Volume 137 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>William T. Baggett, and Linforth & Whitaker, for Appellant.</p>

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

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

<p>The facts are stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, A. A. Moore, Jr., Deputy Attorney-General, and Hugh J. McIsaac, District Attorney, for Appellant.</p>

<p>Drafts—Action against Drawee—Money Advanced by Bank—Notice to Collecting Bank—Agency—Evidence.—In an action for money alleged to have been advanced by the plaintiff bank at request of the drawee of a draft, who had authorized and paid previous drafts drawn by the same person, evidence is admissible for the defendant to show that the collecting bank was the correspondent and general agent of plaintiff, at defendant’s residence, and that defendant had repeatedly notified the collecting bank before the draft in dispute was drawn or presented that he would pay no more such drafts unless money was due the drawer, and that nothing was then due, and that plaintiff had not advanced the funds to the drawer when notified of the dishonor of the draft.</p> <p>Id.— Evidence Offered upon Cross-Examination — Objection for Eirst Time upon Appeal.—Where plaintiff’s cashier had testified that the money was advanced at defendant’s request, and admissible evidence was offered upon his cross-examination to show that the money was advanced after the plaintiff had been notified not to advance it, it cannot be objected upon appeal, for the first time, that such evidence was not proper cross-examination.</p>

<p>Lease—Assignment by Husband to Wife—Delivery to Notary-Record after Death—Retention of Control by Husband.—Where an assignment of a lease for years by a husband to his wife was never delivered to her, but was placed in the hands of the notary who took the acknowledgment, to be held for the husband or his order, for the benefit of the wife, to be recorded by the notary after his death,—in an action against the widow upon the lease, the jury were justified in finding that the husband had not parted with the control of the lease or the assignment, and might have recalled the assignment if he had recovered from illness, and that he had made no valid delivery thereof.</p> <p>Id.—Payment of Rental — Recital in Sub-Lease — Estoppel.— The payment of rental by the widow during her occupancy without at any time informing the lessor that she was holding under the lease, could not create an estoppel against her; nor was such estoppel created by a recital in a sub-lease that she held a lease of the property for the unexpired term, which only tended to show that she then knew of the assignment, which in fact had no existence for want of delivery.</p> <p>Id.—Acceptance of Benefit—Construction of Code.—Section 1589 of the Civil Code, in reference to the voluntary acceptance of the benefit of a transaction, applies only when the person accepting the benefit thereof is a party to it; and the widow did not accept any benefit from the lease, which was not assigned to her, and under which she'’ was not holding.</p>

<p>Annulment op Marriage—Construction op Code—Existing Status— Voidability.—Section 82 of the Civil Code, providing that a marriage may be annulled for certain causes specified therein, including a -marriage induced by force, unless the party forced has ' ‘ freely cohabited with the other,” not only assumes that a marriage ceremony has been performed, but also that the marriage relation, or status, exists between the parties, and contemplates that it is not absolutely void, but only voidable at the instance of the aggrieved party, who may have it annulled by decree of the court.</p> <p>Id.—Consent Obtained by Eorce—Pleading—Continuance op Marriage Relation.—A complaint to annul a marriage on the ground that the consent of the plaintiff thereto was obtained by force, which negatives any free cohabitation with the defendant, is not rendered defective because averring that the parties were married on a specified date, and “ever since then have been, and now are, husband and wife.”</p>

<p>Execution Sales—Purchase by Attorney—Consent of Client—Presumptions—Fraud upon Creditors.—The purchase by an attorney, with Ms client’s consent, of the client’s property, sold under various executions, by procuring assignments to himself of the certificates of sale and deeds thereunder, in the absence of any showing that it was made for the benefit of the client, or was" in fraud of his other creditors, must be presumed to have been fair and regular as between the attorney and client, and not to have been in effect a redemption by the client, nor a fraud upon his creditors.</p>

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

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

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

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to confirm a sale of real estate. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Alimony—Conveyance by Husband—Fraud upon Wipe-Deed not Void, but Voidable Pro Tanto.—A conveyance by a husband, pending an action by his second wife for divorce and alimony, to the children of his former wife, is not entirely void, but only voidable so far as it affected the rights of existing creditors, including the second wife, who, being entitled to alimony and support, may be considered as a creditor, and after payment or extinction of the obligation, the residue of the property conveyed must go to the grantees, and not to the heirs of the husband.</p> <p>Id.—Remarriage—Extinction of Claim for, Alimony—Title of Grantees.—Where the wife's alimony was made by the decree of divorce a charge and lien upon the property conveyed by the husband, and thereafter the husband and wife remarried, the decree for alimony was thereby extinguished, and the lien discharged, and the grantees continued to hold the legal title, freed from the lien.</p> <p>Id.—Possession by I-Iusband and Payment of Taxes—Adverse Possession not Presumed—Confirmation of Title.—The fact that the husband, after the conveyance to his children by the former marriage, remained in possession and paid taxes upon the land conveyed after his remarriage, up to the time of his death, nine years after the conveyance, does not raise the presumption of a holding adverse to his grantees, in the absence of any evidence that he ever assumed hostility to their title, the contrary of which is indicated by one of his last acts, in making a deed of confirmation of their title.</p> <p>Id.—Grantees not Estopped by Confirmation—Deed from Husband to Wife.—The grantees are not estopped by accepting the deed of confirmation from relying upon the first conveyance to them, as passing the legal title, of which they were never divested; and their original title could not be affected by a deed from the husband to the wife of one third of the property, in pursuance of an agreement made after the original conveyance and before the second marriage.</p> <p>Id.—Statute of Limitations—Trust not Created.—No trust was created, either express or implied, in the grantees of the husband in favor of the second wife which could save her action against them from the operation of the statute of limitations.</p>

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

<p>Deformation of Bond and Mortgage—Pleading—Fraud—Mistake.— A complaint for the reformation of a bond and mortgage, which alleges the actual agreement between the parties and the particulars in which the written instruments depart from it, showing a large increase in plaintiff’s indebtedness, and the omission of important rights given him by the agreement, and alleging, in effect, that the instruments were thus drawn by defendant’s agent with the intent and effect of defrauding the plaintiff, by substituting a different contract for the one actually agreed upon, and that, by the fraudulent representations of "the agent, the plaintiff was deceived and led to believe that the real agreement was in fact expressed in the writings, is not objectionable on the ground that the facts constituting the fraud are not sufficiently specific. In such a case the fact of actual fraud is generally immaterial; and the mistake of the parties, or of one party, known to or suspected by the other, is "equally ground for relief.</p> <p>Id.—Statute of Limitations.—So long as the written contract sought to be reformed remains unbarred by the statute of limitations, that statute has no application to proof of the actual agreement between the parties or to a reformation of the contract. The contract really agreed upon is regarded as the only contract between the parties, and this is to be interpreted according to the real intention of the parties as proved. It is not necessary that the contract should be formally revised; nor is it necessary to inquire whether the discovery of the fraud is sufficiently alleged, or whether the complaint is amendable in that respect.</p> <p>Id.—Immaterial Objection to Complaint.—Objections to the complaint on the questions of actual fraud and the statute of limitations are immaterial. It makes no difference whether the allegations upon those matters are defective or not, and they may be treated as surplusage.</p> <p>Id.—Effect of Mistake, How Determined—Proper Averment.—The effect of the mistake can be determined by the court from a comparison of the written instruments with the actual contract alleged; and an averment that by the mistake in the written instruments the plaintiff is made to appear indebted to the defendant in twice the actual sum agreed upon is unobjectionable.</p> <p>Id.—Averment of Actual Agreement—Certainty—Unnecessary Details.—It is sufficient that the actual agreement was stated in the complaint with clearness and certainty; and it' was unnecessary to describe the investment fund, or the shares, otherwise than by the names given to them in the written instruments, or to set out the by-laws of the corporation. A general statement, if comprehensive and complete, cannot be assigned as indefinite or uncertain, although it may be the proof involves details.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Santa Barbara County. W. S. Day, Judge. The facts are stated in the opinion of the court.

<p>Estate of Deceased Person's—Administration of Estate of Living Person—Distribution—Annulment—Judgment for Return of Property—Excess of Jurisdiction—Certiorari.—An application to the court oí probate jurisdiction to annul an administration upon the estate of a living person after a decree of distribution had been made, and for return of all the property which came to the hands of the administrator, is a probate proceeding, and cannot be treated as a suit in equity, where the administrator was served with a citation only in the matter of the estate, which did not require him to answer, or notify him that judgment would go against him for want of answer; and where he did not in fact appear, and no issue was tried, the court exceeded its jurisdiction in rendering judgment against him for all the moneys received by him and directing execution therefor in default of payment, and such judgment will be annulled upon writ of review.</p>

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

<p>Dedication of Street and Alley—Description in Deeds—Offer to Dedicate—Acceptance by City.—The description of a street and alley in deeds by the owner of land to grantees bounded thereon is an offer to dedicate the street and alley to public use, and where the city accepted such offer within a reasonable time, and prior to revocation thereof, the dedication became complete.</p> <p>Id.—Map Omitting Designation—Abandonment.—The mere adoption by the city of a map omitting the designation of the accepted street and alley cannot operate as an abandonment thereof.</p> <p>Id.—Detention of Part of Street by Owner.—The facts that the owner claimed the street and alley, and was using it, and that her house occupied part of the street, were not sufficient notice to purchasers that her deed bounded by the street and alley was not intended as an offer to dedicate the same.</p> <p>Id.—Action by City—Cross-Complaint to Deform Deed—Mutual Mistake not Shown.—Where the city brought an action to recover from the owner of the land the street and alley alleged to have been dedicated, and she sought by cross-complaint to reform the deeds for alleged mutual mistake in the description thereof, in order to avoid the dedication, such cross-complaint cannot be sustamed, in the absence of clear and satisfactory proof of a mutual mistake, common to both parties, and of any evidence to show that any one of the grantees had knowledge of the alleged mistake.</p> <p>Id.—Possession as Notice of Mistake.—Where the purchasers did not understand that the possession of part of the street by the owner . was notice to them that she did not intend to dedicate the street by which their deeds were bounded, such possession cannot operate as notice of a mistake in their deeds.</p> <p>Id.—Statute of Limitations—Bab. of Cross-Complaint.—The cross-complaint to reform the deeds on the alleged ground of mistake in the description of the lands as bounded by the street and alley, which was discovered seven years before the filing of the cross-complaint, and existed, if at all, more than fourteen years prior thereto, is barred by the statute of limitations.</p>

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

<p>Taxes—Sale—Redemption—Personal Property Taxes.—Where land was sold for taxes to the state, March 16th, for non-payment of taxes which became delinquent in December of the previous year, the personal property taxes for the ensuing year, which could not have been a lien upon the land when the taxes for which it was sold became delinquent, cannot be included in the amount required to redeem the property from the state.</p>

<p>Contract for Sale of Land—Statute of Frauds—Parol Evidence— Insufficient Description—Map not Ebferred to.—A contract for the sale of land must be wholly in writing, and must so describe the property, in terms or by reference, that it can be ascertained without resort to parol evidence to supply any defect therein, as distinguished from identification of the description with its location upon the ground; and a contract for the sale of a strip of land which does not describe its location, width, or length—the strip not being inclosed, or in any mode designated upon the ground—is insufficient, under the statute of frauds, and cannot be aided by a map not referred to therein.</p>

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

<p>APPLICATION for writ of prohibition to the Police Court of the City and County of San Francisco. Alfred J. Fritz, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>A. A. Moore, W. W. Foote, and J. J. Lerman, for Petitioner.</p>

<p>Dismissal—Want of Prosecution — Demurrer to Complaint.—An action may be dismissed for want of prosecution of a cause which had stood for many years upon demurrer to the complaint. Notwithstanding the defendant had power to bring on the hearing of the demurrer, it was not his duty to do so, and he is not chargeable with neglect for failing to do more than meet the plaintiff step by step. The plaintiff is charged with the duty of diligence in prosecuting the action, whether the issue is one of law or of fact.</p> <p>Id.—Distinction between Law and Equity.—There is but one form of action under our code, and no distinction can be taken in dealing with a motion to dismiss a cause for want of prosecution, between actions at law and actions in equity.</p> <p>Id.—Appeal—Question of Diligence — Discretion not Abused.—It was in the discretion of the court to dismiss the action for want of prosecution; and where the facts relative to the question of diligence do not show an abuse of discretion in dismissing the action its order will not be disturbed upon appeal.</p>

<p>Constitutional Law—Grant op Bight to Lay Pipes in Streets— Conditions—Power op Municipality.—Section 19 of article XI of the state constitution is a direct grant from the people to the persons therein designated of the right to lay pipes in the streets of a city for the supply of illuminating light or water to the city and its inhabitants, the only conditions or limitations of which are, that the work shall be done under the direction of the superintendent of streets, and under such general regulations as the municipality may prescribe for “damages and indemnity for damages,” which must be uniform in their application to all who may desire to exercise the privilege. The municipality has no other power of regulation over the subject than that expressly conferred, and cannot impose additional burdens or terms as a condition to the exercise of the right so granted.</p> <p>Id.—Invalid Ordinance—Permit prom Superintendent op Streets— Penalty—Police Power—Habeas Corpus.—A city ordinance requiring persons who desire to lay pipes in the streets thereof for the supply of water or illuminating light to make a verified application for a permit from the superintendent of streets, and making it a misdemeanor not to comply therewith, is not a proper exercise of police power, and is invalid and void. A person proceeding under the constitutional grant of power, after such permit was refused, and arrested for laying down pipes without first obtaining such permit, will be discharged upon habeas corpus.</p>

<p>Probate of Will—Contest—Undue Influence—Province of Jury-Conflict of Evidence—Appeal. —Upon the contest of a will for undue influence, it is the province of the jury to weigh the evidence, ■ to pass upon the credibility of witnesses, and to find the facts; and where the evidence was conflicting, and not entirely insufficient to support a verdict against the probate of the will, though the verdict might with propriety have been the other way, this court cannot say upon appeal that it was entirely outside of the legitimate province of the jury.</p> <p>Id.—Evidence—Hostility of Devisee to Husband of Deceased.—Evidence upon such contest tending to show animosity or friendliness is admissible, although occurring before or after the main event, if not too remote in time. It was not error to admit evidence that the mother of the deceased, who was the devisee of her will, would not allow her husband, the contestant, to have anything to do with the funeral of his wife or to see her body.</p> <p>Id.—Declaration Belative to Marriage—Harmless Evidence.—Evidence that shortly after her daughter’s marriage to the contestant the mother declared her willingness that' her other daughters should marry old men as well off as she had married is not clearly inadmissible, under the circumstances, but, even if not admissible, is of too little importance to be prejudicial or to warrant a reversal of the judgment.</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—Order Refusing to Settle Bill of Exceptions.—Assuming that an order made after judgment refusing to settle a bill of exceptions is appealable, yet, in the absence of a bill of exceptions, there being nothing to show error in the order, such appeal must be disregarded.</p> <p>Foreclosure of Lien for Sewer-Work—Bar of Statute—Pleading-Amendment—Demurrer.—Where the verified complaint in an action to foreclose a lien for sewer-work showed on its face that the warrant, diagram, and assessment were recorded more than two years prior to the commencement of the action; and that it was therefore not commenced within the lifetime of the lien, and the amended complaint wholly omitted to state the material fact of the date of the record, the court was justified in assuming that the original statement of the date could not truthfully be amended to obviate the objection to the original complaint, and properly sustained a demurrer to the amended complaint, without further leave to amend.</p> <p>Id.—Time of Occurrence of Material Facts.—The time of the occurrence of material facts must be alleged with certainty, especially where the date is itself material.</p> <p>Id.—Finality of Judgment.—A final judgment against the plaintiff in an action to foreclose a lien, upon demurrer to the complaint by the owner of the lot, in effect determines all issues as against other parties made defendants as having some interest in the premises subordinate to the alleged lien.</p>

<p>Pleading—Admissions of Original Answer—Amendment—Findings. —An amended answer supersedes the original as a pleading; and it is immaterial that admissions contained in the original answer are inconsistent with the findings, if not expressly adopted as part of the amended answer.</p> <p>Id.— Construction of Amended Answer — Eeference.— Where the amended answer to a second cause of action refers to and adopts certain paragraphs “of the answer to the first cause of action set forth in the complaint, and makes them a part of the amended answer to the second cause of action,” etc., the intention of the pleader is manifestly to adopt the paragraphs of the amended answer, and not those of the original answer.</p> <p>Id.—Finding against Answer—Water Eights—Injunction—Appeal. —In an action to enjoin the interference of the defendant with plaintiff’s water-ditch, where the defendant in his answer claimed the right to thirty inches of water, the fact that the findings and judgment awarded him only twenty-five inches of water is not the subject of complaint upon appeal of the plaintiff, on the ground that the findings are inconsistent with the answer.</p> <p>Id.—Findings—Clerical Mistake—Probative Fact—Eights Subject to Agreement.—A clerical mistake in the finding of a probative fact as to the date of a contract between the parties adjusting water rights of the defendant is immaterial where the court finds that plaintiff’s ownership of his water-ditch is subject to defendant’s rights under the agreement, and awards to the defendant less water than that allowed by the agreement.</p>

<p>The facts are stated in the opinion.</p> <p>B. S. Gregory, J. C. Boyle, and Whitcomb & Boyle, for Appellants.</p>

<p>Appeal prom Judgment—Conclusiveness op Findings.—Upon appeal from a judgment, where there is no hill of exceptions or statement of the evidence, the findings are conclusively presumed to be true for the purposes of the appeal.</p> <p>County Government Act—Salary op Deputy District Attorney.— Under the County Government Act of 1893, authorizing the district attorney of Fresno County (a county of the eighth class) to appoint ‘ ‘ two deputy district attorneys at a salary of fifteen hundred dollars per annum,” the words employed denote that each of the deputies is to receive that salary, and not that they are to receive one salary of fifteen hundred dollars between them.</p> <p>Id.—Constitutionality—Uniformity of Operation.—Subdivision 24 of section 170 of the County Government Act of 1893, providing that it shall go into effect immediately, as to Fresno County, on the date of its approval, and that nothing in that section should affect in any manner the length of terms or the salaries fixed for present incumbents, or the number of deputies, or the compensation thereof as allowed by law January 1, 1893, is to be construed together with section 237, providing that the act should take effect, except as otherwise provided, on the first Monday after the first day of January, 1895, and, so read, there is no conflict as to the county officers named, and there is no absence of uniformity of operation, rendering the act unconstitutional.</p> <p>Id.—Immateriality of Time.—Where it appears that the County Government Act of 1893 had gone into full effect before the district attorney of Fresno County, who appointed the deputy whose salary was in question, took office, the time of its taking effect as to him is immaterial.</p> <p>Id.—Immateriality of Provision—General Power of Supervisors— Findings—Presumption.—Where the findings show that the deputy was regularly appointed, and do not show that there was any other assistant or deputy district attorney, it is immaterial whether the appointment and salary were directly authorized by subdivision 21 of section 170 of the County Government Act of 1893, or whether it was required to be empowered as the salary of an assistant district attorney, under the more general provision of subdivision 36 of section 25 thereof. An assistant district attorney is but a deputy, and, applying the latter section, it may be presumed that the board of supervisors authorized the appointment and salary.</p> <p>Id.—Assumed Bepeal by County Government Act of 1897—Presump-tion—Moot Question.—Assuming that the act of 1893 was repealed as to the plaintiff, by the County Government Act of 1897, the appointment and salary of the plaintiff are authorized by that act, under the findings as made; and all presumptions being in favor of the correctness of the judgment, it is a mere moot question whether the act of 1893 was or was not repealed as to the plaintiff.</p> <p>Id.—Mandamus—Former Injunction—Bes Adjudicata—Subsequent Appointment.—Where the present record shows an appointment of the plaintiff made in 1898, the record of a former judgment, entered in 1895, perpetually enjoining the auditor from issuing, and the plaintiff from receiving, any warrant upon the treasurer for any service rendered by the plaintff as deputy district attorney under a general appointment, is not a bar to an application for a writ of mandate to compel the county treasurer to pay a warrant issued for salary under the subsequent' and different appointment.</p>

<p>Benevolent Society—Trial and Expulsion op Member—Void Expulsion-Decree op Court—Trial and Verdict Unappected—Subsequent Expulsion.—Where the constitution of a benevolent society-provided for the trial of an accused member before a trial committee upon notice, and for action upon their verdict and report, and for expulsion or other penalty by two thirds of the ballots cast, and a judgment of expulsion appearing upon the records to have been made by the ballots of a majority of the members present was declared void by a court' of competent jurisdiction, and the expelled member was ordered reinstated to the extent that such membership existed immediately prior to such attempted expulsion, the judgment did not affect the validity of the trial and verdict, and a subsequent expulsion of the member by two thirds of the members present, without any new accusation or new trial, was valid and lawful.</p> <p>Id.—Reconsideration op Ballot.—A provision of the constitution prohibiting the reconsideration of a ballot once taken against an accused member has no application to a ballot which was unconstitutional and void, and which must be so treated for all purposes.</p> <p>Id.—Notice to Member—Trial and Judgment.—Where the laws of the order provided for notice to the member of the trial, and gave opportunity for the cross-examination of witnesses, they are not defective in not providing for notice of the time of pronouncing judgment, and in providing that he should not be present when the ballot was taken for the judgment. Where the accused filed no exceptions, there was nothing left for the society to do except by their ballot to pronounce judgment, and notice at that stage could avail nothing.</p>

<p>The facts are stated in the opinion.</p> <p>Stearns & Elliott, Ben F. Woolner, and George E. Caldwell, for Appellant.</p> <p>B. S. Gregory, J. C. Boyle, and Whitcomb & Boyle, for Respondents.</p>

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

<p>Street-Work—Objection of Property-Holders—Loss of Jurisdiction —Case Affirmed.—A written objection of property-holders to proposed. street-work, purporting to be signed by the owner of a majority of the frontage, not affirmatively disallowed as not legally signed by such majority, is sufficient, though actually filed before the expiration of the time for posting and publication of the notice for street-work, and though not' formally indorsed by the clerk, if otherwise sufficiently identified and authenticated, and deprives the board of jurisdiction to order the improvement under the original resolution. [Thomason v. Carroll, 132 Cal. 148, affirmed.]</p> <p>Id.—Testimony of Deputy Clerk—Absence op Other Besolution.— In an action to enforce a street assessment levied in fact under the original resolution of intention, evidence of the deputy clerk was admissible to prove that no other resolution of intention to do the street-work involved was passed by the supervisors than that introduced in evidence.</p>

<p>Trust—Security por Indebtedness—Support op Findings—Appeal. — In an action to enforce a trust in land acquired by the defendant at a judicial sale obtained by the plaintiff under an alleged breach of confidence and trust relation, where the evidence shows that there was no breach of confidence or trust, and the court found upon sufficient evidence that substantially all of the allegations of the answer were true, and where the decree rendered accordingly appears to be just and fair to both parties, it will not be disturbed upon appeal of the plaintiff.</p> <p>Id.—Decree Allowing Time to Make Conveyance.—No material injury was done to the plaintiff by giving to the defendant ten days in which to make the conveyance and surrender possession of the land, upon payment of the debt, instead of reconveying the property at once upon payment to him of the amount due.</p>

<p>Estates of Deceased Persons—Sale of Real Estate—Insufficient Petition—Failure to State Value—Absence of Finding—Direct Attack upon Appeal—Collateral Attack.—A petition for the sale of real estate of a decedent merely alleging that the land "is unimproved desert land,” and that "it is situate in MeKittrick District, and is chiefly valuable for the possibility that it may contain petroleum,” without either stating its value or that its value could not be ascertained, and which is unaided by any direct finding of value, is substantially defective as against a direct attack upon appeal from the order of sale, although it be assumed, without deciding, that the recitals of the order would protect a purchaser under a confirmed sale, as against a collateral attack thereupon.</p> <p>Id.—Pleading—General Reference — Matter of Substance—Aider of Averment.—A mere allegation that a true inventory was returned, and a general reference to papers on file in the clerk's office and the records of the court, cannot supply the place of the omitted allegation of the matter of substance of the value of the land sought to be sold. Matter of substance must be alleged in direct terms, and not by way of recital or general reference, and when omitted cannot be left to inference from the construction of a document, even if attached as an exhibit, though a defective allegation may be aided by express reference to a document for that avowed purpose.</p>

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

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

<p>Ferries—Joint Construction by Counties—Injunction.—The supervisors of one county have no authority to enter into a eoritract with the supervisors of another county for the joint construction, equipment, and maintenance of a free public ferry across a river forming the boundary between them; and an injunction will lie to prevent the performance of an unauthorized contract for that purpose.</p>

<p>Mining Claims—Oil Land—Location—Marking op Boundaries.—A location of a quarter-section of oil land, which was surveyed by a competent surveyor employed by the locator, who found the northwest corner of the quarter-section as it had been located and monumented with a pile of rocks by the government surveyor, and who ran the lines of the quarter-section and set stakes at each corner, substantially marked the location distinctly on the ground so that its boundaries could be readily traced.</p> <p>Id.—Loss op Monuments.—Where there is no dispute as to the original staking of the ground by the surveyor, the fact that some of the stakes were found rotted away and gone eight years later, raises no presumption against the validity of the location.</p> <p>Id.—Failure to Do Annual Work—Resumption op Work.—The failure to do the annual work upon the claim for several years cannot affect the validity of the claim, where the necessary work was resumed after such failure and before the relocation of the claim and the necessary annual work done thereafter.</p> <p>Id.—Presumption op Good Faith.—In the absence of evidence to the contrary, it will be presumed that the annual work was resumed in good faith, so as to satisfy the provisions of section 2336 of the Revised Statutes of the United States. The previous failure does not tend to show that the subsequent annual work was not done in good faith, and cannot affect the rights of the claimants who have thus resumed work as against subsequent locators.</p>

<p>Riparian Rights—Dam of Upper Proprietor—Presumption—Burden of Proof.—A dam erected in a stream by an upper riparian proprietor for the purpose of enabling him to utilize flood-water cannot be said, as matter of law, to be an unreasonable encroachment upon the rights of a lower riparian proprietor at seasons of low water. The upper proprietor is entitled to a reasonable use of the water, and it must be presumed that he was acting within his rights in the absence of an affirmative showing by the lower proprietor that injury in fact resulted thereby to his rights, and that the use by the upper proprietor was excessive.</p> <p>Id.—Remedy of Lower Proprietor—Injunction—Determination of Rights.—The remedy of the lower proprietor, if injured by the dam of the upper proprietor, is not to enjoin altogether any use of the water by him, but to have the respective rights of the parties determined; and no injunction can be allowed in the absence of a clear showing of excessive use by the upper proprietor to his. injury.</p> <p>Id.—Pleading—Judgment—Dismissal.—Where the complaint of the lower proprietor did not recognize any riparian rights of the upper proprietor, and only sought an injunction to restrain any use of the water of the stream by the defendant, the court properly rendered a judgment dismissing the plaintiff’s action without prejudice to the right of plaintiff to maintain another action to determine the proportion of water which the respective riparian owners may use.</p>

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

<p>APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial and from an order denying a motion in arrest of judgment. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>George A. Whitehurst, George F. Carroll, and Louis F. Boardman, for Appellant.</p> <p>Tirey L. Ford, Attorney-General, A. A. Moore, Jr., Deputy Attorney-General, James H. Campbell, District Attorney, and A. H. Jarman, Deputy District Attorney, for Respondent.</p>

<p>Criminal Law—Perjury before Grand Jury—Prior Investigation-Power of Grand Jury—Indictment.—A grand jury, while investigating a charge of perjury against a defendant alleged to have been committed in open court upon the trial of a cause, have the right and power to find an indictment against such defendant for perjury, in the same respect, committed in their presence; and they had a right to consider the testimony of witnesses and other evidence submitted to them under the original charge, in so far as it tended to support the indictment found.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco allowing alimony, costs, and counsel fees in an action for divorce. Frank H. Kerrigan, 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 of the court.</p>

<p>Libel—Mitigation of Damages—Mistake—Delay in Correction-Amount of Damages—Question for Jury.—In an action for libel, where the defendant did not deny the allegations of the complaint, but pleaded in mitigation of damages that the publication was the result of mistake, which was corrected when known, but it appeared that the retraction was not published until nearly sixty days after the publication of the libel, and thirty-one days after service of summons, and not until after the refusal of the plaintiff to accede to a proposition to publish the retraction, if plaintiff would dismiss his suit, the only question for the jury to determine was as to the amount of damages to be assessed.</p> <p>Id.—Erroneous Instruction—Exclusion of Exemplary Damages.— In such action, it was error for the court to instruct the jury, at the instance of the defendant, that they could only give the plaintiff such sum as would compensate him for the injuries caused by the publication, and thus to exclude from the jury the question of exemplary damages.</p> <p>Id.—Gross Negligence—Question' for Jury—Decision upon Former Appeal—Law of the Case.—The decision upon the former appeal (115 Cal. 401) that gross negligence or carelessness of the rights of others is frequently equivalent in law to an intentional or malicious disregard of those rights, and that whether or not the method adopted by defendant's paper amounted to such disregard was a matter for the jury under proper instructions of the court, is the law of the case.</p> <p>Id.—Verdict for Nominal Sum—Erroneous Instruction.—The case is not one under which a verdict for a merely nominal sum was proper; and it was error for the court to instruct the jury, at defendant's request, that they were entitled to give the plaintiff as small a sum as they thought him entitled to, and might give him a verdict in a nominal sum, if they believed him entitled to no more, and to refuse to instruct them that a nominal verdict would be a denial of justice. The plaintiff was entitled to substantial damages, or damages reasonably adequate to the injury admittedly suffered by him, and the jury should have been so instructed.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Reddy, Campbell & Metson, Campbell, Metson & Campbell, Ira D. Orton, and N. B. Frisbie, for Appellants.</p>

<p>Account Stated—Oral Agreement—Writing not Required.—Where a balance of accounts was orally agreed upon between the parties it became an account stated, and was not required to be in writing. The fact that a typewritten copy of the agreement was prepared, but not executed, cannot affect the validity of the account stated.</p> <p>.Id.—Action upon Account Stated.—An account stated is a new and independent contract, upon which, an action is properly based. It is unnecessary to go back of it to inquire whether it was based on figures written on a piece of paper or carried in the memory.</p> <p>Id.—Nonsuit—Error of Law—Bill of Exceptions—Review upon Appeal.—Error in the granting of a nonsuit which is excepted to may be embodied in a bill of exceptions on motion for a new trial, and may be reviewed, either upon appeal from the order denying a new trial, or upon appeal from the judgment based on the order of nonsuit.</p>

<p>APPEAL from an interlocutory decree of the Superior-Court of the City and County of San Francisco and from an order denying a new trial. J. C. B. Hebbard, 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>Conversion of Personal Property—Statute of Limitations.—An action for the wrongful conversion of personal property is not barred in two years by the provision of subdivision 1 of section 339 of the Code of Civil Procedure, but the limitation of the cause of action is three years under section 338 of the Code of Civil Procedure, which is designed to include all actions for torts involving personal property, without reference to the particular remedy employed.</p> <p>Id.—Pleading—Averment op Conversion.—An averment that the defendant converted the property to his own use is a sufficient averment of the fact of conversion, in the absence of a special demurrer, to sustain a judgment.</p> <p>Id.—Ownership at Time op Conversion—Indirect Averment.—An indirect averment of the fact that plaintiff was the owner of the personal property at the time of the conversion, by alleging ownership at the' time when the property was delivered to defendant’s testator as security for indebtedness, and that on a certain day, when said indebtedness was fully paid and discharged, the defendant, well knowing that the articles held by him were the property of plaintiff, converted the same to his own use, is sufficient as against a general demurrer.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>J. A. Plummer, A. H. Carpenter, and R. W. Dodge, for Appellant.</p> <p>Tirey L. Ford, Attorney-General, A. A. Moore, Jr., Deputy Attorney-General, A. H. Ashley, District Attorney, and George F. McNoble, Deputy District Attorney, for Respondent.</p>

<p>Criminal Law—Seduction under Promise of Marriage—Sentence for Misdemeanor—Statute of Limitations.—Though the crime of seduction under promise of marriage may be punished either as a felony or as a misdemeanor, when it is punished as a misdemeanor the offense must be deemed a misdemeanor for all purposes; and where the indictment was not found within one year after the commission of the offense, the criminal action is barred by the statute of limitations.</p>

<p>Dismissal of Action—Failure to Beturn Summons in Three Years —Loss of Summons.—An action must be dismissed pursuant to subdivision 7 of section 581 of the Code of Civil Procedure for failure to return the summons in three years, if no appearance has been made in that time. The fact that the summons was lost for a time can make no difference, the remedy for such loss being provided for in section 1045 of the Code of Civil Procedure.</p> <p>Id.—Appearance after, Lapse of Three Years.—An appearance made after the lapse of the three years cannot preclude a motion to dismiss the action for failure to return the summons within that period.</p> <p>Id.—Order Befusing to Set Aside Judgment of Dismissal—Appeal-Discretion.—It seems that an order refusing to set aside the judgment of dismissal is not appealable; but if it were so, the order would not be disturbed upon appeal, where there is nothing in the record to show an abuse of discretion.</p>

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

<p>Findings—Ultimate and Probative Facts.—Where the ultimate facts are found against the plaintiffs, no finding of «probative facts in their favor will be permitted to control.</p> <p>Id.—Life Insurance—Construction of Policy—Forfeiture for Failure to Pay Premiums.—Where a life-insurance policy provided for quarterly mortuary premiums payable upon notice, and for forfeiture for failure to pay after notice, with a proviso that in case of death after five years, within six months from the date of maturity of a mortuary call unpaid, the policy should be payable to the beneficiaries, and there was a continued neglect to pay quarterly calls, and death occurred after the lapse of five, years, and more than six months after the first default, and less than six months after the latest default,—the policy cannot be construed as relating to any other than the first default, and it must be ' deemed lapsed and forfeited as of that date, subject only to the right of the beneficiaries to demand payment, if his death had occurred within six months from that time.</p>

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

<p>Foreclosure op Mortgage—Pleading—Indebtedness at Commencement of Suit.—A complaint for the foreclosure of a mortgage which sets out the noté and mortgage, showing on their face that the principal was part due and payable long before the commencement of the action, and which avers that no part of the principal sum has been paid, and that it is unpaid and owing by defendant to the plaintiff, sufficiently shows that the principal sum was “due” at the commencement of the action.</p> <p>Id.—Sufficiency op Findings.—A finding of fact that all of the allegations of the complaint are true, except a part of the allegation as to attorneys’ fees, and a finding of law that the principal sum with certain interest is “due and unpaid” are supported by' the complaint, and are sufficient to show that the principal sum was “due” at the commencement of the action.</p> <p>Id.—Attorney’s Fees—Personal Judgment.—Where the mortgage provided that upon its foreclosure the mortgagee “may include in such foreclosure a reasonable counsel fee to be fixed by the court,” he is not thereby entitled to have the fees included in tlm amount of the mortgage lien, and must rely alone upon a personal judgment for the attorney’s fee allowed.</p>

<p>Vendor and Purchaser—Tender of Purchase Monet—Waiver of Objection.—The failure of the vendor to object to a written offer by the purchaser under a contract for the sale of real estate to pay the principal sum of purchase money due, which sum was present, and counted by the vendor’s clerk at his request, is a waiver of objection to the offer and tender, and precludes the vendor from afterward objecting that the interest was not included in the tender, or that the tender was too indefinite. The purchaser was not required to produce the money to constitute a valid tender where the vendor did not accept the offer made or comply with his demand for a deed.</p> <p>Id.—Tender of Insufficient Deed—Refusal to Accept Purchaser’s Offer—Adverse Judgment against Vendor.—The tender by the vendor, as being in full compliance with his contract, of a deed which did not convey a fee-simple title to all of the land, as agreed, must be deemed a refusal to accept the offer of the purchase money, as made. The purchaser was justified in refusing to accept such deed, on the ground that a ten-acre tract of the property purchased was subject to an adverse judgment against the vendor in favor of a third person in an action to quiet title, and that the .title thereto was still outstanding, and was not conveyed by the deed.</p> <p>Id. — Breach of Contract — Rescission — Recovery of Money Expended.—The failure and inability of the vendor to comply with the contract upon demand, by the tender of a sufficient deed of all the property agreed to be conveyed, was such a breach of the contract as warranted the purchaser in rescinding it and in bringing an action to recover from the vendor the moneys laid out and expended in improvement of the land.</p> <p>Id.—Judgment Affecting Title—Date of Breach—Promptness in Rescission.—The date of the judgment affecting the vendor’s title cannot be taken to show a lack of promptness of the purchaser in rescinding the contract of sale. Its entry furnished no ground of rescission, as the vendor might thereafter procure the outstanding title and comply with his contract. The right of rescission could only be exercised after the date of the breach of the contract in refusing to comply with the demand of the purchaser for a deed. When the record discloses no lack of promptness in rescinding the contract thereafter, the vendor cannot complain thereof.</p> <p>Id.—Assignment of Contract of Sale—Recovery of Money Expended by Assignor.—The assignment of the contract of sale by the purchaser carries with it all of the right that the assignor had by reason of its breach by the vendor, including the right to rescind the contract for such breach and to recover money expended by the assignor.</p>

<p>Partnership — Dissolution — Assignment and Conveyances — Consideration — Parol Evidence Inadmissible to Defeat Instruments.—Where a partnership was dissolved by mutual consent, and one of the partners assigned all of his interest in the partnership business, in consideration of an acknowledged payment of one hundred dollars, and of the assignee assuming all the debts and liabilities, and agreeing to discharge and indemnify the assignor from all liabilities and losses, and to employ him at a monthly wage, and the assignor conveyed to the assignee all of his interest in the real property of the partnership,—parol evidence is not admissible, entirely to defeat the written contract and conveyances, by proof that there was no consideration therefor, and that there was a continuance of the partnership, and a trust of the assignee for the assignor.</p> <p>Id.—Confidential Belation of Partners—Bights upon Dissolution. —As a general rule, the confidential relations of partners exist only as to the current business of the partnership; and partners may deal with each other at arm’s length in relation to the dissolution and transfer of assets thereupon from one to the other, subject to the qualification that each partner must deal fairly with his copartner, and not conceal matters within his own knowledge touching the business and property of the partnership.</p> <p>Id.—Impeaching Consideration—Parol Evidence—Rule and Exception.—The general rule that parol evidence is admissible to contradict the recital of consideration, and to show that the true consideration is other than that recited, is subject to the exception that the legal effect of the instrument cannot be varied nor defeated, nor can covenants be defeated by which rights are expressly vested by parol evidence.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John J. Jury, for Miranda E. Mills, as Administratrix, Appellant; and John J. Jury, and John E. Richards, for Miranda E. Mills, as heir-at-law, Appellant.</p>

<p>Quieting Title—Prescription—Title from Common Source—Pleading—Finding—Misjoinder of Parties—Waiver—Appeal.—In an action to quiet title, where the complaint alleged ownership in fee in each of the plaintiffs to the lot or lots claimed by him, and it was stipulated "that payment of all taxes and adverse possession was proven by the plaintiffs for the lots claimed by them respectively,” an allegation that plaintiff deraigned title from a common source is immaterial, and need not be proved or found in order to sustain a judgment for the plaintiffs, if no misjoinder of plaintiffs was pleaded by the defendants. In such ease, the question of misjoinder was waived, and cannot be raised upon appeal for the first time.</p>

<p>Appeal—Entry op Judgment—Premature Appeal—Dismissal.—An appeal from the judgment taken by a notice served and filed prior to the entry of judgment, is premature, and 'will be dismissed.</p> <p>Id.—New Trial Order—Premature Notice op Motion—Appeal not Dismissed.—The premature service of a notice of intention to move for a new trial, or the failure to serve such notice, cannot deprive this court of jurisdiction to hear an appeal from an order denying the motion, nor constitute ground for dismissal of the appeal. Matters occurring prior to the order appealed from cannot be considered on a motion to dismiss the appeal.</p> <p>Id.—Undertaking.—Upon an appeal from a judgment and from an order denying a new trial, only one undertaking on appeal need be filed to give the court jurisdiction of both appeals.</p>

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

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

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

<p>Negligence—Collision of Electric Car with Street Passenger—Conflicting Evidence—Appeal.—Where the evidence is conflicting, and there was considerable evidence that at the time of the collision of an electric car upon defendant’s street railway with the plaintiff, to her injury, while crossing the street, the electric car was going at a high, unlawful, and dangerous rate of speed, and that no bell had been rung nor other alarm given at the crossing of the street half of a short block from the point where the plaintiff was struck, a verdict for the plaintiff will not be reversed for want of proof of the negligence of the defendant.</p> <p>Id. — Contributory Negligence — Reasonable Care — Question for Jury.—Persons crossing a street railroad on a populous street are held only to what, under all of the circumstances, is the exercise of reasonable care. "Where there was evidence that when the plaintiff left the sidewalk to cross the street, which was a narrow one, she looked both ways, and saw no ear approaching, and heard no signal of its approach, the question was one for the jury, which was not bound to find that she was guilty of contributory negligence.</p>

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

<p>Foreclosure Decree—Reversal—Sale oe Property—Restitution— Measure oe Damages.—Upon the reversal of a foreelosure decree, where execution was not stayed and the mortgaged property was sold to a third party, the measure of damages in an action for restitution brought by the mortgagors is limited in such case to the proceeds of the sale of the property, after deducting the expenses of sale.</p> <p>Id.—Attorneys’ Fees.—No recovery can be had, in the action for restitution, of attorneys’ fees for defending the foreclosure suit and obtaining a reversal of the decree.</p> <p>Id.—Counterclaim—Deficiency Judgment.—Where the decree was reversed only as to certain property included in the mortgage, and was finally affirmed as to all other property included therein, the mortgagee, in the action for restitution by the mortgagors, may counterclaim the amount of the deficiency judgment against them. Such judgment was the proper basis for an action, and, as it arose out of the same transaction, and was.connected with the subject of the action, it was a proper subject of counterclaim.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. V. Morehouse, F. J. Hambly, D. W. Burchard, and E. M. Rea, for Appellant.</p> <p>The words not being actionable per se, special damages must have been alleged and proved. (Pollard v. Lyon, 91 U. S. 225; 3 Lawson’s Rights and Remedies, secs. 1303, 1305, 1306; Odgers on Slander and Libel, pp. 313, 388; Newell on Defamation, pp. 849, 850, 856, 864; 5 Ency. Pl. and Prac., p. 766; Cook v. Cook, 100 Mass. 194; Linney v. Maton, 13 Tex. 454; Brandt v. Towsley, 13 Wend. 253; Maynard v. Fireman’s Fund Ins. Co., 34 Cal. 48 ;1 Fry v. McCord, 95 Tenn. 678.) A communication without malice relative to the fitness of a candidate for office by one acting in good faith is privileged. (Foster v. Scripps, 39 Mich. 376 ;1 Press Co. v. Stewart, 119 Pa. St. 584; Marks v. Baker, 28 Minn. 162; State v. Balch, 31 Kan. 465; Mott v. Dawson, 46 Iowa, 533; Briggs v. Garrett, 111 Pa. St. 404.2 An innuendo cannot enlarge or broaden the meaning of the words used. (Grand v. Dreyfus, 122 Cal. 58.)</p>

<p>Estates of Deceased Persons—Title of Widow as Devisee—Judgment Lien.—Upon the death of a testator, the interest in his estate devised to his widow vested in her immediately, subject only to the right of administration; and upon the docketing of a judgment rendered against her pending the administration, it became a lien upon her interest in the real estate devised to her, which continued for five years.</p> <p>Id.—Assignment to Co-Devisee—Distribution of Estate—Bights of Lien-Holder—“ Matter of Probate.”—The assignment by the devisee of all her interest in the estate, subsequent to the judgment rendered against her, to the only other devisee, and the distribution of the whole estate to the latter, cannot affect the rights of the holder of the judgment lien. Such lien was not a “matter of probate,” of which the probate court had jurisdiction; and its owner was not required to present the same to the probate court, and was not entitled to participate in the distribution of the estate.</p>

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

<p>Specific Performance—Sale of Bonds by Bank—Judgment Declaring Trust—Insufficient Complaint.—In an action to enforce specific performance of a contract by a bank to sell its interest in the bonds of an electric road to the plaintiff, a complaint merely showing a decision rendered prior to the agreement, and subsequent findings and entry of judgment, declaring an alleged prior sale of the bonds by the bank to its president to be in trust for the bank, subject to certain payments, but not alleging any final judgment as to the title of the bonds, or that there is any final judgment, or any subsisting or live judgment in favor of the bank, or any subsisting interest of the bank therein, to be assigned to the plaintiff, shows the title to the bonds remaining in the president of the bank, and not in the corporation, and does not state a cause of action in favor of the plaintiff.</p> <p>Id.—Equity Maxim—Idle Assignment of Judgment.—A court of equity will not do an idle thing, and will not decree that the bank shall make an assignment of a judgment unless it be shown that there is a subsisting judgment to assign upon which its decree may act.</p> <p>Id.—Becital of Decision—Pending Litigation—Personal Bight of Action for Fraud—Assignment.—The recital in the contract of sale of the bonds to the plaintiff, that the court had decided that the bonds should be sold and the proceeds paid in part to the president of the bank and in part to the bank, shows no final determination of the title to the bonds; and where there was at the date of the contract no judgment which could form the subject of sale, and the bank was only at that date the owner of a personal right of action to avoid the title to the bonds, based upon the ground of fraud, which was not assignable, the litigation then pending was foreign and immaterial to this ease.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John B. Moore, W. G. Dyas, and B. F. Howard, for Appellant.</p>

DISMISSAL of appeals from judgments of the Superior Court of the City and County of San Francisco. William R. Daingerfield, Judge. The facts are stated in the opinion of the court. Franklin K. Lane, City Attorney, and W. I. Brobeck, Assistant City Attorney, for Appellant.

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

<p>Benefit Society—Certificate—Assignment to Sureties—Reimbursement — Statute of Limitations — Extinguishment of Lien — Bights of Beneficiary—Estoppel.—Where a benefit certificate payable to the plaintiff, as beneficiary, was assigned by the member of the benefit society as collateral security to indemnify his sureties, who were compelled to pay his debt, and who were designated as beneficiaries in the assignment, but were not properly made such, under the rules of the benefit society, and the sureties neglected to bring any action against the principal for reimbursement for more than two years,—his obligation to reimburse them, not having been renewed or extended by him in writing, became barred by the statute of limitations, and the lien of the sureties upon the certificate became thereby extinguished, as against the lawful beneficiary, who may enforce its payment, if not estopped to claim such extinguishment. Under the circumstances of the case, it is held that there was no such estoppel.</p> <p>Id.—Renewal of Lien.—If it be conceded that there was a new promise upon which an action could be brought, made after the lien was extinguished, the lien could thereafter only be renewed by compliance with the requirements of section 2922 of'the Civil Code.</p> <p>Id. — Findings — Stipulated Facts — Presumptions upon Appeal. — Where findings were waived because the facts were stipulated, the stipulated facts become part of the judgment-roll and the findings upon which the judgment rests; and no presumptions can be indulged upon appeal against any stipulated fact.</p>

<p>Appeal — Motion to Dismiss — Authentication op Transcript. — A motion to dismiss an appeal, on the ground that the transcript filed and served was not authenticated, will be denied where, at the hearing of the motion, the appellant presents another copy properly authenticated and asks leave to file the same.</p> <p>Id.—Delay in Filing Points and Authorities—Abortive Notice op Motion.—A motion to dismiss the appeal for failure of the. appellant to file his points and authorities in the time required by the rule will be denied when it appears that between the time of a notice of a motion which was abortive, for failure to designate a day for the hearing, and the giving of a second notice the points and authorities were filed.</p>

<p>Banks—Power to Incur Indebtedness—Contract Ultra Vires.—A bank incorporated under the aet of April 11, 1862, has no power to contract any debt for borrowed money, or for money paid out at its request by a stockholder in discharge of its obligation to a depositor. Such contract is ultra vires and void, regardless of the relation of the stockholder to the bank.</p> <p>Id.—Liquidation of Insolvent Bank—Preference of Non-Stockholding Depositors.—Section 10 of the aet of 1862 gives non-stock-holding depositors a security in the capital stock and assets of an insolvent bank in liquidation, which should be satisfied before any other creditor should be permitted to apply any portion thereof to the satisfaction of his debts, whether he be a stockholding deposito- or a general creditor.</p> <p>Id.—Action by Assignee of Ultra Vires Contract—Pleading—Intervention.—In an action by the assignee of an ultra vires contract with a bank, where an intervener has merely the right of an attaching creditor of the assignor, though it would be better practice to plead the invalidity of the contract in answer to the complaint in intervention, yet where it was pleaded in the answer to the amended complaint served on the intervener, and the court treated the question of invalidity as properly in issue as to all parties, the intervener, whose rights depended on its validity, and who had as full notice and opportunity to meet the question of invalidity as if it had been twice pleaded, could not have been injured by the omission, and cannot claim that he was taken by surprise by such defense.</p> <p>Id.—Specifications of Insufficiency of Evidence.—Where the testimony is all in the record, and the specifications of insufficiency of the evidence pointed to each of the probative facts contained in the findings attacked upon appeal, and were sufficient fairly to notify the respondent of the contention that would be urged against the finding upon appeal, the specifications of particulars are sufficient.</p>

<p>Action fob Death—Statutory Eight—Power of Administrator— Trusteeship for Heirs—Pleading.—An action for death is entirely statutory, and an administrator has power to bring such an action only as the statutory trustee for heirs to recover damages which they have suffered; and where the complaint by an administrator does not allege the existence of heirs, it states no cause of action for damages, and is fatally defective.</p>

<p>Water Eights—Ebservation in Grant bt Eiparian Owner—Certainty.—A riparian owner may make a valid reservation in a. conveyance of a lower part of Ms land of so much water from the-riparian stream as may be necessary to supply and work continuously a No. 5 hydraulic ram, which the court finds to require the flow of a specified number of gallons per minute. If the quantity of water so required is susceptible of ascertainment, the reservation is sufficiently certain.</p> <p>Id.—Quantity op Water Eeserved—Change op Means Specified.—A contrary intention not being plainly mamfest, the reservation of water-power for a hydraulic ram of specified size is not to be held as fixing the manner of use, but as fixing the quantity of water reserved. The fact that the riparian owner abandoned the use of the hydraulic ram and secured the use of the amount of water by other means is not material, and cannot affect the right to the use of the quantity of water reserved.</p> <p>Id.—Construction of Ebservation—Eiparian Eights.—A reservation of a water right is to be construed in favor of the grantor; and whatever rights are held under a reservation in a grant made by a riparian owner to a grantee of lower land are to be deemed riparian in character.</p> <p>Id.—Effect of Non-User—Adverse User.—The non-user by the riparian owner of the amount of riparian water reserved cannot extinguish the reservation; nor can the grantee of the lower land granted, by any acts of appropriation of the stream upon his lower land, acquire an adverse user wMeh can defeat the riparian rights of the upper riparian owner.</p>

<p>Action fob Death—Wanton Negligence—Contributory Negligence —Nonsuit.—In an action for death caused by the alleged negligence of a railroad company, by which the deceased was killed at a crossing, even though the railroad company may have been guilty of gross or wanton and willful negligence in running its train at an excessive rate of speed, yet where it appears that the deceased was guilty of contributory negligence, which continued .up to the very moment.of time when he was struck, and was a contributing and efficient cause of the injury, which he might have avoided by ordinary care, a judgment of nonsuit was properly granted.</p> <p>Id.—Independent Acts of Negligence—Concurrent Acts—Intervening Cause.—Where the negligence of the plaintiff is independent of that of the defendant, who might by ordinary care have prevented the injury at a time when the plaintiff could not have prevented it, the conduct of the plaintiff is not deemed to contribute proximately to his injury. But this principle does not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury occurs to one of them, nor when the negligence of the plaintiff operates as an intervening and proximate cause of his own injury.</p> <p>Id.—Comparative Negligence.—The law of comparative negligence, which obtains in some of the states, is not recognized by the courts of this state.</p>

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

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

<p>Attachment—Motion to Discharge Writ Prior to Levy.—Under section 556 of the Code of Civil Procedure, a motion may be made to discharge a writ of attachment, on the ground that it was improperly or irregularly issued, before the attachment is levied.</p> <p>Id.—Pleading—Misnomer of Defendants in Complaint—Affidavits of Defendants not Denied—Admission.—Where the affidavits of defendants allege the true names of defendants who were misnamed in the complaint, and that they are each defendants in said action, and such affidavits are not denied by the plaintiff, they are to be deemed admitted as true.</p> <p>Id.—Alleged Non-Besidence of Defendants—Contradiction of Affidavit for Writ—Discharge as to Besidents of State.—Where the affidavit for the writ alleged that the defendants were all nonresidents of the state, it is not conclusive, and resident defendants may contradict the affidavit by evidence of their residence in the state, for the purpose of showing that the affidavit is insufficient as to them, and that the writ was improperly issued, and should be discharged as to them.</p>

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

<p>Estates op Deceased Persons—Interest upon Legacy.—A legacy-under the will of a deceased person bears interest from the time when it is due and payable.</p> <p>Id.—Charitable Legacy—Appointment op Trustees—Order por Payment-Instrument Specifying Trusts—Execution—Interest.— Where the will provided for a charitable legacy payable twelve months after death to trustees named in the will, or others to be appointed by the executors, upon certain trusts, to be expressed in some instrument securing the application, of the legacy to the trusts specified in the will, and the executors appointed other trustees, and obtained an order directing payment of a specified sum by them to such trustees, and directing the executors to enter into a written agreement with the trustees expressing the trusts, as provided by the will, and such agreement was prepared and executed by the executors and delivered to the trustees for their signatures,—the trustees are entitled to interest from the date of such instrument expressing the trusts until the payment of the money, though they did not themselves sign the instrument until two days prior to such payment.</p> <p>Id.—Finding as to Fault of Trustees.—A finding that the delay in payment is due to the fault of the trustees appointed by the executors is incorrect and cannot be sustained.</p> <p>Id.—Monet Held on Deposit—Conditional Tender.—When the money was held on deposit by the executors until the deposit was transferred to the account of the trustees there was no conditional tender of the money to the trustees.</p>

<p>Basement — Prescriptive Bight to Ditch — Burden of Proof. — In order to acquire a prescriptive right to an easement for a ditch across the land of another, the user must have been adverse, in the legal sense, and uninterrupted during the period of prescription. The right to use the ditch must have been continuously asserted under a claim of title with the knowledge and acquiescence of the owner of the land. The burden of proving this is on the party claiming the easement; and if he leaves it doubtful whether the enjoyment was adverse, known to the owner, and uninterrupted, it is not conclusive in his favor.</p> <p>Id.—Capacity op Ditch—Survey by Engineers—Finding against Evidence.—Where the evidence shows that, the original capacity and extent of user of the ditch was small, and was so continued for an indefinite period, a measurement taken by engineers of the size of the ditch at the commencement of the action is no criterion of its original capacity, and cannot sustain a finding of adverse user to the extent of its capacity as shown by such surveyors.</p> <p>Id.—Character and Extent op Easement—Burden op Proop.—The character and extent of the easement for the ditch, claimed under prescriptive right, are determined by the user under which it was gained; and the burden is upon the claimant of such easement to present clear and distinct evidence of the extent to which the user has been exercised during the period of prescription.</p> <p>Id.—Action to Protect Easement—Hiparían Bights op Dependants —Pleading—Judgment.—In an action to protect the alleged easement for the ditch for user of water to irrigate the lands of the plaintiffs, and to enjoin interference therewith, where it appears, that some of the defendants claim riparian rights, the plaintiffs, are entitled to have their claims as riparian owners specifically stated, so that an issue may be presented thereupon, and that the-judgment of the court may determine the amount of water to which: each riparian owner is entitled, and make suitable apportionment and provision therefor.</p>

<p>Corporations—Organization—Miseiling op Articles by Clerk—Collateral Attack—Action to Quiet Title.—Where the articles of incorporation of a gas company were in fact delivered to the county clerk, who was ex officio recorder, and who erroneously marked them as filed in the recorder’s office, and upon the filing of a duplicate thereof with the secretary of state a certificate of incorporation was issued by him, the law was substantially complied with, and the legality of its organization cannot be collaterally attacked in a suit to quiet title to property acquired by deed to the corporation.</p> <p>Id.—Cessation to Transact Business.—A corporation which has been organized in substantial compliance with law, has elected directors, and adopted by-laws, and begun in good faith to transact business as a corporation, has the full term of life prescribed by law, and does not become dissolved or cease to exist by cessation thereafter to transact business.</p> <p>Id.—Deed Prior to Organization—Delivery.—A deed to the corporation, though executed prior to its organization, took effect only when it was delivered to the corporation after the filing of its articles. • ■</p> <p>Id.—Action by Corporation—Authority of Attorneys—Erroneous Dismissal.—An action by a corporation to quiet title to its property brought by attorneys who were authorized to represent it by its president and secretary, and by those who represented all of the stock of the incorporation at the time, is brought by authority of the corporation, which cannot be questioned by third parties; and a dismissal of the action for want of sufficient authority of the attorneys is erroneous.</p>

<p>Action by Foreign Corporation—Security por Costs—Construction op Cons—Power op Court—Dismissal op Action.—In an action by a foreign corporation against residents of this state who demand security for costs and charges, under section 941 of the Code of Civil Procedure, the undertaking must be of the same nature as a cost bond upon appeal, that the sureties will pay such costs and charges as may be awarded against the plaintiff by the judgment, not exceeding three hundred dollars. The court has no power to fix a less sum, or to change the amount and condition of the bond fixed by the statute; and after the lapse of thirty days without the giving of the statutory bond, the action was properly dismissed.</p>

<p>Criminal Law—Forgery of Fictitious Deed—Construction of Code. —A deed executed by a fictitious name is not included in the fictitious instruments for the payment of money or property enumerated in section 476 of the Penal Code; and there being no other statute making the signing or uttering of a fictitious deed a specific offense, it is included in the crime of forgery of a deed under section 470 of the Penal Code.</p> <p>Id.—Sufficiency of Information.—An information for forgery of such deed under section 470 of the Penal Code is sufficient without alleging that the deed was fictitious.</p> <p>Id.—Immaterial Variance—Deed Set Out in Extenso.—Where the pleading unnecessarily set out the deed in extenso, including the certificate of the notary and the signature of the defendant as a witness, and charged the forgery of the deed by the defendant, proof of the forgery of the signature of the fictitious maker, without proof of the forgery of the attestation, does not show a material variance by which the defendant could be misled, or again put in jeopardy for forging the same deed.</p> <p>3d.—Charge of Forgery of Deed—Acknowledgment not Included.— A charge of the forgery of the deed does not include a charge of</p> <p>t forgery of the notary’s certificate of acknowledgment, or of the signature of the notary.</p>

<p>Exchange of Land—Indefinite Statement of Encumbrance—Reformation of Contract—Specific Performance.—In an action to reform and specifically enforce a contract for an exchange of land, where it is alleged and found, upon the preponderance of evidence, that an indefinite description merely of the amount of an encumbrance upon the land of the plaintiff occurred through mutual mistake in omitting to state the kind of encumbrance, and to give its terms, which were supplied by pleading and proof, it is a proper ease to have the contract'first reformed so as truly to express the intention of the parties, and then specifically enforced.</p> <p>Id.—Parol Evidence.—In an action to reform a contract, parol evidence is admissible to show that the writing through mistake does not express the intention of the parties, and does not contain their real contract.</p>

<p>Foreclosure oe Mortgage—Receiver—Tenant in Possession—Appeal —Stay-Bond against Waste.—In an action to foreclose a mortgage where judgment for deficiency is waived, and a receiver of rents and profits has been appointed, leaving the tenant of the mortgagor in possession,—although no bond for deficiency or for the value of the use and occupation is required upon appeal by the mortgagor from the decree, yet in order to stay execution thereof a bond must be given against waste, notwithstanding the tenancy may expire pending the appeal.</p>

<p>Estates op deceased Persons—Action upon Rejected Claim—Pleading—Non-Payment—Burden op Proop.—An action upon a rejected claim against the estate of a deceased person presents no exception to the rule that where the plaintiff has proved the existence of the-debt sued upon within the period of statutory limitation, he need not prove the necessary allegation of non-payment, but the burden of proof is upon the defendant to prove the payment of the debt.</p>

<p>Taxation—Saab of Land to State—County not Authorized to Sue— Eight of Eedemption.—The state has assumed the burden of deEnquent taxes upon land by becoming purchaser thereof; and a county is not authorized to institute a suit for the coHeetion of delinquent taxes upon real property in any case. The right of the taxpayer to redeem his property from the state within five years cannot be cut off or limited by any action on the part of the county.</p>

<p>The facts are stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, James C. Rives, District Attorney, and Curtis D. Wilbur, Chief Deputy, for Appellant.</p>

<p>Quieting Title — Pleading — Bight to Purchase — Argumentative Averment.—In an action to quiet title, an averment that the plaintiff is the owner of a right to purchase from the defendant certain described real estate is of a conclusion of law, and is a mere argumentative averment which is not the equivalent of an averment of the ultimate fact of title to the land.</p> <p>Id.—Construction op Code—Executory Contract.—Section 738 of the Code of Civil Procedure was not designed to enable one who has an executory contract for the purchase of land to obtain a judicial construction of his contract, and cannot be construed as enabling such person to call in those claiming adversely to his vendor, and compel them to try their claim of title, when a judgment in their favor would not bind the vendor.</p>

<p>Estates of Deceased Persons—Petition to Eemove Administrator— Suspension—Proof of Facts Denied.-—Upon a petition to remove an administrator, where all of the facts alleged as the grounds for removal were denied by the administrator, and the court, after hearing the evidence, found that the several charges of the petitioner were untrue, it had discretion to deny the application, and was not required before the hearing to make an order suspending the administrator until the truth of the petitioner's allegations should be established.</p> <p>Id.—Discretion of Court—Ebview upon Appeal.—The court has a very large discretion in determining whether, upon the facts presented to it, an executor or administrator appointed by it shall be suspended or removed, and unless it shall appear that such discretion was abused, and especially where the evidence is such that different minds might reach different conclusions thereon, the action of the trial court will not be reviewed upon appeal.</p> <p>Id.—Neglect of Alleged Property of Estate—Doubt as to Ownership-Good Faith of Administrator.—Where the administrator was charged with the neglect of certain articles of property alleged to belong to the estate, but the evidence is such as to leave it doubtful whether such articles ever belonged to the decedent, and it appears that the administrator had good grounds for believing that they did not belong to the estate, the court might properly hold that the question should be tried by some court having jurisdiction of-the persons claiming the property, and was not required to revoke the letters of administration.</p> <p>Id.—Contest as to Distribution—Administrator not Interested— Action of Attorney for Administrator.—The administrator has no interest in a contest over the right of distribution of the'estate and is not required to intervene therein,- and the attorney for the administrator may properly represent the claim of one who claims a contract with the decedent by which he is entitled to the distribution of the entire estate as against the heirs; and the administrator cannot be removed for retaining such attorney in his service.</p>

APPLICATION in the Supreme Court for writ of mandate to the Secretary of State. The facts are stated in the opinion of the court.

<p>WRIT OF MANDATE from the Supreme Court to the City Clerk of Los Angeles County.</p> <p>The facts are stated in the opinion,</p>

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

<p>Action to Dissolve Partnership—Receiver—Final Account—Evidence—Attachment—Immaterial Ruling.—Upon the hearing of the final account of a receiver appointed at the commencement of an action to dissolve a partnership, a ruling upon objection to the evidence of a receiver that certain property was attached by creditors of the partnership, that it was not the best evidence of that fact, is immaterial where the court held the receiver responsible for the property involved, and charged him with it in settling his account.</p> <p>Id.—Appointment op Receiver to Carry on Business.—Usually a court will not appoint a receiver to carry on a business permanently; but it is not unusual or erroneous to authorize him to do so temporarily, when the interests of the parties require it.</p> <p>Id.—Completion op Contract—Allowance op Expenses.—Where the order appointing the receiver, in broad terms, authorized him “to manage, control, and dispose of” all the property of the partnership, and, when he entered upon his duties, he did, with the consent and for the interest of both partners, carry out to completion a special contract to furnish a certain amount of lumber made by the partners, and where his action in so doing was approved by the court, the receiver was properly allowed in his final account the expenses incurred while so temporarily carrying on the business.</p> <p>Id. — Payment of Debts — Allowance to Beceiver — Sanction by Court.—The receiver was properly credited with money paid to satisfy creditors of the partnership, which was necessary in order to enable him to carry out the contract to completion. Ordinarily, a receiver should not pay debts without a previous direction of the court; but this general rule is not inexorable, and in a proper case such action of the receiver may be sanctioned by the court, by a subsequent approval. ..</p> <p>Id.—Order to Surrender Property—Purchase from Beceiver—NonPayment—Abandonment of Business and Property.—There was no necessity for an order to the receiver to surrender property to the partners upon settlement of his final account, where it appears that all the land and property was originally purchased by the partnership from the receiver, and that the partners never paid any part of the deferred purchase money, and that after the receiver had paid all the debts and completed the contract the parties to the action took no further interest in the property, the action having been dismissed, and that no claim for any settlement with the receiver was demanded for nearly ten years.</p> <p>Id.—Order Settling Beceiver’s Account—Findings.—Findings are not necessary to be made upon an order settling the account of a .receiver.</p>

<p>Ejectment—Pleading—Denial of Eight of Possession.—An answer in an action of ejectment which does not deny the plaintiff’s ownership, but denies that he was at any time in the possession, or entitled to the possession, of the land and premises in controversy, and sets up a contract under which the defendants were lawfully in possession, presents a sufficient defense to the action.</p> <p>Id.—Denial of Ousteb.—A denial that at any time “the defendants did enter upon the premises and oust, eject, or exclude the plaintiff therefrom,” is intended to go to the allegation of ouster, and not to the allegation of entry, which the pleadings and proofs show to have been lawful.</p> <p>Id.—Conveyance by Devisee—Contract of Employment fob Life-Home for Life—Eight of Possession.—Where the deceased! daughter of the defendants, who was plaintiff’s wife, owned the premises, consisting of a ranch and orange orchard, which she had! placed in defendants’ possession, and devised the same to her-father, and defendants deeded the same to the plaintiff, under an-agreement that the father should be employed to cultivate and manage the property for the plaintiff at an annual salary for life,, and should employ needed assistance at plaintiff’s expense, and. account to plaintiff, the object of the agreement being stated to-insure to the defendants a home on, the ranch during their lives-, free of rent and all charges; such agreement, so long as performed, on defendants’ part, entitles them to the undisturbed use and occupation of the premises.</p> <p>Id.—Distribution of Estate—Life Estate.—The right to the possession of the premises by the defendants under the contract does not depend upon -whether the estate of the deceased daughter had been lawfully distributed to her father as devisee thereof, nor upon whether the agreement did or did not vest a strict life estate in the defendants.</p>

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

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

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

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

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

<p>Order Granting New Trial—Newly Discovered Evidence—Appeal-Affidavits not Authenticated—Presumption.—Upon appeal from an order granting a new trial solely on the ground of newly discovered evidence, where the affidavits used upon the motion are not incorporated in a bill of exceptions, as required by rule XXIX of this court, affidavits merely printed in the transcript will not be considered, and it must be presumed that the affidavits used upon the motion were sufficient to justify the order.</p>

<p>Criminal Law—Bape Prior to Marriage—Incompetency of Wife as Witness.—A married woman is not a competent witness against her husband to prove the crime of rape committed by him prior to the marriage in having sexual intercourse with her while under the age of sixteen years, where it appears that she freely consented to' the marriage, and to. subsequent cohabitation.</p> <p>Id.—Construction of Code—Exception of "Criminal Violence.”— Section 1322 of the Penal Code, which provides that "except with the consent of both, or' in cases of criminal violence upon one by the other, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties,” the exception of "criminal violence” is confined to such violence committed by one spouse upon the other during marriage, and has no reference to the crime of rape committed by the man upon the woman prior to marriage.</p>

<p>The facts are stated in the opinion.</p> <p>Campbell & Metson, J. C. Campbell, W. H. Metson, and Henry E. Highton, for Appellants.</p>

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

<p>Criminal Law—Arson—Trial—Inspection op Premises by Jury-Waiver op Objections—Appeal.—Upon the trial of a defendant charged with .arson, where the court ordered an inspection by the jury of the burned premises without objection by the defendant, and the counsel agreed in court that the jury might inspect the entire premises, and each party pointed out all the scenes and objects desired, and it was agreed after the return of the jury that the purposes of the motion had been accomplished to the Satisfaction of both sides, objections to irregularities in the proceedings are waived; and it cannot be objected on appeal for the first time that there was irregularity in the mode of pointing out objects by the officer in charge of the jury, to which no objection was urged in the court below.</p> <p>Id.—Evidence—Bottle op Alcohol.—The testimony of a witness is admissible to prove that a bottle containing alcohol was found the morning after the fire near the place where the fire occurred, and the bottle is admissible in evidence, where the witness testified to the knowledge of alcohol by its color and smell, and that the bottle contained alcohol.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Max Blum, George A. Lamont, and William M. Sims, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. Foster Young, Wickliffe Matthews, and Richard P. Henshall, for Appellant.</p> <p>Tirey L. Ford, Attorney-General, A. A. Moore, Jr., Deputy Attorney-General, and Lewis F. Byington, District Attorney, for Respondent.</p>

<p>Divorce—Extreme Cruelty—Desertion—Refusal of Matrimonial Intercourse—Findings.—Extreme cruelty may be a just cause for refusal of the wife to have matrimonial intercourse with her husband; and in an action by the wife for divorce for extreme cruelty, with a cross-complaint of the husband for desertion, etc., findings of the defendant’s extreme cruelty toward the plaintiff, and that plaintiff for more than one year immediately preceding the suit refused to have matrimonial intercourse with the defendant when physically able, cannot justify a conclusion that she willfully deserted the defendant and was not entitled to a divorce, in the absence of a finding that the extreme cruelty was not the cause of her conduct.</p> <p>Id.—Construction of Code—“Just Cause for Refusal”—Maxim.— The qualifying clause in section 96 of the Civil Code,—“when there is no just cause for such refusal,”—applies equally to either of the refusals therein specified. The maxim applies: Idem ratio idem lex.</p>

<p>Appeal—Dismissal—Failube of Sureties to Justify.—After an undertaking on appeal has been filed in due form of law, the failure of one of the sureties to justify after exception taken to the sufficiency of the sureties does not establish a failure to perfect the appeal, and is not ground for a dismissal of the appeal.</p>

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

<p>Negligence—Collision with Street-Car—Contributory Negligence —Question for Jury.—In an action for injuries sustained from collision of an electric street-car with, the wagon of plaintiffs, where the jury were justified in finding that the car was running at a dangerous and unlawful rate of speed, and where the evidence was conflicting as to the distance of the car when the wagon began to cross the track, and there was evidence tending to show that the driver believed he had plenty of time in which to cross the track, the question of contributory negligence is not one of law, but one of fact for the jury.</p> <p>Id.—Attempt to Cross Street Railroad.—With respect to a street railroad, where the same character of care is not demanded as in case of a steam railroad, the mere fact that a person attempts to cross the street-railway track when a ear is seen to be approaching does not of itself constitute contributory negligence. A person in close proximity to an approaching street-ear might walk or drive in front of it so suddenly as to be clearly guilty of contributory negligence; but ordinarily the question whether or not he was negligent in attempting to cross, under the circumstances of the case, is for the jury.</p> <p>Id.—Damages—Aggravation of Disease—Pleading.—All physical suffering and injury caused by violence to the person, including the aggravation or hastening of the development of a pre-existing disease, are the natural and direct consequences of the wrong, and may be recovered as general damages, without special pleading.</p>

<p>The facts are stated in the opinion of the court.</p> <p>P. W. Bennett, J. W. Ahern, and P. F. Dunne, for Appellant.</p>

<p>WRIT OF PROHIBITION to the Superior Court of Mendocino County. J. M. Mannon, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Sullivan & Sullivan, E. A. Bridgford, and Jesse W. Lilienthal, for Petitioner.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Robert Ferral, Edwin M. Sweeney, and J. J. Guilfoyle, for Appellant.</p> <p>Tirey L. Ford, Attorney-General, C. N. Post, Assistant Attorney-General, and Lewis F. Byington, District Attorney, for Respondent.</p>

<p>License Tax—Business op Attorney—Power op City Trustees—Regulation op Practice—Police Power.—A board of city trustees, if it has statutory power, may impose an additional license tax for revenue upon the business of an attorney at law; but it has no power to regulate the practice of the law, nor to issue a license therefor under the police power.</p> <p>Id.—Implied Repeal op License por Revenue,—Subdivision 10 of section 852 of the Municipal Incorporation Act of March 13, 1883, authorizing boards of trustees of municipalities of the sixth class to license every kind of business for revenue, was repealed by implication by section 3366 of the Political Code, added thereto March 23, 1901, limiting the power of legislative bodies of incorporated cities and towns to license business, in the exercise of their police powers, and for the purpose of regulation, “and not otherwise. ’ ’</p> <p>Id.—Loss op Remedy under Penal Ordinance Pending Civil Action. —Such repeal, without any saving clause, destroyed the remedy for the enforcement of a penal ordinance of a municipality of the sixth class, by civil action, provided for in the ordinance, to recover a license tax upon an attorney at law which he had refused to pay, with ten dollars penalty for such refusal, which action was pending and not reduced to judgment at the date of such repeal.</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>Welles Whitmore, P. L. Benjamin,, and John C. Hughes, for Appellant.</p>

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

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

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

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

<p>Water Eights—Interests in Ditch—Proportion to Acreage—Corporation—Findings and Decree—Improper Exception. — In an action by a ditch and water company to determine its rights and the rights of the defendant in a ditch, where it appears from the evidence and the findings that the stockholders in the corporation and the defendants, who are not stockholders, each own a fractional interest in the ditch proportioned to the acreage of land held by each in a certain rancho supplied by the ditch,—a finding and decree providing an exception “that if the said proportion of said water herein found to belong to any one of the defendants should at any time be in excess of what is reasonably required by such defendant for domestic use and for irrigation of the land owned by him or her at the commencement of this action, then 'and in that case or cases such excess does and shall belong to the plaintiff, ’ ’ is improper, inconsistent with the evidence, with the other findings, and with itself, and such exception should be stricken from the decree.</p> <p>Id.—Eights op Owners.—If the defendants own a specific amount of water, they should be made secure in that interest by the decree of the court; and their rights in property which is confessedly theirs should not be left contingent upon their future needs, but they should be permitted to do as they please with their own.</p>

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

<p>Eminent Domain—Condemnation—Public Use—Purpose of Transfer.—Land can be condemned only by one who is in charge of a public use, and cannot be condemned for a right of way by one who is not engaged in and does not contemplate the building of a railway, for the sole purpose of transferring the same to a railway company engaged in building a railway, by which he is employed, and with which he has contracted to transfer the right of way. One who seeks a right of way to sell merely is not in charge of a public use.</p> <p>Id.—Agency—Pleading.—If a proceeding for eminent domain may be in the name of an agent or other representative, such agency should be stated.</p> <p>Id,—Just Compensation—Constitutional Law—Deduction of General Benefits to Land not Taken—Invalid Code Provision.— Under section 14 of the state constitution, which provides for just compensation in all cases of land taken for public use, the legislature cannot provide that the property-owner shall receive a smaller sum for the taking of the land by a natural person than when it is taken by a corporation. There can be no deduction for general benefits to land not taken in any case; and section 1248 of the Code of Civil Procedure, allowing such benefits to' be deducted in the case of a natural person which cannot be allowed under the constitution</p> <p>■ in favor of a private corporation, is invalid.</p>

<p>The main facts are stated in the opinion rendered in Department One. Further facts are stated in the opinion rendered in Bank.</p>

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

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

<p>Judgment—Motion to Vacate—Want op Jurisdiction op Person-Lapse op Time.—A motion to set aside a judgment upon the ground that it appears upon the face of the record that the court had no jurisdiction of the person of the defendant is a direct attack upon the judgment, and is not barred by mere lapse of time.</p> <p>Id.—Burden op Proop—Direct and Collateral Attack.—A judgment void for want of jurisdiction appearing from the judgment record may be attacked either directly or collaterally,—the main distinction being that upon a direct attack the burden is upon the party claiming the judgment to be valid to show jurisdiction, while upon collateral attack the burden is upon the attacking party to show by the record that the court did not have jurisdiction.</p> <p>Id.—Publication op Summons—Appidavit by Attorney.—An affidavit to obtain an order for the publication of summons made by the plaintiff's attorney is competent to establish the facts necessary to be shown to obtain the order. It is not necessary that there • should be also an affidavit on the part of the plaintiff, especially where the plaintiff is absent from the county, and the facts verified are within the knowledge of the attorney.</p> <p>Id.—Dub Diligence to Find Dependant—Failure—Decision op Fact. —If the facts set forth in the affidavit have a legal tendency to show both that diligence was exercised on behalf of the plaintiff in seeking to find defendant within the state, and that after the exercise. of such diligence he could not be found, the decision of the judge that the affidavit shows the same to his satisfaction has the same effect as his decision upon any other matter of fact submitted for his judicial determination.</p> <p>Id.—Facts Stated upon Information—Hearsay.—Although the facts stated in the affidavit are bas°d upon information or hearsay, that does not render it of no legal effect to authorize the court to be satisfied therefrom, nor justify a disregard of his conclusion, or render his order void. From the nature of the question to be determined, the evidence thereon must to a very great extent be hearsay, and the number and character of the persons inquired of must in each case be determined by the judge.</p> <p>Id.—Diligence a Relative Term.—Diligence is in all cases a relative term, and what is due diligence must be determined by the circumstances of each case.</p> <p>Id.—Return op Summons—Authority to Order Publication.—The authority of the court to order service of the summons by publica» tion is not taken away by reason of the fact that the summons has been previously returned to the clerk’s office. The provision for an alias summons does not impair the power of the court to authorize the summons to be withdrawn for further service, or for service by publication.</p>

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

<p>Taxes—School District—Railroad—Improper Action by County.— A county has no authority to collect taxes upon a railroad operated in more than one county, which are due to a school district through which the railroad passes.</p>

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

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

<p>Street ' Assessment—Insufficient Performance of Work—Appeal to Council—Judicial Action—Conclusiveness of Decision.—A contest of an assessment on the ground that the work contracted for has not been fully performed can only be presented upon an appeal to the city council, which acts judicially in determining the appeal. Where an appeal upon that ground was taken and overruled, the decision of the council is conclusive; and the question cannot be again presented by way of objection to the validity of the assessment in an action for its enforcement.</p>

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

<p>Guardian of Minor—Appointment—Independent Petitions—Findings.—Where two persons each filed an independent petition for appointment as guardian of a minor, and no answer was filed to either petition, upon a hearing of the two petitions together, no findings were necessary.</p> <p>Id.—Question of Fact—Review upon Appeal.—Where all of the evidence taken upon the hearing of both petitions is brought up by bill of exceptions, and there is sufficient evidence to sustain the appointment made, the decision of the question of fact as to which was the proper person to receive the appointment will not be disturbed upon appeal.</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>Taxation—Funds in Hands of Receiver—Power of Court.—Under section 3647 of the Political Code, the court is authorized to ascer-tain the amount of taxes to be paid on funds and solvent credits in the hands of a receiver, and to order that the tax be paid by the receiver.</p> <p>Id.—Informality of Assessment.—Under section 3885 of the Political Code the validity of said taxes is not affected by any informality of the original assessment.</p> <p>Id.—Receiver of Property of Water Company—Solvent Credits— Offset of Indebtedness—Question of Pact.—Where the receiver was appointed to take charge of the operations of a water company, and the ordinary current expenses were paid by the receiver, and the indebtedness of the water company was not increased by the appointment of the receiver, the question whether the water company was indebted to residents of the state, and was entitled to offset such indebtedness against solvent credits under the control of the receiver, was a question of fact to be decided by the court.</p> <p>Id.—Money and Property in Litigation—Ownership—Construction of Code—Burden of Tax.—In cases provided for in section 3647 of the Political Code the right to tax “money and property in litigation” does not depend upon the ownership thereof, nor the final result of the litigation. But where the property belongs to the defendant, and has been turned over to it, leaving only in the hands of the receiver enough to pay the tax, the burden thereof must rest upon the defendant as the owner of the property assessed.</p>