Volume 136 — California Reports

<p>Injunction—Proceedings in Land Department—Pleading—Title not Shown.—An injunction will not lie to restrain mining upon land claimed as agricultural pending proceedings in the land department of the United States to determine whether the land is agricultural or mineral, where the complaint does not show title in the plaintiff or in the state under which the plaintiff claims the right of purchase.</p> <p>Id.—Title to Lieu Land.—The state can acquire no title to lieu land until the land is selected, and the selection approved by the United States land department, and the land is listed to the state.</p> <p>Id.—Injunction Pendente Lite—Discretion.—An injunction pendente lite is not granted as a matter of right; but the court must exercise its sound discretion in determining whether or not an application therefor should be granted, in view of the circumstances of the particular case.</p>

<p>Action upon Constable’s Bond—Execution Sale—Notice—Validity op Execution—Untenable Objection.—An action upon the official bond o£ a constable to recover the penalty and damages provided in section 693 of the Code of Civil Procedure, for failure to give the notice required by law of a sale under execution, implies and requires for its maintenance a valid execution; and an objection by the plaintiff that the execution was void, because not dated, is felo de se as to plaintiff’s case.</p> <p>Id__Notice op Sale op Personalty.—A notice of sale of personal property under execution, posted on February 20th, and a sale thereof made, as advertised, on February 25th, shows a sufficient compliance with the statute, as to five days’ notice.</p>

<p>Trespass—Injunction—Keceiver—Equitable Action—Advisory Verdict—Findings—Conflicting Evidence—Appeal.—An action to recover damages for trespass upon land, and for an injunction to restrain threatened waste thereon, in which a receiver was appointed to dispose of certain grain raised upon the land in accordance with the rights of the parties, under a cropping contract, is an equitable action; and findings by the court in accordance with an advisory verdict rendered therein, made upon conflicting evidence, will not be disturbed upon appeal.</p> <p>Id.—Costs—Discretion—Damages The costs in an equitable action are in the discretion of the court; and where findings were made in favor of the defendant upon the main issue in such an action, costs taxed in his favor against the plaintiff will not be disturbed, notwithstanding damages were recovered by the plaintiff in less than three hundred dollars.</p>

<p>Mining Partnership—'Action for Accounting—Finding against Partnership—Conflicting Evidence—Appeal.—In an action to declare the existence of a partnership in a mine, and for an accounting of the proceeds of sale thereof, where the court found against the existence of the partnership upon conflicting evidence, the finding will not be disturbed upon appeal.</p> <p>Id.—Action against Administrator—Impeachment of Witness— Declarations of Plaintiff.—An action to establish a partnership in a mine against the administrator of a deceased owner is not founded upon a claim against the estate, and the plaintiff is entitled to testify therein; and the rules of evidence as to the impeachment of the plaintiff, by contradictory evidence as to his declarations against interest, should not be rigidly enforced. Such declarations are admissible, independently of the question of impeachment.</p> <p>Id.—Departure from Precise Impeaching Words—Discretion of Court__It did not injuriously affect the substantial rights of the plaintiff for the court, in its discretion over the subject-matter of the examination of the impeaching witness, ag to the declarations of the plaintiff against his interest, to permit the question to be asked whether plaintiff did not state the precise contradictory .words repeated, “or words to that effect.”</p>

<p>The facts are stated in the opinion of the court.</p> <p>R. Clark, for Appellant.</p>

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

<p>Divorce—Vacation of Judgment—Appeal—Prior Degree for Maintenance.—An appeal from an order vacating a judgment of divorce obtained by the husband against the wife cannot affect or suspend the operation of a prior decree rendered in an action for maintenance brought by the wife against her husband, the decree in which had become final. The judgment for divorce having been vacated the parties cannot be considered as divorced.</p> <p>Id.—Alimony in Divorce Sum.—An order allowing and limiting alimony in the divorce suit to a fixed period of time, if valid, cannot be regarded as an order in the suit for maintenance, or as limiting the allowance of alimony made therein.</p>

MANDAMUS to a Judge of the Superior Court of the City and County of San Francisco to compel the settlement of a bill of exceptions. Frank H. Dunne, Judge. The facts are Stated in the opinion of the court.

<p>APPLICATION for writ of mandate to the Superior Court of the City and County of San Francisco to compel the settlement and certification of a hill of exceptions, upon appeal from order settling a guardian’s account. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion.</p> <p>H. H. Appel, W. H. Morris, and Walter J. Horgan, for Appellants.</p>

<p>Deeds—Covenants Bunning with Land—Benefit—Burden—Personal Covenants.—A covenant in a deed, made for the benefit of the-land conveyed, will run with the land, and inure to a grantee thereof. But a covenant between the grantor and grantee of a deed in fee, which merely imposes a burden of restrictions upon the-grantee, and does not reserve or create any interest in the grantor, or establish a condition subsequent to the grant, and does not purport to inure to the protection of an assignee of the grantor, or to-bind the assignees of the grantee, is personal in its nature, and does not run with the land or charge an assignee of the grantee with such burden.</p> <p>Id.—Jurisdiction of Equity—Enforcement of Personal Covenants. —Equity has jurisdiction, in proper eases, to enforce personal covenants imposing restrictions upon the use of lands contained in grants thereof; but it will not enforce all such covenants that may be desired, and will not enforce them, unless the facts of the ease justify equitable relief. In determining whether to enforce them or not the court will consider not only the effect which the use complained of would have upon the property of the plaintiff, but also the effect upon the interest of the public.</p> <p>Id.—Deed to Yacht Club—Restrictions upon Business—Personal Covenant—Use for Perry by Successor.—A covenant in a deed to a yacht club, that “in consideration of the conveyance,” the lot should not “be used for any business or store purposes, other than for hotel or lodging-house, or club purposes,” is a personal covenant, which only binds the yacht club during its tenure, and does not bind it affirmatively to use the lot for club purposes, nor preclude the use thereof for a ferry by a successor in interest, whose deed contained no restriction, where such use is not shown to be injurious to the remaining property of the original grantor, and is in its nature beneficial to the public.</p> <p>Id,—Injunction—Benefit to Plaintiff’s Property.—An injunction will not lie in favor of such grantor against the vendee of the yacht club to restrain the use thereof for a public ferry, where it appears that the land granted was never used for club purposes, and that its use for ferry purposes by such vendee would be a benefit, and not an injury, to the remaining property of the plaintiff, and is in accord with the express design of the plaintiff to have land of which the land in question was a part used for ferry purposes.</p> <p>Id.—Notice—Benefit of Adjoining Estate.—In the absence of any words in the deed, or any reference to a plan showing a general scheme of improvement, the grantees took their estate without notice, express or constructive, that the restriction inserted in the deed was intended for the benefit of the adjoining estate.</p>

<p>Presidio Beservation—Original Boundary—Pueblo Patent Becitals —Delation to Petition.—The exception made by the pueblo patent to the city of San Francisco of the Presidio military reservation must be deemed to refer to the original boundary thereof, as fixed on the ground when the petition for confirmation was filed in 1852, to which date the patent refers by its recitals of the petition and confirmation thereof.</p> <p>Id.—Mistake in Map Appended to Patent—Grant op Strip to City-Location op Eastern Boundary.—An evident mistake in a subsequent map appended to the pueblo patent in locating the eastern boundary of the Presidio reservation, as changed by the grant of a strip to the city and county of San Francisco off from the eastern side of the reservation, made by the act of Congress of 1876, must be disregarded, and will be controlled by the original location of the eastern boundary of the reservation as fixed upon the ground when the petition for confirmation was filed.</p> <p>Id.—Action to Quiet Title—Evidence for City and County.—Upon the trial of an action to quiet title to a lot situated within the limits of the original Presidio reservation, and within the strip granted to the city and county in 1876, the city and county was entitled to prove the original eastern boundary of the reservation and the location of the original monuments on the ground determining that boundary.</p> <p>Id.—Effect of Act of 1876—Extension of Lyon Street—Ordinance 800.—The act of 1876, wMeh extended Lyon Street eighty feet in width to the bay, and granted a strip from off the eastern portion of the Presidio reservation to the city and county, for the benefit of persons who would have been entitled thereto if the land so granted had not been reserved for public use, under the Ordinance 800, had the effect to confer upon previous grantees of the city under that ordinance a title to the portion of their lands included in said strip, subject to the dedication of Lyon Street, the western boundary of which is the present eastern line of the reservation.</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>The facts are stated in the opinion of the court.</p>

<p>Partnership—Settlement of Accounts—Report of Referee—Omissigns in Findings—Decision against Law—New Trial.—The report of a referee, empowered to try the issues, which recommended the judgment entered in a suit for the settlement of partnership accounts, and which failed to find upon or dispose of property in the hands of a receiver of the partnership assets, is a decision against law, which is ground for reversal of an order denying a new trial.</p> <p>In.—Disposition of Assets Essential to Judgment.—No judgment for or against either partner can be entered in a suit for an accounting and settlement of the partnership until all of the assets of the copartnership have been disposed of and a final balance ascertained.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William M. Pierson, and George E. Crothers, for James S. Angus and Thomas G. Crothers, Appellants.</p> <p>Garret W. McEnerney, and Robert Y. Hayne, for W. S. Goodfellow, Appellant.</p> <p>Van R. Paterson, for Herman Oelrichs, Jr., et al., Minor Beneficiaries, Appellants.</p>

<p>Pleading—Negative Averments—Burden of Proof.—The burden of proof of a negative averment in a pleading depends upon the circumstances of the case. A negative averment in a complaint requires proof by the party pleading it only where it is an essential part of the original substantive cause of action upon which the plaintiff relies. In other cases, generally, though a negative averment may be necessary, it need not be proved, but the burden of proof rests upon the other party, whose rights depend upon proof of the affirmative.</p> <p>Id.—Complaint against Deceased Wife’s Executor—Money Withdrawn without Husband’s Consent—Burden of Proof.—A cause of action by a husband against the executor of his deceased wife to recover money transferred to her, and deposited in her name in a savings bank, under an agreement that the principal should not be withdrawn by her before his consent or death, and that at her death it should belong to him, does not depend upon proof of the negative averment of his non-consent to the withdrawal of the money by her. The wife’s right to withdraw the money depended upon the husband’s consent or death, and the burden of proving the husband’s consent devolved upon her executor.</p> <p>Id.—Support of Finding—Absence of Proof of Consent.—A finding of the alleged want of consent to the withdrawal of the money is supported by the absence of proof tending to show consent thereto.</p>

<p>Street Improvement—Void Assessment—Work not Included in ¡Resolution of Intention.—The city council has no jurisdiction to award a contract for additional work which was not included in the resolution of intention to improve a street, or to order such work to be done; and where the contract included such additional work at a specified price for the whole work, and the amount thereof was included in the assessment as part of the cost of the work, the entire assessment is thereby vitiated.</p> <p>Id.—Ambiguous Contract—Character of Gutters not Specified.— Where both tie resolution of intention and the contract for doing the work provided for “gutters four feet wide,” without further describing the character of the gutter's, and the contract referred to specifications contained in another ordinance, which described gutters of different materials, with different directions as to the mode of constructing each, the description is so ambiguous as to prevent fair competition among bidders.</p>

<p>Appeal—Judgment against Mechanic’s Lien—Cessation op Work-Verified Notice—Finding—Immaterial Error in Date.—Upon appeal from a judgment for the defendant in an action to foreclose a mechanic’s lien, where the findings showed that plaintiff’s claim of lien was filed more than thirty days after the filing of a verified notice of the complete cessation of the work by the contractor on a specified date, leaving the work unfinished, an objection that the finding is against evidence, showing that the work ceased at an earlier date, is immaterial. Such error in date, if shown, could not vitiate the verified notice, nor prejudice the appellant.</p>

<p>Besulting Trust—Presumption—Advancement oe Part oe Purchase Money.—A trust is presumed to result pro tanto in favor of one who advances part of the purchase money of land, the title to which is taken in the name of another.</p> <p>Id.—Parol Agreement—Evidence—Nature oe Trust Proved.—Evidence is admissible to prove an oral agreement between the parties advancing the purchase money, that they were to buy the property together, and that one of them should hold the title for their mutual benefit. Such evidence does not show an express trust, but is competent upon the question of resulting trust.</p> <p>Id.—Proportion oe Interest not Specieied.—It was not necessary that the parties should specify in their agreement what proportion of interest in the land purchased should be held by each of the parties; but such proportion results from the facts proved as to the amount of money advanced by each, and from the statute concerning resulting trusts.</p> <p>Id.—Agreement between Father and Son—Presumption oe Advancement Bebutted.—The presumption that property put by a father in the name of his son was by way of advancement is not conclusive, and is rebutted by proof that the father advanced the greater part of the purchase money, and the son the remainder thereof, and that it was agreed between them that the son should hold the title for their mutual benefit.</p> <p>Id.—Statute oe Limitations—Trust Delation not Bepudiated.—The statute of limitations does not begin to run against a resulting trust so long as the trust relation remains unrepudiated.</p> <p>Id.—Evidence—Objection to Testimony oe Attorney.—An objection to the testimony of an attorney, that “it is not shown that he was not acting in the capacity of client to an attorney, ’ ’ is not sufficient to raise the question as to his competency to testify; and evidence given by him without objection to his competency was properly received.</p>

<p>Wills—Void Trust to Convey.—A provision in a will creating an express trust to convey real estate to beneficiaries named is invalid and void.</p> <p>Id.—Void Trust for Tears—Discretion of Trustees.—A trust created by will to receive the rents and profits of land until one of the beneficiaries named shall attain the age of twenty-five years, and to apply the net income of the same "to such an extent and at such time or times as in their judgment may be proper,” to and for the use of the beneficiaries named, is void, because not imperative, but merely discretionary as to the amount of the income to be so applied.</p>

WRIT of habeas corpus from .the Supreme Court to the Warden of the State Prison at San Quentin. M. G. Aguirre, Warden. The facts are stated in the opinion of the court.

<p>Estates of Deceased Persons—Letters of Administration—Nominee of Brothers—Bequest from Deceased Heir—Public Administrator.—The nominee of brothers of the decedent, who are not entitled to administer as heirs at law of the decedent, and who are merely devisees of the deceased mother, who was the sole heir at law of their deceased sister, is not entitled to letters as against the public administrator.</p> <p>Id.—Construction of Code—“Succession.”—Section 1365 of the Code of Civil Procedure only entitles the brothers of the decedent to administration where they are entitled to succeed to the estate dr some portion thereof, in the sense of sections 1383 and 1386 of the Civil Code, defining “succession” and distribution of the estates of deceased persons.</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>Criminal Law—Kobbery—Information—Description of Property.— An information which sufficiently charges the crime of robbery committed by the defendant from the person of one named, by means of force and violence, and alleges that the property taken was his personal property, and consisted of “about ninety cents or more,” states a public offense, and sufficiently describes the property and its value, in the absence of a special demurrer.</p> <p>Id.—Erroneous Instruction—Taking of Any Personal Property.—It is erroneous to instruct the jury that they may convict the defendant, if the crime of robbery was committed by him in. the taking of any personal property from the person named in the information. The defendant could only be convicted by the production of evidence showing that he took personal property answering substantially to that described in the information; and the jury should have been so instructed.</p> <p>Id.—Absence of Evidence—Presumption of Prejudice.—Upon appeal from the judgment, where the record does not contain the evidence, an erroneous instruction must be presumed prejudicial.</p>

<p>Unlawful Detainer—Forfeiture of Lease—Allowance of Bent to Time of Trial.—In an action of unlawful detainer, brought for failure to comply with a demand to pay a month’s rent past due, or surrender the premises, the court may give judgment for the amount of rent due at the time of the trial.</p> <p>Id.—Appeal—Absence of Evidence—Findings—Presumption.—Where the evidence is not contained in the transcript on appeal, and the findings and conclusions of law show that another month’s rent accrued before the trial, it will be presumed upon appeal that the evidence supported the findings, and that the judgment for the aggregate amount of two months’ rent was properly rendered.</p> <p>Id.—Bents—Damages.—It is immaterial that the judgment described the amount recovered by the decree as “rents, damages.” The only material question is whether the findings justify a judgment for the amount recovered. The word “damages” is evidently intended in the sense in which that term is used in section 3781 of the Civil Code, as denoting compensation in money for detriment suffered from the unlawful act or omission of another.</p>

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

<p>. Action upon Official Bond—Venue—Change of Place of Trial— Burden of Proof.—In an action by a county against the county treasurer and the sureties on his official bond, upon a motion by the substituted administrator of one of the sureties to change the place of trial to the county of the residence of the deceased surety, such administrator has the burden to prove that none of the other defendants resided in the county at the time of the commencement of the action.</p> <p>Id.—Settlement by Other Sureties—Bight of Contribution—Attachment of Property of Absconding Treasurer—Eesidence.— The fact that the other sureties made parties defendant, some of whom resided in the county of the venue, had settled a judgment rendered against them in-another action brought by the people upon the same cause of action, against the same parties, and that the county treasurer had absconded from the county before suit, cannot sustain the motion to change the venue, where it appears that such sureties had expressly reserved a right of contribution, and that the property, real and personal, of - the absconding treasurer, who had resided in the county, and whose family still resided there, and who was served by publication of summons, was held under attachment prior to the motion.</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>Finding—Appeal—Evidence.—A finding of the trial court on a question of fact, as to the existence of a marriage, will not be disturbed on appeal, if there be a substantial conflict in the evidence.</p> <p>Id.—Marriage—Repute—Evidence.—The repute which, with cohabitation, will be proof of marriage, must be uniform and general, and not divided and singular, and cannot be established except by the open, undisguised, and undoubted acts of the parties which are visible to outsiders.</p>

<p>Trust—Accounting.—The agreements set out in the complaint are held to create a trust within the provisions of the Civil Code, with the defendant as trustee and the plaintiff as beneficiary, and that the latter had a right to an accounting from the defendant of the rents and profits of the land of which he was manager and in control, under the terms of the agreements, and that upon such accounting the plaintiff was entitled to a judgment in excess of the amount awarded.</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>J. W. Knox, P. F. Dunne, and W. D. Crichton, for Appellants.</p> <p>The plaintiff held the affirmative of the issue as to scienter, which required proof by a preponderance of evidence. (Code Civ. Proe., see. 2061, subd. 5.) And where the evidence on that material point of liability was evenly balanced, as in this case, the defendant is entitled to the verdict. “That is a rule which ought never to be lost sight of.” (Baulec v. New York etc. R. R. Co., 59 N. Y. 356;1 Hayes v. Forty-Second Street etc. R. R. Co., 97 N. Y. 262; Smedis v. Brooklyn etc. R. R. Co., 88 N. Y. 23; Dobbins v. Brown, 119 N. Y. 193; Lombardi v. California Ry. Co., 124 Cal. 311, 316-317.) The court erred in striking out the cross-examination of Dr. "Whitlock as to the permanency of the injury. Nothing is better settled than that a condition of permanency, to figure as an element in the computation of damages, must be something more than a probability,—must attain to the proportions of a reasonable certainty. (Curtis v. Rochester R. R. Co., 18 N. Y. 534 ;2 Hardy v. Milwaukee Street Ry. Co., 89 Wis. 183; Raymond v. Keseberg, 91 Wis. 191; Louisville etc. R. R. Co. v. Minogue, 90 Ky. 369.3) The instruction as to verbal admissions is contradictory, and if either aspect of it be erroneous there must be a new trial. (People v. Wong Ah Ngow, 54 Cal. 151 ;4 People v. Valencia, 43 Cal. 552; Chidester v. Consolidated etc. Ditch Co., 53 Cal. 56; People v. Bush, 65 Cal. 129, 134; Sappenfield v. Main Street etc. R. R. Co., 91 Cal. 48, 59; Green v. Southern Pacific Co., 122 Cal. 563, 567.)</p>

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

<p>Attorney and Client—Substitution of Attorney—Eight of Client. —Under the provisions of section 284 of the Code of Civil Procedure, a client has an absolute right to change his attorney at any time, if he has no interest in the subject-matter of the action, and to substitute another attorney.</p> <p>Id.—Indebtedness of Client to Attorney—Advances—Contingent Pee—Pecuniary Inability of Client.—The fact that the 'former attorney, who claims no interest in the land in controversy, had rendered valuable services to the client, and had advanced money in the prosecution of the action, and that he was to receive a reasonable compensation if successful, and to receive no compensation unless successful, and that no compensation could be collected from the client, owing to his pecuniary inability, is no ground for denying the right of the client to change his attorney.</p> <p>Id.—Purpose op Substitution—Settlement of Ejectment Suit—Conveyance to Plaintiff.—An unsuccessful defendant in an ejectment suit, against whom judgment was rendered in the superior court, was acting within his legal rights in refusing to continue the litigation, and in conveying his interest in the land to the plaintiff, in settlement of the suit, and his attorney, who has no interest in the land, cannot claim that such settlement and the motion to substitute another attorney would operate as a fraud upon his legal rights, whatever may be the moral obligation of his client to him.</p>

<p>Judgments—Conclusiveness—Matter Involved in Issues—Presumption__A judgment between the same parties is conclusive as to the subject-matter in controversy in all other actions involving the same question, and upon all matters involved in the issues in the action upon which it is based which might have been litigated and decided in the case, the presumption being that all such issues were met and decided.</p> <p>Id.—Judgment Foreclosing Contract op Sale—Action to Rescind and Recover Payments.—A judgment in a former action foreclosing a contract of sale for default of the purchaser in payment of purchase money, which has become final, is conclusive against the right of the purchaser to maintain a subsequent action to rescind the contract of sale, and to recover back the purchase money paid.</p>

<p>The facts are stated in the opinion.</p> <p>Page, McCutchen & Bells, and Page, McCutchen, Harding & Knight, for Appellant.</p>

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

<p>Irrigation District—Cancellation of Tax Sales and Bonds—Parties —Intervention by Bondholders.—In an action to cancel tax sales of plaintiff’s lands by an irrigation district to pay interest on its bonds, and to annul the bonds, the bondholders, though not necessary parties, yet have such an interest as makes them proper parties and entitled to intervene, especially so where their complaint alleges that the defendants had refused to defend the action, and would not defend the same in good faith.</p> <p>Id.—Waiver of Objection to Intervention.—Where the plaintiff failed to demur to the complaint in intervention as finally amended, or to move to strike it from the files, and went to trial on his answer thereto, the plaintiff cannot object upon appeal that the interveners were not entitled to be heard.</p> <p>Id.—Collateral Attack upon Bonds—Complaint in Intervention.— The attack upon the bonds by the plaintiff in the action is strictly collateral, and is not made direct by the fact that the complaint in intervention alleges both that the interveners are bona fide purchasers of the bonds without notice of any infirmity therein, and that the bonds were in fact legal and valid obligations of the district.</p> <p>Id.—Bonds within Authority of Board—Irregularities—Protection of Bona Pide Purchasers.—Where it appears that the irrigation district was properly organized, and that the bonds were within the authority of the board, and not ultra vvres, and the only questions raised related to alleged irregularities in the keeping of the records and in conducting the elections which authorized the issuance of the bonds, bona fide purchasers, without notice of such irregularities, who received bonds which were negotiable in form, and which recited a compliance with the law, are protected against any mere irregularities in the exercise of the granted power.</p> <p>Id.—Avoidance of Tax Sales—Burden of Proof.—The burden of proof is upon the plaintiff in the action to prove the alleged irregularities and violations of law which vitiated the tax sales sought to be avoided and canceled; and where sufficient proof is not shown to sustain the allegations of the complaint, the action must fail.</p> <p>Id. — Authority of Collector—De Pacto Officer.—A collector of an irrigation district who wa's acting as such is a de facto officer, even if disqualified to become a de jure officer, and the failure to prove that he was duly elected is immaterial, where his right to the office was never called in question. In a proceeding to set aside tax sales by him, his acts must be regarded as the official acts of the district.</p> <p>Id.—Sale Advertised for Sunday—Sale on Monday—Presumption of Postponement.—It is to be presumed that official duty was regularly performed, and that a sale advertised for Sunday, and which took place on Monday, was postponed as authorized by law.</p>

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

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

<p>Criminal Law—Burglary — Information — Degrees — Province of Jury.—It is not necessary under our system to charge the time of the commission of a burglary; and an information charging burglary, with the proper specifications of venue and entry, involves two degrees, which it is the province of the jury to fix, according as the evidence shows that it was in the night-time or in the daytime.</p> <p>Id.—Charge of First Degree—Void Verdict for Second Degree—Discharge of Defendant.—Where the information charged burglary in the first degree, as having been committed in the night-time, a verdict of guilty of burglary in the second degree, necessarily implying that it was committed in the daytime, is void, and the judgment based thereon cannot stand; and the defendant must be discharged from prosecution for the crime alleged in the information.</p>

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

<p>The facts are stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, and George A. Sturtevant, Deputy Attorney-General, for Appellants.</p>

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

<p>Landlord and Tenant—Rental in Grain—Action upon Harvesting Contract—Counterclaim by Lessee.—In an action against the lessee of land, upon his contract to harvest the grain, the lessee may counterclaim all damages for plaintiff’s delay in performing the contract, whether accruing to him or to the owner of the land, to whom an undivided third of the grain was payable as rental, and the plaintiff cannot object that the defendant can only counterclaim his own proportion of the damages.</p> <p>Id.— Contract Relation.—The contract having been made between the lessee and the harvester, the owner of the land has no contract relation with the harvester, and can have no cause of action against Mm, growing out of the contract.</p> <p>Id.—Bad Husbandry. —If the owner of the land has a cause of action against the lessee for bad husbandry, that is no concern of the harvester and cannot be objected to by him.</p> <p>Id.—Breach of Contract—Delay in Performance—Loss of Grain Shelled-out—Proximate Damage.—The loss of a large amount of the grain by the shelling-out thereof, owing to plaintiff’s breach of the contract by delay in its performance, which would have been saved if the harvesting had been commenced on time, is damage proximately caused by the breach of the contract, and is not remote and speculative.</p> <p>Id.—Difficulty in Fixing Amount of Loss.—Where there was evidence sufficient to sustain the damages found by the jury, the fact that it was difficult to fix the amount of loss with accuracy, is not a ground of objection. He who breaks a contract cannot escape liability on account of the difficulty which his wrong has produced of devising a perfect measure of damages.</p> <p>Id.—Loss of Grain Caused by Wind—Act of God.—The fact that much of the loss of the grain by shelling-out was caused by the wind, does not make the result an act of God; nor can the benefit of the rule against responsibility for damages caused by the act of God inure to the benefit of one who could have avoided the damage by complying with his contract.</p> <p>Id.—Contemplation of Parties as to High Winds—Question of Fact. —The question whether high winds which caused the shelling-out of the grain were within the contemplation of the parties, when they entered into the contract for the harvesting of the grain, is a question of fact for the jury, and not of law for the court.</p>

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

<p>The facts are stated in the opinion.</p> <p>Smith & Murasky, James H. Smith, Lloyd & Wood, and Stanly, McKinstry, Bradley & McKinstry, for Appellant.</p>

<p>.Contract with Board of Education—Liability for Breach.—The board of education of the city and county of San Francisco has power, as a quasi-municipal corporation, to enter into a contract for the construction and furnishing of a high-school building, and it is equally as liable in damages for the breach of its contract as would be the contractor for a breach on his part.</p> <p>Id.—Use of Public Funds for Damages.—The board of education ean'not escape liability for a breach of the contract on its part, upon the pretext that the public funds cannot be used to pay damages for such breach.</p> <p>Id.—Resolution to Annul Contract—Contract with Third Person —Ultra Vires.—Where the board of education, after letting a contract to the plaintiff, attempted to cancel and annul it, and then made a contract with a third party to do the same work, the.question whether the second contract was ultra vires is not involved, and does not concern the plaintiff, who is seeking damages for a breach of the valid contract with him.</p> <p>Id.—Defense of Ultra Vires—Burden of Proof.—If the board of education seeks to avoid its contract with the plaintiff upon the ground of ultra vires, the burden is upon it to allege and prove such defense.</p> <p>Id.—Existence of Fund to Credit of School District.—The question whether there is or is not any fund to the credit of the high-school district, out of which the judgment can be paid, or whether or not there is any provision of law for paying it, is not now before the court in determining the liability of the defendant for the breach of its contract with the plaintiff.</p>

<p>Quieting Title—Void Sale under Street Assessment—Invalid Contract-Delegation op Power.—An action will lie to quiet title to a city lot, the sale of which is void, as having been made under a void assessment for street work, the contract for which unlawfully delegated power to the superintendent of streets greatly to increase or lessen the expense of the work, and was thereby rendered invalid.</p> <p>Power op City Council—Delegation op Power to Superintendent op Streets.—The city council has the right to require the superintendent of streets to examine the work, to determine if it complies with the contract, and if the material is such as is called for in the contract, and to see that the details are carried out; but it cannot delegate authority to that officer that should be exercised by the city council to determine the amount of the allowance that should be made or to increase or diminish the cost of the work.</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>Estates of Deceased Persons—Lease by Administrator.—A lease by an administrator depends upon the sufficiency of the title of the estate of the decedent, and, like his deed of the estate, is in the nature of a mere quitclaim, to which the doctrine of caveat emptor applies.</p> <p>Id.—Quiet Enjoyment—Covenant not Implied.—No covenant of quiet enjoyment is implied in a lease by an administrator or guardian.</p> <p>Id.—Lease Subject to Foreclosure Sale—Loss of Title—Bent Paid not Becoverable.—A lease of an entire tract by an administrator made after the foreclosure of a mortgage and a sale thereunder of one half of the tract is subject to the foreclosure sale and to the title acquired thereunder; and where both parties to the lease agreed that it should cover the entire tract, the lessee took the lease at his peril, and he cannot, after loss of title to one half the tract by sheriff’s deed, recover back from the estate any portion of the rent paid under such lease.</p> <p>Id.—Action for Money Had and Beceived—Assignment—Title of Vendee.—An assignee of a surviving partner of a firm which was the lessee of the administrator, who was also assignee of the rights acquired by the vendee under the foreclosure sale and deed, cannot maintain an action in either of such rights to recover rent paid to the administrator as money had and received for the use either of the lessee or of the vendee.</p> <p>Id.—Bights of Vendee—Double Bent.—The lease by the administrator to the partnership firm did not bind the vendee of the title, and such vendee had only the right of recourse against the tenant under the administrator's lease for the rent of one half the tract; and if be were thereby required to pay double rent, it is only such hardship as follows any person who deals heedlessly with an administrator of limited powers, under the doctrine of caveat emptor.</p>

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

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

<p>Hiparían Bights—Boundaries op Biver—High, and Low Banks.—In determining what lands are riparian to the waters of a river which has two sets of banks,—one consisting of low banks, in which the stream is confined at low water, and the other consisting of high, or fast, banks, which confine the stream in its entire width at its highest flow,—such high banks must be taken as the true boundaries of the river, and the highest flow of water in the river in its entire width between the high banks is subject to the right of user by the riparian owner.</p>

<p>Water Bights—Appropriation—Adverse User against Hiparían Owners.—An appropriation of water cannot create a right as against riparian proprietors otherwise than by prescription, which requires an adverse user for five years, and where a lower riparian proprietor interrupts the user within the five years, by diverting and continuing to divert the water, a prescriptive right is not acquired.</p> <p>Id.—Biparian Bights—Boundaries op Biver—High and Low Banks— Case Appirmed.—In determining what lands are riparian to the waters of a river which has two sets of banks,—one consisting of low banks, in which the stream is confined at low water, and the other consisting of high, or fast, banks which confine the stream in its entire width at its highest flow,—such high banks must betaken as the true boundaries of the river, and the highest flow of water in the river in its entire width between the high banks is subject to the right of user by the riparian owner. The case of Ventura Land and Power Co. v. Meiners, ante, p. 284, is affirmed.</p>

<p>Criminal Law—Murder—Habeas Corpus—Delay op Trial—Discharge op Prisoner—Future Prosecution not Barred.—The discharge of a prisoner accused of murder upon habeas corpus, by-reason of Ms not having been brought to trial within sixty days after a mistrial of Ms case, and of Ms having been thus demed Ms constitutional right to a speedy trial, is not a bar to a future prosecution for the same offense.</p>

<p>Chattel Mortgage—Property op Wipe—Foreclosure—Parties—Service op Summons.—In a suit to foreclose a chattel mortgage upon the property of the wife, the husband is a necessary party defendant, and must be served with summons as well as named as a party in the complaint; and it is error to enter judgment against her before her husband has been served.</p>

<p>Divorce—Alimony—Deeds of Gift to Children during Dormer Marriage.—Deeds of gift made by a husband and his first wife, who joined therein, to their children, passed title to them which cannot be questioned by a second wife in an action by her for divorce; and the property so conveyed cannot be subjected to an order for alimony and counsel fees in such action.</p> <p>Id.—Ex Parte Order for Alimony.—An ex parte order for the payment of alimony in an action for divorce, made prior to the service of summons in the action, and without notice of the application for the order, is unauthorized and void.</p> <p>Id.—Proceeding for Separate Judgment—Due Process of Law— . Opportunity to be Heard.—An application for alimony, though not a separate suit, is a proceeding for separate judgment, inde- ' pendent of the final judgment in the ease, and is appealable. In order to due process of law in obtaining the separate judgment for alimony, there must be a hearing or an opportunity to be heard.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Alfred Daggett, J. J. Dunne, and R. F. Roth, for Appellants.</p> <p>Bradley & Farnsworth, and E. O. Larkins, for Respondents.</p>

<p>Foreclosure oe Mortgage—Cross-Complaint—Service of Process upon Co-defendants—Continuance.—In an action to foreclose a mortgage, a defendant who has set up an alleged prior mortgage in a cross-complaint, in the answer to which the plaintiff prayed that the alleged mortgage be decreed paid and satisfied, is not entitled to a continuance of the trial of the cause upon the ground that co-defendants who had been served with summons by the plaintiff had not been served with process as necessary parties to the cross-complaint.</p> <p>Id.—Service of Cross-Complaint.—The only mode of serving defendants to the cross-complaint who are co-defendants served with the original summons in the action, and of whom the court had acquired jurisdiction, is to serve the eross-eomplaint upon them in the manner required by law; and no summons is necessary upon such erosseomplaint.</p> <p>Id.—Refusal of Continuance—Delay in Service—Absence of Diligence.—Where the cross-complainant gave no excuse for delay in serving the eross-eomplaint upon the co-defendants, and made no showing of diligence, the court was warranted in refusing the application for a continuance of the trial of the issues joined between the cross-complaint and the plaintiff’s answer thereto.</p> <p>Id.—Jurisdiction to Determine Issues—Appeal by Cross-Complainant.—The court had jurisdiction to determine the issues made by the cross-complaint and the answer of the plaintiff thereto, in the absence of service of the eross-eomplaint upon the other defendants, so far as concerns the rights of the parties upon an appeal by the cross-complainant from a judgment in favor of the plaintiff against the cross-complainant.</p> <p>Id.—Dismissal of Cross-Complaint—Answer of Plaintiff—Affirmative Belief.—The cross-complainant could not dismiss his cross-complaint after the filing of the answer of the plaintiff thereto seeking the affirmative relief of a decree that the mortgage therein set forth be adjudged paid and satisfied.</p> <p>Id.—Satisfaction of Prior Mortgage—Deed of Premises—Assignment—Notice.—Where it was agreed that the prior mortgage set up in the eross-eomplaint should be extinguished immediately on the making of a deed of the premises to an assignee of the mortgage, the effect of such deed as payment of the ‘mortgage could not be invalidated by a recorded assignment of the mortgage from said assignee to the cross-complainant, of which the grantor of the deed had no actual notice.</p>

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

<p>Mortgage—Foreclosure—Vacating Sale.—The granting or denial of a motion to vacate a sale of property made in execution of a judgment in foreclosure, on account of some irregularity on the part of the officer making the sale, either in disregarding the provisions of the statute for making the sale or in failing to observe and follow some express direction in the judgment, rests very largely in the discretion of the court before which the motion is made.</p> <p>Id.—Estoppel op Parties.—If the parties to the action of foreclosure consented that the officer making the sale might disregard the express directions of the judgment as to the form and manner of the sale, they will not afterwards be permitted, to object to such disregard.</p> <p>Id.—Showing of Injury—Interest of Stranger.—A party to the action cannot claim an absolute right to have such sale vacated, unless he can show that he has sustained some injury by reason of the irregularity therein; and a stranger to the action will not be permitted to intrude himself into the controversy upon a motion to vacate the sale, unless he shall very clearly show that he has some interest in the property sold, and, also, that by reason of the manner in which the sale was conducted he will be injuriously affected if the sale is permitted to stand.</p> <p>Id.—Defective Motion—Dismissal.—A motion to vacate the sale under foreclosure-which does not show that the party making the motion has any interest in the land sold is fatally defective, and was properly dismissed—especially where it appeared that any rights acquired by him were subsequent to the sale of a portion of the land to the one who demanded that it should not be sold under the foreclosure decree, and that the moving party had no interest in that part of the tract, and that none of the parties to the suit had objected to the sale as made under the judgment of foreclosure.</p>

APPEALS from a judgment of .the Superior Court of Yolo County and from an order denying partial new trial. E. E. Gaddis, Judge. The facts, are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Geis & Albery, Mastick, Van Fleet & Mastick, and W. B. Treadwell, for Appellant.</p>

<p>L. A. 1007</p> <p>L. A. 1008</p> <p>L. A. 1010</p> <p>Public Lands—Decision of Land Department—Questions of Fact.— The decision of the land department of the United States upon any question of fact, in determining the right of any person to receive a patent for any of the public lands under the laws of the United States, is conclusive upon all other tribunals, in the absence of fraud, mistake, or imposition in obtaining the patent.</p> <p>Id.—Questions of Law—Equity Procedure.—If, in making its determinations of fact, the land department has disregarded the law applicable thereto, or has erred in its construction of the law, or by mistake has issued to one person a patent, which, upon undisputed facts, should have been issued to a contestant, the patentee will be held a trustee for the contestant in proceedings to be taken in a court of equity, and governed by the rules of equity procedure.</p> <p>Id.—Contest of Desert-Land Claim—Patent—Ejectment—CrossComplaints —Support of Judgment.—Where a desert-land claimant, upon final decision of a contest in his favor by the land department, obtained a patent, upon which he brought an action of ejectment against the contestants, who filed cross-complaints therein, alleging fraud of the plaintiff and misconstruction of the law by officers of the land department, findings sustained by evidence against the allegations of fraud, and showing that there was no misconstruction or misapplication of the law to the facts in the final decision of the land department, support the judgment for the plaintiff in ejectment and it must be affirmed.</p> <p>Id.—Decision by Secretary of Interior—Review by Successor.—The decision of a former Secretary of the Interior against the desert-land claimant was not res judicata, so as to deprive his successor in office of jurisdiction to review the decision and re-examine the questions passed upon by his predecessor; and if, in his opinion, an error of law had been committed in the matter, it was his duty to set aside the decision and to render another in favor of the desert-land claimant in conformity to law.</p> <p>Id.—Supervisory Authority of Secretary.—The supervisory authority conferred by Congress upon the Secretary of the Interior, over the disposal of the public lands, and to order the issuance of patents therefor, under the authority of the government, is not lost by the fact that he has erred in a former decision, or that he has repeated the error by denying a motion to set it aside, or to re-examine his action. So long as the matt-r remains pending, there is no limit to the power of the Secretary of the Interior to review any rulings made in relation thereto.</p> <p>Id.—Rules of Procedure—Power of Secretary not Limited.—The authority of the Secretary to review or set aside a former decision cannot be taken away by any rules of procedure which he may formulate, and he cannot divest himself of his supervisory duty by any rule of his own creation; and rules of procedure established by him may be suspended or disregarded in any particular case whenever the purposes of justice require it.</p> <p>Id.—Questions of Pact.—Matters of procedure before the land department—such as the regularity of its sittings, • whether a paper was filed in accordance with its rules, whether a proper or sufficient notice of hearing upon any motion was given, whether the evidence before it was competent or proper to be considered—are questions of fact, the decision of which cannot, in the absence of fraud, be reviewed in any other forum. 0</p> <p>Id.—Equitable Rights of Desert-Land Claimant—Board of Equitable Adjudication.—Where the desert-land claimant had substantially reclaimed the land, hut had failed strictly to comply with the terms of the statute, he has the right, under the law, in the absence of an adverse claim, to have his equitable claim passed upon by the commissioner and referred to the board of equitable adjudication; and the determination of the commissioner and the board of adjudication in his favor is a sufficient answer to any claim of the government that the statute had not been strictly complied with, and entitles him to a patent.</p> <p>Id.—Erroneous Decision of Former Secretary—Proper Ruling by Successor.—Where the commissioner of the general land office determined that the desert-land claimant had equitable rights, and that the case should be referred to the board of equitable adjudication, and the former Secretary of the Interior, without touching upon the opinion of the commissioner with regard to equitable rights, erroneously reversed his decision, upon the ground that the law had not been complied with when the contest was begun, the action of his successor in setting aside such decision, and ordering the case submitted to the board of equitable adjudication was correct and involved no misconstruction of the law.</p> <p>Id.—Adverse Claims—Information to Government.—Where the contestants simply brought information to the government that the desert-land claimant was in default, they did not become adverse claimants to the land by virtue of the contest, and could not, by a successful contest so instituted, acquire a preferred right of entry on the laud embraced in the contest, and the Secretary of the Interior was not precluded from referring' the case to the board of equitable adjudication, upon the ground that there was an adverse claim to the land.</p> <p>Id.—Adverse Entries—Subjection to Desert Entry.—The contestants could not become adverse claimants of the desert land segregated under the previous entry of the desert-land claimant, by attempted adverse entries of the land under the homestead and timber-culture acts. Any claim of right on their part was subordinate to the previous entry until it was finally determined; and the decision of the board of equitable adjudication, that the desert-land claimant was entitled to a patent, necessarily determined that his entry had never lapsed, and that there was no time when the contestants could become adverse claimants to the land.</p> <p>Id.—Immaterial Findings—Fraudulent and Speculative Entries.— /Findings that the homestead and timber-culture entries were fraudulent and speculative were immaterial, and the fact that there is no evidence to support them is not ground for a reversal of the judgment in favor of the patentee in ejectment, which is fully supported by findings sustained by evidence.</p> <p>Id.—Appeal—Argument—Disrespectful Brief Stricken from Files. —A brief upon appeal which contained expressions disrespectful to the officers of the land department and to the judge of the superior court before whom the case was tried, and derogatory to their character, was ordered stricken from the files.</p>

<p>Trade-Name — Exclusive User — Good-Will — Fraud — Injunction. —After plaintiffs and their predecessors have for many years conducted a machine business under the name of “Cyclops Machine Works,” they have, by exclusive user, acquired a right to use the word “Cyclops” as a trade-name, which equity will protect; and the plaintiffs may maintain an injunction to prevent the use of that word by a corporation which has begun a business of the same general character in the immediate neighborhood of plaintiffs’ business, under the name of “Cyclops Iron Works,” for the purpose of misleading plaintiffs’ customers, and defrauding plaintiffs by appropriating the good-will of their business.</p> <p>Id.— Infringement by Corporation—Corporate Name.—Where an individual would not be allowed to use the trade-name under the same circumstances, a corporation may not take it as part of its corporate name, and thus, by indirection, accomplish ends otherwise forbidden by law.</p>

<p>Divorce—Extreme Cruelty—Findings against Divorce—Review upon Appeal—Discretion.—Extreme cruelty as a ground of divorce is largely a question of fact, to be determined by the trial court; and its findings thereon will not be disturbed upon appeal, unless the evidence in support of them is so slight as to indicate a want of good judgment and an abuse of discretion of the trial court. This rule is particularly applicable when the findings are against a divorce.</p> <p>Id.—Policy op Law.—The policy of the law is against severing the marriage relation on slight ground or for trivial causes.</p> <p>Id.—Refusal to Grant Divorce—Appeal.—To justify a reversal of the trial court in refusing to grant a divorce, the record upon appeal should show a great preponderance of evidence against the findings.</p> <p>Id.—Appeal from Judgment—Lapse of Time—Dismissal.—This court has no jurisdiction of an appeal from a judgment of divorce taken after the lapse of the time allowed for such appeal, and an appeal so taken must be dismissed.</p>

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

<p>Change of Place of Trial—Service of Demurrer—Piling of Affidavit and Demand with Demurrer—Time of Appearing and Demurring.—The mere service of a demurrer two days prior to the •filing of the demurrer, with which were filed a previously served notice of motion to change the place of trial to the residence of the defendant, demand for such change and affidavit of merits does not render the filing of the latter papers too late. The defendant does not “appear and demur,” within the meaning of section 396 of the Code of Civil Procedure, until he files the demurrer; and it was sufficient to file the notice, affidavit, and demand at the same time • with the filing of the demurrer.</p>

<p>Justice’s Court—Notice of Trial—Necessity of Record—Proof.— The notice of trial by the justice required by section 850 of the Code of Civil Procedure must be given in writing and form a part of the record by entry thereof and of the mode in which it was given in the justice’s docket, so that there may be affirmative evidence of his authority to render judgment.</p> <p>Id.—Notice Jurisdictional.—The notice setting a case for trial is jurisdictional,' and proof of the service thereof is as essential as in case of the summons.</p> <p>Id.—Verbal Notice—Conversation over Telephone—Waiver.—The notice of trial cannot be verbal, and cannot be waived by a conversation over the telephone, in which the attorney for the defendant consented to the setting of the case. As the service of a summons can only be waived by an appearance, which is made matter of record, and not by talking over the telephone, a notice setting the cause for trial is subject to a like rule.</p> <p>Id.—Judgment without Jurisdiction—Certiorari—Loss of Other Remedy.—A judgment rendered without record proof of a written notice setting the cause for a trial is without jurisdiction, and certiorari is a proper remedy to annul such judgment, where it appears that the defendant was not present or represented at the trial, and did not have notice or knowledge of the judgment improperly rendered against him until after the time for appeal had expired, and that the remedy was sought as soon as such knowledge was obtained. t</p>

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

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

<p>County Boards op Education—Compensation—General Provision op Code—Constitutional Law.—The provision of subdivision 3 of section 1770 of the Political Code, that “the board of supervisors shall allow each member of the county board of education a compensation of five dollars a day for his services,” is a general law of uniform operation, which applies to all classes of counties, and regulates the compensation in proportion to duties, and is not in conflict with section 5 of article XI of the constitution.</p> <p>Id.—System op Common Schools.—The provision for the compensation of the members of the county boards of education is a part of the uniform system of common schools, provided for by the legislature under the mandates of the constitution.</p>

APPEALS from a judgment of the Superior Court of Tuolumne County and from orders denying a motion to vacate the judgment and to enter a contrary judgment and denying a new trial. G. W. Nieol, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to vacate a decree terminating a life estate. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>The facts are stated in the opinion.</p> <p>J. A. Plummer, A. H. Carpenter, and R. W. Dodge, for Appellant.</p>

<p>Adoption op Illegitimate Child—Beoeption into Family.—When a man has a home, where he lives with a woman whom he holds out to the world as his wife, he has a family within the meaning of section 230 of- the Civil Code, into which he must receive an illegitimate child, in order to adopt and legitimate it under that section.</p> <p>Id.—Public Acknowledgment—Payments op Money.—It is not sufficient, in such ease, that the paternity of the child was publicly acknowledged by the father during the minority of the child, nor that sums of money were given to the child, if it was not received into the father’s family during its minority.</p>

<p>Election Precinct Polling-Place — Store — Storehouse. — Where a precinct polling-place was appointed at the store of a person named, and the election for the precinct was held in a storehouse kept by the same person on the same premises, in which his merchandise was stored, and was sometimes sold and delivered by him, and in which previous elections had been held without objection, and no voter visiting the store could be or was mislead as to the polling-place, or expected to vote elsewhere than at such storehouse,' an objection, upon an election contest, that there was a failure to hold the election for this precinct at a proper place, and that the vote was thereby invalidated, was properly overruled.</p> <p>Id.—Partition in Storeroom—Door—View op Booths.—Notwithstanding a partition in the storeroom where the election was held, separating the large room occupied by the election board and bystanders from a smaller room where the voting booths were placed, where there was a door in the partition, which was kept open, and immediately opened when temporarily or partly closed, through which every person in the large room could easily place himself in position to view the booths, the provision of section 1203 of the Political Code, that the booths shall not be hidden from the view of the bystanders, was not violated.</p> <p>Id.—Closed Windows in Booth-Room.—The fact that there were two windows in the small room where the booths were placed, which appear to have been securely fastened, and are not shown to have caused any improper conduct, cannot invalidate the election.</p> <p>Id.—Voters Occupying Same Booth.—Where two voters were discovered occupying the same booth, but upon being at once informed that it could not be permitted, they immediately occupied separate booths, such circumstance cannot vitiate the election.</p> <p>Id.—Irregularities op Election Board.—Irregularities on the part of the election board and clerks in conducting the election which were so explained by members of the board and, other witnesses as tó show that no injurious result followed, and that none of them had any fraudulent design or affected in any way the result of the election, cannot have the effect to invalidate it or warrant the court in defeating the will of innocent voters.</p> <p>Id.—Election Returns—Cracking op Sealing-Wax—Ballots not Tampered With.—The fact that, upon the mailing of the election return's by a member of the board to whom they had' been intrusted, in envelopes which had been each sealed with a little sealing-wax and tightly tied together, the sealing-wax was found to be cracked and broken, and the flaps, being still in the slits, were fastened by the postmaster with mucilage, and the envelopes addressed to the county clerk, cannot be cause for throwing out the vote of the precinct, where it affirmatively appears that the envelopes were not opened, and that the ballots were not tampered with, and were not objected to when counted upon the contest of the election.</p>

<p>Mandamus—Warrants on Public Library Fund—Embezzlement by Librarian.—Where a board of library trustees having control of the free public library of a city had allowed claims for supplies furnished, and issued warrants therefor, which were left with the librarian to be delivered to the proper parties, but the librarian had wrongfully obtained payment thereof and absconded, it is as though the warrants had been drawn and destroyed before delivery, and mandamus will lie in favor of an assignee of the claimants to compel the board to draw and deliver to him a warrant upon the library fund of the city.</p> <p>Id.—Bemedy at Law.—The assignee of the claimants in such case has not a plain, speedy, and adequate remedy at law by suit against the city or the city treasurer.</p> <p>Id.—Board not Protected by Constitution.—The board of trustees of the free .public library of a city, not being a body described in section 18 of article XI of the constitution, is not protected by the provisions thereof applicable to demands against cities, counties, and other bodies therein described.</p> <p>Id.—Pleading—Money in Treasury.—It was not necessary for the plaintiff to show that there were funds in the city treasury out of which the warrants could be paid before applying for the writ to compel the issuance for the warrants.</p> <p>Id. — Indorsements on Paid Warrants — Presumption — Counter Proof.—Any presumption of the genuineness of the warrants paid by the treasurer to the absconding librarian, growing out of the presumption that “official duty was regularly performed,” is disputable, and is sufficiently overcome by proof that the warrants had never been delivered to any of the claimants, or to any one for them, and had never been delivered for their use in payment of any part of the demands in their favor.</p> <p>Id.—Burden of Proof—Exclusion of Indorsements.—Such counter proof shifted the burden of proof upon the board to show the genuineness of the indorsements, and, in the absence of such proof, the court pr.operly declined to admit the indorsements in evidence.</p>

<p>Vendor and Purchaser—Contract of Sale—Deficiency in Quantity —Rescission—Specific Performance—Tender — Laches.—Where a tract of land was purchased at the price of two thousand dollars, at the rate of fifty dollars per acre, and the tract was fraudulently represented by the vendors to contain forty acres, and was subsequently by a survey of the land ascertained to contain but twenty-three and a half acres, and the evidence shows that the purchaser had strictly complied with the contract np to the time of the discovery of the deficiency in acreage,, and that his subsequent offers of rescission and tender of payment and demand for deed were made within eight months after the survey, and a few days after the first unpaid installment fell due,—there is no laches of which the vendors can be heard to complain which would prevent a rescission or a specific performance of the contract, so far as it can be enforced by the purchaser.</p> <p>Id.—Ejectment—Cross-Complaint—Laches—Pleading—Appeal prom New Trial Order.—Where the vendors brought an action of ejectment against the purchaser, who set up his claim for rescission or specific performance in a cross-complaint, and no defense of laches was set up in answer to the cross-complaint or urged upon the trial of the case, and an appeal was taken by the plaintiffs only from an order denying a new trial, no question of laches on the facts stated in the cross-complaint will be reviewed upon such appeal.</p> <p>Id.—Representation as to Quantity op Land—Rights op PurchaserEstoppel op Vendors.—The acreage of land cannot be seen with the eye, and can only be ascertained with accuracy by a survey; and the purchaser had a right to rely on the representation of the vendors as to the quantity of the land sold, and was not bound in such case by the rule of caveat emptor. The vendors will not thereafter be heard to say in a court of equity that the purchaser had no right to believe their statements.</p> <p>Id.—Support op Finding as to Misrepresentation.—Where the contract of sale described the land as “containing about forty acres, more or less,” and both of the plaintiffs testified that they believed the tract contained no more than about twenty-five acres, although the plaintiffs denied any representation as to the number of acres, and a finding that it contained only twenty-three and a half acres was supported by evidence without conflict, and the testimony for the defendant showed a representation by one of the plaintiffs, in the presence of the other, that there was more than forty acres in the tract, a finding in accordance with the defendant's- testimony must be treated as true.</p> <p>Id.—Ownership op Land by Wipe—Fraudulent Representation op Husband.—The plaintiff wife, who was the owner of the land sold, must, for the purposes of this case, be held responsible for the false and fraudulent representation of her husband, who acted as her agent in the sale, signed the contract with her as a party thereto, and is a plaintiff in the action. The wife cannot have the benefit of the contract freed from the fraud which induced the defendant to accept the contract, and to pay out his money on the faith of the representation made.</p> <p>Id.—Election op Purchaser—Vendors not Entitled to Choice.—On account of the fraudulent representations made, the defendant, as purchaser, had an election between an entire rescission of the contract and an enforcement thereof, so far as it can be enforced. This election was to the purchaser alone; and the plaintiffs, as vendors, will not be permitted any choice in the premises, and must submit to an enforcement of the contract at the agreed rate per acre.</p> <p>Id.—Partial Enforcement of Contract—Reformation.—The enforcement of the contract, so far as it can be enforced for the twenty-three and a half acres at the agreed rate per acre, is not a ‘‘ reformation” of the contract for forty acres, but is an enforcement of the specific performance of the contract according to the true intention of the parties to it.</p> <p>Id.—Erroneous Deduction of Taxes Paid.—It was error for the court in rendering judgment for the defendant upon his cross-complaint, to give him credit for the sum of one hundred and forty dollars paid as taxes on the land, where there is no claim in the cross-complaint or elsewhere in the pleadings that the defendant was entitled to any credit on account of taxes paid, and the defendant at the trial testified that he had paid altogether ninety-four dollars as taxes on the land.</p>

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

<p>Ejectment—Contract of Sale by Executrix—Findings—Unauthorized Conditions—Judgment not Supported.—In an action by an executrix to recover the possession of land as the property of the-estate, where the answer pleads ownership of the land in the defendant, findings that the plaintiff is entitled to the possession upon condition of repaying the money paid upon the purchase price under a contract of sale from the executrix to the defendant, and the value of Ms improvements, less the value of the use and occupation, and that the defendant is entitled to a lien, and to retain possession until the lien be satisfied, without any finding on the issue of ownership, or that plaintiff is entitled to possession, are insufficient to support the judgment for the plaintiff, or to justify a judgment in favor of the defendant.</p> <p>id.—Finding of Law—Inconsistent Findings.—The finding that the defendant is entitled to possession until the payments referred to are made, is a mere conclusion of law, and is contradicted and neutralized by the finding that his detention of the land is unlawful.</p> <p>Id.—Contract of Sale by Executrix—Residuary Legatee—Beneficial Ownership of Land Sold.—Although the contract of sale from the executrix to the defendant was not authorized or ratified by the probate court, yet where the executrix was the sole residuary legatee of the estate, and at the time of her agreement to sell the land the time for claims against the estate had expired, and all debts and legacies had been paid, leaving in her hands more than sufficient money to close the admimstration, she had thus become the sole beneficial owner of the land, and the contract of sale was binding on her personally, and the defendant must be regarded in equity as the real owner of the land; and the power of the executrix to maintain a smt for the land must be regarded as terminated.</p>

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

<p>Deed Intended as Mortgage—Action to Bedeem—Evidence—Declarations op Deceased Grantee—Support op Findings.—In an action to have a deed declared to be a mortgage, and for a reconveyance on payment of the debt to the administrator of the deceased grantee, evidence of the declarations of the decedent against his interest made prior and subsequent to the conveyance, to the effect that the deed was not intended as an absolute conveyance, but was intended to secure the indebtedness of the plaintiff to the grantee, is admissible and sufficient to support findings to that effect.</p> <p>Id.—Testimony op Members op Family against Interest—Bule as to Declarations op Deceased Person.—The testimony of members of the family, who have an interest as heirs in favor of the absolute title to the deed, to the declarations of the deceased father of the plaintiff, that the deed to his father was intended as a mortgage, considered in connection with the circumstances under which the declarations were made, tends to make less rigid the application of the general rule that uncorroborated declarations of a deceased person are to be received with caution, and considered as weak and of dubious force.</p> <p>Id.—Effect of Declarations as Evidence.—Where the declarations of a deceased person are admissible at all, they become evidence in the ease, and should not be rejected in reaching a verdict or judgment.</p> <p>Id.—Testimony of Plaintiff—Objection—Estoppel.—WThere the testimony of the plaintiff as to the agreement between him and his deceased father was excluded on the objection of the defendant, the defendant cannot be heard to claim upon appeal that the judgment should be reversed for want of such testimony.</p> <p>Id.—Exclusion of Testimony—Previous Testimony not Stricken Out.—The exclusion of evidence offered by the defendant to prove that the deceased told him to sell the property in controversy is harmless, where testimony to that effect had already been given, and was not stricken out.</p>

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

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

MOTION to dismiss appeals from a judgment of the Superior Court of Los Angeles County and from an order to a receiver. W. P. Fitzgerald, Judge. The facts are stated in the opinion of the court.

<p>Appeals—Motion to Dismiss—Affidavit after Hearing Disallowed. —After the hearing of a motion to dismiss appeals, an application of the respondent for leave to file an additional affidavit was refused.</p>

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

<p>The facts are stated in the opinion.</p> <p>Rodgers & Paterson, William M. Gibson, and C. H. Fairall, for Appellant.</p>

<p>Drainage for Surface-Water—Local Depression—Watercourse.—An ordinary local depression, or swale, in the surface of a generally level plain, through which the rainfall on plaintiff’s land was drained over the defendant’s land, is not a watercourse, to constitute which there must be a natural stream of running water usually flowing in a particular direction and in a definite channel.</p> <p>Id.—Easement for Discharge of Surface-Water.—The owner of upper land has an easement for the discharge of surface-water caused by rainfall, as it is accustomed naturally to flow over the surface of lower adjacent land; and the owner of the lower land has no right to interrupt such flow to the injury of the upper owner.</p> <p>Id.—Protection of Lower Owner from Flood-Water—Back-Water.— The lower owner of land has the right to protect his land from floodwater, arising' from the overflow of a natural stream, even if it causes the water to back upon the surface of the land above,</p> <p>lb.—Construction of Levee—Flood-Waters from Slough—Ditch for Bain-Water.—Where the depression in the surface of the land both caused the rain-water to flow from plaintiff’s land over the defendant’s land, and also caused the flood-water from a slough to flow over the defendant’s land, and the defendant constructed a levee, causing the water to back over plaintiff’s land, the defendant has only the right so to protect himself from the flood-water, and he must provide a sufficient ditch, or canal, to carry off the rainfall from plaintiff’s land over the depression as it would naturally flow.</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>APPEAL from orders of the Superior Court of San Diego County directing a receiver to purchase property and striking out and disregarding appellant’s opposition thereto. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Bicknell, Gibson & Trask, J. S. Chapman, and Goodrich & McCutchen, for Intervener, Appellant.</p>

<p>Action to Quiet Title—Prescriptive Title of Plaintiff—Boundary of Town Lot—Pence—Adverse Possession.—The plaintiff in an . action to quiet title, involving a small strip of land claimed by the defendant as overlapping the town lot possessed by the plaintiff, and as being included in the boundary of the defendant’s lot, is entitled to recover upon proof of a prescriptive title by adverse possession in the plaintiff and her grantors, under a fencing, and continuous possession of the lot including the strip, and the payment of all taxes thereon for more than live years by the plaintiff and her grantor under an adverse claim of right.</p> <p>Id.—Uncertainty in Distance from Street—Control of Monuments —Boundary by Plaintiff’s Lot.—Where the call of both lots in distance from the line of a street is rendered uncertain by difficulty in ascertaining the true line of the street, some surveyors sustaining plaintiff’s line, and others the boundary claimed by the defendant, but there is no uncertainty as to the possession given to plaintiff’s grantor by the original owner of both lots, and as to the fence which such grantor was .then permitted to erect and maintain, and the subsequent grant by the original owner of the remainder of the land to defendant’s grantor was bounded by plaintiff’s lot, which was then fenced, such boundary must be deemed a monument which will control the call for distance in the description of the defendant’s lot.</p> <p>Id.—Admission of Irrelevant Evidence—Harmless Btjling.—Where the judgment for the plaintiff is sustained by a finding of adverse possession and prescriptive title in the plaintiff, the admission of irrelevant evidence for the plaintiff as to the location of certain buildings not in dispute is harmless, and not ground of reversal.</p>

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

MOTION to dismiss appeals from a judgment of the Superior Court of Santa Clara County and from orders denying a motion to set aside the judgment and refusing to set aside a default. A. L. Rhodes, Judge. The facts are stated in the opinion of the court.

<p>Savings Bank—Deposit by Wipe to Her Credit—Unauthorized Payment to Husband—Liability op Bank.—A deposit in a savings bank by a wife to her credit of the surplus proceeds of sale of her land, after satisfaction of a deed of trust to secure her obligation to the savings bank, entitles her to recover the amount thereof from the bank, notwithstanding an unauthorized issuance by the bank to her husband of a certificate of deposit of the amount, which was paid to him.</p> <p>Id.—Authority op Agent op Bank.—An officer of the savings bank who had charge of the business of the loan department,- and was authorized to receive payment of the deed of trust, who was one of the trustees named therein, and delivered the reconveyance to the wife, and who was accustomed to receive money and cheeks, and in fact received the deposit made by the wife, and passed it over to a teller of the bank, and signed the certificate of deposit to the husband for the cashier, had authority to bind the bank by receipt of the deposit.</p> <p>Id.—Ostensible Authority—Eights op Depositors.—One who wishes to deposit money in a savings bank, and delivers it at the counter-of the bank to one of its officers, who has apparent or ostensible authority to receive the same, is not required to ascertain whether the board of directors has given express authority to such officer to receive the deposit.</p> <p>Id.—Estoppel op Savings Bank.—If the conduct of the savings bank has been such as to justify the depositor in believing that the officer was authorized to receive the money, the bank cannot exonerate itself from liability, by showing that no express authority therefor had been given by the board of directors.</p>

<p>Criminal Law—Forgery— Slight Proof—New Trial—Newly Discovered Evidence—Cumulative Proof.—Where it appears that upon the trial of a defendant charged with the forgery of a note, the evidence was strongly conflicting, and the evidence on the part of the prosecution, leaving out of view that for the defendant, was extremely slight and unsatisfactory, matters which in ordinary cases might be disregarded on motion for a new trial will be closely examined, and a new trial should be granted for newly discovered evidence that the prosecuting witness had declared that he himself had signed the note alleged to be forged, although such evidence is, in some sense, cumulative for the defendant.</p> <p>Id.—Evidence—Financial Condition of Prosecuting Witness.—Upon such trial it was clearly error for the court to admit evidence of the financial condition of the prosecuting witness.</p> <p>Id.—Isolated Instruction—Ignoring Testimony for Defendant.— Where the testimony for the defendant proceeded wholly on the theory that the defendant did not sign the alleged forged note at all, an isolated instruction, that if the prosecution had not shown beyond a reasonable doubt that the defendant had no authority to sign the name of the prosecuting witness to the note they must acquit the defendant, though not abstractly erroneous, may have improperly influenced the jury to take the instruction as an intimation by the court that the defendant actually signed the note.</p>

<p>Pleading—Counterclaim—Cross-Complaint—Default of Plaintiff— Proof of Cause of Action.—The fact that the default of the plaintiff has been entered for failure to answer a eross-eomplaint of the defendant setting forth the same matter of counterclaim pleaded in his answer, cannot deprive .the plaintiff of the right to prove the cause of action set forth in his complaint.</p> <p>Id.—Setting Aside Default—Discretion—Appeal.—The discretion of the court was properly exercised in setting aside the default of the plaintiff to the alleged cross-complaint, his belief not being entirely unfounded that such cross-complaint did not require an answer, as containing mere matter of counterclaim; and as it appears that the defendant did not sustain any injury from the action of the court, it will not be disturbed upon appeal.</p>

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

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

<p>Criminal Law—Evidence—Oath Administered to Witness.—Where the form of oath prescribed by section 2094 of the Code of Civil Procedure, as it stood prior to the unconstitutional amendment of March 4, 1901, was administered to the witnesses in a criminal case, with the exception of the invocation for God’s help, there is no substantial departure; and false testimony thereunder will constitute perjury. •</p> <p>Id.—Waiver of Objection.—Where no objection to the form of the oath was taken at the trial, it cannot be objected upon appeal that the court was without jurisdiction by reason of the form of the oath.</p> <p>Id.—Assault with Intent to Commit Crime against Nature—Competency of Child Witness—Preliminary Examination—Discretion.—The competency of a young boy six years old as prosecuting witness, upon a charge of an assault with intent to commit the infamous crime against nature, is for the trial court to determine, after a preliminary examination without the hearing of the jury to test his intelligence, and where such examination disclosed his capacity to understand what was done to him, and to relate it truly, the discretion of the trial court cannot he said to have been abused in allowing his testimony.</p> <p>Id.—Pact of Complaint of Child—Words Inadmissible—Answer not Responsive—Waiver of Objection — Error not Prejudicial.— Testimony is admissible to show the fact that the child complained to his mother of what was done by the defendant, but not as to what he said. If, however, a statement was made as to what he said which was not responsive to the question, and was in violation of the restriction made by the judge and the avowed purpose of the district attorney, it should have been stricken out on motion; but where no such motion was made, the error in admitting it cannot be deemed prejudicial.</p> <p>Id.—Instruction as to Verdicts—Assault not Included.—Where the testimony showed either the commission of the offense charged, or that the defendant was not guilty, and there was no evidence relative to a mere assault, an instruction as to the form of verdicts was not improper because not including a verdict of guilty of mere assault.</p>

<p>Mortgage—Building and Loan Association—Mortgagee not Member —Ultra Vires—Estoppel.—Whether a building and loan association has authority under its corporate powers to loan money upon mortgage to one who was not a member of the corporation is a question which cannot be raised collaterally by a mortgagor, who has dealt with the corporation, and received a sufficient consideration for his note and mortgage. Such mortgagor is estopped from setting up as a defense to an action thereon that the act of the corporation in taking his note and mortgage was ultra vires.</p> <p>Id.—Mortgage upon Community Property—Subsequent Homestead— Deceased Wipe—Claim against Estate.—Where the mortgage foreclosed was executed by the husband alone upon community property, the fact that the wife, who did not sign the note secured, subsequently filed a declaration of homestead upon the land mortgaged, and died before the commencement of the action, does not make it necessary that any claim should be presented against her estate before the foreclosure of the mortgage.</p> <p>Id.—Survivorship op. Community and Homestead—Code Provision Inapplicable.—The mortgage and the subsequent homestead being upon community property, upon the death of the wife the property described in the mortgage vested in the husband, as the survivor both of the community and of the homestead; and the provisions of section 1475 of the Code of Civil Procedure have no application under such a state of facts.</p>

<p>Criminal Law—Selling Quail—Constitutionality of Penal Code— Habeas Corpus.—Section 626k of the Penal Code, which makes it a misdemeanor to buy or sell any quail, is constitutional and valid, and not violative of the fourteenth amendment of the Federal constitution, nor of section 11 of article I of the constitution of this state, requiring all laws of a general nature to have a uniform operation; and a person charged with selling quail in violation of that provision of the Penal Code, and arrested therefor, will not be discharged upon habeas corpus. [Van Dyke, J., and Temple, J., dissenting.]</p> <p>Id.—Property in Wild Game.—Wild game belongs to the whole people, and the legislature may dispose of it as may seem to it best,—subject only to constitutional limitations against discriminations,—and the state law in question does not destroy any right of property, nor make any arbitrary discrimination, or any discrimination in violation of the fourteenth amendment or of any provision of the state constitution.</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>Fire Insurance—Undivided Interest op Assured—Policy Payable to Mortgagee—Retention op Premium—Knowledge op Facts— Waiver op Condition.—Where there was no fraud, false swearing, concealment, or misrepresentation by the applicant for a policy of fire insurance which made the loss payable to a mortgagee, and the policy was written by an agent of the company, who delivered it to a representative of the mortgagee, and a full-premium was paid and retained by the insurance company without offer of rescission after knowledge of the facts, and the assured person had an insurable interest in the property, though his wife was the owner of an undivided half interest therein, the policy may be enforced by the mortgagee, notwithstanding a clause that if the interest of the insured be other than unconditional and sole ownership the policy should be void.</p> <p>Id.—Presumed Knowledge op Pacts—Condition op Title—Waiver op Inconsistent Provisions. —In such ease, the company must be presumed to have issued the policy with knowledge of the condition of the title, which was not inquired into, and to have assured the property with such knowledge, and to have waived provisions of the policy inconsistent therewith.</p> <p>Id.—Condition against Pore closure—Piling Complaint—Statute op Limitations.—The policy being expressly maile payable to the mortgagee in case of loss, as the interest of the mortgagee might appear, a condition against foreclosure of the mortgage cannot render the policy void by reason of the filing of a complaint by the mortgagee to prevent the bar of the statute of limitations against the mortgage.</p> <p>Id.—Construction op Insurance Policies.—Insurance policies, like all other contracts, should be 'considered as a whole, and the different parts thereof read together.</p>

<p>Public Nuisance—Deposit op Debbis upon Highway and Plaza—Action by County—Injunction.—A county may sue to enjoin a public nuisance caused by the running of water and débris from a mine upon and over a public highway and plaza, and the depositing thereon of slime and débris, so as to obstruct the free use of the highway and plaza.</p> <p>Id.—Province oe Boad Overseer.—The nuisance arising from the deposit of débris from a mine is not such a direct obstruction of the public highway as comes within the province of the road overseer to remove it.</p> <p>Id.—People op State Represented by County—Conclusiveness op Judgment.—The county is a body politic, having charge of public highways therein, and is but a department of the state, exercising certain powers belonging to the state, and in the action the county represents the authority of the state, and the rights of the people are put in issue, and the state would be bound by the result of the litigation, if it is not collusive.</p> <p>Id.—Penalty not Recoverable.—In a suit in equity to enjoin the act of the mine-owner complained of, the penalty of ten dollars per day for each day the obstruction continues cannot be recovered or enforced.</p>

<p>APPLICATION for writ of prohibition to restrain the action of the Superior Court of the City and County of San Francisco'.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Dismissal op Action—Want op Prosecution—Vacating Service op Summons—Discretion.—A motion to vacate the service of summons in an action, and to dismiss the action for the want of prosecution, is addressed to the sound legal discretion of the court, and its refusal of the motion will not be disturbed upon appeal, where no abuse of discretion appears.</p> <p>Id.—Order Extending Time to Plead—Want op Jurisdiction—Entry op Depault.—An order of the court extending time of the moving party to plead until one day after the decision of the motion, made more than five months after the service of summons upon him, was an attempt to extend the time to plead beyond thirty days without . the consent of the plaintiff, and was void, as being beyond the jurisdiction of the court, and could not preclude the entry of the default of the defendant pending the time named in such void order.</p>

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

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

<p>Action against Water Company—Accounting of Sales—Damages for Breach of Contract—Default—Void Clerk’s Judgment.—The clerk in entering defaults and judgments by default acts only in a ministerial capacity in the cases expressly provided by statute, and has no judicial functions; and in an action necessarily involving an accounting of the net proceeds of all sales of water obtained by a corporation defendant, over and above the payment of all expenses of developing, conveying, and marketing the water, under certain written contracts, the breach of which is alleged, the clerk had no authority to enter a judgment by default for the gross amount of damages alleged in the complaint, and sneh judgment is void upon its face, and may be set aside upon motion.</p> <p>Id.—Motion of Stockholders to Vacate Clerk’s Judgment.—Defendant stockholders of the water company who are sued upon their stockholder’s liability under the contracts alleged, and who are also alleged to have received certain conveyances from the water company, before the judgment was entered, have sufficient interest to sustain a motion by them to vacate the void clerk’s judgment against the water company.</p>

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

<p>,The facts are stated in the opmion- of the court.</p>

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

<p>Action for Breach of Covenant—Pleading—Amendment of Complaint—Breach of Distinct Covenant—Statute of Limitations. ■—In an action for the breach of one covenant contained in a contract, a cause of action for the breach of a wholly distinct covenant, not pleaded in the original complaint, is a new cause of action, upon which the statute of limitations runs to the date of an amended complaint in which it was first set forth.</p> <p>Id.—General Demurrer to Amended Complaint—Improper Ruling.— ' Where the cause of action upon the covenant set forth in the original complaint was defectively pleaded, but the defects were supplied in the amended complaint, in which the new cause of action upon the distinct covenant was pleaded, which was barred by the statute of limitations, it was error to sustain a general demurrer to the amended complaint.</p>

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

<p>Will—Charitable Trust—Indigent Aged Persons—Certainty—Determination of Trustee—Power of Court.—A charitable fund created by will, the income of which is to be used by a trustee “in aid of deserving aged native-born in the town of Southboro, Mass., needing such aid, to be used as in his judgment he may think best, ’ ’ is a valid trust; and is not void for uncertainty, on the ground that the court cannot determine the fact left to be determined by the trustee in a particular instance, ‘ ‘ whether a particular person is the beneficiary interested.” The court cannot take the place of the trustee.</p> <p>Id.—Indefinitbness of Persons—Essence of Charitable Trust.— Indefiniteness of the persons who are to be beneficiaries of the trust is of the essence of a charitable trust.</p> <p>Id__Construction of Will—“Deserving” Beneficiaries “Needing Aid”—Certainty of Class.—The words “deserving” and “needing aid” used in the will do not render it hopelessly indefinite. The . word “deserving” must be construed in connection with the phrase “needing aid,” and the fair construction of the will is that the aged poor, and no others, were in the .mind of the testator. The will is to be construed liberally in aid of the charitable trust; and there is no uncertainty in the class designated by the testator as beneficiaries.</p> <p>Id.—Perpetual Fund—Discretion of Trustee Named—Appointment of Successor—Power of Court.—The testator having created a perpetual charitable fund, the fact that he has provided only for the exercise of the discretion of his nephew as trustee does not show that the trust is personal to him alone, and that it rests under conditions repugnant to its existence, on the ground that after his death no one would be left to act. In such case, the trust being otherwise valid, the court will not permit it to fail for want of a trustee, but will appoint a successor.</p>

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

<p>Deed — Escrow — Consideration — Support of Grantor for Life — Breach of Condition—Action for Bedelivery of Deed—Findings—Support of Decree.—Where an action for redelivery of a. deed placed in escrow was tried on the theory that it was delivered in escrow pursuant to an alleged agreement of the grantee named, therein to support the grantor for life, which was the sole consideration for the deed, and the court found on sufficient evidence that, plaintiff did not intend to convey irrevocably or to deliver the deed unconditionally, that it was placed in escrow simply as security to-the grantee, if he should perform his agreement, and that both parties understood that its performance was a condition precedent to the vesting of the title in the grantee at death of the grantor,, and that the condition was broken by non-performance of the condition,—a decree that the deed be redelivered, and that the plaintiff' be relieved from the agreement is sufficiently supported.</p> <p>Id.—Averments of Fraud—Omission in Findings Immaterial.—It. was not necessary for the plaintiff to allege or prove acts constituting fraud on the part of the grantee named in the deed placed in escrow; and the omission to find upon the issue of fraud alleged on his part is not material.</p> <p>Id.—Information to Depositary not Essential—Evidence of Intention.—Where both parties fully understood the terms of the agreement and the conditions on which the grantor executed the deed,, and both acted on the agreement, it was not necessary that the depositary should be fully informed of the agreement under which he received the deed, nor did failure to inform him thereof preclude-proof of the intention of the parties.</p> <p>Id.—Agreement for Personal Services—Unexecuted Contract— Willingness to Perform—Obligation not Enforceable.—The-agreement of the grantee named was an obligation on his part to-render personal services which could not be specifically enforced; and where the contract was unexecuted, the willingness alleged and testified to by the grantee to perform the contract on his part, cannot preclude or affect the judgment rendered for the plaintiff upon the-findings.</p> <p>Id.—Remedy for Damages.—The contract being executory, and having-been broken, the plaintiff is not confined to a remedy for damages. -</p> <p>Id.—Recital of Deed not Contradicted—Admissible Evidence.—A. recital at the close of the deed placed in escrow, made by the grantor,, that it was to be left in care of a third person named therein until’ the death of the grantor, and then be delivered to the grantee, is; not contradicted by evidence of the agreement going to the consideration of the deed and the conditions under which the depositary held the deed, as between the parties thereto, and such evidence was admissible.</p>

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

<p>Conversion op Personal Property—Action on Behalp op Association —Parties.—A complaint for the unlawful conversion of personal property, alleging that the plaintiffs are members of an association having a membership of about two hundred persons, and that the action is prosecuted on behalf of the association and all the members thereof, shows that the plaintiffs are proper parties to prosecute the action.</p> <p>Id.—Pleading—General Demurrer—Suppiciency op Parties_Conversion by Oppicers—Withdrawal prom Membership.—A general demurrer admits the sufficiency of the parties, and does not raise the question whether the officers of the association on behalf of which the suit is brought, who are made defendants, and are charged with the unlawful conversion of its property, and with the transfer thereof without consideration to another association made defendant, are sufficiently alleged to have withdrawn from the association, and to have ceased to be members and officers thereof.</p> <p>Id.—Right op Custody not Involved—Damages por Conversion.—The action not being for the recovery of specific personal property, but to recover damages for an unlawful conversion of the property of the association by its officers, their right to the custody of its property is not involved; and the amount of the damages is properly charged to be the value of the property converted.</p>

<p>Street Assessment—Negative Averment—Plans and Specifications not Required—Burden of Proof.—In an action to enforce the lien of a street assessment it does not devolve upon the plaintiff to prove a negative allegation, that before the passage of the resolution for the construction of the work or improvements “plans and specifications and careful estimates had not been required by it to be furnished to the board of trustees by the city engineer. ’ ’</p> <p>Id.—Support of Findings—Prima Facie Case.—The plaintiff’s prima facie case is sufficient without other direct evidence to support findings that such plans were not required, that special specifications had been furnished by the city engineer, and that plaintiff had performed all the work in the contract and specifications mentioned.</p> <p>Id.—Exclusion of Evidence as to Non-Performance of Work— Failure to Appeal under Street Law.—The defendants having failed to appeal under section 11 of the Street Improvement Act, were precluded from attacking the assessment on the ground that the work was not done according to the contract, and it was not error to exclude evidence by them on that subject.</p> <p>Id.i-Motion for New Trial—Specification—Decision against Law-Points not Raised.— Upon a motion for a new trial, neither the insufficiency of the findings of fact to support the conclusions of law, nor the insufficiency of the complaint to state a cause of action, nor the unconstitutionality of the street law, can be considered under a specification that the decision is against law in those respects.</p> <p>Id.—Judgment Foreclosing Lien—Reversal of Order Granting New Trial.—Where the findings supporting the judgment foreclosing the lien of a street assessment were sustained by the evidence, and a motion for a new trial by the defendants is not made upon tenable grounds, an order granting it must be reversed upon appeal.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Marin County denying a new trial. F. M. Angellotti, Judge. The facts are stated in the opinion of the court.

<p>Master and Servant—Negligence—Putting Inexperienced Servant at Dangerous Work—Neglect to Instruct and Warn.—It is negligence for an employer to put an inexperienced servant at dangerous work outside the scope of his ordinary employment, without instructing him fully as to the safest method of doing such work, and warning him of his liability to special danger, of which he was not aware.</p> <p>Id.—Question eor Jury—Proximate Cause or Injury—Error in Granting Nonsuit.—In such case the question whether the negligence of the defendant was the proximate cause of the injury to the inexperienced servant is a question of fact which should be left to the jury, and could not be determined by the court as matter of law; and it was error for the court to grant a nonsuit.</p>

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

APPLICATION to prove an exception in aid of an appeal from a decree of the Superior Court of the City and County of San Francisco vacating a former decree of distribution and distributing one third of the estate to a pretermitted minor heir. J. V. Coffey, Judge. The facts are stated in the opinion of the court. George C. Sargent, and E. B. Stanwood, for Harriet Babson, Devisee, Applicant, and Appellant.

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

<p>Appeal—Order Defusing to Vacate Judgment.—An order refusing to set aside a judgment and to enter a different judgment on the findings is not appealable.</p> <p>Id.—Vendor and Vendee—Quieting Title—Parties.—In an action by a vendor under a contract for the sale of land to quiet his title against his vendee, whose right of purchase by the terms of the contract had not become forfeited at the time of the commencement of the action, another vendee, to whom the vendor had agreed to sell the land by a subsequent contract, is a necessary party.</p> <p>Id.—Subsequent Contract of Sale—Cloud on Title—Excuse for Non-Payment of Purchase Price.—Where the first contract of sale provided that the purchase price should be payable in installments, with interest on deferred payments, and that upon default in such payments the vendee should forfeit his rights under the contract, 1 ‘ except in case of failure of title on the part of the vendor,' ’ the subsequent contract of sale, made before any default had occurred in the payment of the purchase price or interest, created a cloud upon the title sold to the first vendee, and justified him in refusing to complete his purchase until it was removed, or until an effective offer or tender was made to remove it.</p>

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

<p>Master and Servant—Safety of Appliance—Knowledge of Servant. —An action by a servant for injuries suffered in the use of an alleged unsafe appliance cannot be sustained where it appears from the testimony for the plaintiff that the appliance was a simple one, of safe .construction, and in perfect order at the time of the injury, and that plaintiff had participated in its construction, and thoroughly knew and appreciated the use and possible risks attending the use thereof, and had been familiar therewith for years.</p> <p>Id.—Discharge of Master’s Duty.—The duty of the master to furnish reasonably safe appliances is discharged when he has furnished such appliances as may by ordinary care be used without danger, or with no more danger than is necessarily incident to the character of the work.</p>

<p>An assignment was offered in evidence from the plaintiff receiver to E. Schlessinger, made before the action was commenced, for the purpose of showing that the action was not brought in the name of the real party in interest. The assignment expressly conferred upon the assignee the right to prosecute and collect the allowance in the name of the receiver. Further facts are stated in the opinion of the court.</p>

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

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

<p>Criminal Law—Bill of Exceptions—Refusal of Settlement—Review upon Appeal.—Although this court will consider a bill of exceptions settled on behalf of a defendant in a criminal ease, notwithstanding it was presented after the statutory time, yet where the law, upon the showing, justified the court in refusing to settle the bill, there is nothing before this court to be considered upon appeal from the order denying a new trial. In such case, where no error appears in the record, and the verdict is justified by the evidence set forth in the unsettled bill, the judgment and order must be affirmed.</p>

<p>Estates of Deceased Persons—Action by Administrator—Deposit in Bank—Claim of Gift—Credibility of Intervener—Discretion of Court.—In an action by an administrator to recover a deposit made by the decedent in a savings bank, claimed by an intervener to have been given to him by the decedent, the trial court was the judge of the credibility of the intervener, as a witness in his own behalf, and had discretion to reject his evidence taken by deposition, if it appeared incredible and uncorroborated and inconsistent with the circumstances.</p> <p>Id.—Deposition as to Gift—Beview upon Appeal—Support of Finding.—This court cannot say upon appeal, as matter of law, that the trial court erred in discrediting the testimony of the intervener merely because it was taken by deposition, and was consistent with itself, and was the only testimony upon the subject of the gift. The finding against him will not be disturbed,—especially where the record discloses circumstances which affect his credibility and appear to justify the finding against him.</p> <p>Id.—Presumption in Support of Finding—Burden of Proof.—There is a presumption in' favor of the decedent, whose lips are sealed, which takes the place of testimony for the protection of his legal representatives; and the burden of proof is upon a claimant who asserts a disposition of property of the decedent outside of the ordinary course of human affairs. If the testimony of the claimant is deemed incredible by the trial court, such presumption in favor of the decedent will support a finding against the claimant.</p> <p>Id.—Caution as to Testimony—Policy of Law.—The policy of the law requires that claims to personal property of a decedent, resting upon oral declarations, should he received with caution, and even with suspicion, in order to prevent frauds upon his estate.</p>

<p>Criminal Law — Homicide — Evidence — Confession — Promise of Sheriff.—A confession extorted from a defendant charged with murder while imprisoned in the county jail, under the inducement of a promise of the sheriff that if he told the truth the sheriff would do whatever he could for him, is not admissible.</p> <p>Id.—Joint Trial—Confession of .One Defendant—Hearsay as to Co-Defendant—Form of Objection.—Testimony of witnesses to a confession made by one defendant, implicating a co-defendant jointly tried with him for the same offense, is inadmissible hearsay as to the co-defendant; and notwithstanding the absence of a specific objection that the evidence was such hearsay, yet where the defendants were represented by the same counsel, and the evidence was objected to as incompetent, the co-defendant is entitled to the benefit of the exception taken to its admission.</p> <p>Id.—Bill of Exceptions—Settlement—Notice to District Attorney —Failure not Prejudicial—Discretion.—Where the judge settled a bill of exceptions, after excuse made by the defendant for failure to give the required notice to the district attorney, and after allow1 ing the district attorney ample time to propose amendments, which he did within the time given, such failure was not prejudicial to the people of the state; and the discretion of the judge in settling the bill against the objection of the district attorney will not be interfered with upon appeal.</p>

<p>Election Contest—Invalid Ballots—Identifying Marks.—Ballots containing identifying marks are invalid, and must be rejected in counting the ballots upon an election contest. The writing of a name on a ballot in any other place than in the blank column, the erasure of a written name so as to leave a conspicuous mark upon the ballot, the partial rubbing out of one of two crosses improperly placed after a constitutional amendment, the stamping of two crosses after the same name, and the stamping of a cross after names written in the blank column, are each and all identifying marks which render any ballots containing either of them invalid.</p> <p>Id.—Ballots fob Two Beesons fob Same Office.—Ballots marked for two persons for the same office invalidate the ballot for that office only, and merely require that it shall not be counted for either, unless some erasure is made which causes an identifying mark on the ballot that vitiates it entirely.</p>

<p>Judgment upon Cross-Complaint—Joint Appeal by Plaintiff and Defendant—Dismissal.—An appeal from a judgment rendered in favor of two. defendants upon their cross-complaint in an action to quiet title against the plaintiff and another defendant may be taken by the latter jointly, in like manner as if the action had been brought against them as defendants, by the cross-complainants as plaintiffs; and their joint notice and undertaking does not render their appeal subject to dismissal, on the ground that they are on opposite sides of the record as parties.</p> <p>Id.—Form of Undertaking on Appeal—Construction—Practice.— The code does not require a separate undertaking on behalf of each appellant, nor does it require that the name of any payee shall be stated therein. The undertaking herein is to be construed as rendering the sureties liable to the respondents; and the undertaking being in the form which has been the settled practice for many years, this court will not disturb such practice.</p> <p>Id.—Certificate as to Undertaking—Prima Facie Sufficiency—Burden of Proof.—A certificate attached to the transcript in which the clerk certifies that “a good and sufficient undertaking on appeal in due form was properly filed herein,” conforms with the requirements of the code, and is prima facie sufficient, and it is incumbent upon the respondents to show any incorrectness in the certificate.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco relieving a party moving for a new trial from the effects of a failure to present his bill of exceptions for settlement within the time required by law. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Ordinance—Gambling-Houses Barricaded against Police —Construction—Validity.—A municipal ordinance making it unlawful for any person to expose to view in any barred or barricaded house or room, or in any place built or protected in such a manner as to make it difficult of access or ingress to police officers, when three or more persons are present, any cards, dice, dominoes, fan-tan table or layout, or any part of such layout, or any gambling implements, or to visit or resort to such house, room, or place, is to be construed as referring only to places which are specially barred and barricaded against intrusion by officers of the law, so that illegal gambling may be protected from discovery, and not as intended to prevent innocent games played with cards, dice, or dominoes; and, so construed, the ordinance is a valid and reasonable exercise of police power.</p> <p>Id.—Game op Fan-Tan—Violation op State Law—Habeas Corpus.— Persons charged with a violation of such ordinance where the gambling implements named in the complaint referred specially to the game of fan-tan, which is made unlawful by state law, cannot be discharged on habeas corpus. As respects that game, the ordinance is in legitimate furtherance of the state policy upon the subject.</p>

<p>Partition—Judge Made Party—Ex Parte Order Striking Complaint from Piles — Excess of Jurisdiction — Certiorari.— Where the judge of the court was made a party defendant to a complaint in an action for the partition of land, as the alleged claimant of an interest in the land, which interest was denied in the complaint, the court exceeded its jurisdiction in making an ex parte order, of its own motion, without notice to the other parties, or any hearing, striking the complaint from the files on the ground that the complaint was false, deceitful, and abusive in its allegation making the judge a party, and "that it was done solely for the purpose of disqualifying him; and such order will be annulled upon certiorari.</p> <p>Id.—Power and Duty of Judge Made Party.—A judge made a party upon proper allegation cannot arbitrarily determine that he is not a proper party, nor that he is not interested; and the question as to whether or not the judge is made a party in good faith, or whether or not he is interested, should be determined upon notice and after a hearing, so that the record can be preserved and the matter passed upon in this court, in case it becomes necessary.</p> <p>Id.— Contempt of Court — Hearing — Punishment — Limitation of Power.—The mere fact of making the judge a party, if done in good faith, is not a contempt of court; but if it is found, after a hearing and trial first had, that it was done in bad faith, for the purpose of merely disqualifying the judge, and that the attorney was a party to such bad faith, as well as the client, both may be punished for contempt of court. But the client cannot in such ease be punished by the deprivation of property, or by striking the complaint from the files.</p> <p>Id.—Certiorari—Absence of Other Remedy—Petition by Defendant in Partition—Beneficial Interest.—No judgment having been entered, and no right of appeal from the order complained of being given, there is no other plain, speedy, and adequate remedy to preclude a writ of certiorari to annul the order made in excess of jurisdiction; and a defendant in the partition ease who is an actor seeking the partition is a party beneficially interested, and entitled to apply for the writ.</p>