Volume 138 — California Reports

<p>Negligence—Collision op Wagon with Train at Crossing—Contributory Negligence—Question oe Law.—In an action to recover damages for injuries sustained from the collision of a wagon with a railway train at a street-crossing, where the facts are settled and it clearly appears that the injured party did not exercise ordinary care, the question of contributory negligence is a question of law.</p> <p>Id.—Duty to Look and Listen.—The railroad track of a steam railway itself must be regarded as a sign of danger, and one intending to cross must avail himself of every opportunity to look and to listen for approaching trains.</p> <p>Id.—Duty to Stop.—As a general rule, one approaching a railroad track must stop and listen, and the only exception to such rule is that there may be particular instances where the circumstances would not call for such precaution.</p> <p>Id.—Case in Judgment—Recovery Precluded—Nonsuit.—Under the facts here shown, the plaintiffs were guilty of contributory negligence as matter of law in allowing their horse and wagon to cross the railroad track, without using diligence to look both ways and listen for the approaching train, or to stop and listen therefor, and such contributory negligence precluded a recovery, notwithstanding the concurring negligence of the railroad company, and entitled the defendant to a nonsuit. [Per McFarland, J., Henshaw, J., and Temple, J. Beatty, C. J., dissenting.]</p> <p>Id.—Question of Fact—Error in Instructions.—Under the circumstances of this case, the question of contributory negligence was one of fact for the jury; and the reversal should be ordered on the ground of error in the instructions given to the jury as to the effect of the negligence of the defendant upon the question of the contributory negligence of the plaintiff. [Per Beatty, O. J.]</p>

<p>The facts are stated in the opinion of the court.</p> <p>James Hutchings, C. C. Haskell, and Hunsaker & Britt, for John L. Campbell, Appellant.</p> <p>C. C. Bennett, and F. W. Burnett, for Intervener, Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. W. Thompson, in pro. per., John S. Wright, and W. E. Colby, for Appellants.</p>

<p>Street Improvement — Bight oe Protest Statutory — Paving ot Street Crossing—Further Proceedings not Barred.—The right to protest against a street improvement is created by statute, and is limited by its terms. It does not exist under section 3 of the Street Improvement Act, where the improvement is not “for one block or more,” but is merely for the paving of a crossing at the intersection of two streets, which can have no property fronting upon it; and a protest by the property-owners liable to assessment for such improvement cannot operate to bar further proceedings by the board under the original resolution of intention.</p> <p>Cd.—Time tor Ordering Work—Postponement—Jurisdiction.—The statute does not prescribe any time within which the board shall order, the work after its resolution of intention has been declared, and its adoption of the report of the street committee that a protest, which was in fact unauthorized, “bars for six months any further proceedings in relation thereto,” is at most only a postponement of further action for that period, and did not deprive it of jurisdiction to order the work.</p> <p>Id.—Contract with Corporation—Execution—Prima Facie Evidence —Burden of Proof.—A corporate seal, though presumptive evidence that the contract was authorized by the corporation, is not essential to the validity of a contract for a street improvement made by the corporation. The assessment, with its accompanying documents is prima facie evidence that the contract was authorized by resolution of the corporation, and the burden is upon the defendants contesting the assessment to prove that the president of the corporation who signed the contract in the corporate name did not have authority to execute it.</p> <p>Id.—Posting of Notices—Support of Finding—Conflicting Evidence. —Where the evidence is conflicting as to whether the notices were properly posted by the clerk of the board of supervisors, a finding that they were so posted will not be set aside.</p> <p>Id.—Public Declaration of Proposals.—If the proposals for the improvement were opened and read in open session of the board of supervisors, they were “publicly declared" within the meaning of the statute.</p>

MOTION to dismiss an appeal from an order refusing to settle a bill of exceptions to be used upon appeal from a judgment of the Superior Court of San Diego County. N. H. Conklin, Judge. The facts are stated in the opinion of the court.

<p>Officers—Election of Superior Judge—Tie Vote—Quo Warranto— Salary Pending Appeal—Construction _ of Code.—Where the result of an election for superior judge had been declared to be a tie vote by the supervisors when canvassing the vote, and one of the candidates brought an action of quo warranto against the incumbent who claimed the right to hold over, in which action the other candidate intervened, a judgment in favor of the plaintiff in quo warranto does not constitute a commission of office within section 936 of the Political Code, and he is not entitled to draw the salary pending an appeal from 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>Cost Bill—Extension op Time—Construction op Code—Power op Judge.—The service and filing of a cost bill is fully within a proper construction of section 1054 of the Code of Civil Procedure, authorizing extensions of time of “a notice other than of appeal,” and the trial judge has power to grant an extension of time therefor.</p>

<p>PETITION for certiorari to the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Improvement—Resolution of Intention—Distinct Improvements—Power of Board.—Under section 2 of the Street Improvement Act, it is within the legislative power of the municipal board, to include, at the same time and in the same resolution of intention, distinct classes of improvements, and the improvement of the whole or any portion of one or more streets, whether connected or remote from each other, without requiring them all to be included in the same resolution ordering the work, or to be contracted for by the same individual.</p> <p>Id.—Designation of Distinct Improvement.—The designation of a distinct street or portion of a street which is to be improved, with a description of the work to be done thereon, renders it a distinct and several improvement, whether it be the only improvement specified in the resolution of intention, or in the resolution ordering the work, or whether other improvements are included with it. After the improvements have been ordered, their distinct and several character is to be observed in the subsequent proceedings.</p> <p>Id.—Notice of Distinct Improvement—Construction of Statute.— The statute is to have a reasonable construction, and in giving effect to the underlying principle that the cost of an improvement shall be borne by the lands adjacent thereto, and that the owner shall be informed of said improvement, the superintendent of streets was not required to post, along the line of a particular street to be improved in part, notice of any other distinct improvement than that contemplated upon such street.</p>

<p>Appeal—Stay-Bond—Supersedeas—Foreclosure ot Liens—Perishable Property.—Upon appeal from a judgment foreclosing liens on personal property, described therein as “mortgages and liens,” the court having also found that the property ordered to be sold was “perishable property,” — the ordinary three-hundred-dollar bond cannot operate as a stay-bond, and does not warrant a supersedeas.</p>

<p>The facts are stated in the opinion.</p> <p>Tirey L. Ford, Attorney-General, C. Y. Brown, District Attorney, and Eli R. Chase, for Appellant.</p>

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

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

<p>Partition—Venue—Distinct Parcels in Different Counties.—An action for the partition of distinct parcels of land, situated in different counties, between tenants in common who derive their title from the same source, may be properly brought in any county in which any portion of the land is situated.</p> <p>Id.—Definition—“Beal Property.”—The term “real property,” used in the code, or “real estate,” used in the constitution, is broad enough to include several distinct parcels of land, as well as one entire tract, and is equivalent to the phrase “lands, tenements, and hereditaments.”</p>

<p>Judgment—Location op Ditch—Absolute "Verity—Punishment por Contempt—Lack op Jurisdiction—Writ op Review.—A judgment determining that the north bank of a certain ditch is on the south line of the north half of a special quarter section, and that the petitioner owns all of the land lying north thereof, imports absolute verity as to the location of the ditch, and as to the rights of the parties relative thereto. The court is without jurisdiction to hold the petitioner guilty of contempt by reason of interference with a ditch situated upon petitioner’s land, at a point outside of the lines of the ditch defined in the. judgment; and a writ will issue upon petitioner’s application to review the proceedings in the matter of such contempt.</p> <p>Id.—Parol Evidence.—The court was not at liberty to receive parol evidence for the purpose of showing that the judgment might have located the ditch in a different position, or that the description of said ditch in the said judgment is not absolutely accurate.</p>

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

The facts are stated in the opinion of the court. W. M. Boardman, M. Marstellar, Frank J. Sullivan, Albert M. Johnson, A. A. De Ligne, James T. Boyd, and William H. O’Brien, for Appellants. The action affects the entire estate, and the administrator, whose rightful possession cannot be invaded before distribution, was a necessary party.

<p>Criminal Law—Selling Liquor to Indian—Order of Proof—"Upon a prosecution for selling liquor to an Indian, the natural order of proof would be first to prove that the Indian bought the bottle and its contents from the defendant, and then to show that it contained whisky; but it is not ground of reversal that it was first proved out of the natural order that the Indian was seen going into and coming out of the defendant's saloon, and that on coming out he had a bottle from which the witness drank, and knew it to contain whisky.</p> <p>Id.—Restriction of Evidence.—If the defendant had desired to restrict the evidence offered out of its natural order, he should have so framed his objection and asked an appropriate instruction to the jury.</p> <p>Id.—Improper Ruling Rendered 'Harmless.—Defendant’s question put, on cross-examination to a half-breed Indian who testified for thet prosecution, and who was with the Indian when the liquor was sold,, whether he had been accused of buying liquor and giving it to Indians, should have been allowed, and objections thereto should have: been overruled, but where the next question, which fully covered-the ground, was answered without objection, the error was rendered! harmless.</p> <p>Id.—Proof of Venue.—It was sufficient proof of the venue to prove the locality of the defendant’s saloon, where the liquor was sold, and that this took place in the county of the venue and state of California.</p> <p>Id.—Argument—Point not Urged.—A point not urged in the argument, is not of sufficient importance to be discussed in the opinion of the court.</p>

<p>Vendor and Purchaser—Contract of Sale—Action of Debt for Purchase Money—Time for Action.—A vendor of land under an written contract of sale, who has demanded payment of the residue of the contract price, after it has become due, and who has tendered a deed in connection with such demand, may maintain an action of debt to recover the unpaid portion of the contract price, at any time within the statute of limitations of four years. [Beatty, C. J., and Lorigan, J., dissenting.]</p> <p>Id.—Delay of Vendor—Estoppel of Purchaser.—It does not lie in the mouth of the purchaser to object that the vendor was guilty of laches in giving him more time than the contract gave him, and in delaying suit after the first default in payment.</p> <p>Id.—Provision for Forfeiture—Benefit of Vendor— Option—Waiver. —A provision in the contract for forfeiture of the installments of purchase money paid, upon default of the purchaser, was for the exclusive benefit of the vendor, to be exercised or not, at the vendor's option. The forfeiture is waived by the vendor by continuing and acting upon the contract.</p> <p>Id.—Tender of Deed—Presumption—Findings__The tender of the deed put the defendant in default and authorized the action. In the absence of any question in the record as to whether the tender was kept good, it must be presumed that it was in favor of a judgment for the unpaid purchase money, especially where it is found that plaintiff has complied with all the covenants of the contract on its part.</p> <p>Id.—Bight to Deed—Belief not Sought__Though upon payment of the judgment the defendant will have a right to the deed, yet where he did not ask such relief, and moved for a nonsuit on other grounds, the judgment should not be reversed to give him such relief. [Beatty, O. J., and Lorigan, J., dissenting.]</p>

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

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

The facts are stated in the opinion. George E. De Golia, and Clinton G. Dodge, for Appellant. The code provisions relating to the reformation of contracts make no distinction concerning the nature of the consideration, but give broad power to courts of equity in cases of mutual mistake. (Civ. Code, secs. 3399, 3401.) A deed of gift may be reformed in equity. (Powell v. Morisey, 98 N. C. 426;1 Hass v. Morris, 63 Pa.

<p>The facts are stated in the opinion of the court.'</p> <p>Fitzgerald & Abbott, and Campbell, Fitzgerald, Abbott & Fowler, for Appellant.</p>

<p>Street Bond Act—Constitutional Law—Prior Mortgage.—The Bond lien provided for in the Street Bond Act of March 9, 1893, is intended to be prior to all other liens; and that act is not unconstitutional, as impairing the obligation of a prior mortgage; nor is it in violation of the fourteenth amendment to the federal constitution, which is inapplicable in tax proceedings.</p> <p>Id.—Opportunity for Hearing.—The fact that the Street Bond Act, which gives the lot-owner an opportunity to object to the issuance of the bond, but does not in terms give the right to object to lien-holders, does not make the statute void.</p> <p>Id.—Long Period of Bonds—Taxing Power.—The power conferred upon the council by the Street Bond Act to impose a charge upon the property-owners for a period of ten years is a proper exercise of the taxing power, and is not a taking of private property- for public use.</p> <p>Id.—Constitutionality of Vrooman Act—Amendments The Vrooman Act is constitutional; and none of the amendments thereto are invalid.</p> <p>Id__Change of Grade Act — Provision for Hearing — Damages— Waiver.—The Change of Grade Act, which is not intended to include the original establishment of grade, sufficiently provides for notice and hearing on the question of damages by all persons entitled to compensation under the constitution before the actual damage occurs, to be paid when the grade-lines are changed, provided a petition is made for damages. Those who do not ask damages may be deemed to have waived them.</p> <p>Id.—Statutory Construction—Ordinance to Change Grade.—The Vrooman Act and the Change of Grade Act are to be treated as in pari materia; and the power to pass an ordinance to change or modify the grade of a street exists under both acts, and may be referred to either.</p> <p>Id__Proceedings to Improve Street after Change of Grade.—Proceedings to grade, gravel, and otherwise improve a street, inaugurated by another ordinance, after a change of official grade has been made under the Change of Grade Act, are not invalid because not complying with that act.</p> <p>Id.—Sufficiency of Petition—Determination by Council.—A petition presented by a majority in frontage of lot-owners, asking both for a change of grade, and also that after such change an order be made to grade and improve the streets to the new grade, and to issue serial bonds therefor, is sufficient to confer power upon the council not only to change the grade, but also to order the improvements petitioned for. An ordinance of intention to grade and otherwise improve the street is conclusive that, at its passage, the persons whose names appeared upon the petition were owners of a majority of the frontage.</p> <p>Id.—Assessment District__The council may establish the assessment district either so as to be coincident with and include only the lots which would have been assessed under the front-foot mode of assessment, if such mode had been adopted, or it may include a district other than that.</p> <p>Id—Street Bond Act not Repealed.—The Street Bond Act was not repealed by the constitutional amendment of 1896 to section 6 of article XI of the constitution. That amendment did not give life to the scheme for street improvements in the charter of Los Angeles which were void under section 8 of article XI of the constitution.</p> <p>Id.—Contract por Reduced Rate—Privilege op Property-Owners— Fraud not Shown—Where three fourths of the property-owners, instead of electing to do the work at the price awarded, made a contract with the contractor for a reduced rate, and a corresponding credit on their assessments, the privilege of entering into which was extended to all other lot-owners, such contract carries no such evidence of fraud as to warrant the court in declaring the bonds void.</p> <p>Id,—Description op Assessment District—Certainty.—A description of an assessment district which would have been sufficiently certain in a conveyance is sufficiently certain under the law.</p>

<p>Action fob Conversion—Ownership of Goods—Executory Contract of Sale—Title not Passed.—An action for conversion will not lie in favor of plaintiffs who have no ownership or right of possession in the goods alleged to have been converted, but who have a mere executory contract of sale thereof, under which the title has not passed to them.</p> <p>Id.—Sale for Cash on Delivery—Title in Vendor.—Upon a sale of goods for cash on delivery, as distinguished from a sale on credit, the title and right of possession of the goods remains in the vendor until the cash is paid.</p> <p>Id.—Bill of Lading—Naming of Consignees—Intention as to Title. —The fact that the plaintiffs in the action for conversion were . named as consignees in the bill of lading did not have the effect to pass title to them, in view of evidence clearly showing a contrary intention.</p>

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

<p>Mining Claim—Annual Work—Expense of Watchman—Preservation of Structures.—The cases are rare in which money paid for a watchman to preserve structures is allowable as money expended on a mining claim for annual work. There may be cases where work is temporarily suspended, and structures, which will be required when work is resumed, are likely to be lost if not cared for, and where such work is intended to be resumed in a reasonable time, in which money expended to preserve the structures will be on the same basis as money expended to create them anew. But this cannot go on indefinitely; and as soon as it shall appear that it was done merely to comply with the law, without any intention to use the structures within a reasonable time, the expenditure cannot be deemed made upon the mine.</p> <p>Id.—Insufficient Work—Watchman in House—Relocation.—The mere employment of a watchman to live in a house situated upon a mining claim, where it is not shown that the watching of the mining claim was required, or that he was employed to watch the mining claim, cannot be considered as work done on the mine; and where the amount expended for annual work in prospecting and developing the mining claim was clearly insufficient, the claim was open to relocation.</p> <p>Id.—Question op Abandonment Immaterial—Exclusion op Evidence. —In case of relocation of a mining claim for failure to do the required annual work, the question of abandonment by the original owners is wholly immaterial; and the exclusion of evidence tending to prove that they had not abandoned the mining claim cannot be ground for reversal.</p>

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

<p>Municipal Corporations—Election of Officers—Judicial Determination by Council—Constitutional Law.—The provisions of the constitution relative to the jurisdiction of courts do not disable the legislature, in creating municipal corporations, from providing that the city council shall be the final and exclusive judge of the election of all municipal officers.</p> <p>Id.—Charter of Santa Bosa—Exclusive Jurisdiction of Council.— Under the existing municipal charter of the city of Santa Bosa, as amended in 1876, the determination by the common council of all contests of election for city offices is made final and conclusive, and its jurisdiction to determine such contests is exclusive.</p> <p>Id.—Prohibition to Superior Court. — Prohibition will lie to the superior court to prevent the hearing of a contest for a municipal office, of which the city council is given exclusive jurisdiction under its charter.</p>

<p>APPEAL from a judgment of the Superior Court of Mono County and from orders refusing to vacate and set aside the default and judgment rendered against appellants and refusing them leave to file amended answers. W. H. Virden, Judge.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>F. P. Tuttle, Lee E. Wallace, Charles Tuttle, and Stoney, Rouleau & Stoney, for Appellants.</p>

<p>Appeal — Disobedience op Jury to Instructions — Appellant not Injured.—The disobedience of the jury to the instructions of the court, that, if they found for the plaintiff on the contract alleged, they should find for the full amount claimed, otherwise they should find for the defendant, in that they found for the plaintiff in a less amount, is error of which the plaintiff might complain, but is not to the injury of the defendant, and cannot be complained of by him upon appeal from a judgment against him for the less amount.</p> <p>Id PRESUMPTION IN FAVOR OP VERDICT—ABANDONED COUNT.—Where the jury were expressly instructed that the second count of the plaintiff's complaint was abandoned, and that if they did not find for the plaintiff on the contract alleged in the first count, they must find for the defendant, it must be presumed upon appeal in favor of the verdict' that they did not find upon the abandoned count, but obeyed the instructions of the court in that regard.</p>

<p>Checks—Assignment—Garnishment.—The delivery of an ordinary cheek upon a bank for part of the fund standing therein to the, credit of the drawer, does not, prior to its presentation, operate as an assignment of the fund pro tanto, and a garnishment of the fund under execution as belonging to the drawer will prevail over all unpresented and unaccepted cheeks previously drawn thereupon.</p> <p>Id.—Execution—Identity of Person—Name Differently Spelled— Idem Sonans—Finding.—The name Welch seems to be idem sonans with Welsh; and where the given name and middle initial are the same, and the court finds that the same person was intended by each spelling, the identity of the person is clearly established, and there is no variance in the name which is fatal to the writ of execution.</p> <p>Id.—Garnishment under Judgment for Defendant.—A defendant in whose favor judgment has been rendered has the same right of garnishment under execution against the plaintiff which a plaintiff has under an attachment, or under a judgment and execution against the defendant.</p> <p>Id.—Notice of Garnishment—Name of Bank.—A notice of garnishment served upon the ‘‘Donohoe-Kelly Company,” instead of the “Donohoe-Kelly Banking Company,” is not void when there is no pretense that it was not served on the right party owing the debt, and it appears that the levy was made as required by law, and no question is made that the corporation intended to be reached was the “Donohoe-Kelly Banking Company. ’ ’</p>

<p>Estates of Deceased Persons—Sale of Real Estate—Order Refusing Confirmation—Appeal.—An order refusing confirmation of a sale of the real property of a deceased person and refusing to hear evidence thereon is in effect “an order against directing the sale or conveyance of real estate,” within the meaning of section 963 of the Code of Civil Procedure, and is appealable.</p> <p>, Id.—Jurisdiction to Vacate Sale—Limitation op Power.—The court has no power to vacate the sale other than that conferred by section 1552 of the Code of Civil Procedure, which permits it to order a new sale when a proper showing is made, as provided in that section.</p> <p>Id.—Conclusiveness- op Order op Sale—Void Vacating Order.—The order of sale, if not appealed from, is conclusive upon the heirs; and constructive notice thereof binds the whole world. An order vacating the order of sale, upon motion of the heirs for want of actual notice to them, and on the ground that it was not necessary for the payment of debts, as adjudged by the court,—the order remaining supported by an unassailed finding that the sale was for the best interest of the estate,—is unauthorized and void.</p>

<p>Injunction—Proceedings in Land Department—Certificate of Purchase from State — Title not Shown — Pleading — General Demurrer.—A complaint in an action for an injunction to restrain the defendants from mining upon certain lands claimed by the plaintiff as agricultural under a certificate of purchase from the state, pending proceedings instituted in the United States land office to determine whether the land is agricultural or mineral, which shows that the lands claimed are not school lands, and does not aver that they have been listed to the state as lieu lands, does not show any title, and is subject to a general demurrer for failure to state a cause of action.</p> <p>Id.—Case Affirmed.—The ease of Allen v. Pedro, 136 Cal. 1, affirmed and applied.</p>

<p>Water Eights—Conveyance to Corporation—Begulation of Use-Prescription.—Upon a construction of the various transfers and agreements mentioned in the opinion, it is held that the plaintiffs surrendered to the corporation defendant the right of control or regulation in the use of the water in question both for domestic and irrigation purposes; that the charge imposed by the defendant for the use of the water for domestic purposes was a reasonable regulation; and that the plaintiffs had not acquired by prescription any right to take water from the ditch of the defendant for such purposes.</p>

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

<p>Trust—Fraudulent Accounting—Ignorance of Beneficiary—Suit in Equity.—The trustees under a will who, with intent to defraud an absent beneficiary, present a false account to the court, and secure its settlement as presented, are guilty of a fraud extrinsic to the ease upon the court, as well as upon the beneficiary; and the beneficiary, who had no knowledge of the fraud until after the expiration of the time limited for moving to vacate the order of settlement or for appealing therefrom, may maintain a suit in equity to compel the trustees to pay to her the amount of which she had been defrauded by the settlement.</p>

<p>The facts are stated in the opinion.</p> <p>Jones & O’Donnell, and Sullivan & Sullivan, for Appellants.</p>

<p>Receiver op Partnership—Action Allowed by Court—Conclusiveness op Judgment—Representation op Parties Interested.— A judgment against a receiver of partnership assets rendered in an action permitted to be brought against him by the court upon a claim in the nature of costs incurred by the receiver in the management and conduct of the business under his control, is conclusive against the receiver, and upon all persons interested in the estate intrusted to his management, whom he represents, including the surviving partner and all creditors, whether made parties to the action or not.</p> <p>Id.—Surviving Partner Concluded—Enforcement of Judgment.—The surviving partner who was made co-defendant with the receiver, and who answered and might have defended the action, but was dismissed therefrom of his own motion, is concluded by the judgment rendered against the receiver, and cannot attack it, upon application made to the court to enforce the judgment by the sale of partnership assets.</p> <p>Id.—Form op Judgment—Mode op Enforcement.—A judgment rendered against a receiver should be against the receiver in his official capacity, leaving the matter of its enforcement to be determined by the court having jurisdiction of the receivership, which has exclusive control thereof. Execution cannot issue upon the judgment; but application to enforce payment must be made to the court.</p> <p>Id.—Order Enforcing Payment—Appeal—Questions not Reviewable—Discretion.—Dpon appeal from an order enforcing payment of the judgment, the questions whether the receiver should have been appointed, and whether his administration has been faulty, and where the fault lies, if any, cannot be considered; and where no abuse of discretion appears the order will be affirmed.</p> <p>Id.—Directory Business—Judgment for Loss—Payment out op General Assets.—Where the judgment was for loss in the publishing of a directory allowed by the court, under contract of the receiver with a corporation, and there was nothing in the contract limiting the liability of the receiver to the proceeds of the directory business, the court properly ordered payment out of the general assets.</p> <p>Id.—Parties to Petition—Creditors—Order or Saxe.—It is not necessary that the creditors should have been made parties to the petition to enforce the judgment by a sale of sufficient assets to pay it, where it does not appear that its'payment will exhaust the estate or prevent any known creditors from being paid. That the creditors have not pressed their claims and made a similar demand for the receiver to sell assets to pay their claims furnishes no reason for delaying to enforce payment of the judgment by necessary sale of assets.</p>

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

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

<p>Writ of Supersedeas—Eminent Domain.—After an appeal has been, perfected from a judgment condemning a strip of land for a highway, in an action instituted by a county, the supreme court cannot, issue a writ of supersedeas directed to persons who were not parties, to the proceedings in the lower court, and whose acts, as shown on the application for the writ, are independent of the judgment of" condemnation and disconnected with such proceedings. Such writ Tims only to the court below or to its officers.</p> <p>Id.—Invalid Ordinances not Justification for Trespass.—Ordinances, of the board of supervisors, passed prior to the judgment of condemnation, declaring the strip of land a public highway, and granting a franchise for the construction of a railroad thereon, have no connection with the condemnation proceeding. If such ordinances are invalid they will not constitute any protection for a trespass, committed upon the lands, but the superior court is the proper forum, in which to seek redress against such trespass.</p>

<p>Fraudulent Transfer bt Insolvent Debtor—Action by Creditors— Complaint in Intervention by Assignee—Demurrer.—In an action by creditors to set aside a fraudulent transfer made by an insolvent debtor, a complaint in intervention by the assignee of the insolvent alleging that the property was transferred by the insolvent to the defendant without any consideration; that the transfer was-merely a fraudulent pretense, and was made secretly and out of the usual course of business; that the property was taken and received by the defendant with full knowledge of the intent to hinder and defraud the creditors of the said insolvent; and that defendant had received from the collection of accounts and choses in action so assigned to him a specified sum,—conceding that it would be subject to a special demurrer upon some particular grounds,—is nevertheless good as against a general demurrer.</p> <p>Id.—Void Transfer—Recovery by Assignee.—The facts alleged by the assignee in insolvency and found by the court render the transfer absolutely void, and the property in the hands of the defendant may be recovered by the assignee in insolvency, and applied towards the payment of the creditors of the insolvent.</p> <p>Id.—Unauthorized Part of Judgment—Arrest of Defendant.—That portion of the judgment in favor of the assignee which ordered the sheriff to arrest the defendant and retain him under arrest in the county jail until he shall have paid to the assignee the sum collected by him, or until further order of the court, is without authority of law.</p> <p>Id.—Ability to Comply With Judgment—Eight to be Heard.—The defendant has a right to be heard upon the question of his ability to comply with the judgment and direction of the court to pay over the money to the assignee in case he should fail to comply therewith, and should be cited to show cause of his non-compliance therewith before he can be condemned to prison. If unable to comply, he cannot be imprisoned.</p>

<p>The facts are stated in the opinion.</p> <p>James H. Campbell, District Attorney; William A. Beasly, and R. R. Syer, for Appellant.</p>

<p>Equity—Enforcement of Judgment Lien.—Equity will enforce a judgment lien where there is no other adequate remedy, or where the judgment lienholder is made a party defendant in an action to foreclose a prior mortgage.</p> <p>Id.—Answer in Foreclosure Suit—Prayer for Affirmative Belief— Cross-Complaint.—An answer by the holder of the judgment lien in an action to foreclose a prior mortgage containing a prayer for affirmative relief, which was duly served on all the co-defendants as well as upon the plaintiff, must be regarded as a cross-complaint; and where the rights of the co-defendants were all subject to the judgment lien, it was properly foreclosed as against them.</p>

<p>Criminal Law—Homicide—Error in Instruction—' ‘ Moral Certainty.”—Upon a prosecution for murder it is error to instruct the jury that “moral certainty is described as a state of impression produced by facts in which a reasonable mind feels a sort of coercion or necessity to act in accordance with it. ” It is in violation of the admonitions of this court, is an unnecessary innovation upon the language approved by it, lacks precision and clearness, and leads to confusion.</p> <p>Id.—Theory op Prosecution—Death Caused by Attempted Abortion-Erroneous Charge as to Manslaughter—Want op Care in Medical Treatment.—Instructions of the court must be applicable to the facts and features of the case in hand. Where the whole theory of the prosecution was, that the defendant, who was a physician, was guilty of murder in causing the death of the deceased by an attempt at criminal abortion, the court should not have given any charge upon the subject of manslaughter; and it was error to instruct the jury that the defendant might be found guilty of manslaughter if the death resulted from a lawful act in treating the deceased medically “without due caution or circumspection,” and to refrain from instructing them that the law only exacts ordinary and reasonable care and skill on the part of a physician.</p> <p>Id.—Error in not Stating Law—Defendant not Required to Ask Instruction.—The error of the court in not stating the law upon the subject of manslaughter, to which no reference had been made by the counsel on either side, and about which no one connected with the ease expected any instruction, is not condoned by the failure of the defendant's counsel to ask for further instruction on an issue which they did not consider to be in the case.</p> <p>Id.—Fair Trial not Had—Want of Notice to Defendant—Conviction of Manslaughter—Reversal of Judgment.—Where the prosecution gave no notice to the defendant that he was being tried on a charge of manslaughter in negligently performing a surgical operation, and he was thereby lulled into false security, and failed to give evidence on that subject which he might have introduced, he did not have a fair trial upon that charge, and a judgment upon conviction of manslaughter should be reversed.</p>

<p>Fees of Jurors in Criminal Cases—Construction of Code.—Section 1143, of the Penal Cbde providing for the payment of the “fees of jurors for each day’s attendance” in criminal cases in the superior courts, means the attendance of the jurors lawfully summoned and present in court, in answer to the call thereof, whether sworn to try any case or not, and without regard to their qualifications to serve as jurors.</p> <p>Id.—Mode of Payment—“General Fund”—Exhaustion of Special Fund—Mandamus.—The fees of jurors are required by section 1143 of the Penal Code to be paid out of the “general fund” of the county, or city and county, upon warrants drawn by the auditor upon the treasurer. The fact that the board-of supervisors of the city and county of San Francisco had set apart a special fund for the fees of trial jurors in criminal eases, and that this fund was exhausted, is no defense to a mandamus to compel the auditor to draw his warrant upon the county treasurer for fees of jurors for each day’s attendance upon the court.</p> <p>Id.—Constitutional Paw—Title of Section—Uniformity of Operation.—Section 1143 of the Penal Code is not unconstitutional either on the ground that the subject is not expressed in the title, or on the ground that it is not uniform in its operation.</p>

<p>San Francisco—Fees of Jurors in Criminal Cases—Mandamus.— Prior to the act of March, 1901, adding section 1143 to the Penal Code, there was no law authorizing the payment of jurors' fees in criminal cases in the city and county of San Francisco, and mandamus will not lie to compel the payment of juror’s fees for services rendered prior to that amendment.</p> <p>Id.—Fee Law of 1895—Unconstitutional Statute—Gift by Legislature.—The fee law of 1895 had no application to the city and county of San Francisco, and the act of March 23, 1901, providing for the payment of trial jurors who have served as such in any city and county since the act of 1895, is unconstitutional and void, as being a legislative gift in violation of section 31 of article IV of the state constitution.</p>

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

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

<p>Life Insurance—Action upon Policy—Proof of Death—Suicide-Circumstantial Evidence—Question for Jury.—In an action upon a policy of life insurance, where proof of the death of the insured prior to the date of an annual premium is in issue, it maybe proved by circumstantial evidence short of a demonstration. Proof of suicide is proof of death, and where the circumstánees indicate a suicide it is a question of fact for the determination of the jury.</p> <p>Id. —Evidence — Circumstances Indicating Suicide — Letters Expressing Intention—Bes Gest.®.—Where the proof of death, in such action, consisted of circumstantial evidence, indicating the suicide of the deceased in disappearing from a steamer at night, leaving his coat and hat and valise, and a letter to the captain in his stateroom expressing his intention to go over the side of the steamer, and so get rid of the trials and troubles of life and avoid a funeral, such letter is admissible in evidence as part of the res gestee, and is not objectionable on the ground that it is self-serving.</p> <p>Id.—Instructions—Improper Bequests.—Instructions requested by the defendant which assumed facts in dispute, or which were not germane to the evidence, were properly refused.</p> <p>Id.—Interest—Proofs of Death.—Where the policy was payable upon the receipt of satisfactory proofs of death, and no waiver appears of the proofs of death, and the fact of death was not admitted but disputed, interest can only be allowed from the time of the making of such proofs.</p>

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

<p>Estates of Deceased Persons—Judgment Lien—Sale of Bealty— Purchase by Lienholder—Application of Payment.—The holder of a valid judgment lien against the real estate of a deceased person has the right to petition for an order of sale of the real estate, and having become a purchaser at the sale, an order confirming the sale and authorizing the purchaser to apply the amount of the judgment claim in payment of the bid, after payment of the expenses of sale, is authorized by sections 1569 and 1570 of the Code of Civil Procedure.</p> <p>Id.—Execution not Essential to Lien.—The levying of an execution is not essential to the existence or continuance of the judgment lien, which continues for two years, whether or not execution has been taken out. After the death of the judgment debtor no execution could issue.</p> <p>Id.—Claim against Estate — Becovery of Judgment — Lien not Lost.—The presentation of a claim against the estate for the amount of the judgment, and the recovery of another judgment upon the rejected claim does not merge the original judgment, nor destroy its lien, especially where the lien is expressly reserved in the claim presented.</p> <p>Id.—Statute of Limitations—Suspension by Petition.—Where the statute of limitations of two years had not expired when the petition was filed by the judgment lienholder to sell the real property which was the subject of the lien, the filing of the petition had the effect to arrest the further operation of the statute.</p>

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

The facts are stated in the opinion of the court. Russ Avery, and Bicknell, Gibson & Trask, for Appellant. A contract for employment for an indefinite time is terminable at the will of either party. (Lord v. Goldberg, 81 Cal. 596;1 Perry v. Wheeler, 12 Bush, 541; Elderton v. Emmons, 4 Mann. G. & S. 478; 56 Com. L. Rep. 478; Harper v. Hassard, 113 Mass. 187; Coffin v. Landis, 46 Pa. St. 431.)

<p>weal—Modification oe Judgment—Compliance with Order—Discretion—New Judgment.—Where upon a former appeal the judgment was ordered to he modified in accordance with the opinion of this court, without prescribing the mode of modifying it, the mode was in the discretion of the court below, and the fact that the former judgment was vacated and a new judgment made to cover the whole ground, was not an improper mode of modifying the judgment, if no inconsistency appears with the opinion and order of this court, and no objection appears to have been made either to the form or to the substance of the modified judgment.</p>

APPEALS from judgments of the Superior Court of the City and County of San Francisco and from orders denying and dismissing motions for a new trial. Frank J. Murasky, Judge. The facts are stated in the opinion.

<p>Chattel Mortgage—Bight of Possession—Conversion by Executor —Sale under Order of Court—Action by Mortgagee.—Where a chattel mortgage confers the right of possession of the personal property mortgaged after default in payment of the mortgage debt, the mortgagee, after such default, may maintain an action for conversion of the property against the executor of the deceased mortgagor, who has sold the property, after demand for possession by the mortgagee, though sold for the alleged benefit of the estate under order of the court.</p> <p>Id.—Effect of Death of Mortgagor—Besponsibility of Executor— Befusal to Yield Possession.—The death of the mortgagor did not affect the rights of the mortgagee under the contract, and the executor possessed no new rights to the property, and cannot avoid his responsibility for a tortious conversion thereof by claiming that it was committed for the benefit of the estate under the order of the court. The refusal of the executor to yield the possession on demand to the mortgagee was a conversion of the mortgagee’s interest in the property.</p> <p>Id.—Presentation of Claim—Bights of Mortgagee not Waived.— The mortgagee did not waive any right or interest in the mortgaged property by presenting to the executor a claim for the amount due on the chattel mortgage.</p>

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

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

<p>Mortgage—Subsequent Deed of Trust—Statute of Limitations— Written Acknowledgment by Trustees.—The trustees under a deed of trust from a grantee whose title was subject to a prior. mortgage, which was in full force and unaffected by the statute of limitations, when they clearly recognized and acknowledged the existence of the prior mortgage, both in the trust deed, which they accepted, and in a written agreement executed shortly afterward, in which they made provision for payment of interest thereon out of the income of the premises, thereby established a new date for the statute of limitations to commence running as to the mortgage.</p> <p>Id.—Promise to Pay Debt not Essential—Acknowledgment of Mortgage.—It was not necessary that the trustees should promise to pay the indebtedness secured by the mortgage in order to establish a .new date under the statute. All that was required was a plain and distinct acknowledgment in writing of the existence oí the mortgage; and any acknowledgment of the mortgage was an acknowledgment of the indebtedness secured thereby.</p>

<p>Action on Note—Husband and Wife—Default Judgment against Wife—Fraud of Husband—Motion to Vacate Judgment.—In an action upon a note executed by a husband and wife, where the wife’s affidavit on motion to set aside a default judgment shows without substantial contradiction that she intrusted her defense to her husband, who undertook to conduct it, but acting in collusion with the plaintiff, and with malicious intent towards her (to whom he had become hostile), designedly suffered her default to be taken, while she, relying upon him, gave no personal attention to the proceedings, and had no notice of them until the execution was about to be levied upon her property, and such affidavit was accompanied by an affidavit of merits, in due form, the motion should have been granted.</p> <p>Id.—Erroneous Order Denting Motion—Suspicion as to Affidavit of Merits—Order for Examination.—It was error for the court, upon suspicion of the truth of the affidavit of merits, to require her attorney to bring her into court to be examined as to whether she owed any of the money or not, and to deny the motion, on the counsel declining to produce her.</p> <p>Id.—Conclusiveness of Affidavit of Merits.—The affidavit of merits need not disclose the facts constituting the defense, nor can it be contradicted, or the merits of the ease tried, on the hearing of the motion. There may be other defenses to a note besides a denial of signature, and the court was not justified in departing from the regular course, because the wife’s name was signed to the note.</p>

<p>Estates op Deceased Persons—Contest op Petition por Distribution-Validity op Conveyance—Order Granting New Trial-Discretion—Conflicting Evidence.—Where the contest of a petition of executors for the distribution of the estate of a deceased person involved the validity and effect of a contract and conveyance of a son of the deceased, which if valid would bar the right of the contestants, it was in the discretion of the trial court to grant a new trial to the contestants on the ground that its finding that the contract in question was not obtained by fraud and undue influence used by grantees thereof, is not sustained by the evidence; and it appearing that the evidence thereupon was conflicting, the order must be affirmed.</p> <p>Id.—Bights op Contestants—Will op Widow op Deceased—Widow’s Share in Estate.—Where the contestants of the petition for distribution are an heir and the executrix of an heir of the deceased, their rights to appear, and participate in the proceedings for distribution are not affected by their rights under the will of the widow of the deceased. The fact that they may have a right to a greater or less portion of the estate of the deceased widow by virtue of such will than they would have by law does not affect their right of contest, of distribution, nor their right to insist that the widow's estate shall receive all of her share in the estate of the deceased husband to which it is entitled.</p> <p>Id.—Conveyance by Son to Besiduary Legatees—Expectant Interest in Estate op Mother—Void Grant.—A conveyance by a son of the deceased to the residuary legatees of his existing interest in the estate of his deceased father operated to transfer such interest; but in so far as it purported to convey his expectant interest in his mother’s estate, it was legally void, and could not operate to transfer to the grantees upon the death of his mother the legal interest of the grantor in her estate.</p> <p>Id.—Contest op Will op Widow.—The rights involved in a contest of the will of the deceased widow cannot be prejudged in the settlement of the estate of her deceased husband.</p> <p>Id.—Election op Widow to Take under Will—Contest—Fraud-Undue Influence.—The contestants of the petition for distribution have the right to be heard upon their contest of an election of the deceased widow to take under the will of her deceased husband, and her renunciation of all interest in the community property, on the ground that it was obtained by fraud and undue influence.</p> <p>Id.—Election Ineffectual—Widow's Shake in Community Property not Denied.—The election of the widow to take under the will rather than to receive her moiety of the community property was ineffectual, there being nothing in the terms of the will of the deceased husband to indicate an intention on his part to dispose of the widow's share of the community property, but rather the contrary. The widow was not put to an election, and her title to one half of the community property remained unaffected.</p> <p>Id.—Erroneous Distribution to Widow's Estate.—The estate of the deceased widow was entitled to one half of the community property, and one fourth of the remainder devised by her husband's will, and it was error to distribute to it one fourth of the whole only.</p>

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

<p>Estates op Deceased Persons—Attorneys’ Fees—Allowance to Administrators Severally—Liability op Co-administrator. — Where each of two administrators severally employed attorneys, whose services were allowed in the separate account of each, and the powers of one of them was suspended after the settlement of his accounts, and it was decreed that the amounts allowed to his attorneys should not be paid until the money found to be due from him be paid to the other administrator, or paid into court for the benefit of the estate, the other administrator cannot be held ' liable in any manner for the services of the suspended administrator, unless by reason of such decree.</p> <p>Id.—Estate not Liable.—An attorney must look to the personal responsibility of the administrator who employs him, and cannot hold the estate liable for services rendered to the administrator. The attorney’s fees and charges paid by the administrator are allowed to the administrator, and not to the attorney.</p> <p>Id.—Payment by Administrator—Allowance to Co-administrator.— Where the fees of the attorney have been paid by the administrator who employed him, they cannot be again recovered, and the fact that an allowance for attorney’s fees paid by the suspended administrator was allowed in the final account of the co-administrator cannot constitute a judgment in favor of the attorney or entitle him to recover the amount from the co-administrator.</p>

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

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

<p>Napa State Hospital—Capacity op Teeasuker to Sue.—The treasurer, in the name of the Napa State Hospital, has legal capacity to sue upon any cause of action accruing to the hospital, under the act of 1897.</p> <p>Id.—Support op Insane Criminals—Cause op Action op State Asylum “Accruing” to State Hospital.—The Napa State Hospital is vested, hy the terms of the act of 1897 creating it, with all property then belonging to the Napa State Asylum for the Insane; and a; cause of action then existing in favor of the state asylum, for the support of insane criminals committed by the superior court of a county to the asylum, must be deemed to be “accruing” to the state hospital, when it ceased to be the property of the asylum, and became the property of the hospital.</p> <p>Id.—Case Criticised and Limited.—The ease of Napa State Hospital v. Flaherty, 134 Cal. 315, is criticised and limited, and held not to "be controlling authority in the present case.</p> <p>• Id.—Code Provision—Liability op County to Support Insane Criminals—Constitutional Law.—The provision of section 1373 of the Political Code, making the county chargeable with the support of insane criminals committed there after the verdict of a jury establishing their insanity, is not a special law prohibited by section 25 of article IV of the state constitution, and does not violate section 2 of article I, requiring laws of a general nature to have a uniform operation; but is constitutional and valid.</p> <p>Id.—Provision not Repealed.—The provision of section 1373 of the Political Code is not repealed by the Insanity Act of 1897 nor by any of the various County Government Acts.</p>

The facts are stated in the opinion of the court. Anderson & Anderson, and W. F. Fitzgerald, for Appellant. The railroad commissioners are a constitutional body, and had power to employ an expert as a necessary means for carrying out the duties imposed upon it.

<p>Execution Sale—Successor in Interest of Debtor—Bight of Bedemption from Mortgage.—Under section 700 of the Code of Civil Procedure, the purchaser at an execution sale becomes the successor in interest of the judgment debtor, whether his title under the certificate of sale be considered legal or equitable, and the assignee of the certificate of sale may redeem from a sale made under the foreclosure of a prior mortgage executed by the judgment debtor, as successor in interest of the mortgagor.</p> <p>Id.—Succession to Legal Title—Condition Subsequent—Effect of Deed.—It seems that, under section 700 of the Code of Civil Procedure, the purchaser under execution sale acquires the legal title .of the judgment debtor, defeasible upon condition subsequent; and that the effect of the sheriff’s deed is not to create a new title, but is merely evidence that the title of the purchaser has become absolute.</p> <p>Id.—Certificate of Bedemption.—The certificate of redemption need ■not state the capacity in which the redemption was made. The redemption is sufficient, where the redemptioner presented evidence of title, paid the money required, and received a certificate of redemption.</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>Fisher Ames, Rodgers, Paterson & Slack, and Charles W. Slack, for Appellant.</p> <p>The legal title passed under the deed of trust to Boyd and Davis. (Campbell v. Freeman, 99 Cal. 546; Koch v. Briggs, 14 Cal. 257;1 Fuquay v. Stickney, 41 Cal. 583; Tyler v. Granger, 48 Cal. 259; Grant v. Burr, 54 Cal. 298; Bateman v. Burr, 57 Cal. 480, 483; Savings and Loan Society v. Deering, 66 Cal. 281; Partridge v. Shepard, 71 Cal. 470; More v. Calkins, 95 Cal. 435;2 Savings and Loan Society v. Burnett, 106 Cal. 514; Sacramento Bank v. Alcorn, 121 Cal. 379.) It is well settled that a mortgagor or trustor, or one claiming under him, cannot, by his own act, create an easement in the land subject to the mortgage or deed of trust, as against, or to the prejudice of, the mortgagee or trustee, or one claiming under him. (Jones on Easements, sec. 135; 1 Jones on Mortgages, 5th ed., sec. 676; Murphy v. Welch, 128 Mass. 489; Hoole v. Attorney-General, 22 Ala. 190; People v. Herbel, 96 Ill. 384; McShane v. City of Moberly, 79 Mo. 41.) A servitude can only be created by one who has a vested interest in the servient tenement. (Civ. Code, sec. 804; Gridley v. Hopkins, 84 Ill. 528; Jones on Easements, sec. 81; Pfeiffer v. Regents of University of California, 74 Cal. 156, 162; Rangeley v. Midland Ry. Co., L. R. 3. Ch. App. 306.) The damages are excessive. The case is not one for exemplary damages. (1 Sutherland on Damages, 2d ed., p. 847; 1 Sedgwick on Damages, 8th ed., sec. 383; Abbott v. 76 Land and Water Co., 103 Cal. 607; Allison v. Chandler, 11 Mich. 542; Waldron v. Marcier, 82 Ill. 550; Inman v. Ball, 65 Iowa, 543.)</p>

<p>The facts are stated in the opinion.</p> <p>Sullivan & Sullivan, R. H. Latimer, and F. M. Smith, for Appellant.</p> <p>Forcible entry and forcible detainer are distinct causes of action, and must be stated in separate counts. (Valencia v. Couch, 32 Cal. 342;1 Shelby v. Houston, 38 Cal. 420.) The entry was peaceable, and not forcible, and cannot be complained of in this action. (Frazier v. Hanlon, 5 Cal. 156; Polack v. McGrath, 25 Cal. 54; Merrill v. Forbes, 23 Cal. 380; Hodgkins v. Jordan, 29 Cal. 577; McMinn v. Bliss, 31 Cal. 126; Buel v. Frazier, 38 Cal. 693; Wilbur v. Cherry, 39 Cal. 660; Peacock v. Leonard, 8 Nev. 88.)" The entry was under a right of possession given by the lease and by the crop mortgage, and the defendant had a right to show this. (Murray v. Burriss, 6 Dak. 170; Conaway v. Gore, 27 Kan. 122; Owen v. Doty, 27 Cal. 504; Powell v. Lane, 45 Cal. 677; Smith v. Detroit Loan and Building Assn., 115 Mich. 340;1 Stearns v. Sampson, 59 Me. 568.2)</p>

<p>Quieting Title—Conflict of Mining Claim with Patent—Appeal from Judgment—Questions not Considered.—In an action to quiet title under a United States patent to land bounded by a river against mining claimants of land included therein, where the evidence upon appeal from a judgment for the plaintiff is not returned, the findings must be accepted as conclusive, and questions as to the applicability of the law of the state, or of local mining customs, depending upon the evidence, cannot be considered.</p> <p>Id.—Boundary of Patent by River—Fractional Subdivision—Meander-Line—Location of Mining Claim.—A patent of a fractional subdivision, made such by bordering on a river, must be deemed bounded by the river, and not by the meander-line appearing upon the field-notes of the survey, to indicate the place of the watercourse, its sinuosities, courses, and distances; and a mining claim cannot be located between the meander-line and the river.</p> <p>Id.—Presumption of Navigability.—If the navigability of the river should be deemed necessary to a boundary of the patent thereby, it must be presumed upon appeal, in the absence of the evidence, that the river was navigable at the point in question.</p>

<p>Certiorari—Beview of Judgment—Jurisdiction—Eemedy by Appeal. —A writ of review will not lie to annul an erroneous judgment, of which the court had jurisdiction, and from which there is a remedy by appeal.</p> <p>Id.—Equitable Jurisdiction—Foreclosure of Lien—Proceedings to Beach Funds.—The superior court has jurisdiction in equity both of a proceeding to foreclose a mechanic’s lien and also of a proceeding to reach the funds due to the contractor in the hands of the owner of the building, in which there must be an accounting and adjustment of the equities of all parties concerned in such funds.</p>

' The facts are stated in the opinion. Tirey L. Ford, Attorney-General, and E. Myron Wolf, for Appellant. The will was republished as of the date of the codicil, and it operates as if then wholly executed as a new will. (Civ. Code, sec. 1287; Payne v. Payne, 18 Cal. 302; In re Ladd, 94 Cal. 670; Van Cortlandt v. Kip, 1 Hill, 590; Harvey v. Choteau, 14 Mo. 587;1 Murray v. Oliver, 6 Ired.

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

<p>Replevin—Separate Property oe Wipe—Question op Fact—Appeal. —In an action of replevin brought by a married woman to recover her separate property from an officer who had levied thereupon to satisfy the debts of her husband, the question whether the property was her separate property is a question of fact for the trial court; and upon appeal from its judgment for the plaintiff, this court cannot pass upon the credibility of the evidence, nor its inherent improbability, and can only consider whether there is substantial evidence sufficient to support the finding.</p> <p>Id.—Testimony op Husband and Wipe—Scrutiny—Presumption.— Where the evidence, in such case, to establish the separate property of the wife, is that only of the husband and wife, it should be carefully scrutinized, and should be of such a nature as’ clearly to show the separate character of the property; but it will be presumed upon appeal that such scrutiny was carefully exercised, and that the finding is correct, where sufficient testimony appears to support it.</p> <p>Id.—Proop op Verified Claim—Pleadings—Admission op Demand— Denial op Title.—It cannot be urged upon appeal for the first time that there was no proof of the service of the verified claim, required by section 689 of the Code of Civil Procedure, where the allegation of demand in the complaint is not denied in the answer, and it appears, by the answer denying plaintiff’s title and alleging title in her husband, that any kind of a demand would have been unavailing.</p>

<p>Summons—Service by Publication—Showing of Cause of Action.— In order to support an order for the service of summons against a non-resident defendant by publication, it is essential to give the court jurisdiction that a cause of action be shown either by a properly verified complaint or by affidavit.</p> <p>Id.—Insufficient Affidavit by Attorney—Information from: Plaintiff—Void Order and Publication.—Where the complaint was not verified, an affidavit by an attorney for the plaintiff corporation, showing that all of the facts stated therein concerning the indebtedness sued upon are stated upon information received by him from the plaintiff, shows no cause of action, and the order of publication of summons and the publication based on such affidavit are void.</p> <p>Id.—Judgment not Enforceable—Appeal—Special Appearance.— The judgment based upon the void publication of summons should not be enforced in any manner, and will be reversed upon appeal. It was proper practice for the foreign corporation defendant to make a special appearance in the notice of appeal, "for the purpose of contesting the jurisdiction of the court over the person of the defendant.”</p>

<p>Appeal—Order Overruling Demurrer.—An order overruling a demurrer is not appealable, and an appeal taken therefrom will be disregarded.</p> <p>Id.—Party not Aggrieved—Foreclosure of Mortgage—Claimant of Judgment Lien—Burden of Proof—Default at Trial.—The claimant of a judgment lien, who took issue upon the complaint in an action to foreclose a mortgage, and set up his alleged lien and sought foreclosure thereof, had the burden resting upon him to prove his alleged lien. Where he failed to appear at the trial, and offered no proof, a finding that all of the allegations of the answer are untrue, shows that he has no interest in the subject-matter of the decree, and is not aggrieved thereby, and upon his appeal therefrom, the decree, conceding it to be erroneous, will not be reversed,</p>

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

<p>Action on Foreign Justice’s Judgment—Conclusiveness—Defense of Payment.—In an action on a judgment rendered in a justice’s court of another state, the judgment is conclusive against all defenses which might have been urged in the justice’s court; and a defense cannot be allowed that the notes sued upon in the justice’s court had been paid before the judgment was rendered.</p> <p>Id.—Jurisdiction of Justice’s Court—Deposition of Justice.—Under section 1922, it was proper to receive the deposition of the justice who rendered the judgment showing the creation and jurisdiction of the justice’s court, in conformity with the act of the state providing for its creation.</p> <p>Id.—Objection to Deposition—Best Evidence—Creation of Court__ An objection to the deposition of the justice that the testimony was irrelevant, imeompetent, and immaterial, does not include the objection that it was not the best evidence of the creation of the justice’s court.</p> <p>Id.—Appeal—Argument—General Assignment of Error.—A general assignment of error in the argument upon appeal that “the court erred in all respects to which exceptions were taken by this appellant as described in the record herein," does not require an examination of the record by this court to see what exceptions were taken by appellant.</p>

<p>Criminal Law—Appeal—Order Denying Arrest op Judgment.—An order denying a motion in arrest of judgment in a criminal case is not appealable, and an appeal therefrom must be disregarded.</p> <p>Id.—Presumption upon Appeal—Commitment by Magistrate—Absence op Bill op Exceptions.—Upon appeal from a conviction of felony, under an information, in the absence of a bill of exceptions, it must be presumed that the defendant was legally committed by a magistrate, and that the court properly denied a motion to set the information aside.</p> <p>Id.—Embezzlement—Requested Instructions as to Larceny.—Upon the trial of an information for embezzlement, where the evidence, without conflict, showed that the crime committed was embezzlement, and nothing else, requested instructions as to the crime of larceny were properly refused.</p> <p>Id.—Fraudulent Conversion op Intrusted Property—Intention to Restore—Instruction as to Temporary Deprivation.—One who has fraudulently converted intrusted property or the proceeds thereof to his own use is guilty of embezzlement, notwithstanding his intention to restore the embezzled property. In an instruction that “the property must have been appropriated and converted to the use of the party to whom it has been intrusted, with the intent either temporarily or permanently of depriving the owner of such property,” the use of the word “temporarily” is not objectionable.</p> <p>Id.—Presumption op Fraudulent Intent—Objectionable Instruction—Harmless Error.—An instruction that “a fraudulent and felonious intent is presumed from the deliberate commission of an unlawful act for the purpose of injuring another,” is objectionable for its comprehensive statement; but where, construed, as it should be, with the other instructions given, the jury must have applied it to the acts only which went to make up the crime charged, it could do the defendant no harm.</p> <p>Id.—Evidence—Declarations of Dependant—Absence op Threat or Inducement.—In order to lay a foundation for the admission of the declarations of the defendant, it was proper to ask the prosecuting witness whether prior to the statement he made any threats or promise of reward, or advised or offered any inducements, in regard ' to the defendant's statement. Such questions called for facts, and not for the conclusions of the witness; and when such questions were answered in the negative, the testimony was a clear statement of the absence of any threat or inducement.</p>

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

<p>Criminal Law—Embezzlement—Insufficient Proof—Purchase of Launch—Failure to Prove Non-Payment.—A conviction of embezzlement of a steam launch as being the property of another person, intrusted to the defendant, and feloniously converted by him to his own use, is not sustained by the evidence, where it appears that the steam launch was purchased by the defendant from such other person, and there is no proof that the purchase price was not paid.</p> <p>Id.—Sale—Passage of Title—Burden of Proof.—If the title passed to the defendant when the launch was sold, he could not embezzle it; and if it was a sale on condition that the purchase money should be paid, it was incumbent on the prosecution to prove that it had not been paid.</p>

<p>Private Hospital—Mutual Benefit Society—Liability for Negligence of Surgeon.—An incorporated society conducting a private hospital for the mutual benefit of its members, which treats sick members in consideration of payment of dues, and receives other sick patients for an agreed compensation, is liable to one of the latter for damages caused by the negligence of a surgeon employed at the hospital at a salary paid by the society.</p> <p>Id.—Charity—By-Laws.—By-laws of the society providing for charity as one of the aims of the hospital does not render it a charitable society, where there is nothing in them requiring the application of the funds of the society to charitable purposes, and the funds contributed by the members are, beneficially, their own property.</p> <p>Id.—Change of By-Laws.—Where the by-laws are changed so as to cease to provide for charity, the former by-laws must be regarded as superseded by the latter.</p>

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

<p>Criminal Law—Murder—Conviction for Manslaughter—New Trial —Former Acquittal—Pleading—Evidence of Murder.—Though a judgment of conviction for manslaughter upon an information for murder operates as an acquittal of the murder, yet where such judgment is reversed upon appeal, and a new trial is ordered, the defendant must plead the former acquittal; and whether the prosecution then proceeds for manslaughter under the original information, without objection of the defendant, or should proceed under a new information for manslaughter, evidence of murder is admissible to sustain a ^conviction for manslaughter, which is necessarily included in the crime of murder.</p> <p>Id.—Instructions—Bbfusal of Bequest__It was proper for the court upon a new trial had, without the defendant’s objection, under the original information, to refuse a requested instruction that if the evidence established willful murder they should find for the defendant, there being room in the evidence to sustain a conviction for manslaughter; and the defendant was not prejudiced by instructions that the jury could only find the defendant guilty of manslaughter, and that if they believed the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter, then their verdict should be for manslaughter.</p> <p>Id—Evidence—Hearsay—Recollection op Witness—Motion to Strike Out.—A motion to strike out all of the testimony of a witness as hearsay was properly denied, where the witness testified to certain facts from his own recollection.</p> <p>Id.—Former Testimony—Absence op Witness—Lack op Diligence.— It cannot be said that the court erred in rejecting the testimony of a former witness, where sufficient diligence was not shown to ascertain his whereabouts, and to serve him with a subpoena.</p> <p>Id.—New Trial—Incompetency op Juror.—It was too late, after the trial, to object to the incompetency of a juror; and it cannot be made ground for a new trial that- he was a non-resident of the county at the time of the trial.</p>

<p>APPLICATION for writ of habeas corpus to the medical superintendent of Napa State Hospital. Writ returnable to the Superior Court of Napa County. H. C. Gesford, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPLICATION for writ of habeas corpus to the sheriff of Alameda County, acting under commitment by the Superior Court of Alameda County. John Ellsworth, 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>Action for Death—Complaint by Administratrix—Heirship__In an. action for death brought by an administratrix, a complaint which does not allege the existence of any heir, or heirs, does not state a cause of action.</p> <p>Id.—Master and Servant—Adjustment of Appliances—Duty of Employees—Liability of Employer.—Where an employer had furnished ample material sufficient in kind and quality and quantity for the construction of adjustable boards and stakes, and under the terms of the employment it was the duty of the employees who loaded a car to adjust those appliances so as to secure a carload of ties and rails in place, the employer is not liable for the death of an employee arising from any defect in the construction or adjustment of such appliances by him and his fellow-servants.</p> <p>Id.—Questions of Fact—Erroneous Instruction—Befusal of Proper Bequests.—The questions whether or not it was the duty of the employer to adjust the appliances, and whether stakes or uprights were necessary to make the ear reasonably safe, were questions of fact for the jury; and it was erroneous to instruct the jury that stakes or uprights were a necessary part of the flat-car as used at the time of the death, and that they “were appliances within the rule requiring the master to furnish with reasonable care proper and adequate appliances for the purpose of carrying on-the proposed work," and to refuse to give proper instructions requested by the defendant based upon evidence supporting defendant’s theory of the ease.</p> <p>Id.—Opinion Evidence—Height of Stake.—What would have been a proper height of stake to be used at the end of the car is not proper matter for expert opinion evidence.</p> <p>Id.—Support of Plaintiff—Improper Instruction.—The court should not have instructed the jury that they might consider the fact that the deceased was the sole support of the plaintiff.</p>

<p>APPEAL from an order of the Superior Court of the City" and County of San Francisco refusing to vacate a judgment of dismissal. W. R. Daingerfield, Judge.</p> <p>The facts are stated in the opinion.</p> <p>Lloyd & Wood, Page, McCutehen & Bells, Page, MeCutchen & Knight, and Coogan & Hahn, for Appellant.</p> <p>A party may move to set aside a judgment of dismissal entered at his own request. (Kaufman v. Shain, 111 Cal. 16;1 Brackett v. Banegas, 99 Cal. 623, 625; Montgomery v. Ellis, 6 How. Pr. 326; Downing v. Still, 43 Mo. 309; Freeman on Judgments, 4th ed., see. 117.) The limit of a reasonable time, under section 473, will be deemed the limit of six months to vacate a judgment where there is no injury to the rights of the other party. (Wolff v. Canadian Pac. Ry. Co., 89 Cal. 332, 337.) The bondholders interested might have made the motion in the name of the tax-collector plaintiff as their representative. (Ætna Ins. Co. v. Aldrich, 38 Wis. 107; Crescent Canal Co. v. Montgomery, 124 Cal. 134; Malone v. Big Flat etc. Mining Co., 93 Cal. 384.)</p>

<p>Water Eights—User upon Three Tracts—Mortgage of One Tract— Basement.—Where the owner of a canal and water right used the same habitually upon three tracts of land, one of which was mortgaged to the plaintiff, who acquired title thereto under foreclosure, the plaintiff thereby acquired an easement upon the other lands for the use of the mortgagor’s canal and water right, as to the part thereof appropriated to the mortgaged tract; but nothing more can be justly claimed by the plaintiff.</p> <p>Id.—Occupancy of Other Tracts—Appurtenant Water Eight—Conveyance of Title from Third Parties.—As against all but the owner, the occupancy of the other two tracts by the mortgagor, upon which the canal and water right were used in part, was sufficient title to make the part so used appurtenant thereto. It was immaterial that these tracts were subsequently patented to third parties, who conveyed them to the mortgagor, from whom the defendants acquired the title thereto.</p> <p>Id.—New Trial—Statement—Specifications of Insufficiency of Evidence.—The specifications of insufficiency of the evidence to justify a finding that the plaintiff owned the entire canal and water right as an appurtenance to plaintiff’s land, are sufficient, where they directed the attention of the plaintiff in various ways to the single issue of fact as to the habitual use of the water in part upon plaintiff’s land and in part upon the other lands of the mortgagor, and where no evidence appears to have been omitted on that question.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial, and from an order denying a motion in arrest of judgment. W. P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law — Petit Larceny — Prior Conviction — Pleading — Waiver op Objection.—Upon an accusation for petit larceny, a charge of a prior conviction of the same offense will be deemed . sufficient, in the absence of a demurrer thereto, where the jurisdiction of the court cannot be questioned, and the objection goes rather to the manner of charging the prior conviction, and the information is clear and definite as to the date of the prior conviction and the court in which it was held. Objections to the charge must be deemed waived by failure to demur thereto.</p> <p>Id.—Order Refusing to Arrest Judgment—Appeal.—An order denying a motion in arrest of judgment is not appealable, and an appeal attempted therefrom will be disregarded.</p>

<p>Guardian and Ward—Fraud in Procuring Settlement—Jurisdiction of Equity—Accounting.—Where a decree settling the final account of the guardian of an incompetent person was procured by fraudulent concealment of moneys misappropriated by the guardian, and fraudulent misrepresentation to the court that he had made advances to the estate, equity has jurisdiction to afford relief and compel a full and just accounting.</p> <p>Id.—Pleading—Sufficiency of Complaint.—The complaint in equity is not uncertain as to whether the accounting was sought for money received while acting as guardian, or after his guardianship closed, where it clearly appears that the money alleged to have been fraudulently obtained came to his hands as guardian; and there is no misjoinder of causes of action where the facts alleged all relate to the transactions of the guardian in managing the estate, and in failing as such guardian to perform his duties in the particulars alleged.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William M. Abbott, and Charles A. Shurtleff, for Appellant.</p>

<p>Estates of Deceased Persons—Construction of Code—Estate of Widow—Common Property—Deed from Husband.—The provision of subdivision 9 of section 1386 of the Civil Code, to the effect that any property belonging to the estate of a deceased widow who left no kindred, which was the common property of herself and her deceased spouse, “while such spouse was living," shall go to the next of kin of such deceased spouse, as therein indicated, is to be construed to mean only such common property as was undisposed of at the time of the death of her husband, and not to include common property deeded by the husband to the wife, which became her separate property.</p> <p>Id.—Inheritance by Nieces.—Under the term of subdivision 9 of section 1386 of the Civil Code, the nieces of the deceased husband may inherit from the deceased widow the common property inherited by her from the deceased husband, notwithstanding there was no brother or sister of the deceased husband living at the date of the widow’s death.</p> <p>Id.—Charitable Bequests to Corporations—Reduction Pro Rata.— The nieces being legal heirs of the deceased widow, though she left no next of kin, charitable bequests to corporations should be reduced pro rata under section 1313 of the Civil Code, so as to reduce the aggregate thereof to one third.</p>

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

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Stanislaus County. L. W. Fulkerth, Judge. The facts are stated in the opinion of the court.

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

<p>Husband and Wife—Contract of Sale to Wife—Community Property — Void Deed of Wife — Assignment — Presumption. — The presumption of separate property arising under a conveyance to a married woman in favor of a bona fide purchaser from her, by the terms of section 164 of the Civil Code, has no application to a mere contract of sale in favor of a married woman; and a conveyance by her of the lot contracted for can at most only operate as an assignment of the contract, and is void where the payments made were from community funds. Where the grantee paid no part of the unpaid purchase money, and the residue thereof was wholly paid by the husband, after subsequent assignment of the contract by the wife to the husband, the husband is entitled to receive the conveyance of title from the vendor, or his heirs, to the exclusion of the wife’s grantee.</p> <p>Id.—Possession of Husband—Adverse Possession.—Where the husband has been continuously in possession of the purchased lot during all of the times mentioned in his complaint, the grantee of the wife could not have acquired title thereto under the wife’s deed by adverse possession.</p>

<p>Mechanic’s Lien—Judgment for Defendant—Order Granting New Trial—Appeal—Conflicting Evidence.—An order granting a new trial after judgment for defendant in an action to foreclose a mechanic’s lien will not be disturbed where the findings were based upon conflicting evidence, and the trial court could decide the question either way as to whether the plaintiff's contract was or was not fully performed.</p> <p>Id.—Review upon Appeal.—Upon appeal from an order granting a new trial on plaintiff’s motion, this court can only consider the questions raised and determined in the court below on the motion for a new trial, and cannot consider any errors of law committed at the trial which were excepted to by the defendant, nor will it consider any question which cannot affect the result of the appeal.</p>

<p>Criminal Law—Evidence—Deposition Taken at Preliminary. Examination-Omission op Reporter's Parentheses.—Where the defendant in a criminal case objected that a deposition offered to be read at the trial as having been taken at the preliminary examination was not the deposition taken thereat, because it contained .descriptive or explanatory parentheses interpolated by the reporter, the defendant cannot be heard to object that they were omitted from the reading by order of the court, it not appearing that they were of such a nature as to invalidate the deposition, and there being no pretense that the testimony of the witness was not correctly reported, and read to the jury.</p> <p>Id.—Certificate op Reporter—Presumption against Error.—Where the record does not affirmatively show that the deposition read, which was taken by question and answer, had not been transcribed and certified by the reporter and filed by him with the county clerk, it must be presumed against error that the deposition had been properly transcribed, certified, and filed.</p> <p>Id.—Diligent Search for Absent Witness—Discretion op Court.— Where the record shows that the absent witness whose deposition was read could not be found in the county after diligent search, and that' subpcenas had been issued for him to the sheriff of every county in the state, and that the sheriffs of forty-six counties had made returns that he could not be found therein, it cannot be said that the trial court abused its discretion in holding that due diligence had been used, and that the witness could not be found.</p> <p>Id.—Impeachment—Subsequent Aefidavit.—The witness whose deposition was read cannot be impeached by a subsequent affidavit taken by him after the taking of his deposition, in which he acknowledged that his testimony was not true in several material parts.</p>

<p>Condemnation op Land—Venue—Change op Place op Trial.—Under section 1243 of the Code of Civil Procedure, a special proceeding for the condemnation of land must be brought and tried in the superior court of the county in which the property is situated, unless transferred by the court to another county, as required or authorized by section 394 of the Code of Civil Procedure. The place of trial cannot be changed to the place of residence of the defendants.</p> <p>Id.—Construction op Code—Proviso.—The provisions of section 395 of the Code of Civil Procedure have no application to special proceedings; and the proviso added to section 394 of the same code, by the amendment of 1896 relative to the change of the place of trial of certain actions brought by a county or city, apply only to "actions” as defined in section 22 of the code, and not to "special proceedings” as defined in the following section.</p>

<p>Deed—Exception of Timber—Feb Simple—Damages—Injunction.— A deed of land, "with the exception of the timber of said land, which I reserve for my own use, ’ ’ does not merely reserve the right to remove the timber, but leaves the fee-simple title to the timber in the grantor, and he may maintain an action for damages for the cutting down of timber and to enjoin further destruction thereof.</p> <p>Id.—Construction of Exceptions and Reservations.—Exceptions and reservations in grants are to be interpreted in favor of the grantor, and words of inheritance are not necessary to a title of inheritance in that which is excepted.</p> <p>Id. — Action — Transfer of Interest — Continuance in Name of Plaintiff.—Where the interest of the plaintiff in an action has been transferred pending the litigation, it is not improper to continue the action in the plaintiff’s name, even though the suit is for an injunction.</p>

The facts are stated in the opinion of the court. ■ William Mattoon, W. H. Savage, and M. C. Hester, for Appellant. The payment to Hayford was no payment to appellant, without proof of his authority to represent her. (2 Greenleaf on Evidence, 6th ed., sec. 518.) The delivery of the check for the money did not constitute a payment, without express agreement on appellant’s part to receive such check as payment.

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of Sau Francisco. John Hunt, Judge. The facts are stated in the opinion of the court.

<p>Loan of Money fob Purchase of Cattle—Equitable Lien—Fraud—. Purchase with Trust Funds—Enforcement of Lien.—Where one of the defendants borrowed money from the plaintiff bank for the purpose of purchasing a band of cattle, falsely and fraudulently representing that the same could be immediately sold at a large profit, and promising to repay the money with a share in the profits, but only returned part thereof, upon a sale without profit, and fraudulently placed the money retained by him in a fiduciary capacity in the name of his wife, made a co-defendant, who, with knowledge of the facts, bought real estate in her own name from the trust fund, the plaintiff, by the terms of the contract, had an equitable lien upon the cattle purchased, and may enforce a lien against the property so purchased with his money.</p> <p>Id.—Action for Monet—Judgment—Lien not Affected.—The right to enforce the lien upon the property purchased with plaintiff’s money was not affected by an action brought by the lender against the borrower and the obtaining of judgment therefor against him.</p> <p>Id.—Discharge in Insolvency—Claim.—The right of action to enforce the lien against the property purchased by the wife cannot be affected by the discharge of the borrower in insolvency, and the filing of a claim by the lender against the insolvent estate, where such property was not treated as any part of his estate.</p> <p>Id.—Debt Created by Fraud—Trust Fund.—The debt having been created by fraud, the money arising from the proceeds of the sale which should have been returned, and was held in trust, could not be affected by the discharge of the borrower in insolvency; and the character of the original debt may be determined, notwithstanding the judgment recovered thereupon.</p>

<p>The facts are stated in the opinion of the court, and in the opinion rendered in case No. 2159, ante, p. 606.</p>

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

<p>Will—Specific Devise op Land—Deed—Encumbrance not Specified— Maxim.—Where land is specifically devised, and the same land is granted two days after the making of the will to the devisee and her husband, without any statement in the devise or deed as to an encumbrance on the land, the deed and devise should be construed together as indicating the intention of the testator that the land should be taken subject to the encumbrance of a mortgage thereon, the maxim being applicable, that he who takes the benefit must bear the burden.</p> <p>Id.—Covenant not Implied.—In a specific devise or deed of gift there is no implied covenant against encumbrances.</p> <p>Id.—Encumbrance not Chargeable to other Land Specifically Devised.—Whatever validity any deficiency arising after foreclosure of the mortgage may have as a claim against the estate, the grantee or devisee subject to the mortgage cannot claim exoneration therefrom by making the amount of the encumbrance a charge upon other lands specifically devised.</p>

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

<p>Ocean Fisheries—Public Bight—Prescription.—The right of fishery in the waters of the ocean, whether in the open sea or where the waters ebb and flow over tide-lands, is a public right, which may be exercised by any citizen, and is not, and cannot be, exclusive, or the subject of title by prescription, no matter by whom or for what length of time it may have been exercised.</p> <p>Id.—Forcible Exclusion of Plaintiff.—Sufficient reason appears for plaintiff to desist from an attempt to exercise the common right of fishery with the defendant in fishing-grounds used and occupied by the defendant, where the declarations of the defendant’s agent were such as would satisfy a reasonable man that further attempts to fish therein would be met and frustrated by force.</p> <p>Id.—Damages for Exclusion—Loss of Profits.—The plaintiff is entitled to introduce evidence upon the question of actual damages for its exclusion from such fishing-grounds, tending to show how many fish plaintiff could with reasonable probability have taken from the fishing-grounds in question, if plaintiff had not been excluded therefrom by the unlawful acts of the defendant, and to show the value of such fish and the profits which would reasonably have accrued to the plaintiff from the fish when canned.' The profits thus sought to be proved were not so remote, uncertain, prospective, or conjectural as to be beyond the range of legitimate damages.</p> <p>Id.—Punitive Damages—Intention of Defendant—Improper Exclusion of Evidence.—Upon the question of punitive damages, it was improper to exclude evidence offered by the defendant for the purpose of showing the intent and motive with which defendant did the acts complained of, and that they were not done maliciously, but with a bona fide belief in its asserted title to the fisheries in question, and in a bona fide attempt to protect what was believed to be its property. Such intention and motive could be properly shown by the officers and governing body of the defendant corporation, which was not precluded from giving such evidence because it had denied in its answer that it had committed the alleged acts.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Santa Clara County denying a motion for relief, under section 473 of the Code of Civil Procedure. M. H. Hyland, Judge. The facts are stated in the opinion of the court.

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

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

<p>Decree of Foreclosure—Appeal— Transfer of Interest—Death of Nominal Appellant—Substitution.—Where, pending an appeal from a decree of foreclosure, the mortgaged land was conveyed by the owner, and the appellant subsequently died, the transferee may be substituted in this court for the deceased appellant, whose estate has no interest in the outcome of the litigation. In general, -where practicable, the substitution should first be made in the lower court, and when the substitution is first obtained in this court, it should also be made in the superior court.</p>

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

The facts are stated in the opinion of the court. Maurice E. Power, Charles G. Lamberson, and John D. Pope, for Appellant. The court cannot enforce a penalty or forfeiture. (Civ. Code, sec. 3369; Keller v. Lewis, 53 Cal. 111, 118; McCormack v. Rossi, 70 Cal. 474.)

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

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

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

<p>Homestead—Void Mortgage by Wife—Conveyance prom Husband to Wipe.—A mortgage upon the homestead by the wife alone is void, and will not be validated by a subsequent dissolution of the marriage or termination of the homestead; and, being a nullity, is not affected by a subsequent conveyance of the homestead by the husband to the wife, and the title thus acquired by the wife subsequent to the mortgage cannot inure to the mortgagee as security for the debt.</p> <p>Id.—Pleading—Demurrer—Refusal to Answer—Equitable Defense. —If there are equitable considerations meriting the attention of the court, and sufficient to warrant the withholding from plaintiff of the decree which she seeks, those considerations must be presented by answer, and not by demurrer, when they do not' appear on the face of the complaint. Where the defendant, when his demurrer was overruled, refused to answer and allowed judgment to be taken against him, it cannot be objected upon appeal that equity will not aid the plaintiff in decreeing the mortgage to be void, without restoration of the consideration received by her.</p>

<p>Appeal—Motion to Direct Printing op Tbanscript.—Where an appeal is pending from an order directing a judgment to be entered nunc pro tunc as of a former date, and the bill of exceptions to that order has been settled and the transcript printed and filed, and that appeal will determine whether the ease is ended or whether an appeal from the judgment is premature, this court will not grant a motion to compel the clerk of the. superior court to print a transcript upon appeal from the judgment.</p>

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

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

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

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

<p>School Law—Warrant for Salary of Teacher—Mandamus to Superintendent.—Where the school trustees have drawn a warrant for the salary of a teacher, and the county superintendent refuses to issue a requisition upon it, mandamus will lie to compel its issuance.</p> <p>Id.—Appeal to State Superintendent.—Under section 1699 of the Political Code, the right of appeal to the state superintendent is limited to a ease where the school trustees have refused to issue a warrant.</p> <p>Id.—Employment of Teacher for a “Year.”—A contract of employment of a school teacher for a “year,” imports, in the absence of anything to the contrary, employment for a school year, beginning on the first day of July and ending on the last day of June.</p> <p>Id.—Contract op Employment—Yearly Salary—Miscalculation op Trustees—Teacher not Prejudiced.—Where the contract of 'employment was to teach for a year at a salary of one thousand dollars, without making provision for monthly payments, and the trustees, assuming that the school would last nine months, divided the salary into nine monthly payments, but the school in fact continued for only eight months, the teacher cannot be held responsible for the miscalculation of the trustees, and their error cannot deprive the teacher of the other ninth part of his salary, being the balance due on the yearly payment.</p> <p>Id.—Provisions op Code not Mandatory—Formal Defects in Warrant-Public Duty.—The provisions of section 1543 of the Political Code should not be considered as mandatory to defeat the teacher’s claim to the unpaid portion of his salary, for informalities or formal defects in the warrant over which the teacher had no control. When a public duty is imposed, and the statute requires it to be performed in a certain manner or within a certain time, or under specific conditions, its prescriptions may be regarded as directory only, when injustice or inconvenience would result to those having no control over the exercise of the duty, if the requirements were essential and imperative.</p>

<p>Contract—Sale of Minerals—Condition—Opinion of Good Title.— When a contract for the sale of all the petroleum, oil, naphtha, natural gas, asphaltum and other mineral substances in or upon the land described, was made subject, as to further payments of the purchase price, to a condition that no part of the purchase price other than a deposit paid, should in any event be demanded until an unqualified opinion of certain persons named, should be furnished in writing to the defendants, based upon examination of the records that the record title is vested in the estate of a certain decedent, or in the party of the first part, as executor, trustee or individually, free from encumbrances, if the opinion delivered was not such as was called for by the agreement, the defendants could not be called upon to make any further payment.</p> <p>Id.—Distribution—Minor Heirs—Quieting Title.—Where it appears from the opinion given that distribution of the estate had been made so that the- estate was no longer interested therein, and that the executrix as distributee had only an undivided interest therein, and that part of it was vested in minors so that a clear title could not be given, the defendants were not required by the terms of the contract to make further payment, and the defendants not being in default, the plaintiffs were not entitled to a decree quieting their title against the contract.</p> <p>Id.—Possession of Plaintiffs—Contract not Abandoned.—The possession by the vendee and his assigns of the minerals not being an exclusive possession, the merely allowing of the possession of plaintiffs for thirteen days prior to the commencement of the action, does not show an abandonment of the contract, it being undisputed that the defendants expressly refused to waive their rights, and offered to make full payment, if they could get a good title.</p> <p>Id.—Cross-Complaint—Recovery op Money Paid.—A eross-eomplaint for recovery back of the money paid cannot be maintained, in the absence of a rescission by mutual consent, unless the vendor is placed in default, by the vendees’ performing or offering to perform their part of the agreement, by payment or offer of payment in full of the balance of the consideration.</p>

<p>Water-Rights—Appropriation—Findings—Insufficiency of Evidence —Appeal—Law of Case.—Where, upon former appeals, the water-right appropriated by the predecessor of the defendants was held limited to so much of the water of the stream as was reasonably necessary for the use of his tract when the action was commenced, and findings that all of the waters diverted by him were necessary for use on the tract, were held unsupported by the evidence, the decision upon the former appeals is the law of the case, where the evidence is the same upon a third trial.</p> <p>Id.—Extent of Appropriation—Expressions of Opinion.—Expressions .of opinion on the former appeals as to the precise quantity of water effectively appropriated by the defendants’ predecessor, are not to be regarded as the law of the ease; but the law of the ease is limited to the principles of law stated as governing the appropriation, and to the sufficiency of the evidence to justify the findings.</p> <p>Id.—Stipulated Compromise—Finding Unsupported.—A stipulation compromising certain water-rights between the plaintiffs and part of the defendants on a portion of plaintiffs’ tract, whereby the plaintiffs granted part of their water-rights thereon to them, and received in return a clear title to the remainder, and reserved all rights as against the other defendants, cannot support a finding that the plaintiffs abandoned all their water-rights, property and interests, on that portion of their tract, and had conveyed the same to the defendants specified.</p> <p>Id.—Water-Eights oe Plaintiffs—Bip arlan Ownership—Omission in Findings.—Whether the water-rights of the plaintiffs are those of appropriators or of riparian owners, they are equally injured by the defendants’ diversion of water which they are entitled to use. ■ Where their riparian ownership is expressly alleged, assuming the denial to be sufficient, the failure of the court to find thereupon must, in connection with the findings as to defendants’ appropriation of the water, be regarded as sufficient ground for reversal.</p> <p>Id.—Appropriation—Point of Diversion—Homestead Land—Mistake. —Where the point of diversion of the appropriation made by the predecessor in interest of the plaintiffs was upon the homestead land of another person, owing to a mistake of the location of the boundary of their respective lands, the question being one of appropriation upon the non-riparian lands of plaintiffs’ predecessor ’ as against a diversion of water above the lands of both of the parties, by defendants' predecessor, the defendants are not in a position to attack the plaintiffs’ appropriation on the ground of an innocent mistake which in no way affects them.</p> <p>Id.—Supplemental Complaint—Damages for Diversion—Misjoinder of Parties.—When the plaintiffs, whose rights were acquired by separate grants of the lands of the locator of the water-rights under whom they severally claim, filed a supplemental complaint in which they claimed to recover damages for unlawful diversion of water by the defendants, with whom a compromise had been stipulated, as respects such damages, there is a misjoinder of parties plaintiff, who have no joint or common interest in the damages thus sought to be recovered.</p> <p>Id.—Judgment upon Supplemental Pleadings.—Where both the plaintiffs and the defendants, who were parties to the stipulated compromise, prayed in the supplemental pleadings for judgment pursuant to the stipulation, it seems that judgment should be entered pursuant thereto as prayed for, if it is not made to appear that the interests of defendants not joining in the stipulation would be injuriously affected by such judgment.</p>

<p>Appeal—Beview—Insufficient Bill of Exceptions.—A bill of exceptions which contains -no specifications of insufficiency of the evidence to justify the findings, and shows no' errors of law, cannot-be considered upon appeal from an order denying a new trial, nor on an appeal from the judgment which is taken more than sixty days after its entry; and the review upon such appeal must be confined to the question whether the judgment of the lower court is sustained by its findings.</p> <p>Deed to Bank—General Security for Future Debts—Guaranty— Benewal op Indorsed Notes—Belease op Indorsers—Foreclosure.—A deed given to a banking company by a stockholder of a corporation as general security for all amounts which should thereafter become due to it from the corporation, and another company named, does not create a guaranty, or personal liability, and does not depend upon any particular evidence of indebtedness, but creates a general continuing liability of the land as security for all amounts’ thereafter to become due to the bank from the parties named in whatever form. The liability of the land as such security is not affected by the renewal of indorsed notes given at the time of the conveyance, upon which renewal the original indorsers were relieved from liability; and the general security may be foreclosed for the balance due upon the renewed notes.</p> <p>Id.—Separate and Independent Instruments.—The conveyance and the indorsed notes were separate and independent instruments, having no relation to each other, and governed by distinct rules of law.</p> <p>Id.—Suretyship—Construction op Contract.—The general rule that a surety cannot be held beyond the express terms of his contract, applies only to the extent that no implication shall be indulged in to impose a burden not clearly inferable from the language of the contract, but does not apply so as to hold that the contract shall not be reasonably interpreted, as other contracts are.</p> <p>Id.—Purpose of Continuing Security—Practical Construction.— Where the evident purpose of the conveyance in question, construed with other securities taken from other stockholders to the same effect, was to establish a credit at the bank for the companies named, under such terms of continuing liability as would extend such credit and fully protect the bank, and the language used was •broad enough to express such purpose, and the action of the bank and of the grantor of the conveyance shows that the practical construction placed upon it was that it was a continuing liability to secure all amounts to become due, -and all indebtedness contracted by the companies, in whatever form, it must be so held.</p> <p>I'd.—Effect of Benewal of Notes—Lien of Mortgage—Applicability of Bule.—The general rule that the renewal of notes does not amount to payment, that a mortgage secures the debt, and not any particular evidence of it, and that its lien is not affected by a change of the note, or giving a different instrument as an evidence of the debt, or by any extension of time, and can only be discharged by payment or an express release,—is not limited to a case where the mortgage secures the mortgagor’s own debt, but applies equally where the mortgage is to secure the debt of a third party, and its language imports that it is given to protect all amounts due, without limitation as to form, and provides only for a release of the security on payment.</p>

<p>WRIT OF PROHIBITION to the Superior Court of the City and County of San Francisco. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Santa Clara County. A. L. Rhodes, Judge. The facts are stated in the opinion of the court.