state, notwithstanding the certificates of the stock were in' the possession of the deceased and came into the hands of the foreign executor.</p> <p>Id.—Power of Executor to Assign Personal Property—Common-Law Bules—Succession—Law of California.—The common-law rule that a domiciliary executor has power to assign the personal property of the decedent, wherever situated, is grounded in the common-law rule that the title to such property passes to the executor, and not to the heir. These rules have never prevailed in this state, where all property, real and personal, descends to the heir, subject only to the qualified right of the personal representative to hold it for the purposes of administration.</p> <p>Id.—Situs of Personal Property—Title in Ancillary Administrator—Conflict of Administrations.—Even at common law, where an ancillary administrator has been appointed in a foreign jurisdiction, the title to personal property which has its situs in such jurisdiction is in the ancillary administrator. ' There cannot be two independent administrations of the same property, and the domiciliary executor cannot nullify the ancillary administration in a foreign country by assigning personal property there situated.</p> <p>Id.—Situs of Corporate Stock—Certificates—Place of Administration.—Certificates of stock in a corporation are only evidence o'f contract rights against the corporation, to be enforced, as a rule, in the state where the corporation is, and prove a property right in such state, and, for the purpose of administration, constitute property situated in such state, to be administered according to its legal policy, and can only be there reached by the creditors of the deceased owner of the stock.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco ordering the payment of money by the guardian of an insane person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Foreclosure of Mortgage—Beceipt of Part Payment—Interpolation —Conflicting Evidence—Appeal.—In an action to foreclose a mortgage, where the defendant produced a receipt of payment in the sum of one thousand dollars, and the mortgagee insisted that but one hundred dollars had been paid, and that there was interpolation in the receipt, the verdict of a jury called upon to try the issue, and the finding of the court in accordance with the verdietj in favor of the mortgagee, upon conflicting evidence, will not be disturbed upon appeal.</p> <p>Id.—Affirmance of Judgment—Counsel Fees upon Appeal not Allowed.—Notwithstanding the affirmance of the judgment of foreclosure, upon, appeal by the mortgagor, this court will not in the first instance allow counsel fees to the respondent mortgagee, none having been fixed, on account of the appeal, by the court below.</p>

<p>Olographic Will—Date—Abbreviations.—An olographic will, wholly-written, dated, and signed by the testator, and dated “New York, Nov. 22, /97,” is not vitiated by the abbreviations in the date, they being only such as are customary, generally recognized, and universally understood, as clearly as if the words were written out in full.</p> <p>Id.—Judicial Notice oe Customary Abbreviations.—The courts will take judicial notice of the meaning of customary abbreviations of common words, including all conventional expressions or arbitrary signs that have passed into common use.</p>

<p>Corporation—Agency to Carry Out Contract—Enforcement of Trust—Injunction.—Where a corporation was formed as an agency for more conveniently carrying out the written agreement of two parties in relation to the newspaper business, to which the parties had contributed, as agreed, in advance of the incorporation, upon the final failure of the business one of the parties may enforce a trust as against the other, in respect of shares agreed upon, and may enjoin him from removing and disposing of the assets; and, in the interests of justice, such suit will be determined in the light of their agreement between themselves, independently of the corporation.</p> <p>In.—Pleading—General Demurrer—Uncertainty of Complaint Aided by Answer.—Where no special demurrer was filed to the complaint, and any uncertainty arising from the generality of its allegations was aided by the full and specific statement of the answer, and a cause of action was stated in a general and meager way, the judgment cannot be reversed because of the overruling of the general demurrer.</p> <p>Id.—Refusal to Strike out Averments—Harmless Error.—Harmless error in refusing to strike out averments from the complaint is to be disregarded upon appeal.</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>The facts are stated in the opinion.</p>

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

<p>Action upon Garnishment—Monet in Bank—Trust—Relation of Debtor and Creditor.—In an action upon a garnishment of money deposited by the debtor in a bank where his sister, substituted for the bank as defendant, set up a trust in part of the fund, such defense cannot be maintained where it appears that the brother was allowed to control and withdraw, and did withdraw, the money belonging to his sister, and that the relation of creditor and debtor arose between them, and that the account levied upon was the individual account of the brother alone.</p>

<p>Criminal Law—Appeal prom Order Fixing Date op Death Sentence —Supersedeas—Certipioate op Probable Cause.—Upon an appeal from an order after final judgment, fixing a date for the execution of a sentence of death in a capital case, the chief justice will not assume the responsibility of granting a certificate of probable cause to operate as a supersedeas, but the application should be made to the appellate court. [Per Beatty, G. J.]</p> <p>Id.—Statutory Provision Limited to Judgments.—The statutory provision in section 1243 of the Penal Code, allowing a certificate of probable cause to be signed by the trial judge or a single justice of this court, applies by its terms only to appeals from judgments, and not to appeals from orders after judgment. [Per Beatty, C. J.]</p>

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

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

<p>Criminal Daw—Homicide—Evidence—Voluntary Confession of Beason for Killing—Statement under Arrest.—Upon a prosecution for murder, a statement made by the defendant while under arrest, in answer to a question asked by a fellow-workman of the defendant, that the deceased ‘ ‘ was on his row and throwing clods at him, and that he told him to get off, and he would not get off, and he got mad and shot him,” is admissible as a confession, if shown to have been voluntary. The fact that the statement was made while under arrest does not take away the voluntary character of the confession or render it inadmissible.</p> <p>Id. — Preliminary Proof of Voluntariness — Cross-examination-Error .without Prejudice.—Before a confession of the defendant can be admitted, the prosecution must show that it was voluntary, and made without any previous inducement, intimidation, or threat, and it is error not to permit the defendant to cross-examine the witness upon the preliminary inquiry, before the confession is received; but such error is without prejudice where a subsequent cross-examination failed to show that the confession was not voluntary, or to impeach the previous statement of the witness that it was voluntary.</p> <p>Id.—Bullet-Wound in Head of Defendant—Possession of Faculties —Weight of Confession.—Evidence tending to show that, at the time of the confession, the defendant was not in the full possession of his faculties, by reason of a bullet-wound in his head, does not go to the admissibility of the confession, but was evidence to be considered by the jury in determining the weight or effect to be given to it.</p>

<p>Criminal Law—Disinterment op Dead Body—Construction op Code. —Section 290 of the Penal Code, which provides that one who “disinters” the dead body of a human being without authority of law is guilty of a felony, is designed to aim at the crime commonly called “body-snatching,” and does not apply to the mere exposing of the body to the elements while in the grave, but requires its removal from the place of burial to constitute the offense.</p>

E. N. Rector, Judge. The facts are stated in the opinion of the court, and in the opinion in the case of People v. Baumgartner, ante, p. 72.

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

<p>Criminal Law—Burglary—Evidence—Stolen Overcoat—Conversation of Pawnbroker with Defendant’s Wife—Opinion of Wife. —Upon a prosecution for burglary, where it appeared that the defendant had pawned a stolen overcoat, taken from a lodging-house, it was prejudicial error to permit the pawnbroker to testify to a conversation with defendant's wife, who was not a witness at the trial, in which he stated to her that he was positive of the identity of the defendant, and she stated her opinion that her husband was innocent, but that everything was against him.</p> <p>Id.—Pawnbroker's Conviction of Identity.—It was incompetent to show that the pawnbroker, as a witness, was equally as confident of the identity of the defendant when talking with defendant's wife as when testifying to such identity at the trial.</p> <p>Id.—Part of Conversation Proved—Incompetent Residue. —Where part only of a conversation has been testified to on cross-examination, it is incompetent to prove the residue thereof on re-examination, where it appears that the residue does not relate to the same subject inquired into on cross-examination, and was not necessary to make it understood.</p>

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

<p>The facts are stated in the opinion.</p> <p>A. A. Sanderson, and Weil & Lippett, and T. J. Crowley, for H. I. Kowalsky, Intervener and Appellant.</p>

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

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

<p>Attachment Bond—Liability of Sureties—Carelessness of Sheriff —Depreciation of Property Attached.—Where judgment is recovered by the defendant in an attachment suit, the sureties on the attachment bond, though not liable for damages caused by carelessness of the sheriff, are liable to the defendant for the amount of the depreciation in value of the property by reason of the attachment, exclusive of any damage caused by the willful and negligent acts of the sheriff.</p> <p>.Td.—Perishable Property—Sale of other Depreciating Property-Order of Court.—The “perishable property” attached that the sheriff may sell, under section 547 of the Code of Civil Procedure, without an order of the court, is such only as is subject to speedy and natural decay; but the sale of other property which would materially depreciate in value from other causes than decay cannot be made, except by order of the court, made under section 548 of that code, after notice to the adverse party, and where it is made to appear to the court that the interests of the parties would be sub-served by a sale thereof.</p>

<p>Statute of Limitations—Amendment of Complaint—New Cause of Action—Fraud of Sheriff—Statutory Penalty—Negligence.— A cause of action against a sheriff, grounded in fraud, in making a false return of money collected, to recover the sum fraudulently retained, with the statutory penalty of twenty-five per cent for refusal to pay the same upon demand, is wholly distinct from a cause of action grounded in the negligence of the sheriff, in failing to collect the money claimed, and negligently allowing a deduction of the expense of harvesting a crop, which was not chargeable to the plaintiff, and the statute of limitations runs as to such cause of action for negligence to the date of the filing of an amended complaint, adding the same, in a separate count, to the other cause of action.</p> <p>Id.—Running of Statute as to Negligence—Discovery Immaterial. —The statute of limitations, upon a cause of action for negligence, begins to run from the date of the act and fact of the negligence complained of; and the date of the discovery of the negligence is immaterial.</p> <p>Id.—General Rule as to Statute of Limitations—Time of Act.— The general rule as to the running of the statute of limitations, except in cases of fraud, is, that the time of the act complained of, and not the time of its discovery, sets the statute in motion.</p>

<p>Criminal Law—Homicide—Defense of Insanity—Appeal—Support of Verdict.—Where a defendant charged with murder is found guilty of murder in the first degree, a claim that he should have been acquitted, on the ground of insanity, will not be allowed upon appeal, where there is no doubt of his guilt, if he were not insane at the time of the homicide, and the evidence as to his sanity was not so entirely insufficient as to warrant this court in disturbing the verdict.</p> <p>Id.—Instructions—Insanity—Intoxication.—Instructions given which correctly stated the law as to insanity and intoxication, and which were applicable to the evidence in the ease, were not exceptionable.</p> <p>Id.—Evidence—Qualification of Young Boy to Testify—Question for Trial Court.—The qualification of a boy nine years of age to testify as a witness for the prosecution was a question for the tfial court, which had the boy before it, and its determination will not be disturbed where there is nothing to show any error or abuse of discretion.</p> <p>Id.—Conversation between Defendant and Deceased.—Evidence is admissible to show a conversation between the defendant and the deceased shortly before the homicide; and the fact that there had been some prior conversations which the witness had not heard cannot affect the admissibility of his testimony, and can only go to its weight.</p> <p>Id.—Misconduct—Argument of District Attorney—“Present ■Sanity” of Defendant.—It was not misconduct for the prosecuting attorney to allude, in his closing argument upon the question of insanity, to the “present sanity” of the defendant, which was not disputed.</p> <p>Id.—Remarks of Court not Prejudicial—Question as to Defendant’s Insanity—Allusion to Date of “Crime.”—The remarks of the court, in response to a request of defendant’s attorney for leave to reply upon the question of defendant’s “present sanity,” that the question was as to defendant’s insanity at the time of the homicide, and the jury would be so instructed, and that “the question whether he was sane now or not was only matter of argument as to what was his condition of mind at the time of the commission of the crime,” were not prejudicial to the defendant, where the use of the word “crime” was not objected to, and the jury would evidently understand it as merely fixing a date, and not as intimating an opinion as to the defendant’s guilt.</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>Calvin Edgerton, L. R. Hewitt, C. N. Wilson, and E. O. Edgerton, for Appellant.</p>

<p>Action fob Maintenance—Fraudulent Transfer—Findings—Support of Judgment—Appeal.—In an action by a wife for maintenance, on the ground of alleged desertion by her husband, and to set aside an alleged fraudulent transfer by him to a co-defendant, findings showing that the husband did not desert her, but sought medical treatment at a public institution, which he was entitled to enter as a veteran Union soldier, and that, before going, he made ample provision for her support,1 and divided with her all personal property, and conveyed only his separate real estate to his daughter, are sufficient to sustain a judgment for the defendants, upon appeal therefrom on the judgment-roll.</p> <p>Id.—Finding as to Desertion—Matter of Fact.—The finding that the defendant did not willfully or otherwise desert the plaintiff, is a finding upon a matter of fact, and not upon a conclusion of law.</p> <p>Id.—Immaterial Omission in Findings—Fraud in Transfer of Separate Property.—The right of the plaintiff to avoid the alleged fraudulent transfer depended on proof of the willful desertion alleged. In the absence of such desertion, the husband had the right to convey his separate property; and the omission to find upon the issue of fraud, or as to the value of the property transferred, or whether the transfer was with or without consideration, is immaterial.</p> <p>Id.—Departure of Husband for Medical Treatment—Omission of Finding as to Necessity.—Where the court found against the fact of desertion, and that the defendant went away for medical treatment, the omission to find as to whether it was necessary for him to go away, or to remain away, for medical treatment, is immaterial.</p> <p>Id.—Appeal upon Judgment-Roll—Evidence not Presumed as to Findings Omitted.—Upon appeal from the judgment, on the judgment-roll alone, it will not be presumed that there was any evidence upon points in respect of which there is no finding.</p>

<p>Bill of Exceptions—Amendments Allowed not Engrossed—Insufficient Certificate—Appeal.—A certificate of the judge, appended to the original draft of the bill of exceptions, certifying that “the foregoing bill of exceptions, with the amendments thereto, offered by the defendant, which are allowed, is true, and correct, and is hereby allowed and settled,” without in any manner identifying the amendments, which were not engrossed, is insufficient, and such bill of exceptions must be disregarded upon appeal.</p> <p>Id.—Equity—Accounting against Mortgagee—Decree of Foreclosure not Prated for—Jurisdiction to Award Full Belief.—Where the plaintiff sued in equity for an accounting by the defendant as mortgagee in possession of a dairy business, under a bill of sale made as security for debt, and alleged the receipt of profits in excess of the debt, and prayed for the accounting and for judgment for the excess, and for a reconveyance of the property, and the defendant took issue upon the averments of the complaint, alleged an absolute purchase, and merely prayed that he be dismissed with costs, the court of equity, upon such accounting, had jurisdiction to administer full relief, and do complete justice between the parties, so as to prevent further litigation between them. Where the court found that the transaction was a mortgage, and that the plaintiff was indebted to the defendant, it had jurisdiction to render an affirmative judgment in his favor, and to order the sale of the property, to pay such debt, though not prayed for.</p> <p>Id.—Estoppel of Plaintiff—Besult of Accounting.—The plaintiff, having brought the defendant into the court to compel an accounting, is in no position to complain of the result of the accounting.</p>

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

<p>Criminal Law—Rape—Female Child—Information.—An information charging the defendant with the crime of rape, committed by having criminal sexual and carnal intercourse, at a time specified, with a female named, described as “a female child under the age of sixteen years,—to wit, of the age of thirteen years,” sufficiently shows that the prosecutrix was under the age of sixteen at the time of the 'alleged criminal intercourse.</p> <p>Id.—Refusal of Continuance—Discretion of Court—Review upon Appeal.—The application of the defendant for a continuance is addressed largely to the discretion of the trial court, and where the court refused a continuance, its decision will not be disturbed upon appeal, if the appellate court cannot say, in view of the facts and circumstances disclosed by the record, that the court below abused its discretion.</p> <p>Id.—Impeachment of Prosecutrix—Testimony Ruled Out—Error not Appearing.—The refusal of the court to allow defendant’s counsel to read certain testimony taken at the preliminary examination, for the purpose of contradicting the prosecutrix, is not shown to be error, where such counsel did not point out to the court wherein it contradicted the witness.</p> <p>Id.—Instruction—Force or Consent Immaterial—Province of Jury. —An instruction to the effect that it is immaterial whether a girl under sixteen years of age consented or resisted, and that neither the element of force nor the question of consent has any application, “that the prosecutrix could not consent, and the law resists for her,” is proper, and does not invade the province of the jury.</p> <p>Id.—Instructions as to Admissions and Testimony of Defendant.— The court may properly instruct the jury in relation to statements or admissions of the defendant, and in reference to the weight to be given to the testimony of the defendant in his own behalf.</p> <p>Id.—Erroneous Requests—Province of Jury—Statement by Prosecutrix—Outcries—Appearance and Conduct.—Requests by the defendant for instructions involving matters of fact, as to whether a statement by the prosecutrix as to her condition was an admission or a confession, and that the jury shall consider the testimony as to whether the prosecutrix made an outcry, or whether she was changed in appearance, or appeared to be nervous, invade the province of the jury, and were properly refused.</p>

<p>Negligence—Stoppage op Electric Car—Contributory Negligence— Stepping opp Car in Motion—Disregard op Warning.—In an action for damages for negligence of an electric railway company, in failing to stop the car at a street-crossing when requested, where it appears that the motorman did not hear the first request, but, upon a second request, quickly and promptly stopped the car a short distance beyond the crossing, in a safe place, and warned the plaintiff not to get off until the car stopped, and that the plaintiff’s injury was owing wholly to his stepping off from the car while it was still in motion, no breach or omission of legal duty appears on the part of the defendant, and the plaintiff was guilty of negligence per se, which justified findings and judgment against him.</p>

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

<p>Action fob Death—Master and Servant—Employment at Machine —Order to Beplace Belt upon Shaft—Death from Set-Screws —Bisk not Assumed.—A servant regularly employed at a machine upon the floor, operated from a revolving shaft ten feet above the floor, did not assume the risk of injury from protruding set-screws, upon the shaft, which could not ordinarily be seen when the shaft was revolving, upon obeying an order of the foreman, for the first time, to ascend a ladder and replace a belt which had slipped from a pulley onto the shaft, if it does not appear that he knew of the special danger from the position of the set-screws, or was cautioned in relation thereto; and the employer is liable in an action for his death caused by his clothing being caught in the set-screws.</p> <p>Id.—Temporary Employment—Assumption of Bisk—Proof Esquired —Question for Jury.—Clear, explicit, and uncontradieted proof is required to show an assumption of risk of danger, as a matter of law, in a temporary employment outside of the regular employment of the servant; and, in the absence of such proof, evidence based merely upon inference and presumption, and not necessarily proving knowledge by the servant of the special danger attending such temporary employment, raises only a question of fact for the jury.</p> <p>Id.—Bule of Employment—Notice of Foreman—Order of Foreman —Justification of Servant.—Where the only evidence of the knowledge by the deceased servant that a rule was in force forbidding employees in the room to interfere with the machinery when disordered is the testimony of the same foreman who ordered the servant to remove the belt from the shaft, the servant was justified in obeying the order.</p> <p>Id.—Slipping of Servant upon Ladder—Inevitable Accident—Fault of Employer—Liability for Death.—Even if the slipping of the servant upon the ladder accidentally contributed to his death, it "was not an inevitable accident in the eye of the law, since the defendant was at fault in ordering the servant to perform a dangerous undertaking outside of his employment, of the danger of which he knew nothing, and was not informed by the employer. If the defendant was so in fault, and there was no contributory negligence of the servant, even if he did slip from the ladder, thereby becoming entangled in the set-screws, the liability for his death is made out.</p>

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

<p>Action against Stockholders of Bank—Venue—Consent of Defendants to Change Place of Trial.—A creditor of a bank has a right to bring and maintain an action against its stockholders in the county where the cause of action arose and where some of the defendants reside, and non-resident defendants cannot, with the unanimous consent of all of the defendants to change the place of trial to the county of their residence, take away the plaintiff’s right.</p>

<p>Fraud as to Creditors—Preference of Creditor—Transfer of Property to Pay Debt.—As between creditors not claiming under the Insolvency Act, in the absence of actual fraud, a debtor may prefer one creditor, by transfer of property to pay the debt, and the contract will be valid as against all other creditors who had acquired no lien upon the property so transferred.</p> <p>Id.—Misrepresentation by Debtor—Innocence of Creditor.—The fact that one of the debtors made false and inconsistent statements as to the financial standing of a firm of which he was a member, which was unable to meet its obligations, at the time of the transfer of property, to pay a creditor of the firm, cannot affieet the preferred creditor, who had no knowledge on the subject of their financial standing, and was not shown to have had any knowledge of or participation in the misrepresentations made.</p> <p>Id.—Burden of Proof—Fraud of Debtor—Valuable Consideration— Knowledge of Fraud.—The burden is upon one who assails a transfer as fraudulent against creditors to prove the fraudulent intent of the vendor, and the burden is then upon the transferee to show a valuable consideration, whereupon the burden again shifts to the assailing party to prove the transferee's knowledge of the fraudulent intent of the debtor.</p> <p>Id.—Suspicion as to Good Faith of Preferred Creditor—Presumption—Proof ¡Required.—It is not enough that the circumstances tend to raise a suspicion as to the good faith of the preferred creditor. The presumption of law is in favor of the fair dealing of the parties; and the evidence of the facts and circumstances, taken together, must amount to proof of fraud, and not to a mere suspicion thereof.</p> <p>Id.—Replevin—Value of Property—Support of Finding—Conflicting Evidence.—In an action of replevin, brought by a bailee of the property transferred to the creditor, against a sheriff who had levied upon the property, under execution against the debtor firm, where the court found the value of the property, as alleged by the plaintiff, upon evidence for the plaintiff, sufficient to support the finding, the fact that the evidence for the defendant conflicts therewith will not justify the appellate court in disturbing the finding.</p> <p>Id.—Recovery by Bailee—Deposit for Sale upon Commission—Special Ownership—Right of Possession.—The special ownership and right of possession of a bailee or depositary for sale upon commission, to whom the preferred creditor of the debtor firm had delivered the property transferred to pay the debt, is sufficient to support a recovery of such property by the bailee, and proof of general ownership in the plaintiff is not required.</p> <p>Id.—Omission in Findings—Facts Admitted.—Where the defendant sheriff admitted the talcing and carrying away of the property, and sought to justify the taking, an omission by the court specially to find upon the facts so admitted is not material, and the court was not required to find thereupon.</p>

<p>Criminal Law—Arson—Pleading and Evidence—Description op Barn Burned—Identification—Ownership.—'Upon the trial of a defendant charged with arson, committed in the burning of a barn, evidence that the barn was located at the place alleged, and that it was generally known by a name alleged in the information, shows a sufficient identification of the property burned, without proof of the alleged ownership of the barn.</p> <p>Id.—Evidence—Purchase and Sale op Barn by Dependant—Estoppel.—Evidence was admissible to show that the defendant purchased the barn from the heirs of a deceased person, by whose name it was generally called, and that the defendant sold the barn to the person alleged to be its owner. The defendant who sold the barn to such person, and then burned it, cannot escape punishment for the offense by claiming that he had no title or right to sell it, and that no title passed to the purchaser from him.</p> <p>Id.—Occupation by Another Person Suppicient.—Under section 452 of the Penal Code, it is sufficient that, at the time of the burning, another person than the defendant was actually occupying the building burned.</p> <p>Id.—Testimony op Alleged Accomplice—Connection op Dependant with Oppense—Requested Instruction to Acquit.—Where there was no evidence to show that a witness for the prosecution, who testified to defendant’s guilt, and who was claimed by the defendant to be an accomplice, was such, and there was other evidence tending to connect the defendant with the offense charged, and his own testimony was rambling and contradictory, a requested instruction to acquit the defendant, on the ground that such witness was an accomplice, was properly refused.</p> <p>Id.—Instruction as to Reasonable Doubt.—An instruction as to reasonable doubt which complies in substance with the definition thereof laid down by this court is not objectionable.</p> <p>Id.—Requested Instructions Coupled with Improper Instructions. —Requested proper instructions which are coupled with improper instructions, so as to constitute a presumed whole, may be properly refused as a whole.</p> <p>Id.—New Trial—Newly Discovered Evidence—Review upon Appeal —Duty op Appellant.—Upon appeal from an order refusing a new trial, where it is claimed that the new trial should have been granted for newly discovered evidence, it is the duty of the appellant to point out to this court the newly discovered evidence, and to show its materiality, and the fact that diligence was used in trying to obtain the evidence before the trial, and that the court abused its discretion; otherwise, the newly discovered evidence will not be reviewed upon appeal.</p>

<p>Action by Bank fob Money Fraudulently Obtained—Discovery of Fraud—Estate of Deceased Person—Statute of’ Limitations.— An action by a bank to recover money from the estate of a deceased person, in which it appears that the money was paid to the deceased in his lifetime, as the assumed agent of a depositor, under a false representation made by him to the bank, that he was such agent, and was authorized by the depositor to draw the money, and to sign the depositor’s name to the receipt therefor, which he .did, whereby the bank was deceived and misled into paying the money to him, and that the bank did not discover the fraud and the falsity of such representation until after the death of the decedent, when the bank was compelled to pay such money to the depositor, is an action for relief on the ground of fraud, in which the statute of limitations of three years did not begin to run until after the discovery of the fraud.</p> <p>Id.—Appeal from Judgment—Finding upon Conflicting Evidence-Province of Trial Judge.—Upon appeal from a judgment rendered in favor of the bank against the estate of such deceased person, where the court found upon conflicting evidence that the allegations of the complaint were true, and that the action was not barred by the statute, although there may be reasonable ground for finding otherwise, this court cannot take from the trial judge the right to pass upon the credibility of the witnesses and upon the sufficiency of the evidence to support his findings, where there was evidence tending to justify them.</p> <p>Id.—Qualification of Witnesses against Estate—Officers of Bank. —The disqualification of a party or his assignor to testify against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter occurring before his death, does not apply to agents or persons employed by the party or his assignor; and in an action by a bank against an administrator upon a money demand, the officers of the bank are not disqualified.</p> <p>Id.—Admissibility of Books of Bank—Preliminary Proof.—The books of account of the bank were admissible in evidence, and the officers of the bank were competent to make the preliminary proof of such books.</p> <p>Id. — Appeal—Assignments of Error not Argued, Waived.—Assignments of error not noticed in appellant’s brief are deemed waived.</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>The facts are stated in the opinion of the court.</p>

<p>Street Assessment—Insufficient Complaint—Description of Work —Delegation of Power to Street Superintendent.—A complaint in an action upon a street assessment, which sets forth a resolution of intention to do the work according to certain specifications adopted by the council, which were stated in the complaint, and which specified that the contractor "shall put in such culverts as the street superintendent shall direct,” and failed to specify the places and materials for the culverts, shows a failure of the council sufficiently to describe the work, and also an improper delegation of power to the street superintendent, which vitiates the street assessment, and does not state a cause of action.</p> <p>Id.—Culverts Indicated in Plans and Profile.—Inasmuch as the objectionable specification does not limit the authority of the superintendent to any particular number of culverts, an averment in the complaint that the plans and profile described only two culverts, which were to be constructed by the railroad company, does not remove the objection to the specification.</p> <p>Id.—Construction at Cost of Contractor—Uncertainty of Work-Competition among Bidders.—The fact that the specification provided that the culverts directed by the street superintendent were to be constructed at the cost of the contractor does not affect the rule against the validity of the specification. Though the cost of the improvement would not be changed after the letting of the contract, the price at which the work would be awarded would vary, according to the uncertainty of the work to be done, and competition among bidders would be materially affected.</p>

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

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

<p>Principal and Surety—Administrator’s Bond.—The general rule is, that the liability of the sureties on the bond of an administrator or guardian depends on the liability of the principal, and does not attach until the latter has been ascertained and determined by a court of competent jurisdiction.</p> <p>Id.—Removal op Absconding Administrator—Ex-P arte Accounting by Successor—Decree not Conclusive.—Where an administrator was removed, as having absconded without an accounting, and subsequently, in a proceeding to which he was not made a party, the newly-appointed administrator rendered an account, ex parte, purporting to embrace moneys and property unaccounted for by the removed administrator, neither he nor his sureties are bound by the decree settling such account.</p> <p>Id.—Authority op Attorney to Appear—Unsupported Finding.— Under an issue raised by the pleadings, as to whether authority was given by the removed administrator to an attorney to appear for him upon the settlement of the accounts of his successor, it required affirmative evidence to support a finding as to such authority; and, in the absence of such evidence, the finding is unsupported.</p> <p>Id.—Authority to Bind Client.—An attorney cannot bind a client by any of the steps in an action or proceeding, except by his agreement, filed with the clerk, or entered upon the minutes of the court.</p> <p>Id.—Parties to Accounting—Appearance by Attorney for Behoved Administrator.—The removed administrator, not having been a party to the accounting, an attorney could not appear for him, so as to bind him by the decree settling the account of his successor.</p> <p>Id.—Limited Jurisdiction op Probate Court—Settlement op Accounts—Statutory Mode.—The probate court has only a limited and statutory jurisdiction; and can only settle the accounts of administrators or guardians in the manner prescribed by the code.</p> <p>Id.—Absence or Death of Principal—Ascertainment op Liability— Civil Action—Parties.—Where an administrator or guardian dies or absconds, or is beyond the jurisdiction of the court, the proper method, in order to ascertain whether he is liable, so as to bind the sureties on his official bond, is by a civil action, in which the sureties must be made parties, and have an opportunity to be heard.</p>

<p>Highway—Bailroad Bight of Way—Fbanohise—Basement—Ejectment.—A railroad right of way over a public highway, based upon an incorporeal franchise or easement granted by the board of supervisors of the county, will not sustain an action of ejectment.</p> <p>Id.—Use of Bight of Way by Another Company—Consent—Acquiescence—Compensation.—A railroad company which has, by its consent or acquiescence, permitted another company to use part of its right of way for a railroad, cannot, after the other railroad has been constructed and operated for a considerable period, maintain ejectment against such other railroad company or its successor in interest; but its remedy is limited to an action to recover compensation therefor.</p> <p>Id.—Acts of Officers—Knowledge'of Bailroad Company—Presumption—Acquiescence.—The railroad company is presumed to know of the acts of its president and other officers in consenting to the construction of another railroad, and where, with such presumed knowledge, it acquiesced in its construction and operation without objection for four years, the company is bound thereby.</p>

<p>"Vendor and Purchaser—Contract of Vendor to Cultivate Land-Payment from Profits—Vendee’s Option.—Where a vendor contracted with the vendee to cultivate the land in grapes, and receive all profits for three years, and thereafter to retain possession and apply all net profits in payment of the purchase money, and to retain a lien upon the land until payment thereof, and to surrender possession when paid from the profits, or when paid any net balance, at the option of the vendee, the contract cannot be construed as an unconditional promise of the vendee to pay the purchase money; and the fact that the land became unprofitable cannot entitle the vendor to enforce payment otherwise than under the terms of the contract. He cannot maintain an action against the vendee to recover the unpaid balance of the purchase money and to enforce his lien.</p>

<p>Poreclosube of Street Assessment—Width and Grade of Streets— Prima Pacte Case—New Triad.—In an action, to foreclose the lien of a street assessment, the warrant, assessment, engineer’s certificate, and diagram, with the affidavit of demand and non-payment, all of which appeared to have been duly recorded in the office of the street superintendent, established a prima facie case for the plaintiff; and in the absence of evidence to the contrary, proved all the facts constituting his cause of action, including the fact that the width and grade of the streets in question had been officially established; and where the court found against that fact, for the want of other evidence to prove it, a new trial was properly granted.</p>

<p>Street Assessment—Eecord op Diagram—Admission in Pleadings— Description—Error in Arrow—Immaterial Variance—Identification.—In an action to enforce a street assessment, where the assessment and diagram as recorded gave a sufficient and true description of the lot assessed, and allegations in the complaint as to the true direction of the street and that the lot of the defendant was assessed as alleged, were not denied; a mere error in the direction of an arrow upon a street named in the original diagram which was corrected in the record, is an immaterial variance, if there was sufficient other description in the original diagram to identify the lot assessed. •</p> <p>Id.—Appeal prom Order Granting New Trial—Absence op Diagram prom Eecord—Presumption.—Upon appeal from an order granting a new trial, where the diagram is not contained in the record, it must be presumed, in favor of the order, that the arrow was not an essential part of the description, and the finding that the lot was in fact assessed will be accepted as conclusive upon such appeal.</p> <p>Id.—Arrow when not Part op Assessment.—An arrow is not an essential part of an assessment, unless used as an essential part of the description; and where the description is otherwise sufficient to identify the land assessed, and to show the relative location of each lot to the work done, an arrow or other mark indicating the points of the compass is unnecessary and immaterial.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Joseph M. Kinley, Albert M. Armstrong, and J. Macy McKinley, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Reddy, Campbell & Metson, for R. I. Whelan, Sheriff, Appellant.</p> <p>Cannon & Freeman, and Dinkelspiel & Gesford, for D. A. Curtin, Appellant.</p>

<p>Life Insurance—Policy from Domestic to Foreign Company—Action by Foreign Beceiver—Judgment upon Attachment by Domestic Creditor—Comity.—The rule of comity allowing a receiver appointed in another state to maintain an action in the courts of this state does not apply to sustain an action by the receiver of an insurance company of another state, appointed under its laws, upon a policy issued by an insurance company organized under the laws of this state, and payable to such foreign insurance company, where it appears that the full amount to be paid thereon had been garnisheed in an attachment suit brought in this state by a resident creditor of such foreign corporation, in which suit judgment was.obtained .against the foreign corporation, and' the whole fund was claimed by such resident judgment creditor.</p>

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

<p>Street Assessments—Vrooman Act—Constitutional Law.—The act regulating assessments for street improvements, known as the “Vrooman Act,” is constitutional and valid. The prior decisions of this court, distinguishing the case of Norwood v. Balcer, 172 U. S. 269, and upholding the constitutionality of the Vrooman Act, are affirmed.</p>

<p>Corporations—Issuance op Stock at Less than Par—Unanimous Consent—Validity—Consideration—Labor and Property.—By unanimous concurrence of all the directors and stockholders of a corporation, its shares of stock may be issued as paid up, for less than their par value in money, or in exchange for labor or property. Stock issued in exchange for labor or property is upon lawful consideration, and is neither fictitious nor void as to the public.</p> <p>Id.—Conveyance op Street Franchises to Street Bailway Company —Issuance op Entire Stock to Grantors.—The conveyance of street franchises to a street railway company by subscribers, who took all of its stock in exchange therefor, and who at the time of the issue thereof were its only stockholders and directors, and who had then transferred none of the stock, was upon a valuable consideration, and not invalid.</p> <p>Id.—Misrepresentations op Corporation—Improper Issue op Unpaid Shares—Estoppel—Bona Fide Purchaser not Damaged.— Since the corporation has power to issue shares of stock upon proper conditions, even if it made misrepresentations, through its directors, that its shares were paid up, when the contrary was the fact, and thereby induced a purchaser to take an improper and illegal issue of unpaid shares of stock, it would be estopped to claim their invalidity; and shares so issued would be good in the hands of a tona fide purchaser thereof, who took without knowledge of the facts showing their invalidity; and he cannot be damaged by such misrepresentations.</p> <p>Id.—Statute op Limitations—Discovery op Fraud—Means op Knowledge.—Where the complaint for damages arising from the purchase of stock by the plaintiff, on the grounds of alleged fraud of the defendants, shows a discovery of all the facts necessary to a complete understanding of the alleged fraud two days less than three years prior to the commencement of the action, and the complaint sufficiently shows that the plaintiff had the same means of knowledge a year earlier, and that the circumstances were then such as to put him upon inquiry, and that with reasonable diligence he might then have learned all that he subsequently learned, such means of knowledge must be deemed equivalent to knowledge, and the complaint shows that the cause of action was barred by the statute.</p>

<p>Action to Quiet Title—Cross-Complaint—Specific Performance of Contract—Performance of Conditions.—In an action to quiet title to a tract of land, the defendant may, by cross-complaint, enforce specific performance of a contract between the plaintiff and defendant’s assignor which provided that, upon performance of conditions specified in regard to setting out trees upon the tract and earing for the same, such assignor should at the end of three years be entitled to a conveyance of a certain number of acres, to be selected by the plaintiff, and to a transfer of a specified number of shares of a water company named, where the cross-complaint shows that the conditions were fully performed by the defendant and his assignor while in possession of the land.</p> <p>Id.—Statute of Limitations—Possession under Executed Contract. —Where it appears that the contract was fully performed within the time limited for its performance, the fact that the time of performance was more than four years prior to the filing of the cross-complaint, for specific performance of the contract, is immaterial, so long as possession was held under the contract.</p> <p>Id.—Running of Statute—Equitable Title—Trust of Vendor for Vendee.—The performance of the conditiohs gave to the defendant as full an equitable title as if a full money consideration had been paid for the land and water stock; and the statute of limitations does not begin to run against the specific performance by a vendee in possession of- a contract of sale fully executed on his part, which makes the vendor a mere trustee of the legal title for the benefit of the vendee.</p> <p>Id.—Specific Performance of Contract to Select Land—Certainty —Power of Equity.—The remedy of the defendant was not confined to an action for damages for breach of the contract of plaintiff to select and convey the part of the land to be selected by him; and there being no uncertainty as to the manner in which the selection is required to be made, a court of equity has power specifically to enforce the contract, and to compel the selection to be made.</p> <p>Id.—Contract to Transfer Water Stock—Personal Property—Adequate Belief.—The contract to transfer the water stock being essential to the adequate relief of the defendant against the plaintiff, and being a part of the entire consideration of the improvements to be made on the land, the- money value of which was not fixed, nor the value of the water stock shown, equity will enforce specific performance of such contract, though it relates to personal property.</p> <p>Id.—Pleading—Value—Services—Adequacy of Consideration—Fairness and Justice of Contract.—The general rule, that a complaint for specific performance should state the value of the land and the adequacy of the consideration therefor, does not apply to a case where the facts stated show that great labor and skill were to be bestowed for three years upon an entire tract of land, by way of purchase money, for a part thereof, and that the consideration for the promise to convey part of the land was adequate. In such ease, equity will not place a money value upon the services which were fully performed, nor upon the land and water stock to be conveyed in consideration thereof; and it is sufficient that it appears,.from all the facts stated and proved, that it would be fair and just, and not inequitable, to enforce the contract.</p>

<p>Injunction—Removal of Machinery from Stone-Quarry—Action by Owner of Land—Possession Evidence of Title.—An action by the owner of land, in possession thereof, to enjoin the removal of machinery, engines, derricks, tramways, and wire cable, attached. to the soil, will be sustained, upon the presumption of ownership arising from the possession thereof, even if the property be considered as personal property, in the absence of proof- of other ownership thereof.</p> <p>Id.—Purchase from Lessee—Burden of Proof as to Ownership.—A defendant claiming title to the property involved by purchase from a lessee, who affixed it to the soil, for use in a stone-quarry leased from the plaintiff, has the burden of proving title to the property in the lessee at the time of the purchase, in order to overcome the presumption of ownership arising from the possession of the property by the plaintiff.</p>

<p>Criminal Law—False Pretenses—Attempt to Obtain Bounty on Squirrels—Procuring False Afeidavit—Invalidity op Ordinance.—The crime of attempting by false pretenses to obtain money from the county offered by a county ordinance as a bounty on squirrels killed or destroyed within the county, by falsely representing that squirrels killed elsewhere were killed within the county, and, under an agreement for division of the bounty, procuring a' resident citizen to make false affidavit thereto, accompanied by the squirrel-tails, pursuant to the ordinance, is not affected by the invalidity of the ordinance for informality in its passage, especially where it appears that the board of supervisors and citizens of the county acted thereunder, in belief of its validity, which facts were known to the defendant, and that the board was induced by such false pretenses to allow the false claim.</p> <p>Id.—Essence op Crime Charged—Illegality op Ordinance Immaterial.—It was the false pretense, used with intent to defraud the county, and not any defect or invalidity in the ordinance, that constitutes the crime charged; and the illegality of the ordinance was immaterial. The fact that the ordinance was found to be illegal before the offense of actually obtaining the money by the false pretenses was consummated, cannot prevent conviction of the lesser crime of attempting so to obtain it.</p> <p>Id.—Instruction as to Circumstantial Evidence.—An. instruction that “there is nothing in the nature of circumstantial evidence that renders it any less reliable than the other class of evidence"; 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 guilt or innocence depends must inevitably follow,” is not prejudicially erroneous, and does not invade the province of the jury.</p> <p>Id.—Instruction as to Testimony of Accomplice.—Where the court gave instructions embodying the provisions of sections 1110 and 1111 of the Penal Code, relative to the testimony of an accomplice, the giving of another instruction on that subject which was not in conflict with those sections is not erroneous.</p> <p>Id.—Evidence—Sack Containing Additional Squirrel-Tails—Conversations with Accomplices—Harmless Ruling.—The court did not err in admitting in evidence a sack containing additional squirrel-tails, brought from the same county; and where witnesses had previously testified, without objection, as to the facts of a conspiracy to have several accomplices, to impose the whole of them upon the county, the admission of evidence of conversations of defendant with such accomplices is harmless.</p>

<p>Mandamus—State Board of Health—Inspection of Beports—Bightful Transmission to Governor.—Mandamus will not lie to compel the secretary- of the state board of health to grant an inspection of reports of bacteriologists which, prior to the commencement of the proceeding, had been rightfully transmitted by the board to the governor, so as to put it out of the power of the secretary of the board to comply with a writ of mandate.</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 the City and County of San Francisco denying a change of the place of trial of an action. J. M. Seawell, 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>P. F. Dunne, G. W. Baker, and C. Michener, for Appellant.</p>

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

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

<p>Criminal Law—Embezzlement—Information—Proof.—An information charging that the defendant as agent and bailee of a person named was intrusted with certain jewelry therein described, to be sold by the defendant and the proceeds returned to such person, and that the defendant feloniously embezzled the jewelry and converted the same to his own use, and to purposes not within the due and lawful execution of the trust, states a complete offense, which is sustained by proof of an agreement to return the jewelry or the proceeds thereof on or before a specified time, and that neither was returned, and that defendant tried to conceal a portion of the jewelry, and stated that he did not have the remainder thereof.</p> <p>Id.—Unnecessary Averment and Proof—Negation of Sale and Payment of Proceeds.—It was not necessary that the information should aver that the goods were not sold, nor that the proceeds of sale were not paid over, nor to prove such averment; but it was sufficient to aver and prove that the defendant was intrusted with ' the property as bailee, and fraudulently converted it to his own use.</p> <p>Id.—Intention to Eestore Property.—The intention of the. defendant to restore the property intrusted to him as bailee, is no defense, unless the property was actually restored before information was filed charging the commission of the offense.</p> <p>Id.—Cross-Examination—Independent Transactions.—Upon cross-examination of a witness, evidence of his relationship to the defendant as to other and independent transactions not involved in the case on trial was properly excluded.</p> <p>Id.—Cross-Examination of Defendant—Beview upon Appeal—Alleged Errors not Argued.—Alleged errors in the cross-examination of the defendant, merely stated in the appellant’s brief, without argument or statement of reasons or authorities to show why the rulings were erroneous, will not be considered of sufficient importance to merit notice in the opinion of the court.</p> <p>Id.—Instruction—“Assuming” to Act as Agent or Bailee.—An instruction properly stating the law as to embezzlement by one who feloniously converts to his own use the property of another intrusted to him for the owner’s use, is not prejudicial to the defendant because predicated on the supposition that such person “assumes to act as the agent or bailee of another, and in such assumed capacity is intrusted with, and receives into his care and custody,” such property. If he assumed to act as such agent or bailee, and by this means was intrusted with the property, he was such agent or bailee.</p>

The facts are stated in the opinion of the court. Thomas C. Huxley, Edward C. Robinson, B. McFadden, and R. M. Fitzgerald, for the motion in favor of Respondents.

<p>Deed—Delivery—Presumption.—A deed which was signed, acknowledged, and recorded on the day of its date, and produced in evidence by the grantee, carries with it the presumption that it was delivered on that day.</p> <p>Id.—Action to Quiet Title-Deed to Plaintiff—Verified Admission —Trust Alleged—Proof—Finding against Evidence.—In an action to quiet title, in which the verified answer and cross-complaint of the defendant alleged title in the plaintiff by deed from defendant’s brother, and claimed a trust of plaintiff for defendant, a finding that neither party had any title or interest to be quieted, and that plaintiff was not the owner of the property, is against evidence, where the plaintiff proved a deed from the source of title alleged in the answer, carrying with it a presumption of delivery, and proved that he purchased and paid for the property, through an agent, thus showing title, prima facie, in himself, and where the defendant introduced no evidence, and failed to prove any interest in the property, or any trust therein, in any manner.</p> <p>Id.—Title from Common Source.—Where it appears by the verified answer that both parties claim title through a common source, the plaintiff need not prove title in his grantor.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Alameda County refusing to set aside a judgment. S. P. Hall, Judge. The facts are stated in the opinion of the court.

<p>Husband and Wife—Conveyance to Wife—Absence of Money Consideration—Undue Influence not Presumed.—Upon, a conveyance from a husband to his wife, undue influence of the wife over the husband is not presumed from the mere relation of husband and wife, though no money consideration was paid by her for the deed.</p> <p>Id.—Action by Children to Set Conveyance Aside—Proof—Delivery—Presumption—Finding. —In an action by the children of the deceased husband by a former marriage, to set aside his conveyance to his second wife, where there was no evidence tending to sustain the charge of undue influence, and near the close of plaintiff’s evidence the deed was called for from the possession of the defendant and placed in evidence by the plaintiff, which showed that it was acknowledged on the day of its date, the allegation of plaintiff’s complaint, that it wras not delivered, was disproved by the presumption of law that it was delivered at its date, which, not being controverted, bound the jury or the court to find according to the presumption.</p> <p>Id.—Jury Trial—Motion for Nonsuit—Stipulation—Trial by Court. —Where the trial of the cause was begun before a jury, which heard the evidence adduced by the plaintiff, and when the defendant moved for a nonsuit the parties stipulated that the jury should be discharged, and that in case the motion was denied the court should proceed in the case without a jury, such stipulation left the court the sole judge of the facts, with power to pass upon the motion as though no jury had been called.</p>

<p>Ejectment—Description oe Land in Judgment—Ascertained Boundaries—Estimated Quantity—Surplus age.—A judgment in ejectment which describes the land recovered as “bounded on the north by the north boundary” of the south half of a specified quarter-section, “on the east by the east boundary thereof, and on the south and west by the fence of the defendant, containing about 10.62 acres,” is not to be construed as limiting the land recovered to that quantity, and the defendant cannot remove his fence so as to relinquish the possession of 10.62 acres only. The boundaries being fixed by ascertained monuments, the words “about 10.62 acres” may be rejected as surplusage; and the plaintiff is entitled to the possession of all of the land within the boundaries described, which are paramount to the estimated quantity of surface.</p> <p>Id.—Alias Writ op Possession—Evidence—Testimony op Surveyor. —Where it appeared that after a writ of possession was issued, and the plaintiff was put in possession of the property recovered in the action of ejectment, the defendant moved his fence so as to include part of the land recovered, and to confine plaintiff's possession to the estimated quantity of acres, upon an application of the plaintiff for an alias writ of possession, the testimony of a surveyor who had been a witness in the original trial as to another survey made by him, showing that the defendant had re-entered into the possession of and inclosed part of the lands described by the boundary lines of the original judgment was admissible.</p>

<p>Equity Jurisdiction—Fraud in Obtaining Decree of Distribution— - Intrinsic Fraud—Absence of Power to Set Decree Aside.—A court of equity cannot relieve against intrinsic fraud in obtaining a decree of distribution of the estate of a deceased person by mere perjured testimony; nor has it jurisdiction, on any ground of alleged fraud in obtaining the decree, to set it aside, or to interfere in any manner with the exclusive jurisdiction of the probate court.</p> <p>Id.—Extrinsic Fraud—Fraudulent Heir—Misrepresentation by Mother of Minor Heirs—Trust—Limit of Equitable Belief.— Where fraud extrinsic to the merits was committed upon the court, in defrauding minor pretermitted heirs, by an executrix who was their mother and natural guardian, by not disclosing to the court their full rights, and falsely representing to the court in her petition for distribution that another son of hers, who was not an heir of the deceased, was his child, and by conspiracy with him fraudulently procured distribution to him of a part of the estate which would otherwise have gone to the minor heirs, equity has jurisdiction to declare such fraudulent distributee a trustee of the defrauded minor heirs, who had no knowledge of the fraud, and to compel a conveyance from him to them, or if a conveyance cannot be had, to hold him accountable to them for the value thereof. This is the limit of the power of equity to afford relief in dealing with the matter. e-</p>

<p>Criminal "Law—Robbery—Instructions—Possession of Property Taken—Absence of Explanation.—Upon a prosecution for robbery, it is proper to instruct the jury to the effect that a failure of the defendant to account for the possession of the property taken from the person of the prosecuting witness, or to show that such property was honestly obtained, is a circumstance tending to show guilt, and that the accused is bound to explain the possession, in order to remove its effect as a circumstance to be considered with other suspicious facts, if the evidence discloses them. Such instruction does not conflict with an instruction that the possession of stolen property unexplained is not of itself sufficient to show guilt, but is a circumstance tending to show guilt, which may be considered by the jury in connection with other testimony.</p> <p>Id.—Testimony of Defendant—Ignorance—Burden of Proof—Province of Jury.—The testimony of the defendant that he had no knowledge as to how the property of the prosecuting witness got into his possession did not east upon the prosecution the burden to prove his statement to be false. The jury were not bound to believe the defendant's statement as to his want of knowledge.</p> <p>Id.—Aiding and Abetting Offense.—If defendant was present when the robbery was committed, and the jury believed from the evidence that he aided and abetted in its commission, he was properly found guilty.</p> <p>Id.—Instruction as to Lesser Offense not Requested—Estoppel. — Where the defendant failed to request an instruction as to grand or petit larceny, and the uneontradieted evidence showed that the property was forcibly taken from the person of the prosecuting witness, it was not incumbent on the court to instruct as to the lesser offense; and where the defendant proceeded upon the theory that he was either guilty of the offense charged or not guilty, and adopted that theory in the instructions requested by him, and took his chances of acquittal by pursuing such course, he will not be allowed to complain because he might have been convicted of a lesser offense.</p>

<p>Account Stated—Implied Promise—Written Contract—Statute of Limitations.—An account stated in writing does not, by mere acquiescence of the debtor therein, raising an implied promise to pay the amount, become a contract in writing by the debtor within the statute of limitations.</p> <p>Id.—Account Stated not Shown—Distinct Debts of Individual and Copartnership—Settlement between Defendants—Transfer of Assets.—Where an individual defendant and a copartnership de1 fendant had separate dealings with the plaintiff and owed him distinct debts, and upon settlement of the copartnership of which the individual debtor was a member, he turned over to his copartner, a corporation defendant, all of the partnership assets, and certain individual assets, and they adjusted between them - the total amount due to the plaintiff, and the corporation, without assuming his individual liability, agreed to pay to the plaintiff the proceeds of the assets when collected, the rendition of the individual and copartnership accounts, in a statement delivered to the corporation defendant, did not, by failure of the corporation to object thereto, constitute it an account stated in favor of the plaintiff against the corporation, nor render it personally liable to pay the individual debt.</p>

<p>APPLICATION for writ of habeas corpus to the Sheriff of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p> <p>Albert P. Wheelan, S. P. Elias, and Walter Rodgers, for Petitioner.</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>Action for Monet Loaned by Testator—Gift—Support of Finding-Conflicting Evidence.—In an action for money loaned by a testator to the defendant, a finding that certain sums sued for were a gift from the decedent to the defendant is sufficiently supported by substantial evidence that the gift was made, notwithstanding conflicting evidence as to the intention of the testator to make the gift.</p> <p>Id.—Evidence—Absence of Heirs—Will of Testator—Family Relationship.—Evidence was admissible to show that the testator had no child, wife, or parents to provide for, as bearing on the probability of the gift to the defendant; and his will, executed shortly after the alleged gift, was competent evidence as to his family relationship.</p>

<p>Criminal Law—Felony—Appeal—Absence op Argument—Error not Appearing—Affirmance.—Upon appeal /from a judgment of conviction of a felony and from an order denying a new trial, where the transcript consists merely of the judgment-roll and notice of appeal, without any statement or bill of exceptions, and shows that the appellant had the aid of competent counsel upon the trial, but no brief has been filed in his behalf upon the appeal, if no error is apparent upon the face of the record, the judgment will be affirmed.</p>

<p>The facts are stated in the opinion.</p> <p>Louttit & Middlecoff, T. J. Elliott, J. B. Webster, and A. C. White, for Appellants.</p>

<p>Criminal Law—Conviction of Embezzlement—Order Denying New Trial—Arraignment—Appeal from Second Order—Bill of Exceptions.—Where, after a conviction of embezzlement, a motion for a new trial was made and denied, and not appealed from, but the defendant was not properly arraigned before judgment, and upon a subsequent appeal, taken more than a year thereafter, the cause was remanded, with directions to arraign the defendant for judgment, which was done, whereupon the defendant again moved for a new trial, and appealed from a second order denying the motion, the trial court can only be required to settle a bill of exceptions, setting forth both the proceedings had upon the former motion and those had upon the latter motion.</p> <p>Id.—Appeal from Judgment—Bill of Exceptions—Mandamus.—A bill of exceptions upon appeal from the judgment should only set forth so much of the evidence as is necessary to explain the errors of law relied upon, and where the only demand made was for the settlement of a bill of exceptions containing all the evidence in the case, such demand was properly refused, and where the court expressed its willingness to settle a proper bill of exceptions, mandamus will not lie to compel the settlement thereof.</p>

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

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

<p>Estates of Deceased Persons—Contest for Letters—Legitimation of Illegitimate Daughter—Reversal of Order.—Where upon a contest for letters of administration upon the estate of a deceased person letters were issued to the respondent, as being the illegitimate daughter of the deceased, who is found to have been legitimated under section 230 of the Civil Code, the order appointing her will be reversed for error in the admission of' evidence upon that question.</p> <p>Id.—Evidence of Paternity and Illegitimacy—Declarations of Deceased-Membership in -Family.—Where proof aliunde has been given of membership in the family of the deceased, evidence of the declarations of the deceased as to the facts of paternity and illegitimacy of the daughter are admissible as evidence of those facts, under section 1852 of the Code of Civil Procedure.</p> <p>Id.—Declarations Made after Majority of Daughter—Public Acknowledgment.—Declarations made after the majority of the daughter are admissible on the question of paternity, but not to prove or constitute the public acknowledgment required to be made when she was a minor.</p> <p>Id.—General Reputation not Admissible.—Paternity cannot be proved by general reputation; and it was error to admit proof that, according to the general reputation in the community where she resided, the respondent was the daughter of the deceased person claimed as her father. It is only the common reputation in the family, and not the common reputation in the community, that is admissible on questions of pedigree.</p> <p>Id.—Consent of Wife—Knowledge of Paternity and Illegitimacy. —The consent of the wife provided for in section 230 must be based upon knowledge of the facts that the child received into the family is the illegitimate offspring of her husband.</p>

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

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

<p>Building Contract—Non-performance—Liquidated Damages—Pleading—Evidence.—Where a building contract stipulated that in case of non-performance of the work by the contractor within the time specified he should, pay as liquidated damages the sum of ten dollars for each day while the building should remain incomplete after such time, in order to recover such liquidated damages against the sureties on the bond of the contractor it is necessary both to plead and to prove that it would be impracticable or extremely difficult to fix the actual damage. The admission of evidence to prove it, without pleading it, is erroneous.</p> <p>Id.—Presumption against Validity of Liquidated Damages—Exception to be Pleaded and Proved.—Under the general provisions of section 1670 of the Civil Code making all contracts for liquidated damages void, except as expressly provided in section 1671, it must be presumed, in the absence of a showing that the case is within the exception that the contract for liquidated damages is invalid; and the exception must be both pleaded and proved to overcome that presumption.</p> <p>Id.—Abandonment of Contract—Sums Paid to Correct Existing Defects—Liability of Sureties of Contractor.—When the contract required the contractor to furnish all the labor and materials, and finish the building according to the plans and specifications, and the contractor abandoned the contract, sums paid to correct defects in workmanship or in materials improperly prepared, the defects in which could not be discovered with reasonable care until put in the building, are not properly chargeable to another contractor who completed the contract, but are paid for extra work, for the expense of which the original contractor and the sureties on his bond are justly liable.</p> <p>Id.—Knowledge of Defects—Conclusive Presumption against Original Contractor—Responsibility of New Contractor.—The original contractor, having furnished the materials and performed the work up to the stage when he abandoned it, was conclusively bound to know all defects in the existing materials and workmanship, and was bound under his contract to correct them. The new contractor was not bound to know of defects that were not known or apparent to a skillful observer when he entered upon his contract, and such defects were not covered by his contract. He was only bound to correct defects without extra compensation which were then apparent to him as a skilled observer.</p> <p>Id.—Recovery of Sums Paid to Cure Defects—Pleading—Uncertainty—Bill of Particulars.—Where the complaint alleged in substance that the original contractor did not provide the materials required by his contract, and in consequence of imperfect construction done and improper materials furnished the plaintiff was compelled to pay, and did pay, a specified sum for the correction of such work, so as to make it conform to the contract, such averments are not subject to a demurrer for uncertainty in not stating a cause of action as to each of the defects corrected. In such case, the only provision for simplifying the pleading as to particular defects is to demand a bill of particulars, or copy of the account in writing, under section 454 of the Code of Civil Procedure, which section is intended to apply to every claim in contracts which consists of several items.</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>F. W. Ewing, District Attorney, and Edward M. Selby, for Appellant.</p>

<p>Quo Warranto—Municipal Board op Health—“Municipal Appair" —State Board.—Quo warranto will not lie in the name of the people upon relation of the health officer of the state board of health against the municipal board of health established under the charter of the city and county of San Francisco, to prevent them from exercising any powers. Municipal powers are conferred and municipal duties are imposed upon the municipal board by its charter; and that board, as to its municipal functions, is a “municipal affair,” which the city may lawfully maintain.</p> <p>Id.—Questions Not Involved.—The questions as to what powers and functions may still be exercised by the state board of health, and as to how far the municipal charter is subject to legislative control in the exercise of the police power under general laws, are not involved in such action of quo warranto.</p> <p>Id.—Inconsistency between Code Provisions and Municipal Charter. —In so far as the provisions of the charter are purely municipal in their character, any code provisions inconsistent therewith are to that extent superseded by the charter.</p>

<p>Bailroad Grant—Sale of Land—Contract—Diligence to Procure Patent—Bescission.—Where a railroad company sold land claimed by it as part of a railroad grant from the United States government and contracted to endeavor to procure a patent therefor with reasonable diligence, and that if a patent could not be procured it would return the money paid, the purchaser cannot rescind the contract of purchase, and reclaim the money paid, so long as the vendor continued to use reasonable diligence, and prosecuted expensive litigation in order to procure a patent, and it had not been finally decided that it was not entitled thereto.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William Denman, and Chickering, Thomas & Gregory, for Appellant.</p> <p>Reddy, Campbell & Metson, and Garret W. McEnerney, for Respondents.</p>

<p>Trial—Designation of Issues—Limiting Evidence—Practice—Exception—Appeal.—It is proper practice for the court at the opening of the trial to designate the issues to be tried, and to 'direct and limit the introduction of evidence to these issues alone. Either party has the right to except to such ruling, and to have it reviewed upon appeal, but should submit thereto and accept the ruling without future offer of evidence upon an excluded defense.</p> <p>Id.—Action upon Note—Issue Limited to Execution—Delivery not Excluded—Evidence—Production of Note.—In an action iipon a note, a declaration by the court that the only issue under the pleadings related to the execution of the note should be construed not as excluding, but as including, an issue as to its delivery. The delivery was prima facie established by the production and proffer of the note in evidence.</p> <p>Id.—Excluding Issues as to Consideration and Non-payment-Affirmative Defenses not Pleaded.—The promissory note imports a consideration, and its production is sufficient evidence to sustain the negative allegation of non-payment; and the mere denial of consideration and of non-payment does not raise issues upon which the defendant was deprived of proof, to his injury, by limiting the issue to the execution of the note, where he failed to plead the want of consideration and payment, which, as defenses, must be affirmatively pleaded.</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>Ejectment—Action by Administrator—Statute of Limitations— Adverse Possession.—An. action of ejectment by an administrator to recover the possession of real property of the decedent is barred by the adverse possession of the defendant for the period prescribed by the statute of limitations.</p> <p>Id.—Bight of Possession of Trustee.—The right of possession resting in an administrator or executor is barred in the same way as the right of possession of any other trustee, by adverse possession.</p> <p>Id.—Mortgage by Executrix as Individual—Foreclosure—Sheriff’s Deed—Adverse Possession of Purchaser. — Where the will of a deceased person made his widow the executrix, and also the devisee of a life estate, with remainder to the children, and gave her power to dispose of the estate for the support of herself and children, and she, in her individual capacity, mortgaged the entire land as security for a loan, and, upon foreclosure proceedings had against her and the children, the decree, sale, and sheriff’s deed purported to vest the estate in fee in the defendant as purchaser, who took possession thereunder, collected all rents, paid all taxes, and exercised complete ownership for six years prior to the commencement of an action of ejectment by the administrator with the will annexed, the purchaser thereby acquired a title to the premises by adverse possession, as against such administrator, and it is immaterial what legal interest was acquired by the foreclosure, sale, and deed.</p> <p>Id.—Coincidence—Bights of Executrix and Devisee—Adverse Entry of Purchaser—Trespass—Sunning of Statute.—The fact that the widow of the deceased was both executrix and devisee under the will is a mere coincidence. As executrix she was not co-tenant with a devisee or heir; and her right of possession as executrix entitled her to oust from possession, as a trespasser, the purchaser under foreclosure of the mortgage made by her in her individual capacity. From the moment of the adverse entry of the purchaser into possession, as claimant of the title in fee, the statute of limitations began to run against the executrix.</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>CERTIORARI to the Police Court of the City and County of San Francisco to annul proceedings for the trial, convietion, and judgment of the petitioners. George H. Cabaniss, 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 rendered in Department Two.</p>

<p>Mandamus to Supervisors—Lowest Bid for Printing—Rejection of All Bids—Power of Board under Charter.—Mandamus will not lie in favor of the lowest bidder for printing forms and blanks under an advertisement for sealed proposals therefor by the board of supervisors of the city and county of San Francisco, where the advertisement stated that "the board reserves the right to reject any and all bids if the public good so require,” and the board, in the exercise of a power given to it by the charter, "when the supervisors believe that the public interests will be subserved thereby,” rejected all bids for the reason assigned, "that public policy demands such action to be taken.”</p> <p>Id.—Allegation in Petition—Reason for Rejection—Absence of Union Label—Judgment of Board Final.—An allegation in the petition for mandamus, that no grounds of public interest or public policy were stated, or could be truthfully stated or existed, and that the real reason for rejection of plaintiff's proposal was that plaintiff had not been authorized by the Allied Printing Trades Council to use its label, is not sufficient to support the petition, since the law has made the board the final arbiter of the question of public interest, and vested in it full discretion to determine the matter, and made its belief and judgment final, however capricious or erroneous the exercise of its judgment may have been.</p> <p>Id.—Power of Court to Interfere by Mandamus—Belief and Discretion of Board—Capricious Action.—The court cannot interfere by mandamus to substitute its belief and judgment for that of the board. The writ of mandate will lie to correct illegal but not capricious acts. It will only lie to compel the performance of an act specially enjoined as a duty resulting from an office; and where the discretion to be exercised by the inferior tribunal was intended to be final, it cannot be controlled by mandamus.</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>Contract with City for Sewerage—Form of Judgment—Direction fob Payment—Other Claims not Superseded—Warrant Required.—A judgment upon a contract with a city for taking care of its sewerage during a particular fiscal year should only be general in form, without special provision as to the revenue from which it is to be satisfied, which is a matter regulated by the constitution and the law; and if such provision is inserted, it does not operate to supersede or supplant other claims against the same fund. The treasurer cannot pay the judgment, or any part thereof, without a warrant allowed and drawn for that purpose.</p> <p>Id.—Allowance of Warrants in Order of Presentation of Claims— Fart of Judgment—Claim for Flushing Sewers—Error.—Where the trustees ordered warrants payable out of the sewer fund for the same fiscal year, in the order of the presentation of the claims as they fell due upon the respective contracts therefor, and accordingly allowed a warrant for part of the judgment against the county upon the contract for taking care of the sewerage, and another warrant for an amount next falling due upon a contract for flushing sewers, it is error to hold that the remainder of the judgment directing payment out of the sewer fund superseded sueh other claim first presented.</p>

The complaint, besides alleging the unlawful exaction of the internal-revenue tax of one cent from the plaintiff, alleged that,1 ‘the defendant is, and ever since the twelfth day of July, 1898, has been, unlawfully and without right asking and demanding of all persons within this state who do and transact any express business with defendant in this state, the payment by such person of the internal-revenue tax.” The answer expressly admitted this averment, with the exception…

<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>Negligence—Failure of Foreman to Warn Minor of Dangerous Work—Starting of Machine by Fellow-Servant—Proximate Cause of Injury.—Where a young girl employed in a woolen factory, to whom the foreman assigned the duty of sweeping in the front and rear of a machine, which was sometimes in motion when the sweeping was done, without warning her of danger from cogwheels, the nature and danger of which she did not understand, the act of a fellow-servant, in starting the machinery in motion, without fault, while the young girl was sweeping behind it, cannot be considered the proximate cause of the injury arising from the catching of her dress in the cog-wheels.</p> <p>Id.—Duty of Master'to Warn Young and Inexperienced Servant.— Where the master employs a servant to do dangerous work, or to work in a dangerous place, who, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the danger, it is a breach of duty for the master to expose such a servant, even with his own consent, to such danger, without first giving him such instructions or cautions as will enable him to comprehend them and do the work safely, with proper care on the servant’s part.</p> <p>Id.—Negligence-of Child a Question of Fact for Jury.—The negligence of a minor child must, in the nature of the case, be a question of fact for the jury, rather than of law for the court; and it is their province to determine whether or not the child duly exercised such judgment as he possessed, taking into consideration his years, experience, and ability. The ordinary care which a child of limited judgment and experience is called upon to exercise in a given act is not the same quantum of care which an adult would be called upon to use under the same circumstances.</p>

<p>The facts are stated in the opinion.</p> <p>Smith, McNutt & Hannon, George A. Lamont, and Frank R. Devlin, for Appellants.</p> <p>Bruner & Brothers, and Freeman & Bates, for Respondents.</p>

<p>Benefit Society—Certificate—Divorced Wife Named as Beneficiary—Remarriage—Death without Change of Beneficiary.— Where a member of the Ancient Order of United Workmen, to whom was issued a beneficiary certificate, had designated his wife as beneficiary thereof, in accordance with the rules of the order, and she subsequently obtained a. divorce from him, after which he remarried and had children by his second wife, but died without having changed the beneficiary certificate, the divorced wife is entitled, as the beneficiary named in the certificate, to recover the amount thereof, to the exclusion of the second wife and his children by her.</p> <p>Id.—Construction of Laws of Order—Relationship of Member to Beneficiary—Reference to Date of Certificate.—Where the laws of the order provided that, upon the death of a full-rate member, “such person or persons as said member may have directed while living” shall be entitled to the beneficiary fund, and, also, that the beneficiary so designated by the member, and named in the certificate, ‘ ‘ shall in every instance be one or mofe members of his family, or some one related to him or dependent upon him,” the latter provision is to be construed as referring to the relationship at the date of the certificate; and the designation of a beneficiary which was valid in its inception remains so, notwithstanding the relationship of the member to the beneficiary has ceased, where it is not otherwise expressly stipulated in the contract or in the rules of the order.</p> <p>Id.—Order not Authorized to Designate Beneficiary—Provision for Death—Divorce not Included.—Where the only provision for the designation of a beneficiary was by the member, and the by-laws vested in the designated beneficiary the right to the money immediately upon the death of the member, and gave no authority to the order to designate a beneficiary, but merely provided that in ease of the death of the beneficiary before the death of the member, and of his failure to designate another beneficiary, the fund should go to his heirs at law, a provision for the ease of divorce is not included, and the order cannot in such ease pay the beneficiary certificate to the heirs of the deceased member.</p>

<p>Pleading—Demurrer—Misjoinder of Causes—Prayer of Complaint. —A complaint stating but one cause of action is not demurrable for a misjoinder of causes merely because the complaint prays for other relief not warranted by the facts stated. The prayer of a complaint is not demurrable.</p> <p>Id.—Action to Cancel Contract of Sale—Breach—Non-payment of Interest—Befusal of Possession—Misjoinder in Prayer.—A complaint alleging breach by the defendant of a contract for the sale of land, in refusing to pay the first installment of interest on the purchase price, and in refusing to surrender possession as agreed in the contract, after default in any payment, and praying that the contract be canceled, that defendant be required to surrender possession, and for a judgment for the amount of the unpaid interest, and for general relief, does not state facts entitling the plaintiff to recover the interest, and does not show a misjoinder of causes of action to recover both real and personal property.</p> <p>Id.—Order Overruling Demurrer not Prejudicial—Trial—Conditional Judgment—Protection of Defendant.—The defendant suffered no injury from an order overruling his demurrer for a misjoinder of causes of action, and no injury will be presumed, conceding error in the order, where the findings and judgment show that the ease was tried on the assumption that plaintiff sought only the cancellation of the contract and the recovery of the land, and that the judgment for plaintiff was conditional upon the failure of defendant to pay the amount due on the contract within fifty days from a time fixed by the court, thus fully protecting Ms rights after a hearing on the merits.</p>

<p>The facts are stated in the opinion.</p> <p>E. L. Campbell, John F. Davis, and F. J. Solinsky, for Appellant.</p>

<p>Action fob Services of Attorneys—Pleading—Admission to Practice. —In an action by an assignee to recover the reasonable value of services rendered upon defendant's retainer of a firm to aid in the prosecution .of a certain suit, it seems that it is not nécessary to allege that the firm consisted of attorneys at law admitted' to practice.</p> <p>Id.—Services of Persons Other than Attorneys.—The law does not prohibit the recovery by persons other than attorneys of the reasonable value of their services rendered in a litigation at the defendant’s request.</p> <p>Id.—General Demurrer—Defect Cubed by Finding— Support of • Judgment—Immaterial Variance.—Assuming, without deciding, that the complaint should have alleged specifically that the firm employed were attorneys admitted to practice, a finding to that effect, upon sufficient evidence, cured the defect as against a general demurrer, and the complaint is sufficient to support the judgment. The variance is immaterial; and the defect in pleading must be disregarded, as not affecting any substantial right.</p> <p>Id.—Employment of Law Firm to Assist—Evidence—Contract with Original Attorney.—In the action to recover the value of the services rendered by the law firm, where it clearly appears that the defendant employed them to assist defendant’s original attorney of record, and made them additional attorneys of record, and did not disclose to them any understanding that the original attorney was to pay for their services, and the contents of the contract with such attorney were disclosed in an affidavit introduced in evidence, made by the defendant, upon an application for an allowance for compensation for the services of the law firm, the original of such contract is immaterial, and it was not error to exclude it from evidence.</p> <p>Id.—Responsibility for Payment—Conflicting Evidence—Appeal.— Where the only question in dispute related to whether the defendant’s original attorney or the defendant personally was responsible for the payment of the services of the law firm, a finding upon conflicting evidence, to the effect that the defendant was responsible therefor, cannot be disturbed upon appeal.</p> <p>Id.—Finding as to Employment—Implication of Responsibh/Ity.—A finding that the original attorney, pursuant to authority given him, did, as agent and in behalf of the defendant, employ the law firm to assist in the prosecution of the suit, necessarily implies, where nothing appears to the contrary, that the defendant, as principal, was to pay for their services.</p>

The affidavits of defendants Dennis S. Dimond and F. A. Jenkins contradicted the averment of the verified complaint, that Jenkins was connected in any manner with the operation of the machine at any time. Further facts are stated in the opinion.

<p>Divorce—Eesidence of Plaintiff—Living upon Yacht—Pleading— Finding.—A complaint for divorce alleging the residence of the plaintiff in the state and county for ten years last past supports a finding of the one year’s residence required by law. An averment that for six years prior to the last year and four months plaintiff and defendant lived upon a yacht, which sailed upon the high seas from port to port, does not state facts fatally inconsistent with her averment of residence, but it may be regarded as immaterial and a false quantity upon the question of the required residence.</p> <p>Id.—Evidence not Shown upon Appeal—Eesidence not Disproved— Possibility as to Yacht.—Where the evidence is not shown upon appeal, it does not appear but that the yacht may have been registered in the United States custom house, and may have sailed under the flag of the United States.</p> <p>Id.—Effect of Title of Nobility—Eesidence not Judicially Noticed. —The court cannot judicially notice that the defendant is a resident of a foreign country merely because he affixes a title of nobility to his name.</p> <p>Id.—Desertion—Counter-Averment of Answer—Finding.—Where the complaint charged the desertion by the defendant of the plaintiff at the same time and place when and where a counter-averment of the answer alleged a desertion by plaintiff of the defendant, a finding that the defendant at that time and place willfully deserted the plaintiff without her consent, necessarily involves a finding against the counter-averment of the answer.</p> <p>Id.—Appeal from Judgment—Affirmative Defense—Evidence not Shown—Presumption.—Upon appeal by the defendant from the judgment, it is incumbent upon him to show that evidence was offered to prove his affirmative defense; and where the evidence is not returned, it must be presumed upon his appeal in favor of the judgment that no evidence was offered as to such defense.</p> <p>Id.—Counts of Complaint—Demurrer to One Count—Support of Judgment.—Where there were three counts in the complaint, two of which stated a cause of action, the judgment of divorce is sustained, and it is immaterial whether or not a demurrer to the third count should have been sustained.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Finlayson & Finlayson, for Vermont Marble Company, Appellant, and William T. Craig, for Intervener.</p> <p>The stockholder is liable to creditors for the full par value, even though he has received for a sum less than its par value stock purporting to be fully paid stock, and under an agreement to pay less, than its par, or face, value. (11 Thompson on Corporations, secs. 1562-1564, 1566, 1578, 1607; 1 Cook on Corporations, 4th ed., secs. 28, 31, 32, 42, 46; Scovill v. Thayer, 105 U. S. 143; Upton v. Tribilcock, 91 U. S. 45; Sanger v. Upton, 91 U. S. 56; Wood v. Dummer, 3 Mason, 308,—the leading case; Thompson v. Reno Sav. Bank, 19 Nev. 103;1 Hill v. Atoka etc. Co., 124 Mo. 153; Coleman v. Howe, 154 Ill. 458;2 Civ. Code, see. 359; Cal. Const., art. XII, sec. 11; Hospes v. Northwestern Mfg. Co., 48 Minn. 174;3 Crofoot v. Thatcher, 19 Utah, 212;4 McGinniss v. Barnes, 23 Mo. App. 413.)</p>

<p>Sale op Beal Estate—Broker’s Commission.—An agreement by the owner of land not to sell it except through the agency of a real-estate broker within a time limited, and that, in ease of a sale made by the owner within such time, or within a further period, to one whom the broker had recommended the property, he would pay the broker his full commission, though a hard bargain, is valid, in the absence of fraud; and where the owner, within the time provided, sold for a less sum to one from whom the broker had obtained a larger offer, which was not accepted, the owner is liable for the broker’s commission.</p> <p>Id.—Construction op Contract—Commission, How Determined.— Where the terms of the contract authorized and employed the broker to sell for a fixed sum, “less a commission of five per cent on said sum, and a like commission on any less amount which I may, in writing, agree to accept,” the commission is not limited to the fixed sum, and the phrase “which I may, in writing, agree to accept” does not import that the written acceptance shall be given to the broker, but it is sufficient that there is a written agreement with the pur- , .chaser to sell the land for a less amount, and the amount of the commission is fixed thereby.</p>

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

<p>Insolvent Bank—Action upon Notes—Set-off.—In an action upon notes held by the cashier of an insolvent bank, the maker cannot set-off certificates of deposit purchased by him for that purpose long after the bank became insolvent.</p> <p>Id.—Stipulation as to Insolvency.—A stipulation that the bank “went into insolvency” on a certain date, “and has been insolvent ever since, ’ ’ imports more than that it was merely unable to pay its debts, and expresses some affirmative act of insolvency, such as the closing of its doors and the suspension of payments.</p> <p>Id.—Title of Cashier—Indorsement to Self.—The indorsement of the notes of a bank by its cashier to himself is voidable merely at the instance of the bank, and until avoided by it, passes the legal title to the cashier.</p> <p>Id.—Action by Cashier—Evidence of Debtor.—The pmma faeie title of the cashier to sue upon the notes, in the absence of fraud, cannot be rebutted by evidence of the debtor that the title was in the bank, so long as the debtor is protected against any claim of the bank by payment of any judgment rendered in favor of the cashier.</p>

<p>Action fob Fraud—Statute of Limitations—Discovery—Means of Knowledge.—In actions for relief on the ground of fraud, the statute of limitations of three years from the discovery of the fraud begins to run from the time when the plaintiff had means of knowledge of the fraud, and might with reasonable diligence have discovered it.</p> <p>Id.—Presumption of Knowledge.—A plaintiff will be presumed to have known whatever with reasonable diligence he might have ascertained concerning the fraud of which he complains.</p> <p>Id.—Fraud of Attorney—Settlement of Lawsuit—Confidence of Client—Want of Care and Diligence.—Where the fraud charged is that of an attorney in holding back part of the money received in settlement of a lawsuit, the confidence reposed in him by the client is not an excuse for the neglect of the client to exercise such reasonable care and diligence in discovering the fraud as would relieve him from the bar of the statute.</p> <p>Id.—Inexcusable Neglect of Means of Knowledge.—It was inexcusable negligence on the part of the client not to use the means of knowledge within his power to ascertain the amount paid to his attorney upon the settlement of his lawsuit, and the amount actually paid by the attorney to his creditors upon his order for the payment of greater sums, which ascertainment would have disclosed the fraud charged.</p>

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

<p>Water Bights—Action to Bestrain Diversion—Answer—Prescription.—In an action to restrain the diversion of a stream, and for damages, where the answer does not plead a prescriptive right by reference to the proper section of the statute of limitations, but assumes to plead merely a prescriptive right, it must set forth all the elements of such right, and where it merely alleged that the use was adverse, without stating to whom, and without averring that the use was exclusive and adverse to the plaintiff, it is insufficient.</p> <p>Id.—Injunction Suit—Juey Trial—General Verdict—Findings.— The defendant is not entitled to a jury trial of all the issues in an injunction suit. Where a jury trial is permitted in such suit, the verdict, whatever its form, is only advisory as to the equity features of the ease, if not so as to the damages. If the verdict was general, and was adopted by the court as to the damages, the defendant cannot complain. The court properly made full findings upon the question of the right to the injunction, which were supported by the evidence.</p> <p>Id.—Entry op Judgment by Clerk.—The case is not one in which the clerk is authorized to enter judgment upon the verdict within twenty-four hours, under section 664 of the Code of Civil Procedure.</p>

<p>Municipal Corporations—Approval op Contract—Votes op Members op Council.—Under a charter of a city providing that a journal of proceedings of the city council shall be kept by the city clerk, and that the ayes and noes shall be taken and entered therein on the final action upon the making of contracts, a record of the approval of a contract of purchase made by the mayor, showing who were present, and that all present voted in favor of a motion to approve the contract, and no one against it, shows a sufficient compliance with the object of the charter.</p> <p>Id.—Construction op Charter—Essentials op Contract—Authentication—Countersigning, Numrering, and Eegistering. — A provision of the city charter that every contract must be countersigned by the finance committee, numbered, and registered in a book kept for that purpose, must be construed with another section of the charter which states what essentials are necessary to make a contract binding, and does not enumerate such countersigning, numbering, and registering, and the provision therefor being intended merely for further authentication of the contract, the contract is not rendered invalid by its absence.</p> <p>Id.—Approval by City Attorney—Admission op Pleadings—Findings. —Where the approval of the contract by the city attorney, as required by the charter, was admitted by the pleadings, a finding thereupon was not necessary.</p> <p>Id.—Certainty op Contract.—A contract to sell to the city "1,000 feet of Paragon hose at 90 cents a foot," shows no uncertainty in its terms.</p> <p>Id.—Loss op Written Opper—Oral Evidence op Contents.—Where the written offer to sell was before the council at the time of the approval of the contract, of which it was a part, and was shown to be in possession of the clerk, but was subsequently lost, it was proper to prove its contents by oral evidence.</p> <p>Id.—Acceptance op Hose by Chief op Fire Department—Delegation op Power.—A provision in the contract for the purchase of the hose, that it shall be satisfactory to the chief of the fire department, and accepted by him before the city becomes liable thereunder, does not show an improper delegation of power to such chief, but is merely one of the conditions safeguarding the contract.</p>

MOTION to dismiss appeals from an order of the Superior Court of Los Angeles County directing payment of money as a condition of setting aside a judgment by default, and from an order making the conditional order absolute. M. T. Allen, Judge. The facts are stated in the opinion of the court. J. W. Curtis, District Attorney of San Bernardino County, and Otis & Gregg, for Appellant.

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

<p>Corporations—Bight of Stockholders to Inspect Books—Mandamus.—A stockholder in a corporation has the right to inspect the books, records, and journals of the corporation; and mandamus will lie to compel the secretary of the corporation, who is their custodian, to allow his inspection thereof.</p> <p>Id.—Defense—Motives of Inspection.—It is no defense to allege that the objects and purposes of the inspection are improper, and that the petitioner desires to injure the business of the corporation. The clear legal right given by the constitution and statute cannot be defeated by inquiry into motives.</p>

<p>Banks—Adjudication op Insolvency—Assessment by Directors— Action.—The directors of. an insolvent bank, after the adjudication of its insolvency under the Banking Act of 1895, may, without first obtaining authority from the court, assess the shareholders on the unpaid capital stock, for the purpose of liquidating the bank’s indebtedness, and finally settling its affairs. There being no shares to sell for the delinquent assessment, they may collect it by action in the name of the bank.</p>

<p>Divorce—Custody of Child—Modification of Decree—Discretion.— The court has power to vary and modify a decree of divorce as to the custody of minor children from time to time, as circumstances change; and its legal discretion in exercising such power, and the conclusion reached by it, will not be disturbed úpon appeal, unless it clearly appears that its discretion has been abused.</p> <p>Id.—Facts Considered in Modifying Decree.—The court, in modifying the decree as to the custody of a child, proceeds upon new facts, considered in connection with facts formerly established, including the change of circumstances, the conduct of the parties, the morals of the parents, their financial condition, subsequent marriage, the age of the child, and the devotion of either parent to its best interest and the good of the child, which is the controlling force in directing its custody.</p>

<p>Contract for State or City Work—Claims for Materials and Labor —Construction of Statute—Maturity of Action upon Bond.— The act of March 27, 1897, which provides for the filing of verified claims for materials furnished or labor done for the contractor under a contract for building, excavation, or other mechanical work for the state, or for any city, is distinct from and independent of the general mechanics’ lien law, and the surety on the contractor’s bond provided for in the act, may be sued by a material-man or laborer, as soon as the contractor may be sued by them, provided the claim is filed within thirty days after the debt is due from the contractor; and the debtor is not required to wait for the final completion of the work by the contractor.</p> <p>Id.—Definition—Meaning of “Within.”—The word “within,” used in the statute, means “not beyond,” and any act is “within” the time named therefor, when it does not extend beyond it.</p> <p>Id.—Assignment of Contract—Consent of Surety and of City— Surety not Beleased.—Dnder a contract for city work, the original contractor for the work cannot shift the burden of the obligation of the bond to material-men and laborers by assigning the contract, with the consent of the surety and of the city, without the consent of the parties entitled to sue upon the bond.</p> <p>Id.—Excavation of Tunnel—Teamster, Horses, and Scraper—Services of Blacksmith—Validity of Claim.—Where, by the terms of the bond, the obligors contracted to pay for “any work of any kind” done for the excavation of a tunnel contracted for, the claims of one who furnished a teamster and horses and scraper for the work, at an agreed price per day for the outfit, and the claim of a blacksmith for services required to carry out the contract, are valid and enforceable in an action upon the bond.</p>

<p>Accounting against Deceased Guardian—Pleading—Non-payment.— In an action in equity for an accounting against the administrator of a deceased guardian, and the sureties on his bond, a complaint alleging that there came into the possession and control of the deceased guardian a specified sum, which, at the time of his death he held and retained, and mingled the same with his own funds, and appropriated it to his own use, and that he refused and neglected to account for the same to plaintiff, at the time of his death, states a cause of action, and need not aver non-payment, in the absence of a special demurrer.</p> <p>Id.—Separate Suit Unnecessary to Determine Liability—Equity Jurisdiction—Parties.—Where all the parties in interest were before the court, it was not necessary that there should be a separate suit in equity to settle and determine the liability of the deceased guardian, but equity has jurisdiction to determine the whole controversy in a single suit, and both to settle and state the account against the estate of the deceased guardian, and to render judgment for the amount found due therefrom against his sureties.</p>

<p>Official Esportees—Salary—Constitutional Law—Classification of Counties.—The legislature has no power to classify counties, except for the purpose of regulating the compensation of county officers, among which the official reporters of the superior court are not included, and its action in fixing the salary of official reporters in counties of the thirtieth class is unconstitutional and void.</p> <p>Id.—Special and Local Legislation.—The effect of the classification of counties of one class in fixing the salaries of official reporters is the same as if each county of that class were mentioned by name, and, not being founded on any natural or intrinsic or constitutional distinction, the legislation is special and local, in violation of the constitution.</p> <p>Id.—Title of Act—Void Provision.—The salary of official reporters is not included in or germane to the title of the act to create a ‘ ‘ uniform system of county government,” and the provision therefor is unconstitutional and invalid upon that ground.</p>

<p>Action upon Note—Conditions—Construction op Street Railway-Time por Completion—Oral .Contract with Agents—Authority op Agents—Findings.—In an action upon a note given upon conditions expressed in a written contract, that a certain street railway, should be completed, which expressed no time for completion, where the defendant relied upon an oral agreement with plaintiff's agents limiting the time therefor, a finding adverse to such oral agreement and to the authority of the alleged agents must be deemed correct^ where there is no evidence tending to prove such authority.</p> <p>Id.—Reasonable Time por Completion—Question op Fact-Finding. —What was a reasonable time for the completion of the road, in the absence of any agreement limiting the time, is a question of fact depending upon the circumstances of the case; and where there was no proof that the work was not completed within a reasonable time, a finding that the street-railway company plaintiff duly performed all of the conditions required of it, implies that the work was performed within a reasonable time.</p> <p>Id.—Unilateral Opper—Acceptance—Expenditure por Franchise-Rescission.—Where the unilateral offer of the defendant was accepted by the street railway company, and it incurred expenditure on the faith of it in securing a franchise, the contract became . bilateral, and the offer could not thereafter be withdrawn, nor could there be any rescission of the contract without making the other party whole as to what he had parted with upon the faith of it.</p> <p>Id.—Use op Part op Another Street Railway.—The use by the plaintiff of part of another street railway, in pursuance of section 499 of the Civil Code, for a distance of not more than five consecutive blocks, was a compliance with the contract to complete the road so far as relates to the blocks so used.</p> <p>Id.—Reasonable Compliance with Contract—Construction op Double Track.—The contract requiring the completion of a double-track street railway must receive a reasonable construction, and the company should only be held to a reasonable compliance therewith; and the use of the track of another company for a short distance, and the usual and proper construction of a single track in .turning a corner, are not unreasonable departures from the contract.</p>

<p>Unlawful Detainer—Summary Proceeding—Expiration of Order for Stay—Appeal—Supersedeas.—An action of unlawful detainer is a summary proceeding, in which, under section 1176 of the Code of Civil Procedure, an appeal does not stay proceedings under the judgment, unless so directed by the judge or justice before whom it was rendered; and where an order of the superior judge in «ueh an action directing a stay of proceedings for five days fell with the i expiration specified, and was expressly revoked, the appellate court will not thereafter issue a writ of supersedeas, and it is immaterial upon what ground the superior court refused to continue the stay of proceedings.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Diego County and from an order setting aside a dismissal by the clerk upon plaintiff’s order. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Estates of Deceased Persons—Proceeding to Determine Heirship— Evidence—'Unprobated Will.—In a proceeding to determine heir-ship under section 1664 of the Code of Civil Procedure, parties whose claims are based wholly upon an asserted will of the decedent, not alleged to have been admitted to probate, cannot, while it remains unprobated, introduce evidence to prove its execution as an olographic will, or introduce the will in evidence to maintain a title founded upon it.</p> <p>Id.—Jurisdiction to Admit Will to Probate.—The court has no jurisdiction in the proceeding to determine heirship, to admit the will to probate. The only proceedings under which a will can be probated are those provided for in the Code of Civil Procedure, commencing with section 1229 thereof.</p> <p>Id.—Pleading—Will Set up in Answer—Due Execution not Admitted.—A will set up in the answer, which is not alleged to have been admitted to probate, is not an instrument upon which any defense or cause of action can be founded, and its genuineness and due execution are not admitted, under section 448 of the Code of Civil Procedure, by the failure of the plaintiff to deny the same by affidavit.</p>

<p>Action upon Note to Third Party—Pleading—Title not Shown.— A complaint in an action upon a note set forth therein, which shows that it was made payable to the order of a bank, and not to the plaintiff, and which does not allege any indorsement or transfer of the note to the plaintiff, does not state a cause of action.</p> <p>Id.—Mistake.—If there was a mistake in inserting the name of the bank instead of that of the plaintiff as payee, the facts constituting such mistake must be set forth in the complaint.</p>