Volume 139 — California Reports

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

<p>. Election Contest—Prohibition.—A writ of prohibition will not lie to prevent. the superior court from determining an election contest, whether the court has or has not lost jurisdiction of the -cause. If it has not lost jurisdiction, prohibition will not lie, and if it has lost jurisdiction, the petitioner cannot be harassed by any judgment rendered therein, and prohibition will not issue where there can be no injury to be remedied.</p>

<p>Execution—Void Sale—" Irregularity ”—Revival op Judgment in Favor op Purchaser.—A sale made by the sheriff on an order of the court, and under a void execution, is extremely irregular, and is void "in consequence of irregularity in the proceedings concerning the sale,” within the meaning of section 708 of the Code of Civil Procedure, providing for a revival of the judgment in favor of the purchaser or his successor in interest, if he fails to recover-possession in consequence of such irregularity.</p> <p>Id.—Construction op Code—Remedial Provision.—Section 708 of the Code of Civil Procedure, being remedial in its character, should be liberally construed to give a remedy as broad as that to be obtained by the corresponding action in equity, which extends to cases where both the execution and the sale under it are held to be void.</p> <p>Id.—Failure to Recover Possession—Action to Quiet Title—Statute op Limitations.—The revival of the judgment in favor of the purchaser under section 708 of the Code of Civil Procedure being conditioned upon the failure "to recover possession in consequence of irregularity in the proceedings concerning the sale,” the statute of limitations, under section 343 of the Code of Civil Procedure, which is the only statute applicable to the ease, does not begin to run until such failure; and where the motion to revive the judgment was made within a few days after the filing of the remittitur on appeal in an action to quiet title, in which the execution and sale were adjudged void, it cannot be barred by the statute.</p>

<p>APPEAL from a judgment and order of the Superior Court of Santa Clara County affirming the probate of a will and denying a petition for revocation thereof. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to strike out a bill of exceptions upon an appeal from a judgment and order of the Superior Court of Santa Clara County affirming the probate of a will and denying a petition for revocation thereof. M. H. Hyland, Judge. The facts are stated in the opinion of the court.

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

<p>Distribution of Water—Public Use—Ownership—Injunction—Insufficient Complaint.—Where one claiming to be a beneficiary of a public use of water for distribution, asks the court to protect him in its enjoyment by injunction, his complaint does not state a cause' of action, if it does not aver the ownership or control of water by the defendant which is the subject of the use.</p> <p>Id.—Construction of Pleading—Essential Fact not Alleged—NonExistence.—The pleading of the complainant must be construed most strongly against the pleader; and if a fact necessary to his cause of action be not alleged, it must be taken as having no existence.</p> <p>Id.—Defects in Pleading—Finding ■ Against Inference.—The rule that defects in a pleading consisting of facts, appearing by implication only, may be deemed cured by verdict or findings necessarily implying their existence, cannot apply where the finding is contrary to the inference or implication.</p> <p>Id. —Findings—Conclusion not Supported.—The conclusion by the court that the plaintiff was entitled to an injunction cannot be supported either upon a theory of findings entirely outside of the issues tendered by the complaint as to the ownership by plaintiff of part of the waters of the creek by appropriation and use, as appurtenant to his land, or upon the theory of findings that he was the beneficiary of a public use, entitled to the water for which he paid the rates, as alleged in the complaint.</p> <p>Id.—Public Use of Water—Construction of Constitution.—The meaning of section 1 of article XIV of the constitution, which declares that “the use of all water appropriated for sale, rental, or distribution,” is a public use, cannot be so broadened as to cover the proposition that all water which is distributed among a number of persons is from that fact alone to be considered as devoted to a public use.</p> <p>Id.—Eights of Beneficiaries under Public Use.—In the ease of a public use the beneficiaries do not possess rights to the waters which are, in the ordinary sense, private property. A public use must be for the general public, or some "portion of it, in common, and not a use by or for particular individuals, or for the benefit of certain estates. The right of an individual to a public use of water is in the nature of a public right, possessed by reason of his status as a person of the class for whose benefit the water is appropriated or dedicated.</p> <p>Id.—Private Ownership—Joint Diversion—Common Conduit.—Where a number of persons owning land are each entitled to take water from a common source, for use upon their respective tracts, the water right of each is individual and several, and must be con- . sidered as private property, and not the subject of public use; and where they make joint diversion in a common conduit, with common funds, they will be the owners in common of the diversion works and conduit, but their respective water-rights will remain private property.</p> <p>Id.—Corporation—Agency—Private Use of Water.—If the persons owning such respective water-rights form a corporation, and delegate to it the work of diversion and distribution, and of constructing and repairing dams and conduits, reserving their several rights in the water, they do not thereby dedicate the water to public use; but the corporation becomes merely their agent for serving their several interests by a common system of works, and the water remains in individual ownership and private use, as before,</p>

<p>Appeal—Dismissal—Failure to File Points in Time—Bulbs op Court.—An appeal will be dismissed for failure of the appellant to file his points and authorities within the time required by the rules of this court. A motion therefor must be determined by the facts existing at the time the notice of motion was given; and the right of the respondent to have the appeal dismissed under the rules cannot be affected or destroyed by any subsequent filing and service of the appellant’s points and authorities.</p>

<p>The facts are' stated in the opinion of the court rendered in Department and in Bank.</p>

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

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

<p>Criminal Law—Impanelment op Jury—Departments op Court.—The-departments of the superior court of a single county, though theoretically one court, are practically as distinct, for the trial of causes, as other superior courts; and it is prejudicial error for the judge of one department engaged in the trial of a criminal case, having its own regular panel of jurors present before it, to place in the jury-box the names of jurors regularly drawn for another department, and to impanel the jury therefrom.</p> <p>Id.—Fairness op Jurors—Compliance with Statute.—The fact that the jurors impaneled from another department were fair and impartial, is immaterial. The provisions of the statute for the im- . panelment of jurors must be substantially complied with.</p> <p>Id.—Instruction—Credibility op Witnesses.—An improper instruction to the jury as to the credibility of witnesses, which merely tells the jurors to do' that which they evidently would do without, being told, is not prejudicial error.</p> <p>Id.—Charge op Murder—Dependant as Witness—Comments op District Attorney.—Where the defendant testified in his own behalf,, and went fully into the details of the crime of murder charged-against him, claiming that the- killing was in self-defense, it was-proper for the district attorney in his argument to comment upon his failure to deny statements testified by other witnesses to have-been made by him inconsistent with his testimony.</p>

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

<p>APPEAL from an order of the Superior Court of Santa Clara County setting apart the estate of a deceased person to his widow. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Confirmation of Sale—Motion for New Trial—Review of Objections.—Where one of two surviving executors of the will of a decedent presented his return and account of sale of real estate, and asked confirmation thereof, while the other executor filed his objection to the confirmation on the ground that the purchaser was already the owner, by reason of certain facts of which no evidence was adduced, whereupon the purchaser asked that the sale be not confirmed, and that further proceedings be dismissed, an order refusing confirmation is not reviewable, on motion for a new trial at the instance of the purchaser, for want of an issue of fact made by him upon the return of sale, or evidence adduced thereon.</p> <p>Id.—Inapplicability op Review.—The procedure of a motion for a new trial is not applicable, and cannot be made applicable to a probate order refusing to confirm a sale. [Per McFarland, J., and Henshaw, J.]</p> <p>Id.—Extension op Time for Statement—Power of Judge.—The judge of the court has no authority to extend time for the preparation and service of a proposed statement on motion for new trial more than thirty days in all, without consent of the adverse party or his waiver of objection thereto.</p>

<p>MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco denying a new 'trial. Frank IT. Kerrigan, Judge,</p> <p>The facts are stated in the opinion of the court.</p> <p>Arthur H. Barendt, and Charles E. Naylor, for Appellant.</p>

The facts are stated in the opinion of the court and of Commissioner Gray, and in the case of Stone v. Bancroft, 112 Cal. 542. Edward J. McCutchen, Page, McCutchen & Eells, and Page, McCutchen, Harding & Knight, for Appellant.

<p>DISMISSAL of appeal from an order of the Superior Court of Merced County denying a petition to be appointed administrator of the.estate of a deceased person. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—'Wills—Lapse of Legacy—Separation for Scandal—Death of Legatee.—A legacy in the will of. a deceased person to a legatee named, avowedly as a reparation for injury done to such legatee by a scandalous charge, lapses upon the death of the legatee prior to the death of the testator. The legacy cannot be deemed a “contract legacy”; and any possible cause of action for damages for the scandal would not survive the death of the legatee.</p> <p>Id.—Provision for Lapse of Legacy—Construction of Code.—Under section 1313 of' the Civil Code, a testamentary disposition to a legatee not a relative fails by his death prior to that of the testator, unless an intention appears to substitute some other in his place; and this special provision is not affected by the general rules of the Civil Code for the interpretation of wills.</p>

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

<p>Tide-Lands—Adverse Possession—Permissive Use for Storage-Payment of Taxes.—A title by prescription cannot be acquired as against a patentee of tide-lands by a permissive use of the lands for storage of logs by mill-owners, under and in subordination to the legal title, nor by subsequent adverse possession, required by statute to be accompanied by the payment of all taxes assessed on the land, where there was a failure to pay such taxes for one year out of the five required to constitute the prescriptive right.</p> <p>Id.—Validity of Tax on Tide-Lands—Description in Patent and Assessment—Fractional Subdivisions—Presumptions—Burden of Proof.—An assessment of tide-lands by the fractional subdivision of a quarter-section, agreeing with, the description in the patent, must be presumed to describe the whole of the fractional subdivision, in conformity with the survey of the public lands by the general government, and to include only the land patented. The burden of proof is on the claimants of adverse possession, to show that the description was insufficient to identify the land.</p> <p>Id.—Date of Assessment—Listing of Property—Assessment-Roll— Parol Evidence.—The date of the listing of property by the taxpayer, and of the valuation of real property, sworn to by the owner before the assessor, cannot be taken as the date of the assessment. The sole and exclusive evidence of the date of the assessment of real property is the date when the assessment-roll was completed and certified by the assessor; and the parol evidence of the assessor is not admissible to show an earlier date of such assessment.</p> <p>Id.—Adverse Possession under Deed—Conveyance from Copartners —Refusal of Instructions.—Where a partnership was in possession of the property in dispute, in subordination to the legal title, a conveyance by the other partners to one of their number, describing such property, though it might indicate an intention to begin the building of an adverse claim, did not change the. character of the possession of the grantee to that of a party entering under a claim - of title founded upon a written instrument. The deed only had the effect to make the grantee the owner of the whole of the partnership property. Instructions based upon the theory that the character of the possession was changed thereby were properly refused.</p> <p>Id.—Evidence—Customary Use of Booms with Mills.—Where there was no question that the tide-land in dispute was used with the mill of defendants and their successors in such a way that if they were the owners of such land, or had acquired title thereto by adverse possession, it would have been appurtenant to the mill, it was not error to exclude evidence that mills are usually conducted with booms, and that their use is customary.</p> <p>Id.—Errors not Prejudicial.—Errors which appear from the record not to have been prejudicial to the appellants are not ground of reversal.</p>

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

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

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

<p>Criminal Law—Libel Per Se—Information.—Where the information • charges a libel per se, that the defendant had been guilty of theft, and had been unjust and dishonest in his business, it need not allege that the libelous matter tended to impeach the honesty, integrity, virtue, or reputation of the person libeled.</p> <p>Id.—Advisory Instructions—Province of Jury.—Upon a prosecution for criminal libel, the jury are the judges both of the law and of the fact, and the instructions of the court are only advisory; yet it is proper for the court to inform them as to the rules of evidence, and to enlighten them as to the law applicable to' the ease, and to tell them that they should go contrary to the instructions of the court only when they have a deep and confident conviction that the court is wrong and that they are right.</p> <p>Id.—Evidence—Falsity of Books—Omission of Credits—Bebuttal. — Where the charge was made that the defendant “kept false books,” evidence was admissible to show that he repeatedly omitted to give credits, -which were corrected at the instance of witnesses; and evidence is admissible, in rebuttal, to show that he made mistakes against himself, and that he corrected a mistake against a witness in advance of its discovery by him.</p>

<p>The facts are stated in the opinion of the court.</p> <p>S. V. Costello, J. J. Barrett, and John O’Gara, for Appellant.</p> <p>The evidence shows that the deceased was too childish and mentally weak to appreciate the nature or consequences of the act of making a will. There is therefore an absence of testamentary capacity. (Mannatt v. Scott, 106 Iowa, 203;1 Hall v. Perry, 87 Me. 569;2 Delafield v. Parish, 25 N. Y. 9; Or-dronaux’s Judicial Aspects of Insanity, p. 363; Redfield on Wills, pp. 97, 124.) There is every indication ó£ the presence of senile dementia. (Bell’s Taylor’s Medical Jurisprudence, pp. 710-741.) John Kane, being trusted with the management of the affairs of the deceased, stood in a confidential relation to him, and the burden was upon him to show the absence of Undue influence of a will in his favor. (Barkman v. Richards, (N. J.), 49 Atl. Rep. 831.) The evidence is clearly insufficient to sustain the special verdict that John Kane did not exert undue influence upon Michael Keegan. (Greenwood v. Clyne, 7 Or. 17; Tyler v. Gardner, 35 N. Y. 559; Barkman v. Richards, (N. J.), 49 Atl. Rep. 831; Haydock v. Haydock, 33 N. J. Eq. 494; Matter of Gallup, 43 App. Div. (N. Y.) 437; In re Barney’s Will,70 Vt. 352.)</p>

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

<p>MARY ANN BRUNINGS, Restored to Capacity (substitute for Mary Brunings, an Insane Person, by E. Myron Wolf, her Guardian), and W. L. PIERCE, Respondents, v. HULDA R. TOWNSEND, Appellant.</p> <p>Order to Torn Over Property—Summary Proceeding—Discretion op Court.—A summary proceeding to order money or other property delivered without an action or regular trial of issues joined is not favored, and can be justified only under peculiar circumstances, and the refusal to allow it in a particular case is within the discretion of the court, and will not be disturbed if the discretion is not abused. Id.—Contingent Interest op Dependant.—The fact that the defendant in an action, who asks for a summary order to turn over money, has a contingent interest in such part of the money, if any, as may remain after the death of the plaintiff, if occurring prior to that of the defendant, cannot justify the summary remedy.</p>

<p>Unlawful Detainer—Breach of Covenants—Satisfaction of Judgment-Setting Aside Void Order—Construction of Code.—Where an action of unlawful detainer is brought both for non-payment of rent and for breach of other covenants of the lease, and a verdict and judgment is rendered upon all grounds alleged for trebled rents, for costs, and for the recovery of the demised premises, and forfeiture of the unexpired leasehold, the court has no power within five days after judgment, under section 1174 of the Code of Civil Procedure, to satisfy the judgment upon payment of rents, interest, and costs, and to restore the defendant to his leasehold estate. Such power only exists where the judgment is for non-payment of rent only, and an ex parte order entering satisfaction of a judgment founded upon breaches of other covenants also is void, and should be set aside upon proper application.</p> <p>Id.—Appeal from Vacating Order—Stay of Execution.—An appeal from an order setting aside the satisfaction of judgment does not restore the entry of satisfaction, nor preclude the execution of the judgment pending the appeal at sole peril of its result if there is no direction by the trial judge for a stay of proceedings thereon pending the appeal, and where no undertaking has been given to stay the execution. Execution will not be stayed by writ of supersedeas, mandamus, or prohibition from this court, in the absence of a direction from the trial judge.</p>

<p>School Law—Power op Board op Education—Reduction op Classes— Retirement op Teacher.—The board of education of the city and county of San Francisco has power to consolidate classes or to discontinue a school or class, in the interests of economy, or for other good and sufficient reason, and to determine what teacher in such event shall be retired and placed upon the unassigned list of teachers of the same grade of certificate, without pay while so retired.</p>

<p>Estates of Deceased Persons—Homestead—Separate Estate—Family Allowance—Charge upon Remainder.—Where a homestead was set apart to the widow out of the separate estate of her deceased husband during widowhood, the interest of his heirs in remainder is liable for debts against his estate, and may be ordered sold to pay a family allowance made in favor of the widow, which is a charge against the estate.</p> <p>Id.—Construction of Code—Distribution.—Section 1468 of the Civil Code, providing that the title to a homestead set apart out of the separate property of the deceased husband shall vest in his heirs to the exclusion of devisees named in the will, is not designed to effect a statutory distribution of the estate to the exclusion of the claims of creditors,</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. W. Foote, Edgar D. Peixotto, and Frank J. Murphy, for Appellant.</p> <p>U. S. Webb, Attorney-General, and C. N. Post, Assistant Attorney-General, Lewis F. Byington, District Attorney, and J. Charles Jones, for Respondent.</p>

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

<p>Ejectment—Trial—Proposed Amendment of Answer—Misjoinder of Plaintiffs—Discretion.—A proposed amendment to an answer in an action of ejectment during the progress of the trial so as to set up a plea of misjoinder of parties plaintiff does not affect the merits of the controversy, and where no good reason appears why the application was not made earlier it cannot be said that the court abused its discretion in refusing to allow the amendment.</p> <p>Id.—Possession of Public Land—Usage—Instruction.—Where the title to the land in dispute, consisting of a dry river-bed and part of an island, was in the state, and the controversy turned upon prior possession, it was proper to instruct the jury that in determining whether the land in controversy was occupied and used for purposes for which it was adapted by the plaintiffs, they may consider the manner in which the owners of land of like character in the same neighborhood commonly occupy and use such lands.</p> <p>Id.—Other Instructions not in Becord—Presumed Qualification of Instruction.—Where other instructions are referred to in the transcript which are not embodied in the record, if it should be conceded that an instruction complained of should have been qualified, it will be considered that it may have been properly qualified by the other instructions, which should be taken together with it as a whole, so as to render it not erroneous.</p> <p>Id.—Acts of Possession of Biver-Bed.—Acts of possession, consisting of clearing, cultivation of parts suitable therefor, pasturage of parts not fit for cultivation, upon which grass and clover grew, taking and selling gravel from parts suitable therefor, selling timber and logs lodged by winter floods, renting the river-bar and the adjacent river for fishing purposes, and inclosure of the whole tract by fences and natural barriers sufficient for the purpose of turning stock, are a sufficient compliance with the rules of possession of a dry riverbed, according to its situation and nature.</p>

<p>Obdeb Granting New Trial—Discretion—Review upon Appeal.— Where there is some evidence to support the plaintiff’s cause of action, and affidavits of newly discovered evidence were presented by him, the trial court has discretion to grant a new trial to the plaintiff, and its order will not be disturbed upon appeal if no abuse of discretion appears.</p> <p>Id.—Discretion op Succeeding Judge.—Under the law,’ a succeeding judge stands in the place of his predecessor and has all his rights and powers, and his discretion in granting a new trial in a case tried by his predecessor will not be disturbed, if not abused.</p>

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

<p>Municipal. Ordinance—Police Power—Regulation of Gas-Works.— A municipal ordinance making it unlawful to erect or maintain gasworks, of to store gas, except within certain defined limits, is a proper exercise of police power, and not violative of the fourteenth amendment to the federal constitution.</p> <p>Id,—Scope of Police Power.—The police power is not restricted to the regulation only of such interferences with the public health,-and safety as come strictly within the common-law definition of a “nuisance." Within the reasonable scope of the police power, the legislative body is the exclusive'judge, and it cannot be said judicially that volatile, inflammable, explosive, and bad-smelling gas is beyond the scope of that power.</p> <p>Id.—Motives of Legislative- Body—Demurrer to Complaint.—The motives of the municipal legislature' which passed the ordinance cannot be considered in a judicial proceeding in which its validity is involved, and an averment of the complaint that the ordinance was adopted, not for the purpose of protecting the public interests, but for the purpose of protecting and favoring another gas company -named, is immaterial upon demurrer to the complaint.</p> <p>Id.—Lawful Commencement of Works—Expenditure—Building Permit—Change of Limits—City not Estopped.—The fact that the plaintiff had lawfully commenced its work by purchasing land for a site within the limits allowed by the original ordinance, and had expended money in laying a foundation, and had entered into contracts for the erection of its works, and had secured a building permit from the fire commissioners in pursuance of fire and building ordinances, cannot estop the city from the further exercise of its police power to change the'limits so as to make the erection and maintenance of such gas-works unlawful where begun and existing within the changed limits.</p>

<p>Ejectment—"Vendor and Purchaser—Default of Purchaser—Demand before Suit—Evidence—Nonsuit.—In an action of ejectment brought by a vendor for default of the purchaser under a provision in the contract, no evidence of a written or formal demand for possession of the property before suit is essential. It is sufficient to prevent a nonsuit that there is some evidence of a conversation of the vendor’s agent with the purchaser, indicating that he must make the required payment or deliver up the property.</p> <p>Id.—Assignment by Purchaser—Absence of Notice—Demand not .Required.—"Where the purchaser made an assignment of his interest in the contract .of sale, and the vendor had no notice of such assignment, no demand upon the assignee, who was not a party to the contract, need be made before joining such assignee as a party co-defendant with the purchaser in an action of ejectment.</p> <p>Id.—Maturity of Cause of Action—Default in Installment. — Where the contract provided that, “should default be made in any of the said payments, the property shall revert back, with all the improvements made,” to the vendor, the vendor may bring ejectment upon demand made after any default, and is not required to wait until the final payment is due.</p> <p>Id.—Time of Essence of Contract—Mining Property—Reverter.—No particular form of words is required to make time of the essence of the contract; and where the property contracted for is mining property, having a fluctuating value, a provision that it shall revert back to the vendor in case of any default in payment, makes the time of payment of any installment of the essence of the contract.</p> <p>Id.—Rescission and Restoration not Required.—Under the terms of such contract, it was not necessary for the vendor, before bringing the action of ejectment, to rescind the contract, or to offer to repay the installments paid, as a prerequisite to maintaining the action.</p> <p>Id.—Defense of Fraud—Conflicting Evidence—Support of Findings.—Where the defendants pleaded as a defense fraudulent and false representations of the vendor’s agent, inducing the contract of purchase, and the evidence is conflicting as to whether such representations were made, findings that they were not made will be sustained.</p> <p>Id.—Evidence—Hearsay—Ruling without Injury.—Evidence that the purchaser communicated to his assignee the representation alleged to have been made by plaintiff’s agent, was properly excluded as hearsay; and where the court found, upon sufficient evidence, that no such representations were in fact made, their exclusion as evidence in favor of the assignee was without injury.</p> <p>Id.—Opinion Evidence—Statement of Fact.—Where the vendor’s agent had testified fully and specifically upon the matter of alleged false representations, it was not' error to ask him, generally, in conclusion, whether he had made any false representations as to the value of the mine. His answer in the negative was not the expression of an opinion, but the statement of a fact.</p> <p>Id.—Omission in Findings—Matter Relative to Injunction.—An omission in the findings in the action of ejectment, as to matter relative to an injunction prayed for, is not material in relation to the recovery of possession.</p> <p>Id.—Appeal from New Trial Order—Review—Form of Judgment.— Upon appeal from an order denying a new trial, the form of the judgment and matter pertaining to the relief to be accorded cannot be reviewed or considered.</p>

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

<p>Estates op Deceased Persons—Contest op Wipe’s Will—Bequest to Physician—Will op Husband—Support op Findings.—Where the will of a wife bequeathed her whole estate to the physician who attended her during her last illness, and was contested by the president of a home for incurables, to whom her dying husband had bequeathed his whole estate, and it appeared that neither of them had heirs, and the wife had provided for the support of her husband during life at said home, and for his interment; and the court found, upon sufficient evidence, that the wife was mentally competent when she made her will, and that it was executed freely and voluntarily, and without restraint or undue influence of the physician, the findings in his favor as proponent of the will must be sustained.</p> <p>Id.—Bight op Legatee op Husband to Contest Wipe’s Will—Query. —The question whether the right of the husband to contest the will of his wife is personal, and cannot pass by assignment or testamentary transfer to his legatee, is stated as a query, but not determined.</p> <p>Id.—Credibility op Witnesses—Province op Judge.—Whether the evidence is sufficient to sustain a will must in all cases mainly depend upon the credibility of the witnesses by whom the testimony is offered, and how far credibility should be given to their testimony is to be determined solely by the judge who heard it, and his judgment thereupon is conclusive upon this court.</p> <p>Id.—Confidential Belation op Physician and Patient—Burden of Proof—Scrutiny op Court.—Though the confidential relation between physician and patient excites? the suspicion and jealous scrutiny of the court, and the burden of proof is cast upon the physician to satisfy the judge that such suspicion was unfounded, and to show that the will was the free and voluntary act of the patient, yet where it clearly appears that the patient was of sound mind, and acted freely and voluntarily, the will is valid, notwithstanding such relation.</p> <p>Id.—Independent Advice not Bequired.—Where it appears that the bequest to the physician was at the voluntary suggestion of the patient, and the attorney who drew the will was selected by the proponent at her suggestion, and she fully comprehended the nature and effect of the transaction, it was not necessary to show that she had other independent advice, which she was not prevented from seeking.</p> <p>Id.—Order op Physician—Admission op Visitors—Hearsay—Preliminary Evidence.—It was not error for the court to strike out the evidence of a witness as to an order of the physician not to admit visitors, where such evidence appeared to be merely hearsay; and it being a necessary preliminary to show an order of the physician, it was not error to exclude evidence of the same witness as to whether all persons who called were admitted to see the patient.</p>

<p>APPLICATION to be discharged on writ of habeas corpus.</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>Municipal Ordinances—Police Power—Case Aeeirmed.—Municipal ordinances confining the erection and maintenance of gas-works within defined limits, and changing such limits, held valid ahd enforceable under the police power, on the authority of Dobbins v. City of Dos Angeles, ante, p. 179.</p>

<p>Municipal Ordinances—Police Power—Case Aeeirmed.—Municipal ordinances confining the erection and maintenance of gas-works within defined limits, and changing such limits, held valid ahd enforceable under the police power, on the authority of Dobbins v. City of Dos Angeles, ante, p. 179.</p>

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

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

The facts are stated in the opinion of the court. Otto Irving Wise, Marcus Rosenthal, Crittenden Thornton, and J. F. Riley, for Appellant. The assignment of the lien without a transfer of the debt was a nullity in law. (Polhemus v. Trainer, 30 Cal. 685; Peters v. Jamestown Box Co., 5 Cal. 334;1 Hyde v. Mangan, 88 Cal. 319; Jones on Pledges, secs. 418, 419; Van Ewan v. Stanchfield, 13 Minn., 75.) A lien is not assignable unless by the express language of the statute.

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

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

MOTION to dismiss an appeal from an order of the Superior Court of Alameda County settling the account of an administrator and directing him to pay over money. John Ellsworth, Judge. The facts are stated in the opinion of the court.

<p>Libel—Excessive Verdict—Presumption—Review upon Appeal.—The law presumes that a verdict for damages awarded in an action for libel, where the charge was untrue, not privileged, and libelous per se, was the result of full and careful deliberation, and prompted by fair and just motives, and did not exceed the wide discretion left to the jury as to just compensation; and where the trial judge, who has heard all the evidence, has refused to disturb the verdict on motion for a new trial, made on the ground that it was excessive, this court will not interfere with the verdict, if the sum awarded is not so grossly excessive as to shock the moral sense and raise a reasonable presumption that the jury was under the influence of passion or prejudice.</p> <p>Id.—Liability of Proprietor of Newspaper.—The proprietor of a newspaper in which a libel is published, though he has no knowledge of the publication at the time, is as responsible for it as he would have been if it had been done by him personally; and it is no defense thereto that it was published in his absence, by a competent employee.</p> <p>Id.—Actual and Presumed Malice—Refusal of Instruction.—An instruction requested by the defendant, which is predicated upon actual malice alone, and did not include the presumed malice, the existence of which would as effectually, entitle the plaintiff to damages as if actual malice was found, was properly refused.</p>

<p>Habeas Corpus—Accused Person at Large—Voluntary and Nominal Custody—Dismissal.—A person accused of violating an ordinance, who had been allowed to go at large on his own recognizance, will not be permitted to test the legality of his imprisonment upon writ of habeas corpus, where it appears that his custody was invited and voluntarily submitted to before trial for that purpose only, without any actual imprisonment or restraint, and his nominal imprisonment remained such only so long as was necessary to file the petition and procure the order for the writ. In such ease the proceeding upon the writ will be dismissed.</p>

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

<p>Action by Wife to Cancel Note and Mortgage—Joint Note for Outlawed Debt of Husband—Want of Consideration—Protection of Purchaser.—An action cannot be maintained by a wife to cancel her note and mortgage for want of consideration, in that it was given for an outlawed debt of her husband, with whom she joined in the execution of a negotiable note, which the mortgage secured, where the defendant was a bona fide purchaser of the joint note and the mortgage before maturity, in the regular course of business,- without notice of any defense thereto on the part of the wife.</p> <p>Id.—Constructive Notice to Bank as Purchaser—Action of President as Payee.—The bank, as purchaser, is not affected with constructive notice of any defense to the note and mortgage on the part of the wife, by reason of the knowledge thereof by its president, as payee, where it appears that in procuring the purchase thereof by the bank he was acting solely in his own behalf as payee, and at arm’s-length with the bank, and that the note and mortgage were purchased by vote of the directors of the bank, at a meeting at which the president was not present, without any knowledge on their part of a defense thereto.</p> <p>Id.—Agents of President—Secretary of Bank.—Where it appears that the former secretary of the bank, and also the secretary elected in his place, obtained knowledge of the consideration of the note and mortgage, while acting as agents of the president, as the individual payee, and that the secretary-elect presented the note and mortgage to the bank on behalf of the president as payee, the bank, which purchased the note by vote of its directors, is not chargeable with such knowledge. [Beatty, C. J., dissenting. Henshaw, J., and Shaw, J., expressing no opinion.]</p> <p>Id.—Recorded Conveyance from Husband to Wife—Note and Mortgage to Secure Husband’s Debt.—The fact that the husband had conveyed the mortgaged property to his wife, and that such conveyance was of record when the joint note and the mortgage were executed by the wife on her part, to secure the husband’s debt, cannot affect the bank, which purchased the note and mortgage before maturity, with constructive notice of a defense of the wife to the note and mortgage for want of consideration, of which the bank had no actual notice. [Beatty, C. J., dissenting. Henshaw, J., and Shaw, J., expressing no opinion.]</p> <p>Id.—Extension of Time to Husband—Consideration for Wife’s Mortgage.—The extension of time to the husband evidenced by the note executed by him was a sufficient consideration for the execution of the mortgage on the part of the wife to secure the payment of the husband’s debt evidenced by such note. [Per Shaw, J., and Henshaw, J.]</p>

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

<p>Home fob Feeble-Minded Children—Action against County—Insufficient Complaint.—In an action to recover against a county, under the act of 1897, for the expenses of the support and education of children ordered sent from such county to the Home for Care and Training of Feeble-Minded Children, a complaint which fails to allege that the judge making commitments or recommitments under said act made such orders as were requisite to secure the payment by the county of the monthly sums required by said act, or that the board of trustees of the home secured from the proper officers of th'e county any arrangement to prevent the inmates sent therefrom from being a charge upon the state, as provided for in said act, states no cause of action against the county.</p>

<p>Negligence—Contributory Negligence—Questions for Jury.—It is very rarely that the question of the negligence of the defendant, or of the contributory negligence of the plaintiff, in an action for injuries alleged to have been sustained by negligence, is one of law for the court. As a general rule, the question is one of fact for the jury, under the circumstances of the particular case, and this rule applies when the conceded facts are such that reasonable minds may differ upon the question.</p> <p>Id.—Biding upon Platform of Electric Car—Customary Seat of Minor upon Step.—The rule applicable to street-cars is very different from that applied to a train drawn by steam. Biding upon the platform of a street-ear propelled by electricity is not contributory negligence, as matter of law; and granting that a minor under the age of fourteen years, who was accustomed to sit upon the side platform of such a ear, with his feet upon the lower step, without objection, should exercise reasonable care to avoid injury, the question whether such reasonable care was exercised while in such position, under the circumstances of the case, is one of fact for the jury.</p> <p>Id.—Injury prom Turning Truck—Negligence op Motorman—Question for Jury.—Where the plaintiff, while riding, seated with his feet upon the lower step of the side section of the platform of an electric car, and who had paid his fare from that position without warning from the conductor of any danger, was injured from collision of his legs with the hub of the wheel of a truck which had turned from the track in response to the bell of the motorman, who knew that the open sections were crowded, and that passengers were riding upon the side sections, and who started the car forward in such a hurried manner as to occasion the injury to the plaintiff from the truck, the question whether the motorman was negligent in so doing was purely one of fact for the jury to decide; and there was evidence sufficient to sustain their verdict for the plaintiff.</p>

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

<p>Corporations—Power of Secretary.—The secretary of a corporation has no power to release or transfer its property, in the absence of authority express or implied, and with no authorization or ratification by its board of directors.</p> <p>Id.—Transfer of Wine—Accepted Order—Permission of Secretary to Sell—Mistake of Facts—Eecovery of Proceeds.—Where the appellant transferred a quantity of wine to the plaintiff corporation, under an agreement that after the corporation should pay from the proceeds thereof an indebtedness of the appellant thereto It should then pay the amount of appellant’s indebtedness to a bank, in favor of which the corporation had accepted an order from appellant, a subsequent permission given by the secretary of the corporation to the appellant to sell part of the wine for his own benefit, given under a mistake of facts, cannot authorize appellant to retain the proceeds of such sale contrary to the terms of the agreement with the corporation and of the unrevoked order. The corporation was entitled to recover from appellant the amount which it was required to pay to the bank under the terms of the accepted order on account of the sale made by the appellant.</p>

<p>Estates of Deceased Persons—Order fob Mortgage of Beal Estate —Jurisdiction.—The superior court having jurisdiction over the estate of a deceased person has power to make an order authorizing the mortgage of real estate, either to pay debts, legacies, or expenses of administration, and it is not essential to the jurisdiction that the order shall include the payment of all debts.</p> <p>Id.—Error—Payment of Pressing Claims—Omission of Claim not Pressing—Collateral Attack—Action to Foreclose Mortgage. —Any .error in the exercise of jurisdiction in authorizing a mortgagee to pay only certain pressing claims against the estate does not render the order void, and can only be corrected upon appeal. Such error cannot be made the ground of a collateral attack upon the order by a creditor who did not press the payment of her claim in an action.</p>

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

<p>Judgment op Foreclosure—Effect of Reversal upon Appeal—Mandate—Power of Superior Court—Void Modifying Order—Pending Action.—The legal effect of the reversal of a judgment foreclosing a mortgage, with directions to the court below to enter a judgment in conformity with the opinion of the appellate court, is to vacate the decree reversed, and to leave it as if it had never been rendered, and the form of the mandate did not change the reversal to a modification, nor authorize the trial court to modify the judgment reversed. Although the change ordered was the deduction of about one thousand dollars from the sum declared due, leaving a balance larger than the purchase price of the land at the foreclosure sale, and this court might have ordered the judgment modified, yet where this court decreed a reversal, an order of the superior court purporting to modify the judgment reversed, by deducting that sum from the deficiency judgment, instead of pursuing the mandate of this court to enter a new judgment of foreclosure, was totally ineffectual, and the case still stands as an action pending, with final judgement remaining to be entered.</p> <p>Id.—Order Modifying Judgment Nunc pro Tunc—Relation of Judgment—Power of Court.—An order in so far as it purports to modify the judgment of foreclosure after reversal thereof, nunc pro tunc, is of no force. A nunc pro tunc order can only be made to show something done which was actually done but not entered in the record, and cannot be made to declare that something Was done which was not done. There was no power in the superior court to make a new judgment of foreclosure relate back so as to preserve vitality in the judgment reversed and to give validity to a sale made under the judgment reversed.</p> <p>Id.—Restitution of Property Sold under Reversed Decree.—The reversal of 'a judgment foreclosing a mortgage lays á foundation for restitution of the property sold under the decree where the rights of third persons have not intervened, either by motion in the action after the remittitur has been sent down or by independent action in any court of competent jurisdiction.</p> <p>Id.—Action for Restitution—Mortgage of “Rents and Profits ”— Rights of Mortgagee in Possession.—Although a mortgage covering the rents, issues, and profits, if not executed as a chattel mortgage is ineffectual to give the mortgagee a lien as against third persons; yet where such mortgagee is lawfully in possession, either through a receiver appointed by the court or personally, the owner in an action for restitution of the property sold, upon reversal of the decree of foreclosure, cannot recover the rents accruing either during the possession of the defendant or after the appointment of the receiver, and his only remedy is to have them applied upon the mortgage debt.</p>

<p>Appeal—Bill of Exceptions—Borm of Specifications—Insufficiency of Evidence.—It is not material whether specifications of insufficiency of the evidence in a bill of exceptions are in a negative or positive form, where the meaning is the same in either case, and is clear, although the negative form is preferable. Where there is a reasonably successful effort to state the particulars, and they may have been sufficient to inform the opposing counsel and the court of the grounds, and the trial court has entertained and passed upon a motion for a new trial, and all of the evidence is brought up, the appellate court will not refuse to consider the case.</p> <p>Id.—Order Granting New Trial—Discretion of Court.—The court below has discretion in considering whether the evidence justifies the verdict; and it is its duty to grant a new trial whenever, upon the whole ease, it believes an injustice has been done by the verdict. Its order granting a new trial will- not be disturbed upon appeal where no error or abuse of discretion appears.</p>

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

The facts are stated in the opinion of the court. E. M. Gibson, B. F. Woolner, Z. N. Goldsby, and James L. Gallagher, for Appellant. The evidence shows an account stated, which is a bar to a bill for an account. (Story’s Equity Pleading, 798.) There is a receipt on the record showing a settlement and payment to end of January, 1895. When the balance admitted by a stated account is paid, the account is deemed a settled account. (1 Am. & Eng.

<p>Building Contract—Void Bond of Contractor—Failure of Materialman to File Lien.—Where the bond of a contractor is void, because given in pursuance of the unconstitutional provisions of section 1203 of the Code of Civil Procedure, it is immaterial to consider whether the failure of a materialman to file a lien does or does not release the sureties, as they are not obligated under the bond.</p> <p>Id.—Stipulation—Agreed Statement of Facts—Question of Law.— Counsel may by stipulation make an agreed statement of facts, but cannot control this court as to any question of law to be determined under the facts agreed. Where a particular legal conclusion follows from a given state of facts, no stipulation of counsel can prevent the court from so declaring it.</p>

PETITION for writ of prohibition to the Judge of the Superior Court of Glenn County. Oval Pirkey, Judge. The facts are stated in the opinion of the court.

<p>Promissory Note—Payment—Offset—Expenses op Guest.—When it appears that the defendant sued upon a promissory note invited the plaintiff as a guest upon a trip, with the understanding, express or implied, that the defendant would pay all of plaintiff's expenses upon such trip, the defendant cannot charge such expenses as a payment upon, or as an offset to, the promissory note made and delivered by the defendant to the plaintiff.</p> <p>Id.—Evidence—Cross-Examination op Dependant—Treatment as Guest.—It was proper to allow the plaintiff to prove, upon cross-examination of the defendant, at various times and places prior and up to the time of the trip in question, the defendant, at various hotels, treated the plaintiff as a guest, and paid all of the hotel bills and expenses of plaintiff as such guest.</p> <p>Id.—Discretion op Court.—In cross-examination, the trial judge is vested with much discretion, and this court will not interfere, unless such discretion has been abused.</p>

The facts are stated in the opinion of the court. Lloyd & Wood, Bishop & Wheeler, Bishop, Wheeler & Hoefler, and J. F. Bowie, for Appellant. No demand or surrender of the policy having been made, the plaintiff’s right of recovery is barred. (Knapp v. Homæopathic Ins. Co., 117 U. S. 411; Northwestern Ins. Co. v. Bar-bour, 92 Ky. 427; Stayner v. Equitable Life Assur. Soc., 22 Misc.

<p>Negligence— Overflow from Boiler—Prima Facie Case—Insufficient Explanation.—Where plaintiffs’ goods were injured by the overflow of water from the boiler of defendant’s engine upon an upper floor, which injury appeared to have been primarily caused by the breakage or warping of a metal cap at the end of a water-pipe projecting into the fire-box of the engine, which would more readily occur if sediment had accumulated at the lower end of the pipe, and defendant’s managers had admitted that there was a negligent operation and control of the engine causing the injury, a prima facie case of negligence appears, under the circumstances, which is not overcome by the explanation that the machinist who attached the automatic pump to the engine had instructed defendant not to turn off the stop-cock during the night, as there was more danger in having it turned off than turned on.</p> <p>Id.—Instruction—Prima Facie Evidence of Negligence.—Where it appeared from the evidence that the engine had been operated without injury in the same way for three or four years before the injury occurred, and the accident was such that, in the ordinary course of things, would not have happened if those who had the management of the engine had used proper care, it was proper for the court to instruct the jury that the mere fact of the overflow of water from the boiler, under the circumstances of the case, was prima facie evidence of negligence.</p> <p>Id.—Instructions not Conflicting—Burden of Proof—Presumption of Negligence.—Instructions that the burden of proof was upon the plaintiffs throughout the ease, to show negligence by a preponderance of evidence, are not in conflict with the instruction as to prima facie evidence of negligence from the injury sustained. The presumption of negligence arising from the proof of the accident, and the circumstances surrounding it, is itself evidence in the case, to establish the fact of negligence, which the plaintiffs were bound to prove, and does not change the burden of proof, but it still remained the law that, upon the whole evidence, the plaintiffs must have the preponderance of evidence in order to succeed.</p> <p>Id.—Value of Goods Destroyed—Invoice—Cure of Error.—Error in not allowing the plaintiffs to be asked on cross-examination as to how much the goods destroyed cost, according to the invoice, was cured by the introduction of the invoice itself, showing the valuation therein contained.</p> <p>Id.—Motion to Strike Out Evidence—Objection to Withdrawal-Waiver of Error.—Where a motion was made to strike out the evidence of a witness who volunteered evidence beyond the question asked, the moving party, by refusing to consent to an offer of the other party to withdraw the evidence, thus causing it to remain before the jury, cannot be heard to urge that there was error in denying the motion to strike out.</p> <p>Id.—Discrepancy in Inventories—Cross-Examination—Delay of Trial—Discretion of Court.—The court did not abuse its discretion in refusing to allow the trial to be suspended for thirty minutes to permit a witness to search for discrepancies in two inventories introduced in evidence, where the counsel could have discovered the discrepancies without taking up the time of the court and jury in waiting for the witness to make the discovery.</p> <p>Id.—Testimony of Expert—Form of Questions—Objections Properly Sustained.—Where the form of questions put to an expert machinist as to the impossibility of foretelling the leakage, under assumed circumstances, called for a simple affirmative or negative answer,- which would have involved the conclusion of the witness upon three several questions of fact, one of which was clearly not the subject of opinion evidence, and another may not have been such subject, according to what his opinion may have been as to the true cause of the break or leak, objections to the questions that they were not the proper subject of opinion evidence were properly sustained.</p> <p>Id.—Requested Instructions—Modifications—Matters of Fact.— Where' the modifications of requested instructions were substantially .of the same meaning and effect as the requests, and would be so ^understood by the jury, it is not material that the language of the .instructions as given was not as full, accurate, and precise as that --used in the requests. It was proper to refuse a requested instruction which embodied matters of fact.</p>

<p>Insolvent Law—Partnership—Claims oe Creditor—Mortgage on Homestead oe One Partner—Bight to Dividends.—A creditor of an insolvent partnership has a right to dividends out of the partnership assets upon the full amount of the proven claim against the partnership, without any deduction on account of a mortgage held by such creditor on a homestead of one of the copartners, which such creditor may exhaust by foreclosure, after receiving full dividends from the assets of the firm, where it is conceded that the creditor’s demand will not thereby be paid in full. [McFarland, J., Angellotti, J., and Van Dyke, J., dissenting.]</p> <p>Id.—Lien upon Exempt Property.—A lien upon exempt property which did not pass to the assignee is in the position of a lien upon the property of third persons, which the holder could not be required to surrender to the assignee before receiving dividends from the partnership as a creditor thereof. [McFarland, J., Angellotti, J., and Van Dyke, J., dissenting.]</p>

<p>Preference of Creditors—Transfer to Trustee—Good Faith.—A debtor, though actually insolvent, if acting in good faith, without contemplation of insolvency, may lawfully transfer a part of his property for the purpose of paying or securing certain creditors in preference to others, if there is no bankrupt or insolvent law making a different disposition of such property. It is immaterial whether the transfer was made to a trustee for the benefit of the preferred creditors or was made to them directly.</p> <p>Id.—Trust Deed—Legal Title—Assignment for Benefit of Creditors—Attachment—Sale under Execution.—A deed of part of the property of the grantor, accompanied by a contemporaneous declaration of trust, showing, among other purposes, that the rents, income, profits, and proceeds of the property deeded were to be applied to pay and discharge certain scheduled debts, omitting one creditor, and that the surplus profits were to be paid to the grantor for life, with remainder to the grantor’s children, transferred the legal title to the trustee, and did not constitute an assignment for the benefit of creditors within the meaning of the Civil Code. The title of the trustee was not subject to attachment and sale under execution in favor of the creditor omitted, where it appears that the deed was made in good faith, and not in contemplation of insolvency, nor with any fraudulent intent, and that the omitted creditor at the time of the deed believed the grantor to be solvent.</p>

APPEALS from orders of the Superior Court of the Cit;f and County of San Francisco denying a new trial. Walter H. Levy, Judge. The facts are stated in the opinions rendered by the court in Bank and by Department Two.

<p>-Building Contract—Failure to Give Bond—Constitutional law.— The provisions of section 1203 of the Code of Civil Procedure, providing for a bond of the contractor to accompany a building contract, being unconstitutional and void, the failure to file such bond cannot vitiate the contract.</p> <p>Id.—Statement op Amount in Filed Contract—Memorandum.— Section 1183 of the Code of Civil Procedure does not require that the building contract filed for record shall state the amount to be paid thereunder, nor that it shall show on its face whether that amount is greater or less than one thousand dollars. Such requirement only applies to what is to be inserted in the “memorandum,” which may be filed in case the parties do not choose to file the contract itself.</p> <p>Id.—Construction op Code—Penal Provision—Constitutional Bight op Contract.—Section 1183 of the Code of Civil Procedure, being highly penal in its character, is not to receive a construction unduly favoring the imposition of a penalty or forfeiture thereunder; and as it deals with the constitutional right of the owner of property to make contracts relating to its use and enjoyment, the restriction of such right can only go to the form of the contract, and cannot be extended by construction beyond what is expressed in the statute, nor can the statute receive such a construction as to infringe the right of contract protected by the constitution.</p>

<p>Vendor and Purchaser—Contract of Sale—Perfect Title—Record. —Where a contract of sale of real estate calls for a perfect title, the purchaser may insist upon a good title of record, and is not required to accept a title depending upon adverse possession or upon matters resting purely in parol.</p> <p>Id.—Alcalde Grant—Uncertain Description—Possession—Presumption.—An alcalde grant of a one-hundred-vara lot which does not identify any particular lot does not help a record title, notwithstanding a presumption that the alcalde gave possession of the lot in controversy to the grantee, under whom the vendor claimed.</p> <p>Id.—Rule as to Ancient Documents.—The rule as to ancient documents merely presumes them to be genuine, but does not import any verity as to recitals contained in them.</p> <p>Id.—Title under Van Ness Ordinance—Actual Possession.—Absence of Deed.—Title under the Van Ness Ordinance, depending upon actual possession of the property in question on the first day of January, 1855, in the absence of a deed from the city, though it may be perfect without a deed from the city, is not a title of record, in the absence of such deed placed of record.</p> <p>Id.—Rescission of Contract—Recovery of Deposit and Stipulated Expense.—Where the vendor neglected to remedy the defect in his record title by obtaining a deed from the city, the purchaser had the right to rescind the contract and recover the money paid, with the fifty dollars provided for fee for examining the title.</p> <p>Id.—Rescission by Consent—Sale by Vendor to Third Person—Recovery of Purchase Money.—Consent to a rescission may be implied from the conduct of the parties; and where the vendor failed to make Ms title of record satisfactory to the purchaser, and parted with his title to a third person for an increased price, he must be deemed to have acceded to the desire of the purchaser to rescind the contract, and in such case the purchaser, though in default, may recover back the purchase money paid, if there is no actual damage to the vendor to be deducted therefrom.</p> <p>Id.—Findings against Evidence—Specifications—New Trial.— Where the evidence all appears in the record, and is without conflict, consisting of record evidence and stipulations of the parties, and the findings are clearly against the evidence, and are attacked by specifications which fully informed the counsel and the court as to the points upon which plaintiff relied in contending that the decision was contrary to the evidence, such specifications must be deemed sufficient to justify the granting of a new trial.</p>

<p>Nonsuit—Trial—Sufficiency of Evidence.—The rules as to nonsuit are the same, whether the trial is by the court or by a jury. A motion for a nonsuit should not be granted where the plaintiff’s evidence is such that if the case had gone to the jury on that evidence it would be held sufficient to support the judgment upon a verdict for the plaintiff, or, if the action is tried by the court, would be sufficient to support a finding in favor of the plaintiff.</p> <p>Husband and Wife—Community Property—Presumption—Proof of Separate Property.—The presumption attending the possession of property by the husband or wife that it is community property is disputable, and may be overcome by that degree of proof that the property was separate which ordinarily produces conviction in an unprejudiced mind; and in the case of such legal evidence as, under the circumstances of the particular case, would produce such conviction of the fact of separate property, the presumption of community property unsupported must fall.</p>

<p>Mandamus by County to State Board of Examiners—Support of Orphans—Insufficient Complaint.—A complaint by a county in mandamus against the state board of examiners to compel an allowance under the act of March 25, 1880, for the maintenance by the county of orphans, half-orphans, or abandoned children, is insufficient in respect of claims the amount of which is not stated in the complaint, and in respect of which the complaint does not allege that the county supported any such children for the time to which the claims must have referred, and does not contain any-facts which would justify the board of examiners in allowing such claims, or require it to allow them.</p> <p>Id.—Sufficiency of Answer—Statute of Limitations—Traverse. — Where the complaint in mandamus sufficiently alleged a claim which was presented and filed with the board more than two years after it had accrued, an answer showing that the claim was rejected, among other reasons, “because the same has not been properly filed and presented in due time, and within the time provided by law, ’ ’ is equivalent to a statement that it was barred by the statute of limitations, and is a sufficient traverse of an allegation of the complaint that the board of examiners rejected the claim, “without right, against facts, and against law.”</p> <p>Id.—Duty of Examiners—Presumption.—It is the duty of the state board of examiners to consider all facts appearing upon the face of the claim and otherwise brought to the attention of the board. They need not go through the form of a trial, but when satisfied from the facts appearing before them that the claim in controversy was barred by the statute, if nothing appears to the contrary, it must be presumed that it rejected the claim for the reason that it was outlawed.</p> <p>Id.—Bar of Statute—Claim on Contract.—A claim against the state for the maintenance by a- county of orphans, half-orphans, and abandoned children, under the act of March 25, 1880, is a claim resting upon contract implied from such maintenance, within the meaning of the act of 1893, barring claims on contract against the state within two years after the cause of action shall have accrued.</p> <p>Id.—Presentation of Claim to Board—Delay of Demand—Running of Statute.—It being within the power of the county to make demand by presenting the claim to the state board of examiners immediately upon the accruing of the claim, so as to set the statute of limitations in motion, the county cannot escape the bar of the statute by delaying such demand indefinitely; and where the claim appeared to have been barred by the statute long before it was presented to the board of examiners, it was proper for the board to reject it because not presented in time.</p> <p>Id.—Statute of Limitations in Mandamus—Failure of Demand.—A party cannot escape the operation of the statute of limitations, even in an action for mandamus, by failure to make a demand which was at any time within his power.</p> <p>Id.—Conclusion of Law—Pleading and Finding.—The allegation in the complaint that the board of examiners rejected the claims, “without right and against the facts,” is of a mere conclusion of law, and presented no issue, and a finding thereon is of no more force than the allegation.</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>Party-Wall—Construction or Contract—Height or Wall Limited. —A contract for a party-wall definitely providing for the addition of a sixth story to each of two adjoining buildings, of five stories each, and regulating their rights therein, is to be construed as limiting the height of each building to six stories, and neither of the adjoining owners can use the party-wall to sustain a seventh story without the consent of the other.</p>

John C. Gray, Judge, refusing to set aside indictment. E. E. Gaddis, Judge, presiding at trial. The facts are stated in the opinion of the court.

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

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

<p>Board of Education—Power to Employ Counsel—Mandamus—Admission of Member to Seat.—The board of education of the city and county of San Francisco has the right to require the services of the city attorney in all actions or proceedings by or against such board. It has no power, express or implied, to incur expense in the employment of other counsel to defend it against a writ of mandate to compel the board to admit a person to a seat as a member of the board; and the mere refusal of the city attorney to act in such case does not justify such employment. [McFarland, J., Henshaw, J., and Beatty, C. J., dissenting.]</p> <p>Id.—Mandamus to Superintendent-of Schools—Demurrer to Petition.— Mandamus will not lie to compel the superintendent of schools to draw his requisition upon the auditor for the expense of an attorney unlawfully employed by the board of education; and a demurrer to a petition therefor was properly sustained,</p>

<p>Constitutional Law—Amendment op County Government. Act—Title.—The act of March 23, 1901, entitled “An act to amend an act entitled ‘An act to establish a uniform system of county and township governments, approved April 1, 1897,’ by amending certain sections thereof, repealing other sections, and adding certain sections thereto,” in the body of which each section amended refers to the title of the act of 1897, quoting it in full, and gives the number of the section amended, and the language in the amended form,—the sections thus amended being fifty-eight out of two hundred and thirty-four,—is amendatory in its nature, and sufficiently entitled as such in conformity with the constitution.</p> <p>Id.—Revision.—The amendatory act of 1901 does not constitute a revision of the act of 1897, within the meaning of the constitution.</p> <p>Id.—Presumption—Liberal Construction op Constitution—Suppiciency op Amendatory Act.—In determining the constitutionality of an act, the courts presume that it is constitutional, and that 0 the legislature acted with integrity, and with an honest purpose to keep within the restrictions of the constitution. The courts are disposed to construe liberally constitutional provisions, with reference to the subject and title of an act, which is not' required to express fully the details of the act. The constitutional requirement is satisfied, when an amendatory or supplemental act contains matter which might have been incorporated, in the original act, under its title, and identifies the original act by its title, and declares the purpose to amend or supplement it.</p>

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

<p>PROHIBITION to the Superior Court of Santa Clara County. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Death—Judgment in Favor of Widow—Posthumous Child Precluded.—An action for death is statutory. The statute of this state contemplates but one action and one recovery. A judgment in favor of a widow for the death of her husband, she being the only heir then capable of maintaining an action therefor, exhausts the right given by the statute, and precludes a subsequent action for the same death by a posthumous child, whose existence in its mother's womb was unknown to the defendant at the time of the previous action, trial, and judgment. [Beatty, C. J., dissenting.]</p>

<p>Action fob Goods Sold and Delivered—Pleading—Denial fob Want of Information—Presumed Knowledge.—In an action for goods sold and delivered, whether or not the plaintiff had sold and delivered to defendant, at the latter’s request, the property mentioned in the complaint, was a matter presumably within the knowledge of the defendant, and a denial thereof for want of information or belief was insufficient.</p> <p>Id.—Incorporation of Plaintiff—Estoppel of Defendant—Denial Immaterial.—In an action by a corporation to recover the price of goods purchased 'and received by the defendant from the plaintiff, the defendant cannot question the corporate capacity of the plaintiff, and a denial thereof raises no material issue.</p>

<p>Negligence—Failure to Stop Street-Oar—Injury to Passengers— Sufficiency of Evidence.—Evidence that plaintiff, as a passenger upon a street-ear, requested the conductor immediately after leaving one street to stop at the next street, and that the car slowed down, apparently as if about to stop thereat, and that, in anticipation of its stopping, she stood on the step, holding to a stanchion with her left hand, ready to alight, and that the car, instead of stopping, started up suddenly and unexpectedly, whereby she was thrown to the ground and injured, is sufficient to justify a verdict for the plaintiff.</p> <p>Id.—Evidence—Bes Gestíe—Hearsay—Opinions of Third Persons. —It was prejudicial error for the court to allow a witness to testify that the conductor, some time after the accident, said: “These ladies seem to blame me—seem to think it is my fault.” This was not part of the res gestos, but was a mere hearsay statement of the opinions of third persons as to who was at fault, which opinions would not be admissible, even if such persons were placed upon the witness-stand.</p> <p>Id.—Immaterial Evidence.—Where there was evidence to show that, after the plaintiff was thrown off her balance, and while she still held to the stanchion, and was being dragged, there were calls by passengers to ring the bell and stop the car, evidence of a witness that some one answered, “No use ringing the bell; won’t stop the ear, unless the conductor rings the bell,’’ was immaterial, and should have been stricken out.</p> <p>Id.—Inapplicable Instruction—Duty op Employees When Car Is Stopped.—It appearing that the car was not fully stopped, an instruction as to the duty of the employees upon the car when it is stopped was not applicable to the evidence, and should not have been given.</p> <p>Id.—Duty op Street-Bailroad Company—Instruction as to Question op Fact.—An instruction that the duty of a street-railroad company to afford its passengers reasonable opportunity to get off of its ears, is more onerous than that of an ordinary steam-railroad company, while correct in point of fact, is an instruction upon a question of fact, which should not have been given, though not sufficient of itself to justify a reversal.</p> <p>Id.—Contributory Negligence—Injury to Passengers—Presumption —Burden op Proof.—Contributory negligence on the part of a passenger cannot be presumed from the mere fact of injury, but must be proved. On the other hand, the proof of an injury to a passenger on the car of a common carrier casts upon the common carrier the burden of proving that the injury was caused by inevitable casualty, or some cause which human care and foresight could not prevent, or by contributory negligence of the plaintiff, unless plaintiff’s proof tends to show that the injury was thus occasioned.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to enter satisfaction of a judgment. "William R. Daingerfield, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Building by Lessee—Time op Notice by Owner-Construction op Code.—Under section 1192 of the Code of Civil Procedure, providing that a building upon which liens are claimed shall be deemed to have been constructed at the instance of the owner of the land, unless he shall 1 ‘within three days after he shall have obtained knowledge of the construction, ... or the intended construction, give notice that he will not be responsible for the same,” etc.,—without deciding whether a notice posted within three days after knowledge of the intended future construction of a building by a lessee would in all cases be sufficient to protect the owner,—the failure to give such notice by the owner, who does in fact give the notice within three days after he shall have obtained knowledge of the actual commencement of the work, does not deprive him of the protection given by the statute.</p>

<p>Estates op Deceased Persons—Power of Administrator—Settlement of Final Account—Allowance for Services op Broker-Jurisdiction.—An administrator has no power to make a eontraet for services which will hind the court iu the settlement of his final account; and an allowance cannot he made to a broker for agreed commissions on the sale of real estate. Nor can any allowance be made to the broker personally for such services. But the court, in its discretion, may make an allowance to the administrator for a reasonable compensation to a broker who has rendered valuable services in effecting a sale of real estate at a largely increased bid, whereby profit has accrued to the estate.</p> <p>Id.—Void Allowance—Motion to Vacate—Amended Decree.—Where a void allowance was made to the broker, instead of to the administrator, as prayed for in his petition, the court had power, on motion of an objecting party, to set aside the void allowance, to amend the decree by striking out the void allowance and making a proper allowance to the administrator under the petition and original proof, so as properly to dispose of the issue, and to effectuate the intention of the court in making the allowance.</p>

<p>Mortgage for Debt of Another—Incapacity op Mortgagor—Want of Consent—Invalidity of Contract.—Where it appears that a note and mortgage executed by an aged person to secure the debt of another was executed on her part without sufficient mental capacity to understand their nature and effect, or to comprehend the business in which she was engaged while executing them, and that she did not, after the execution thereof, comprehend the effect thereof,—the mortgage is invalid for want of consent by a mortgagor capable of contracting and comprehending the subject of negotiation.</p> <p>Id.—Construction of Code—Person “Without Understanding”— Expression of Pre-existing Law.—The provision of section 38 of the Civil Code, to the effect that “a person entirely without understanding has no power to make a contract of any kind,” is to be understood as restricted to the subject-matter of contracts, and as applying to all persons who are entirely without the capacity of understanding or comprehending such transactions; and the rule therein stated is to be regarded as an expression of the previously existing law, and not limited to its literal expression.</p> <p>Id.—General Incapacity—Insanity—Construction of Findings.— A finding of the incapacity of the mortgagor to understand the particular transaction in question implies her incapacity to understand such transactions in general; and a finding that she was never insane or adjudged insane, must be construed as consistent with or controlled by the specific facts found showing an incapacity to contract.</p> <p>Id.—Good Faith of Mortgagee Immaterial.—There being no contract on the part of the mortgagor for the want of consent of a person capable of contracting, the question of the good faith of the mortgagee and his knowledge of the condition of the mortgagor is immaterial.</p>

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

<p>The facts are stated in the opinion.</p> <p>J. H. Henderson, and Beverly L. Hodghead, for Appellant.</p>

<p>Criminal Law—Rape—Girl under Age op Consent—Gift op Monet or Presents—Evidence—Cross-Examination.—Upon the trial of a defendant accused of the crime of rape upon the person of a girl under the age of consent, the question whether money or presents were given to the prosecutrix or not is immaterial, and cannot tend to prove the defendant’s innocence. Where no questions were asked of the prosecutrix on that subject in chief, it was proper to exclude any questions concerning such gifts on cross-examination.</p> <p>Id.—Misconduct op District Attorney—Remarks Checked by Court —Instructions—Comment upon Testimony.—Where remarks of the district attorney objected to were checked by the court, and the court instructed the jury to disregard them, error in such remarks was thereby cured. It was not error for the district attorney to call the attention of the jury to the fact that the statements of certain witnesses for the prosecution were undenied.</p> <p>Id.—View op Premises—Request op Dependant—Absence—New Trial.—Where a view of the premises where the alleged rape was claimed to have been committed was ordered on motion of the defendant, and the defendant, having been ordered to go, voluntarily remained absent for the expressed reason that he was familiar with the premises, the fact of his absence cannot be complained of after verdict for the first time, as ground for new trial. The defendant cannot thus take advantage of his own wrong.</p> <p>Id.—Evidence—Previous Acts op Sexual Intercourse.—Previous and subsequent acts of sexual intercourse and improper familiarity between the defendant and the prosecutrix were admissible as tending to show the disposition of the defendant, and to render probable the fact of the sexual intercourse complained of in the information.</p>

<p>Appeal—Judgment and Order Denying New Trial—Sufficiency of Bond—Exception to Bule.—The ease of an appeal from the judgment and from an order denying a new trial is an exception to the general rule requiring a separate bond for each separate appeal; and a single undertaking for three hundred dollars is sufficient in such ease.</p>

<p>Estates of Deceased Persons—Collateral Inheritance Tax—Exemption of Nephews and Nieces—Constitutional Law—Case Reversed.—The Amendatory Act of 1897, exempting nephews and nieces of the deceased when resident of this state, is constitutional and valid. The ease of Estate of Mahoney, 133 Cal. 180,1 is reversed on this subject. [Beatty, C. J., dissenting.]</p> <p>Id.—Construction of Constitution of United States—Privileges and Immunities of Citizens of State.—Section 2 of article IV of the constitution of the United States, providing “that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states,” does not have the effect to strike down or limit or restrict the right of the state to confer any immunities or privileges upon its own citizens which it may choose to confer, but is merely protective, and measures the rights of citizens of other states, and becomes part of the law of this state conferring privileges upon its own citizens.</p> <p>Id.—Taxation—Province of Legislature—Power of Court.—It is for the legislature alone to impose the burden of taxation, and the courts have no power to impose a burden of taxation not imposed by the legislature.</p>

<p>APPEALS from judgments of the Superior Court of Monterey County and from orders denying a new trial. N. A. Dorn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>New Trial—Excessive Damages—Discretion op Court.—The trial court has discretion, where no abuse thereof appears, to grant a new trial on the assigned ground of excessive damages, appearing to have been given by the jury under the influence of passion and prejudice.</p> <p>Id.—Constitutional Law—Trial by Jury—Power to Grant New Trial.—Section 657 of the Code of Civil Procedure, so far as providing for a new trial on the ground of insufficiency of the evidence to justify the verdict of a jury and excessive damages awarded by a jury, is not violative of section 7 of article I of the state constitution, which declares that “the right of trial by jury shall be secured to all,” the power to grant a new trial upon those grounds being a recognized part of the “right of trial by jury.”-</p>

<p>CERTIORARI to review an order of the Superior Court of the City and County of San Francisco- vacating an order setting apart a homestead. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion in this case and in the case of Mersf elder v. Spring, ante, p. 593.</p>

<p>Promissory Notes—Pleading—Non-Payment—Insuehcient Averment.—A complaint in an action upon a promissory note must distinctly aver non-payment; and where it merely avers that “the whole of said note is owing from said defendants to said plaintiff,” without any averment of the fact of non-payment, it does not state facts sufficient to constitute a cause of action.</p>

<p>Criminal Law—Perjury—Form op Oath.—The omission of the words . “So help you God,” prescribed by section 2094 of the Code of Civil Procedure, in the form of an oath administered to the defendant, on which perjury was assigned, was merely an irregularity in matter of form, and not of substance, and constitutes no defense to the prosecution for perjury.</p> <p>Id.—Suppiciency op Evidence.—Where the facts elicited from several witnesses, whose testimony, with corroborating circumstances, fully met the requirements of section 1968 of the Code of Civil Procedure, and fully warranted the jury in concluding that the defendant swore falsely in an assault ease, in denying under oath all knowledge as to the identity of any or all of his associates, the testimony is sufficient to sustain a verdict of guilty of perjury.</p>

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

<p>Appeal fbom Judgment—Omission in Findings—Absence of Bill of Exceptions.—Where the findings made two counts of the complaint fully support the judgment, the fact that there was a failure to find upon another count of the complaint upon which issue was joined by the defendant, is not ground for reversal, in the absence of any bill of exceptions or statement of the case showing that evidence was offered upon such issues in the court below.</p> <p>Id.—Appellant not Prejudiced.—Where the court rendered judgment for the plaintiff only on the other counts, which did not include the sum demanded in the count upon which issue was joined, it is manifest that the appellant cannot be prejudiced by the omission to find upon that count.</p>

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

<p>Ejectment—Equitable Defense—Failure to Perform Contract of Purchase.—The legal title will prevail in an action of ejectment unless an equitable defense is pleaded and proved. The defendants cannot base an equitable defense under a contract of purchase which they have failed and refused to perform when a deed was tendered to them, and which they do not offer to perform.</p> <p>Id.—Another Action Pending—Foreclosure of Mortgage—Abatement.—The commencement and maintenance of a prior action by the plaintiff and his assignor to foreclose a mortgage given by the purchaser without title to secure the unpaid purchase money, in which an appeal was pending when the action of ejectment was commenced, constitutes no ground in abatement of the latter action. Such prior action involves rights not determinable in the action of ejectment.</p>

<p>The facts are stated in the opinion.</p> <p>John M. Miller, Herbert Cutler Brown, Frank G. Bryant, and Miller & Brown, for Appellant.</p>

<p>Municipal Corporations—Void Contract for City Printing—Failure to Comply with Charter—Mandamus.—A contract for city printing, though let to the lowest bidder, under sealed proposals, if not made as required by a valid, stringent, and prohibitive provision of the city charter declaring that the city shall not be bound by any contract or in any way liable thereon, unless made in writing or under the authority of a special ordinance, as provided for therein, is invalid; and mandamus will not lie to compel the city treasurer to pay a warrant allowed by the city council for printing done under such invalid contract.</p>

<p>Action for Money—Pleading—Counts—Non-Payment—Support of Judgment.—In an action for the recovery of money, where the first count of the complaint contains a specific and complete allegation of non-payment, and is sufficient to support the judgment rendered, it is immaterial whether a second count for the same cause of action is or is not properly pleaded.</p>

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

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

<p>School Land—Application to Purchase—Date oe Filing—Fee and Deposit—Mandamus.—An application to purchase school land must be accompanied both by the fee and deposit required by the act of March 20, 1899, in order to make it the duty of the surveyor-general to file the application; Where an application, accompanied by the fee. only,' .was returned - to the applicant, with the fee, for want of the deposit, and afterwards sent hack, with fee and deposit, and with demand for filing of the application as of date of its first receipt, mandamus will not lie to compel compliance with such demand by the surveyor-general.</p> <p>School Land—Application to Purchase—Date of Filing—Fee and Deposit—Mandamus.—Where an application to purchase school land was mailed to the surveyor-general, merely accompanied by the fee for filing, without the deposit of twenty dollars in addition required by the act of March 20, 1889, (Stats. 1889, p. 434,) and the fee and application were returned by the surveyor-general to the applicant for want of the deposit, and were subsequently re-sent by him to the surveyor-general with the deposit and with demand for a filing of the application as of date of its first receipt, it was not the duty of the surveyor-general to comply with such demand, and mandamus will not lie to compel a filing prior to the receipt of the deposit.</p>

<p>Divorce—Custody of Children—Order for Change of Custody.— Upon the granting of a divorce to the wife, where the custody of children was awarded to the mother until further order of the court, the court may on motion, upon sufficient evidence, modify the decree by awarding the custody of the children to the father until further order of the court.</p> <p>Id.—Bill of Exceptions—Bindings—Presumption of Waiver.— Where the bill of exceptions upon the order for change of custody of the children fails to show that findings in support of the order were not waived, it will be presumed that they were waived. It is not sufficient merely to specify the absence of findings as an error of law at the conclusion of the bill of exceptions.</p>

<p>Ejectment—Attack upon Plaintiff’s Title—Pleading—Striking Out Irrelevant Defense.—In an • action of ejectment where the plaintiff alleged title in fee, and defendants denied such title, the defendants may attack plaintiff's claim of title, when offered in evidence; and a separate defense alleging particulars in which plaintiff’s title was defective was properly stricken out .as irrelevant. Id.—Cross -Complaint—Quieting Title.—The defendant in ejectment was not' injured hy the striking out of a cross-complaint to quiet his title against the plaintiff. A judgment in his favor in the action of ejectment would have that effect.</p>

<p>Breach op Contract to Marry—Pleading—Befusal—Beadiness to Marry—Date op Breach.—As against a general demurrer, a complaint in an action for breach of contract to marry which alleges the refusal of the defendant to marry the plaintiff two days prior to the filing of the complaint, and his continuous refusal, up to the time of filing of the complaint, states a cause of action, though it only alleges readiness of the plaintiff to marry the defendant up to and including the date of breach; and does not allege such readiness thereafter. The plaintiff was not obliged to request the defendant to marry her after she had once done so and he had refused.</p> <p>Id.—Cause op Action—Statute op Limitations.—The cause of action rests upon the breach of the contract to marry, and the fact that the contract was made more than two years prior to the breach is immaterial, as respects the statute of limitations, which could not commence to run until the cause of action accrued.</p> <p>Id.—Capacity to Contract—Divorce—Marriage Forbidden for One Year.—The fact that the plaintiff had been divorced under the statute which forbade remarriage in this state within one year, did not incapacitate her to make a valid contract of marriage during the year, if the marriage was not to be performed within the year.</p> <p>ad.—Continuous Contract—Batification.—Where the contract to marry made within the year was continuous for two years prior to the alleged breach, there was a ratification of the contract to marry after the year, and the validity of the original contract cannot be assailed.</p> <p>Id.—Validity op Divorce—Jurisdiction—Sufficiency op Decree.— Without conceding that a decree of divorce must affirmatively show jurisdiction on its face, a decree wMch recites that all allegations of the complaint were sustained by testimony affirmatively shows jurisdiction, where the complaint avers a residence of the plaintiff in the state during her whole life, and in the county for eighteen months last past.</p> <p>Id.—Amendment op Complaint—Discretion.—The court had discretion to allow the plaintiff in the action for breach of contract to marry to amend her complaint; and no abuse of discretion appears where it was not so amended as to change its original form.</p> <p>Id.—Befusal op Instructions—Error not Appearing.—The mere re- • fusal of instructions does not show error where the record does not disclose the instructions given nor show that the instructions refused were not substantially embodied therein. The party claiming error must show it affirmatively.</p>

<p>Criminal Law—Grand Larceny—Motion to Set Aside Information— Presumption—Affidavits not Part of Becord.—The action of the court in denying a motion to- set aside an information for grand larceny, for want of legal commitment by a magistrate, must be presumed regular, where the affidavits upon which the motion was based are not incorporated in a bill of exceptions, nor authenticated, as provided by rule XXIX of this court, as having been used on the motion.</p> <p>Id.—Sufficiency of Information—Taking from Person—Asportation.—An information for grand larceny is sufficient if it alleges that the property stolen was feloniously taken from the person and immediate presence of another who was the owner thereof. In such case, no further asportation, or carrying away, need be alleged to constitute the offense.</p> <p>Id.—Instructions—Circumstantial Evidence—Corroboration—Protest of Prosecuting Witness.—Instructions assuming that the case was one of circumstantial evidence were properly refused where it appeared that all the circumstantial evidence adduced only went to corroborate the direct testimony of the prosecuting witness to the fact of the larceny, which was committed by the defendant in taking the money in a sack from his person, against his earnest protest, then and there orally announced in the presence of several persons, who testified to his protests, without being eye-witnesses of what was taken.</p> <p>Id.—Danger of Convicting Innocent Man—Matter of Argument.— A requested instruction to the jury that “in weighing the evidence to determine whether there was a reasonable doubt as to defendant’s guilt, you have the right- to consider that' innocent men have been convicted, and to consider the danger of convicting an innocent man,” embodies only proper matter of argument by defendant’s counsel to the jury, and was properly refused.</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>Water-Eights—Judgment Determining Eights op Parties—Findings —Appeal prom: Judgment—Laches—Priority op Eight.—Upon appeal from a judgment determining the several water-rights of the parties in a stream, taken upon the findings* objections as to laches of the plaintiff and want of priority of right of one of the respondents over the appellant, which are expressly disposed of by the findings, are untenable.</p> <p>Id.—Pleading—Bights op Dependants against Each Other—Answer— Affirmative Ebliep—Cross-Complaint.—Where each of the defendants, including the appellant, pleaded his rights affirmatively in his answer, and prayed to have them adjudicated, the rights of the defendants as against each other were in issue, and a finding as to the priority of the rights of one of the' defendants over those of the appellant is not outside of the issues because not set forth in a cross-complaint.</p>

<p>Life Insurance—False Bepresentation—Temierate Habits.—A representation in an application for a policy of life insurance that the applicant had always been temperate in the use of malt or spirituous beverages is not untrue if the habits of the insured in the usual routine of life were temperate, notwithstanding occasional excesses.</p> <p>Id.—Order Granting New Trial—Discretion—Conflicting Evidence. —Notwithstanding the jury had found that the deceased insured was not addicted habitually to intemperance, and had not falsely warranted temperate habits, yet, where the evidence was substantially conflicting, and there was sufficient evidence to uphold a contrary finding, the court had wide discretion to grant a new trial, and there was no abuse of discretion in the order granting it.</p>

WRIT OF REVIEW to annul an order of the Superior Court of Sonoma County setting aside the settlement of a statement on motion for new trial, and amending and resettling the same. S. K. Dougherty, Judge. The facts are stated in the opinion of the court.

<p>APPEALS from an order of the Superior Court of Sonoma County confirming a sale made by executors under the will of a deceased testator. Albert G. Burnett, 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>Guardian and Ward—Private Investment by Guardian—Final Account—Compound Interest.—A guardian who has invested the funds of his ward in his own business is chargeable in his final account with the amount invested, with interest thereon from the date at which he received it, compounded annually.</p>

<p>Estates op Deceased Persons—Contest op Codicil to Will—Insane Delusion—Erroneous Instruction.—Upon the contest of the codicil of a will, on the ground of insanity of the testatrix, an instruction that if the jury find from the evidence that the deceased believed that the contestant “was wanting in affection for her, and insincere, and cared only for her property, and was endeavoring to take advantage of her infirmities to cheat and defraud her during her lifetime, and that such belief, was without foundation in fact, and was not based on any information or evidence upon the subject communicated to her, the judgment should be against the will,” is erroneous in omitting the elements necessary to the conclusion that the belief was adhered to against reason and evidence, and was a belief that a rational mind would not entertain, and that the insane delusion operated to cause the production of the codicil.</p> <p>Id.—Undue Inpluence—Finding against Evidence.—Where the evidence scarcely warrants a suspicion that the will was procured by undue influence, a finding that it was so procured in fact is against the evidence.</p>

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

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

<p>Street Improvement—Besolution of Intention—Objection by Property-Owners—Jurisdiction.—Where the owners of a majority of frontage along the line of a proposed street improvement, having the right to stop the work under the street law, signed a written objection to the work, and delivered it to the clerk of the proper board, who indorsed thereon the date of its reception, all proceedings under the resolution were thereby ended, and no further proceedings could be had by the board without a new resolution of intention.</p> <p>Id.—Filing of Objection — Indorsement — Authentication.—The street law only requires the delivery of the written objection of the property-owners to the clerk of the proper board, and his indorsement thereon of the date of his reception. It does not require the indorsement to be signed or authenticated by the clerk; and the written objection must be deemed filed, so far as the rights of the property-owners are concerned, when delivered to the proper officer at the proper office. The protesting owners are not bound to see that the clerk makes or authenticates the indorsement.</p> <p>Id.—Construction of Street Law—Liberal Construction in Favor of Property-Owners.—The rule that proceedings in invitmn must be strictly construed and strictly pursued has no application to a proceeding by the property-owners in making their protest in order to prevent the taking of their property for a public improvement, and the statute, so far as designed for their protection, should receive a liberal construction, with a view to effect its object and promote justice.</p> <p>Id.—Bight to Stop Wore—Change of Improvement—Extension of One Block—Construction of Vrooman Act.—Section 3 of the Vrooman Act, giving the board jurisdiction to proceed with work in certain excepted cases notwithstanding a protest, has no application to cases where a new improvement, and of a different character, already made on part of a street, but not extending within two blocks of the end thereof nor within two blocks of a similar improvement, is extended one block farther, and covering an improvement inferior in character and different in construction, which had been made years before, and was much deteriorated by time and wear. In such case the owners of the majority of frontage have a right by their protest to stop the work.</p>

MOTION to dismiss an appeal from a decree of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person. J. V. Coffey, Judge. The motion was made on the ground that the decree of distribution was not in fact entered when the appeal was taken. After decision of the motion a rehearing was granted thereupon. Further facts appear in the opinions of the court and in the concurring opinions.

<p>Bankruptcy—Discharge—Exception—Debts not Scheduled—Construction of Act.—Under section 17 of the Bankruptcy Act of July 1, 1898, the exception from a discharge in bankruptcy of such provable debts as have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, includes all debts not scheduled, whether known or unknown to the bankrupt.</p> <p>Id.—Proviso—Knowledge of Creditor.—The provision to the exception, “unless such creditor had notice or actual knowledge of the proceedings in bankruptcy,” does not contemplate constructive notice to the creditor; but the term “actual knowledge” is used as explanatory of the word “notice,” and actual knowledge is required in order to exclude the creditor from the exception.</p> <p>Id.—Plea of Discharge—Proof of Exception—Collateral Action upon Note.—To a plea of discharge in bankruptcy, proof of an exception to the discharge may be shown in a collateral action upon a promissory note not scheduled by the bankrupt.</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>

PETITION for writ of prohibition to the Police Court of the City and County of San Francisco. E. P. Mogan, Judge. The facts are stated in the opinion of the court.

<p>Fish and Game Law—Title of Act—Constitutional Law.—The preservation of fish and game is a single subject of legislation; and the Fish and Game Law is not invalidated by the constitutional provision requiring acts of the legislature to embrace but one subject, to be expressed in their titles.</p>

<p>Criminal Law—Bobbery—Testimony of Accomplice—Want of Corroboration.—Where a confessed accomplice in a robbery, who was relieved from prosecution, testified circumstantially to the robbery committed jointly by him and the defendant convicted, but there was no other evidence which in itself, and without the aid of the testimony of the accomplice, tended to connect the defendant with the commission of the offense, the evidence is insufficient to sustain the conviction;</p> <p>Id.—Opportunity.—Mere proof of opportunity of the defendant to participate in the robbery charged is not sufficient corroboration of the testimony of the accomplice, especially where others had the like opportunity.</p> <p>Id.—Improper Cross-Examination of Defendant—Conversations with Accomplice.—Where the defendant in his testimony in chief had merely denied a conversation, testified to by the accomplice upon the evening of the robbery, a question on cross-examination as to language supposed to have been spoken to the accomplice when first brought up to the superior court, which implied that he then admitted his guilt to the accomplice, was not proper cross-examination, and prejudicial error will be presumed from the allowance of such questions, notwithstanding a negative answer given by the defendant.</p>

<p>Appeal—Beview of Evidence—Lack of Specification.—Though this court is willing liberally to construe the statutory requirement of specification of particulars in which it is claimed that the evidence is insufficient to justify the verdict, where the specification is sufficient in statement to advise opposing counsel and the trial court of the grounds of attack, so that they may determine what should be put in the statement,—it cannot entirely disregard the statute, and will not review the evidence on any point upon which there is the entire absence of such a specification.</p> <p>Id.—Action fob Conversion—Sufficiency of Evidence.—In an action for damages for alleged conversion, the question of the insufficiency of the evidence to show a conversion of plaintiff’s property by the defendants cannot be considered, where there is absolutely no specification referring in the remotest degree to the question of such conversion.</p> <p>Id.—Evidence—Value of Property—Prices at Sheriff’s Sale.— Alleged error in refusing to allow evidence for the defendants to prove the prices which the property in controversy brought at sheriff’s sale, as tending to show the value of the property converted, is not ground of reversal, where the record shows that such prices were proved by one of defendants’ witnesses.</p>