Volume 141 — California Reports

<p>Injury to Land—Seepage from Canal of Irrigation District—Construction by Contractor—Stipulation for Joint Judgment— Findings.—In an action for injury to plaintiff’s land by seepage of water from the canal of an irrigation district, in the course of construction by a contractor sued jointly with the district, and for an injunction, where the defendants stipulated that if plaintiff recovered judgment at all it should be joint against both defendants, who reserved the right to adjust the responsibility between themselves thereafter, it cannot be objected upon appeal of the irrigation district that it was not responsible for the injury, because the contractor was an independent contractor, nor can the district complain of unnecessary findings made in accordance with the stipulation.</p> <p>Id.—Condemnation of Land—Damage Sued for not Included—Pleading—Proof.—The damage allowed in a suit for the condemnation of land of plaintiff by the irrigation district, taken for the canal, could not have included or anticipated damage to land not taken from seepage due to faulty construction o.f the canal; and proof of the condemnation proceedings, if not pleaded, was inadmissible to show that such damage was included therein.</p> <p>Id.—Findings—Faulty Construction of Canal—Repairs Pending Suit—Dissolution of Injunction—Damages—Appeal.—Where the findings upon sufficient evidence show that the canal was not constructed in the manner suitable for such work, and that its bed where the seepage occurred was of very light and porous sand, through which the water easily percolates, and that such seepage could not be prevented without an artificial bottom, and that since the suit was commenced the defendants had remedied the seepage by repairs, whereupon the temporary injunction was dissolved, and the court rendered judgment for damages found by the jury by reason of the seepage, and for costs, an order denying a new trial will not be disturbed upon appeal.</p>

<p>Dismissal of Action—Delay in Return of Summons—Minute Order —Final Judgment—Appeal.—An order entered in the minutes of the court for the dismissal of an action for failure to return the. summons within three years, under subdivision 7 of section 581 of the Code of Civil Procedure, is a final judgment, for the purpose - of appeal therefrom.</p> <p>Id. —Erroneous Dismissal—Appearance of Party Served—Presumed Authority of Attorneys—Delay of Attack—Estoppel.—The dismissal of the action for failure to return the summons was erroneous, and the moving party was estopped from urging it, as against the plaintiff, where such party was promptly served with summons, and attorneys promptly appear for him who are presumed to have had authority to represent him, and whose authority the plaintiff could not question, and who stipulated in his behalf with the plaintiff that the case should abide the result of another similar action, and whose authority to act for the moving party was not assailed by him until after the lapse of more than five years, during which time the plaintiff had delayed to return the summons on the strength of the appearance for him, upon which the plaintiff was entitled to rely.</p> <p>Id.—Sufficiency of Complaint—Motion to Dismiss—Appeal.—The sufficiency of the complaint to state a cause of action is not available on a motion to dismiss the complaint, and cannot be considered upon appeal from an order granting the motion.</p> <p>Id.—Order Refusing to Set Aside Stipulation—Appeal—Renewal of Motion.—An order refusing to set aside the stipulation is not appealable, and is reviewable only on appeal from the final judgment by the moving party, and the motion to set it aside may be renewed before such appeal is taken, after reversal of a judgment dismissing the action as to him.</p> <p>The acts of the attorneys who appeared for Finkbohner bound him until they were superseded, regardless of the question of actual authority, if no collusion appears. (Blodgett v. Conklin, 9 How. Pr. 442; Lewis v. Sumner, 13 Met. 269; Bayley v. Buckland, 1 Welsby, H. &. G. 1; Seale v. McLaughlin, 28 Cal. 668.)</p>

<p>Foreclosure of Mortgage—Subsequent Grant of Eight of Way— Beleases by Mortgagee after Grant—Mode of Sale—Eights of Grantee.—Where subsequent to the execution of a mortgage the mortgagor granted a right of way over the mortgaged lands to a third party, the mortgagee could not, subsequent to that deed, prejudice the owner of the right of way by releases of other portions of the mortgaged premises; and the grantee has the right upon foreclosure of the mortgage to have it explicitly ordered that that portion of the mortgaged premises not covered by the right of way should be first sold, and that the right of way should only be sold in case of deficiency.</p>

<p>APPEAL from a judgment of the Superior Court of Plumas County. C. E. McLaughlin, 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. 1</p>

<p>Mechanic’s Lien—Construction of Bridge—Use of Materials in Temporary Structure—Property of Contractors—Provision in Contract.—Materialmen cannot enforce a lien upon a completed bridge for materials which were not furnished to be used, and were not actually used, in the bridge as contracted for and completed, but were furnished and used only in the erection of a temporary structure which formed no part of the completed bridge, hut which the contractors were permitted by the contract to provide for temporary support of track, rails, and ears, to prevent damages for delay under the terms of the contract until permanent steel support should be furnished as contracted for, which temporary structure remained the property of the contractors, and was properly removed by them when the bridge was completed.</p> <p>Id.—Use of Temporary Structure—Acceptance—Void Contract-Evidence of Construction.—The use by the defendant of the temporary structure for the running of trains did not, under the circumstances of the case, furnish any evidence of the acceptance of the bridge as completed; nor was its occupation by it under a void contract conclusive evidence of construction.</p>

<p>APPEAL from an order of the Superior Court of San Joaquin County denying a new trial. Edward I. Jones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Judgment Foreclosing Certificate of Purchase—Motion of Assignee to Vacate—Appeal—Affidavit not Part of Eecord—Presumption.—Upon appeal from an order denying the motion of an assignee of a certificate of purchase of school land to vacate a judgment foreclosing the certificate of purchase, for a defective affidavit for publication of summons, where the only proof that she was such assignee is an affidavit not embodied in any bill of exceptions, but merely certified by the clerk, the affidavit is no part of the record, and cannot be considered for any purpose. There being nothing in this court to show that appellant was a party aggrieved, or had any interest in the controversy, or any right to make the motion, it must be presumed the motion was properly denied.</p>

<p>Public Lands—Agricultural Patent—Character of Land—Adjudication —Collateral Attack by Mining Claimant—Action to Quiet Title.—A United States patent for agricultural land is an adjudication by a tribunal having jurisdiction that the lands were agricultural and not mineral in character, and a mining claimant who did not appear and protest or make any adverse claim against the issuance of the patent cannot collaterally attack the patent in an action to quiet his title to the mining claim against the patentee.</p> <p>Id.—Reservation in Patent—Construction—Eight to Mine.—A clause in an agricultural patent making it “subject to the right of a proprietor of a vein or lode to abstract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted, as provided by law,” if not void, is to be properly construed as only permitting the proprietor of a vein whose apex lies outside of the land, but which penetrates the land on its dip or downward course, to abstract and remove his ore therefrom. It does not confer a right to enter and mine upon the surface of the patented land.</p>

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

<p>Dismissal of Action—Appeal upon Judgment-Boll—Presumption— Want of Prosecution.—Upon appeal from a judgment dismissing an action taken upon the judgment-roll alone, without any bill of exceptions, every intendment is in favor of the judgment; and in the absence of any affirmative showing to the contrary, it will be presumed that the dismissal was ordered on some good ground, and in conformity with the rules of law. Where the record permits, a reasonable inference will be indulged that the dismissal was for failure to prosecute the action with reasonable diligence.</p>

<p>Action by Heir to Set Aside Deed—Fraud and Undue Influence upon Habitual Drunkard.—An action may be maintained by the sole heir of a deceased person to set aside a deed procured from the deceased without consideration by the fraudulent practices of the defendants and their undue influence over the deceased, who was known to be an habitual drunkard for more than five years before the execution of the deed, to an extent seriously to impair his mind, and who was so intoxicated at the time as to render him unfit to transact business, and entirely incapable of realizing, understanding, or attending to the transaction.</p> <p>Id.—Evidence—Declaration of Grantor—Silence of Defendants.— In such action a declaration of the grantor made in an affidavit in an attachment suit brought by his creditor, to the effect that the deed was not sham, or without consideration, or in fraud of creditors, was admissible, but not conclusive on the court; and where the affidavit was made in the presence of the defendants, and alluded to “a contemporaneous writing executed” by them, of which they say nothing in their testimony, their silence is a significant circumstance against them.</p> <p>Id. —Involuntary Trust—Construction of Code.—"Where it appears that the defendants gained the land by actual fraud, and also by undue influence, and by the violation of an assumed trust, they are, under section 2224 of the Civil Code, involuntary trustees of the thing gained as against the heirs of the deceased grantor.</p> <p>Id.—Fraud upon Creditors—General Bulb Inapplicable.—The general rule that a court of equity will not grant relief to one who has made a deed to defraud creditors has no application where the deed was procured by fraud or undue influence of the defendants, who will not be allowed to perpetrate a greater fraud, and to take advantage of their own wrong and of the absence of free consent of the grantor, and who, under express statutory provision, take as trustees of the grantor.</p> <p>Id.—Evidence—Habits and Condition of Grantor.—The objection that evidence was allowed as to the drunken habits and condition of the grantor, at periods from seventeen to twelve years prior to the date of the transaction, goes rather to the weight than to the admissibility of the testimony.</p> <p>Td.— Action to Enforce Trust—Rescission not Involved.—In an action to enforce an involuntary trust in favor of an heir of the deceased grantor, the objection that the grantor did not rescind promptly is untenable.</p> <p>Id.—Charges not Connected with Transaction—Payments not Required.—The plaintiff was not required to make any payments on account of an alleged bill against the grantor, or for moneys alleged to have been advanced to him subsequently to the alleged transaction, where these matters cannot be regarded as connected with the transaction.</p>

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

MOTION to dismiss an appeal from an order of the Superior Court of San Diego County granting a change of the place of trial. N. H. Conklin, Judge. The facts are stated in the opinion.

MOTION to dismiss appeals from a decree of distribution of the Superior Court of Santa Clara County and from a decree discharging an administratrix with the will annexed. M. IT. Hyland, Judge. The facts are stated in the opinion of the court.

<p>Building and Loan Association—Attachment Lien—Report of Commissioners to Attorney-General—Subsequent Action.—The property of a building and loan association is subject to attachment by any creditor thereof, at any time prior to the commencement of an action by the attorney-general to enjoin it from doing business; and the lien of an attachment upon its real estate is not affected by a prior report of the commissioners to the attorney-general that the association was doing business in an unsafe manner.</p> <p>Id.—Subsequent Possession of Receivers—Existing Liens not Affected.—The subsequent possession of receivers appointed by the court cannot affect the existing lien of the attachment. The appointment of a receiver works no injury to the least right of any one; but the receiver is the hand of the law, which preserves and enforces rights, and never destroys them. The receiver’s possession is subject to all valid and existing liens upon the property at the time of his appointment.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. J. W. Hughes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action for Seduction—Sufficiency of Complaint—Chastity of Plaintiff.—A complaint in an action for seduction, which alleges that it was induced solely by the defendant’s promise of marriage, and false pretenses of great love, and his urgent importunity, to which she reluctantly yielded, and that she was then a minor, and then was and still is unmarried, and that at the time of the grievances complained of, and at all times prior thereto, she had been chaste and virtuous, avers with sufficient definiteness that she was chaste and virtuous at the time of the actual seduction.</p> <p>Id.—Averment of Ability and Willingness to Marry not Esquired. —Where the promise of marriage was only one of the means made use of to accomplish the minor’s seduction, and other artifices and pretenses were resorted to for the same purpose, the complaint need not allege her ability or willingness to marry the defendant.</p> <p>Id.—Special Demurrer—Misjoinder of Causes—Ambiguity.—A special- demurrer on the ground that the complaint misjoins a cause 'of action for seduction and for breach of a contract to marry, and for ambiguity and uncertainty as to whether the cause of action is based on the alleged seduction, or upon the alleged contract to marry, or upon the alleged suffering of the plaintiff, was properly overruled. The promise of marriage is merely set out as one of the inducements of the seduction, and the cause of action and prayer for damages is solely for the alleged seduction, and in no sense on a contract to marry, and there is no ambiguity as to the cause of action.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. F. H. Dunne, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>State Hospital—Building op Ward—Notice op Materialmen—Liability op Trustees—Interest and Costs.—The trustees of a state hospital, whose treasurer lawfully holds the custody of moneys due to a contractor for the building of a ward, do not, by joining in the answer of a bank which claimed title to the money by assignment from the contractor, become liable to interest and costs at the suit of materialmen, who by notice of their claims to a particular estimate were entitled thereto as against the bank, where no claim for interest was made in the complaint, and the trustees were enjoined from making payment to the bank, and they did not make any adverse claim to the money in litigation, but were willing to obey any order of the court in the action in relation thereto.</p> <p>Id.—Payment into Court—Duty op Public Treasurer.—A public treasurer is not obliged, in case of conflicting claims to money in his hands, to pay it into court in order to avoid interest and costs. His office makes him trustee to hold the money until he can pay it out under lawful authority.</p> <p>Id.—Liability op Public Trustees—Discretion—Good Faith.—The trustees of the state hospital are public officers, who are guardians of the public money belonging thereto. They have certain discretionary powers, and should not be made answerable for injury or errors of judgment when acting in good faith, within the scope of their authority, without malice, corruption,, or sinister motives.</p>

<p>Broker’s Sale of Beal Estate—Commissions—Administration- Sale —Statute of Frauds—Amendment of Answer—Change of Admission to Denial.—An answer to an action by a real estate agent to recover commissions for the sale of real estate, which admitted the contract, and pleaded that it was made by her as administratrix of the estate of a deceased person, and not otherwise, and which also alleged for a separate defense that the contract was oral, and was void under the statute of frauds, specially pleaded, does not admit the validity of the contract; and it was not an abuse of discretion to allow an amendment at the trial of the first part of the answer so as to deny the existence of the contract, and thus remove a possible ambiguity in the answer. Id.—Admission of Contract—Plea of Statute of Frauds.—The answer admitting the contract alleged did not waive the protection of the statute of frauds, where the contract was expressly alleged to have been oral, and the statute of frauds was specially pleaded. In such ease the rights of the defendant stood as if no admission had been made or amendment allowed.</p> <p>Id.—Burden of Proof—Nonsuit.—The burden of proof under the original answer was upon the plaintiff to prove a contract in writing, and where no such proof was made, and after amendment of the answer the plaintiff was allowed an opportunity to introduce further proof, but produced none, a nonsuit was properly granted. Id.—Seasonable Value of Services not Becox’brable.—Where there was no contract in writing for the employment of the plaintiff to sell the real estate, plaintiff was not entitled to recover the reasonable value of his services in selling it.</p>

<p>Criminal Daw—Motion to Set Aside Information—Signature to Complaint—Mark—Attestation—Jurat of Justice.—Upon a motion to set aside an information for insufficiency of the signature to the complaint for arrest of the defendant, a signature by the mark of the complainant, made after his initials and before his surname, accompanied by the jurat of the justice of the peace that the complaint was subscribed and sworn to before him, will be deemed sufficient. It will be presumed that the name of the complainant, written near the mark, was written by the justice; and his signature to the jurat was a sufficient attestation of the mark.</p>

The main facts are stated in the opinion of the court on the original hearing in Bant. Further facts are stated in the opinion of the court on rehearing.

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are stated in the- opinion of the court.</p>

<p>Order Denting New Trial—Beview upon Appeal.—Upon appeal from an order denying a new trial, without an appeal from the judgment, the sufficiency of the pleadings and of the judgment, as being the legal conclusion from the facts found, cannot be questioned.</p> <p>Id.—Street Improvement—Sale under Bond—Injunction—Finding —Waiver oe Objection—Estoppel.—Upon appeal from an order denying a new trial, in an action to enjoin the sale of plaintiff’s lot under a bond for a street improvement, a finding sustained by the evidence that plaintiff and her predecessor in title, by their conduct, waived objection to the improvement, and acquiesced therein and received the benefit thereof, and consented to and ratified the proceedings, and took no appeal to the city council, and did not object to the bond, nor pay or offer to pay the assessment or bond, or any part thereof, and that plaintiff is estopped by said conduct from obtaining equitable relief, is conclusive of the case.</p> <p>Id.—Bequest eor Improvement and Assessment—Fraud upon Bond-Owner.—Where it appears that plaintiff’s predecessor in title requested the improvement, and requested the superintendent of streets to deliver the assessment and diagram upon the faith of which the work was done, and acquiesced in all the proceedings without objection to any step, his acts and conduct, if allowed to be questioned, would work a fraud upon the owner of the bond which the law will not tolerate.</p>

<p>Order Denying New Trial—Review upon Appeal.—Upon appeal from an order denying a new trial, this court is limited in its review to the grounds upon which the new trial was asked, and cannot review the sufficiency of the pleadings or findings to support the judgment, or consider any errors in the conclusions of law or in the judgment.</p> <p>Id.—Decision against Law—Ground por New Trial.—A motion for new trial on the ground that the “decision is against law,” is only permissible when a new trial is the appropriate means of correcting the error in the decision, as where omitted findings upon material issues are essential to be made. It cannot be made to correct any conclusion of law from the findings, or any decision against law, for the correction of which a new trial would be vain or useless.</p> <p>Id.—Specifications of Insufficiency of Evidence—Object of Bule. —Specifications of the insufficiency of the evidence to sustain the findings, which clearly designate the findings and parts of findings, which it is claimed the evidence does not justify, are not objectionable. The object of the rule requiring these specifications is to shorten the statement by excluding everything irrelevant to the specified fact, and to notify the opposing party of the particular finding called in question, that be may see that the statement fairly and fully presents the evidence bearing on- that particular matter; and this object accomplished, the statute is satisfied.</p> <p>Id.—Ejectment—Cross-Complaint—Oil Lease—Bight of Renewal— Breach of Conditions—Bindings against Evidence.—In an action of ejectment, where the defendant set up by way of cross-complaint a right of renewal of a lease of oil-land from the plaintiff, which made a renewal of the lease depend upon the performance of conditions, which the court found, generally and specifically, had been complied with, whereas the evidence clearly showed a breach of the conditions, an order denying a new trial must be reversed for insufficiency of the evidence to sustain the findings.</p> <p>Id.—Evidence—Use of Oil for Buel—Custom—Practical Construction of Lease.—Where the terms of the lease were not clear as to the right of the lessee to use oil for fuel, though evidence of a custom to that effect among oil prospectors was not admissible, evidence was admissible to show that the -plaintiffs acquiesced in the burning of oil in the work of development, and made no demand on account of the oil so used; and such evidence sufficiently establishes a practical construction of the lease by the parties, and sustains a finding according to such evidence.</p> <p>Id.—Clause as to Eights op Miners—Misuse op Word.—A clause in the lease conferring upon the lessees "such other rights and privileges as are vested in mines under the laws of the United States and of the state of California,” cannot "be treated as meaningless because of the use of the word “mines,” instead of “miners,” and is intended to confer upon the lessees the rights conferred upon prospectors of mining-ground by the laws of this state and of the United States.</p> <p>Id.—Forfeiture op Lease—Waiver—Eights of Lessor—Breach op Conditions of Benewal.—The waiver of a forfeiture of the lease for breach of conditions, by not insisting thereupon, could not affect the right of the lessor to defeat a renewal of the lease for breach of conditions upon the faithful performance of which the right of renewal depended.</p> <p>Id.—Development—Amount op Expenditure—Cessation op Work.— The amount expended in the development of oil under the lease was properly proved; but the amount expended in the beginning of the operations could not excuse a subsequent cessation of work, in breach of a condition of renewal of the lease.</p> <p>Id.—Evidence—Expectation of Stockholders and Directors.—Evidence was not admissible to prove that the stockholders and directors of the - defendant corporation expected and counted upon a renewal of the lease. Without a performance of the conditions of ' the lease, their expectations were of no avail, and with it unnecessary.</p> <p>Id.—Understanding op Parties—Meaning op Contract.—The court properly excluded evidence to show the understanding of the parties touching the meaning of the contract at the time it was executed.</p>

<p>APPEAL from an order of the Superior Court of Merced County granting a new trial. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from an order of the Superior Court of San Bernardino County denying a new trial. Frank F. Oster, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>New Trial—Notice op Intention not Premature—Supply of Findings Omitted.—A notice of intention of the defendants to move for a new trial is not rendered premature by the supply of omitted findings by the judge upon his own motion, which were in no way connected with the findings upon which the decree in favor of the plaintiff was founded, and are not questioned by either party.</p> <p>Id.—Specifications of Insufficiency of Evidence—Findings of Probative Facts.—Where probative facts are found by the court, specifications of insufficiency of the evidence to sustain any one of such findings, or any particular contained therein, are sufficient.</p> <p>Id. —Finding of Ultimate Fact.—Where the finding is of an ultimate fact, consisting of a conclusion from a number of probative facts, a specification as to the insufficiency of the evidence to sustain such finding is insufficient. [Per Lorigan, J., and McFarland, J., Shaw, J., Angellotti, J., and Henshaw, J., contra.l</p> <p>Id.—Trust—Enforcement—Advances by Decedent—Security—Findings against-Evidence.—In an action to enforce a trust, one of the purposes of which was that the trustee should hold the title for the plaintiff, where it appeared from the evidence, without substantial conflict, that the deceased uncle of the plaintiff had advanced large sums of money for plaintiff’s benefit, for which plaintiff was indebted to him, and that it was the understanding of the parties that the title was held by the trustee also as security to the uncle for the amount of such advances; findings that the trustee held the title in trust only to convey to the plaintiff, and not as security for plaintiff’s indebtedness to the estate of the deceased uncle, were against the evidence.</p> <p>Id.—Practical Construction of Contract—Acts and Conduct of Parties.—Where the acts and conduct of the parties up to the time of the uncle’s death, and a sworn statement of the plaintiff in his original complaint, all tended to show that the trust deed to the land was in lieu of antecedent notes and mortgage held by the uncle as security, and that the deed was intended by the parties as security for the indebtedness then due and to become due from the plaintiff to the uncle for further advances, such acts and conduct of the parties show a contemporaneous and practical construction of the contract which must prevail over the subsequent testimony of plaintiff to the contrary.</p> <p>Id.—Written Agreement as to Notes and Mortgages—Change of Security.—Where a written agreement was made by which notes and a mortgage given upon the sale of land by the plaintiff, were pledged by him to the uncle as security for indebtedness, and the security was changed into land by consent of the parties, in lieu <of the notes and mortgages, the land became subject to such written agreement; and the rights of the uncle in the trust property are evidenced thereby.</p> <p>Id.—Estoppel of Plaintiff.—Where the plaintiff knew that the title was held in the name of his uncle’s confidential clerk, and that the uncle claimed the title as security, and upon faith of such security received the advances made by the uncle, and though informed repeatedly that the uncle was making advances on the property, and never by word or act repudiated the uncle’s claim, but insisted on the advances being made, he will be held to the agreement as thus understood and acquiesced in by him, and believed to exist when he presented his claim against his uncle’s estate, and when he commenced the action.</p> <p>Id.—Evidence Properly Excluded—Declarations Out of Plaintiff’s Hearing—Letter of Trustee.—Declarations made by the uncle and his attorney subsequent to the execution of the deed, out of the hearing of the plaintiff, or of any agent representing him, and a private letter of the trustee _ written after the uncle’s death, which plaintiff had never seen or known of, were properly excluded from evidence.</p>

HABEAS CORPUS to test the validity of an ordinance of the City of Los Angeles, under which petitioner was convicted in the Police Court. H. C. Austin, Police Judge. Charles Elton, Chief of Police, Respondent. The facts are stated in the opinion of the court.

<p>Prohibition—Trial op Cause—Jurisdiction—Remedy by Appeal.— This court will not sustain a writ of prohibition to prevent the superior court from trying a case before it, for alleged want of jurisdiction, there being a remedy by appeal. It is not a sufficient ground for the writ that the trial will be expensive and troublesome.</p>

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

<p>Criminal Law—Trial for Murder—Refusal of Instructions Substantially Given—Discretion of Jury—Confession and Admissions—Upon the trial of a defendant charged with murder, the defendant is not prejudiced by the refusal of instructions substantially given in the charge of the court relative to the discretion of the jury in determining the penalty in case of conviction, and relative to the admissibility of an alleged confession and to considering the whole of alleged statements and admissions of the defendant.</p> <p>Id.—Connection of Murder with Burglary—Inapplicable Instruction__Where the evidence showed that if appellant killed the deceased, the killing was in immediate connection with a burglary and before flight, a requested instruction relative to a murder committed after an attempt to perpetrate a burglary, and when the party is in flight, as not being within the meaning of section 189 of the Penal Code, was properly refused as inapplicable to the evidence.</p> <p>Id— Considering Admissions with Caution — Instruction as to Matter of Fact—Harmless Refusal—Commonplace Matter. —A requested instruction relative to the jury receiving with caution all evidence of the oral admissions of the defendant, seems, under the weight of authority, in violation of the constitutional provision against charging as to matters of fact; but without finally so deciding, the refusal of the instruction cannot be deemed ground for reversal, as it states mere commonplace matter within the general knowledge of jurors.</p>

<p>Criminal Law—Murder—Self-Defense—Instructions—“ Claim ” of Defendant.—Upon the trial of a defendant charged with murder, who admitted the killing, and relied upon the excuse of self-defense, and requested instructions thereupon, it was proper for the court to preface the instructions given with the statement that they were “based upon this claim of the defendant that he acted in self-defense”; and such use of the word “claim” is not prejudicial, or open to criticism. -</p> <p>Id.—Apparent Danger—Sufficient Cause for Belief—Instruction Properly Modified.—A requested instruction that “a person may repel force by force in the defense of person, property, or life, against one who manifestly intends or endeavors by violence or surprise to commit a known misdemeanor or felony, or either, or to do great bodily injury to his person, and the danger which would justify the defendant in the act charged against him may he either real or apparent; and the jury are not to consider whether the defendant was in actual peril of his life or property, hut only whether the indications were such as to induce a reasonable man to believe that he was in such peril of person or property; and if he so believed reasonably [and had sufficient cause so to believe], and committed the act complained of under such belief, even though it should appear that the deceased was not armed, you should acquit the defendant,”—was properly modified by inserting the words “and had sufficient cause so to believe,” and as so modified the instruction clearly expresses the law.</p> <p>Id.—Proper Instructions.—Instructions upon the law of self-defense, consisting of a concise statement of the language of subdivision 3 of section 197 of the Penal Code, and of excerpts from the language of the court in People v. Heclcer,-109 Cal. 462, were properly given.</p> <p>Id.—Seeking Quarrel with Design to Create Necessity—Applicability of Instruction—Province of Jury.—An instruction that the plea of self-defense is not available where a person seeks a quarrel with the design of creating á real or apparent necessity for killing, correctly states the law, and is not erroneous, whether it is applicable or inapplicable to the evidence. Where there was evidence to which it might apply, the instruction was properly given, and it was the exclusive province of the jury to determine whether the quarrel was sought by the defendant with such design.</p> <p>Id.—Fault of Defendant—Instructions Construed Together.—An instruction that “a defendant who justifies under a claim of self-defense must himself have been without default,” and predicating the absence of fault, as a condition of being justified in acting under a belief of imminent danger, must be construed in connection with all of the instructions of which it forms a part, concerning the conditions on which the right of self-defense may be asserted,— that he was not the first aggressor, or, if so, that he had endeavored to decline further struggle and that he had not sought the quarrel with the design of forcing a deadly issue, or inviting a real or apparent necessity for killing,—and so construed, the instruction is limited, pertinent, and applicable.</p> <p>Id.—Mat.rev. Aforethought—Inference from Circumstances.—An instruction that, “whether the defendant does or does not act with malice aforethought, is always to be inferred from the circumstances surrounding the case,” is not subject to just criticism by the defendant, whether it be considered as standing alone or as construed with other instructions fully dealing with the subject of malice aforethought.</p> <p>Id.—Irrelevant Testimony—Harmless Puling.—The admission of irrelevant testimony having no bearing on the case on re-examination of a witness for the prosecution, where the same matter had been originally brought out on cross-examination of the witness by defendant’s counsel, is harmless.</p> <p>Id.—Cross-Examination—Be-Examination—Explanation of Contradictory Statement—Falsity.—Where a witness for the prosecution is sought to be impeached on cross-examination by a contradictory statement made immediately after the homicide, which the witness admitted to have made, the witness is entitled on re-examination to explain that such contradictory statement was not true.</p> <p>Id'.—Silence of Witness—Explanation of Motive.—Where the defendant, on cross-examination of a witness for the prosecution, who was a daughter of the deceased, showed that she did not say anything to her father or a doctor who was with him as to the presence of the defendant, she was properly permitted on re-examination to explain her motive for not informing them of the declared intention of defendant to kill her father, that the defendant was watching her with a gun in hand, and that she was afraid that he would kill both herself and her father.</p> <p>Id.—Dying Declaration—Bes Gest.ze.—Where the preliminary proof clearly showed that the dying declaration of the deceased was made in the full belief of impending death, it is not objectionable as stating a fact which was part of the res gestee, that when defendant approached the house the deceased was talking with the defendant’s brother about a horse-collar.</p> <p>Id.—Weight of Defendant's Brother.—It was not prejudicial error to permit the prosecution to ask the defendant’s brother, when a witness, as to his weight, where it was obvious to the jury that he was a large man and able physically to have intervened and stopped the killing of deceased, and where he had testified in effect that he did not intervene because he did not think there was going to be any trouble till it was all over.</p> <p>Id.—Statement of Daughter of Deceased—Hearsay—Foundation not Laid__It was not error to refuse to permit a witness for the defendant to testify to a statement made by the daughter who was a witness for the prosecution. If it was the same as she made while on the stand, it was inadmissible hearsay; and if different it could not be shown to impeach her testimony, where no foundation was laid on cross-examination for its admission; and where the court offered to allow the defense to recall the witness to lay a foundation, and the offer was rejected, the defense must abide by such rejection.</p> <p>Id.—Imposition of Death Penalty—Province of Jury.—Where the evidence on the part of the prosecution was such that if believed by the jury they were warranted in finding the defendant guilty of murder in the first degree, it was in the province of the jury to impose the death penalty, and this court cannot interfere with the exercise of their judgment.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Bernardino County and from an order denying a new trial. Frank F. Oster, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action foe Taxes Paid under Protest—Assessment of City Franchise-Federal Franchises—Insufficient Complaint.—A complaint in an action to recover taxes paid under protest, which shows an assessment upon a franchise granted by a city, and avers that plaintiff holds federal franchises which are non-taxable, and is an instrument of the federal government, and that the assessment was void, but does not aver that plaintiff did not receive a franchise granted by such 'city, does no't state a cause of action.</p> <p>Id.—Power of City.—It cannot lie held as matter of law that the city c ..ul giant and that the plaintifí could not receive a franchise ., is mneient from and in addition to the franchises granted tu iu uv the leueral government.</p>

PETITION for Writ of Review to annul the judgment of the Superior Court of San Joaquin County rendered upon appeal from a Justice’s Court. F. H. Smith, Judge. The facts are stated in the opinion of the court. •

<p>Election—Delay in Opening Polls—Precinct Yote not Invalidated. —A preeinet vote is not invalidated entirely merely because of delay in opening the polls, where the officers acted without fraudulent intent, and only one voter appears to have failed of voting by reason of the delay, whose vote could not have changed the result of the election.</p> <p>Id.—Test Applied to Departures prom Law.—The true test to be applied to departures from the requirements of the laws regulating the conduct of elections on the proper day and at the proper place, whether the requirements are mandatory or directory, is as to whether or not the particular departure is of such a nature as to make it impossible or extremely difficult to determine, under the circumstances of the case, whether fraud had been committed or anything done which would affect the result.</p> <p>Id.—Presumption as to Population.—There is no presumption that a township had a population entitling it to two justices of the peace, and where the pleadings of both parties justify it, it will be presumed after judgment that the township by reason of its population was entitled to one justice of the peace.</p> <p>Id.—Decision upon Appeal—Finding against Evidence—New Trial. —Where a finding of the superior court as to maleonduet of the election board was not sustained by the evidence as to one precinct, which was decisive of the election, this court cannot order final judgment, but will order a new trial, in which the court will determine the case in accordance with the views expressed by this court.</p>

<p>Water Eights—Percolating Water—Findings—Sufficiency of Evidence-Excavation in Permeable Material — Diminution of Stream.—Though the evidence tends very strongly to show that a tunnel and excavation by the plaintiff in permeable gravelly material near the hed of a stream took part of the subterranean flow of the waters of the stream, constituting part of the stream; yet where the findings that the tunnel took only percolating water from plaintiff’s land, and that it did not diminish the supply of the water to which the defendants were entitled, were contrary to the evidence, which showed clearly, without conflict, that the stream was substantially diminished thereby to the injury of the defendants, and that the water was taken beyond the lines of the land from which it was taken, the plaintiff had no right to a decree declaring him to be the absolute owner of the water thus taken, or quieting his title thereto.</p> <p>Id.—Underground Water.—Under the rule established in Katz v. Walkinshaw, ante, p. 116, with respect to percolating water, it is not lawful for one owning land bordering on a stream to excavate in his land, intercept percolating water therein, and apply it to any use other than its reasonable use upon the land from which it is taken, if he thereby diminishes the stream to the damage of others having rights therein.</p> <p>Id.—Eights in Percolating Water.—An owner of land adjoining a stream, who, by excavations in his land, takes percolating water therefrom, and to that extent diminishes the stream, has no greater rights to the water thus taken from the stream than he would have if the water were taken directly from the stream.</p> <p>Id.—Duty or Court—Amount or Diminution.—It was the duty of the court to have found from the evidence that the taking out of the water through plaintiff’s excavation and tunnel caused a diminution of the stream, and then to ascertain and state the amount of the diminution.</p>

<p>Action to Condemn Land—Dismissal by Plaintiff—Stipulation-Conditions Rendered Impossible.—The right of the plaintiff in an action to condemn real property to dismiss it before trial, upon payment of costs, where no counterclaim had been made nor affirmative relief sought by cross-complaint or answer, is not precluded by a. stipulation for judgment for the plaintiff at a fixed price, containing conditions for its effectiveness which have never occurred and cannot occur.</p>

<p>Action by Tenant—Killing op Domestic Animal—Failure op Kailroad Company to Fence Track—Construction op Code.—A, tenant has a property right in the land occupied by him within the meaning of section 485 of the Civil Code, giving a right of action against a railroad company for the killing of a domestic animal “upon their line of road which passes through or along the property of the owner thereof,” in case of the company’s failure to fence the track. Any lawful occupant of the land may maintain the action in ease of such failure.</p>

<p>Mining Claims—Effect of Townsite Entry and Patent.—A town-site entry and patent does not carry title to any mine of gold, silver, cinnabar or copper known to be valuable for mining purposes at the date of the entry, or to any valid mining claim or possession then held under existing laws. In respect to a valid mining claim or possession, it is immaterial whether the claim was then known to contain mineral of sufficient value to justify exploration or not.</p> <p>Id.—Assessment Work—Forfeiture—Borden of Proof.—When there has been a valid location of a mining claim, and possession has been maintained thereunder, the burden of proving the facts constituting a forfeiture of thé title or right of possession by failure to do the annual assessment work required is upon the party asserting it.</p> <p>Id.—Action to Quiet Title—Failure to Find upon Defense of Forfeiture-Evidence in Statement.—In an action by the owner of a mining claim to quiet his title thereto against defendants claiming under a townsite entry and patent, where the evidence in the statement is sufficient to justify a finding that the annual work was done by the mining claimants, and there is no evidence to sustain the defense of forfeiture, the failure to find upon such defense will not justify a reversal.</p> <p>Id.—Evidence—Identification of Claim—Continuance of Vein in Adjoinins Claim.—Evidence was admissible to show that the same vein ran through plaintiff’s mining claim and a mine belonging to other claimants, which was shown to adjoin plaintiff’s mine, as tending to identify the plaintiff’s mining claim and its location on the ground.</p>

<p>APPEAL from part of a judgment of the Superior Court of Ventura County and from an order denying a new trial, and cross-appeal from another part of said judgment. W. S. Day, Judge, presiding.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. Joseph H. Budd, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Landlord and Tenant—Note for Bent—Litigated Title—Indemnity —Construction of Contract.—A contract of indemnity given by a landlord to his tenants contemporaneously with an absolute note given by them to him, payable on or before a fixed date, in a sum certain, agreeing “to fully indemnify them in the payment” of the note, which is described as given “in lieu of rent of a certain piece of ground containing one hundred acres more or less, and now in litigation,” etc., is to be construed in connection with the note, which it is contemplated shall be paid according to its terms, and the indemnity is against loss to the tenants in ease plaintiff should lose the title.</p> <p>Id.—Action upon Note—Defense Inconsistent with Contract.—In an action upon the note, no defense can be interposed which is inconsistent with the contract of indemnity, and a defense that the note was to be paid only on a contingency which bad not arisen, such as that defendants would not be required to pay the note unless it was established in court that the plaintiff was the owner of the land, “and that it was not established,” is not tenable.</p> <p>Id.—Parol Evidence—Uncertain Contingency—Indemnity against Double Bent—Consistency with Contract.—The contract of indemnity being uncertain as to contingency, parol evidence is admissible to show that it was intended to indemnify the tenants against loss arising from the payment of double rent, if the landlord’s title should prove invalid, as such evidence is consistent with the terms of the contract; but parol evidence is not admissible to vary the written contract by showing that the note was not to be paid at all except upon the happening of a certain contingency.</p>

The main facts are stated in the opinion of the court rendered in the foreclosure suit, Curtin v. Salmon River etc. Co., 130 Cal. 345.1 Further facts as to ratification of the note sued upon are stated in the opinion of the court in this case.

<p>APPEAL from an order of the Superior Court of Yolo County refusing to change the place of trial of the action. E. E. Gaddis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Siskiyou County and from an order denying a new trial. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion of the court. '</p>

<p>Estate for Life of Grantor—Construction of Contract—Lease-Grant.—A contract between a mother and her son, by which, in consideration of past care and attention, and on condition that the son shall supply her with necessaries and give her such care as her age and condition may require, “so far as he is able to do so,” she granted to him all of her personal property, and also all "of her interest in a homestead entry, with the right to cultivate or rent the same during her life, and to prove up as sole heir to the land after her death, is not a lease, for want of a certain rent, and for want of validity as a lease of agricultural land, but is to be construed as making to the son a grant of a freehold estate for the life of the mother.</p> <p>Id.—Grant in Fee by Tenant for Life—Termination of Life Estate —Grant by Patentee—Adverse Possession—Prescriptive Title. —Where the tenant for life, claiming to be the absolute owner of the homestead under the contract, granted an estate in fee to one of the plaintiffs, under whom the other plaintiff claims, the possession of the grantee of such estate, after the termination of the life estate, by the death of the mother, became adverse to the grantee of the mother, who had herself obtained a patent for the homestead and granted it to the testator of the defendants, and where such adverse possession was accompanied by the payment of all taxes upon the lands and was continuously hostile for the statutory period, it ripened into a prescriptive title, which the law will protect as against the defendants.</p>

J. Y. Coffey, Judge. The probate of the will was contested on the ground that the publication of the notice of hearing was made in the Recorder, a law journal and daily newspaper published in the city and county of San Francisco, and was insufficient, on the ground that it was not made in a “newspaper of general circulation.”

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

<p>Public Highway—Obstruction—In junction. —Where it appears that a road claimed by the defendants as a private road was laid out or designated -by the parties through or across whose land it ran first, and has since been used by all persons .who had occasion to pass that way, and became dedicated or abandoned to the public prior to the placing of an obstruction thereon by the defendants, this constituted it a highway, or public road, within the terms of the statute as well as at common law, and the defendants were properly enjoined from obstructing or interfering therewith, to the injury of the plaintiff.</p> <p>Id.—“Private” and “Public” Roads—Power of Legislature—Classification of Highways.—The legislature has no power to lay out “private” roads so as to make them the property of individuals or private ways at common law; but a road laid out as a “private road” becomes a public way, over which all may lawfully pass who have occasion. The distinction between “public” and “private”' roads is one merely of classification of highways.</p> <p>Id.—Prescriptive Use of Road—Implied Dedication.—Where, as in this case, the public, or such portion of the public as had occasion to use the road, traveled over the same without asking or receiving any permission, and without objection from any one, for the period of time beyond that required by law to bar a right of action, a right in the public to the use of the road arises by prescription or implied dedication.</p> <p>Id.—Estoppel of Defendant.—Where one of the defendants sold to the plaintiff a strip of land along his north line for the purpose of a right of way from the plaintiff’s premises to the road in question, as a means of reaching a public highway, such defendant is estopped from denying as against the plaintiff that there wras a dedication of the road.in question.</p>

MOTION to dismiss an appeal from orders of the Superior Court of Sonoma County amending and modifying a judgment of that court nunc pro tunc. Emmett Seawell, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of San Joaquin County denying a motion to retax and apportion costs. Edward I. J ones, Judge.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Sacramento County. Joseph W. Hughes, Judge. 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 of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>County Government Act—“Buildings” by County—“Fence”—Duty to Advertise por Bids—Prohibition__Under the provisions of the County Government Act; requiring that all necessary “buildings must be erected by contract let to the lowest responsible bidder,” after a required notice by publication, the term “buildings” is intended to include the erection of an iron “fence” around the grounds upon which the courthouse of the county is situated. It is the duty of the supervisors of the county to advertise for bids, and let the erection of such fence to the lowest bidder; and prohibition will lie to prevent the enforcement of a contract for its erection to a bidder without such advertisement and letting.</p>

<p>Tax-Collector—Commission on License-Taxes—Power op Supervisors—Action on Bond.—The board of supervisors of a county have no power either to create a license-tax collector or to fix his compensation; and an ordinance conferring the right upon the tax-collector to retain a commission for the collection of license-taxes is void, and constitutes no defense to an action by the county on his official bond to recover the amount of license-taxes retained as such commission, where the law made it the duty of the tax-collector to collect all licenses when he took the office of tax-collector.</p> <p>Id.—Power op Legislature—Retroactive Law—Increase op Compensation.—The legislature cannot pass a retroactive law to give the collector increased compensation over that fixed by law when his term commenced, nor can any increase in the rate of compensation made after the commencement of his term be held applicable during his term.</p> <p>Id.—Theory op Trial — Answer — Stipulated Pact — Waiver op Amended Complaint—Support op Judgment.—Where the original complaint included license-taxes between January, 1895, and January, 1898, but it was averred in the answer that the tax-collector had collected the taxes in contest between January, 1895, and January, 1899, and the trial proceeded upon that theory, and the parties made a written statement of facts as to the amount of license-taxes received between the dates alleged in the answer, an amendment of the complaint as to the time within which the money was collected was waived, and a judgment for the amount stipulated is sufficiently supported.</p> <p>Id.—Action Ordered by Grand Jury—Penal Code—Validity op Statute-Blending op Codes.—The grand jury had power, under section 929 of the Penal Code, to order the action commenced by the county to recover the license-taxes collected and not paid over. That section is embraced in the title of the act establishing it, and is not void as not being criminal in its nature, and improperly placed • in the Penal Code. A statutory provision otherwise valid is not void because found in any particular code. The codes blend into each other, and no one of them is limited to a particular subject.</p>

<p>Preferred Claims of Laborers for Wages—Construction of Code— Lien not Given.—Section 1206 of the Code of Civil Procedure, giving preferred claims to laborers for their wages, provides a remedy for their enforcement which is exclusive, and creates no lien upon the debtor’s property which can be enforced or foreclosed in equity.</p> <p>Id.—Injunction—Dismissal of Attachment Suit—Enforcement of Lien.—Laborers having preferred claims cannot maintain an injunction to prevent an attaching creditor from dismissing his attachment suit after notice given to such creditor of their preferred claims according to law; nor can they enforce a lien in equity as against such creditor and the debtor and the sheriff who levied the attachment.</p> <p>Id.—Jurisdiction of Superior Court—Void Judgment and Execution. —Several laborers, no one of whom has a claim equal to three hundred dollars, and who have no joint interest, cannot give jurisdiction to the superior court by a joinder of their several claims in one action. The superior court had no jurisdiction of the subject-matter of said action, and no power to render a joint judgment in favor of the several plaintiffs. Such judgment is void upon the face of the record, and the execution issued thereupon is void, and was properly quashed.</p>

<p>Estates op Deceased Persons—Letters op Administration—Eights op Adopted Daughter.—An adopted daughter of a deceased person who is sole heir to the decedent is entitled to administer upon the estate, and letters of administration were properly granted to her husband upon her request.</p> <p>Id.—Validity of Proceedings for Adoption—Collateral Attack— Consent of Parents — Appearance at Hearing—Éecital in Order—Presumption.—Where the written consent of the daughter and of her father and mother to the adoption were filed, and the adopting parents applied for the order of adoption, and filed their written agreement of adoption, and the adopting order recited that the petitioners and said minor child, “and all persons whose consent is necessary have appeared herein as required by law," the order must be deemed sufficient, upon collateral attack thereupon, and it must be presumed upon such attack that the court did its duty, and found from extrinsic evidence the existence of all jurisdictional facts, and determined whether the presence of the parents of the minor at the hearing was necessary or not, and, in the absence of any finding that it was not necessary, that the court found that the presence of the father was necessary, and required his appearance at the hearing; and the fact of such appearance sufficiently appears upon the face of the order, as against the collateral attack.</p> <p>Id.—Policy of Adoption Laws—Seasonable Construction to Sustain Proceedings.—The policy of adoption laws is to be regarded with favor. Although the proceedings under the statute are not strictly judicial, they call for the exercise of judicial functions; and such a reasonable construction should be given them as will sustain rather than defeat the object they have in view, and will sustain the assumed relationship, particularly as against a collateral • attack by strangers to the proceedings, whose only interest is to defeat the relations which the adoptive parents always recognized and never questioned, so that they may succeed to an estate from which, by the very fact of adoption, the adoptive parents in-,, tended they should be excluded in favor of the adopted child.</p> <p>Id.—Jurisdiction of Proceeding—Examination in Court—Error of Procedure.—The court in which the adoption proceedings were had having obtained jurisdiction of the parties, the failure of the judge to examine them at the hearing was an error of procedure which, cannot affect the validity of the adoption.</p> <p>Id.—Estoppel of Heir Claiming under Adoptive Mother.—The adoptive mother was estopped in her lifetime from questioning the validity of the adoption proceedings as respects mere irregularities in the method of procedure; and an heir claiming under the adoptive mother, as against the adopted daughter, stands in no better right to attack them than .the deceased would have had.</p>

<p>APPEAL from a judgment of the Superior Court of Stanislaus County. William 0. Minor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mining Claims—Action to Quiet Title—Findings—Support op Judgment-Matters op Evidence—Ultimate Facts.—In an action to quiet title to mining claims, findings that plaintiff is not the owner or entitled to possession of the property, and that since a certain date the defendant has been the owner, in possession, and entitled to the possession of the property, are sufficient to support a judgment for the defendant; and matters of evidence relating to proceedings in the land office, the citizenship of the parties, and other matters, though proper to be considered by the court in reaching the ultimate facts found by the court, are not required to be passed upon in the findings.</p> <p>Id.—Eight op Purchase under Mining Laws—Contest in Land Office-Province op State Court.—Where a contest in the land office of the United States of the right to purchase mining property from the federal government under the mining laws is referred to the state courts to determine the question of “the right of'(possession,” the state court must determine that question by a proceeding authorized by the state laws as though no contest were pending in the land office, and does not concern itself whether or not its judgment can be used in the land office.</p> <p>Id.—Erroneous Part of Judgment—Exobss of Jurisdiction—Modification of Judgment.—A part of the judgment in the superior court, declaring that the defendant is entitled to purchase certain named mining claims from the government of the United States, and to receive a patent therefor, is erroneous and in excess of jurisdiction, and will be stricken from the judgment upon appeal.</p>

<p>Principal and Agent—Fraud op Agent in Purchase op Land—Action by Principal por Dipperence in Price—Evidence—Nonsuit.—In an action to recover from the defendant, as plaintiff’s agent in the purchase of real estate, the difference between the price paid to the agent for the purchaser, which defendant represented to plaintiff the property would cost, and a less amount paid by defendant to the purchaser for a deed taken in defendant’s name, the property having been conveyed by defendant to the plaintiff at the falsely represented price, where the evidence tended to show that defendant was acting as plaintiff’s agent, and was chargeable with fraud in the transaction, a motion for a nonsuit was properly denied.</p> <p>Id.—Preliminary Question as to Letter—Prejudicial Error not Shown.—Where the defendant was merely asked a preliminary question as to whether he could state the contents of a letter written by him, of which he had no copy, which could be answered by “Yes” or “No,” and was not asked to state the contents of the letter, and no offer was made to show what its contents were, it does not appear that any prejudicial error was committed in sustaining an objection to the preliminary question.</p>

<p>APPEAL from a judgment of the Superior Court of Solano County. S. K. Dougherty, Judge, entering order for costs nunc pro tunc. Emmett Seawell, Judge, refusing to vacate order nunc pro tunc.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Ventura County. D. K. Trask, Judge presiding.</p> <p>The facts are stated in the opinion.</p>

<p>Estates of Deceased Persons—Distribution—Construction of Will —Tenancy in Common of Devisees—Prior Death of Devisee— Lapse of Bequest.-—Under the will of a deceased person, "bequeathing all of his real and personal property to two devisees named, no joint tenancy is created or devise made to a class, with any right of survivorship, but the will creates a tenancy in common in the devisees; and where one of the devisees named died prior to the death of the testator the bequest to such devisee lapsed, and the half-interest devised to her should be distributed to the heirs at law of the testator.</p>

<p>Contract to Negotiate Loan—Action fob Commission—Liability of Undisclosed Principal—Parol Evidence—In an action to recover a commission for negotiating a loan upon certain real estate against a defendant who signed merely as a witness to a contract executed in the name of another person, parol evidence is admissible to show that the defendant is an undisclosed principal, for whose benefit the loan was to be negotiated for the purpose of purchasing the real estate described, and that the party signing the contract had no interest in the matter, and that he was defendant’s agent, and signed it at defendant’s request, for the purpose of concealing the name of the defendant as principal.</p> <p>Id__Form of Contract Immaterial__In order to charge the real principal, it is always competent, in whatever form a contract is executed by an agent, to ascertain by evidence dehors the instrument who is the principal, whether the contract purports to be that of an agent, or is made in the name of the agent as principal; and it is immaterial that the principal signed the instrument as a witness in order to disguise his real character as principal.</p>

<p>State Patent—Swamp Lands—Boundary—Location of RanchoSurveys—United States Map—Reference to Map of State Survey-Evidence.—In determining the boundary of a^ state patent for swamp and overflowed lands, a map of the government survey of the township, not referred to in the state patent nor shown to have been used or examined by the state officials, is not conclusive as to the location of the eastern boundary of a rancho therein referred to, as being much farther east than as indicated in the state patent, especially where the rancho is not disclosed on the government map to have been marked by any inclosure or visible monuments. Evidence of the application for the state patent showing the description of the land applied for, and of the map of the state survey of the swamp land referred to in the patent, was admissible; and it appearing that the parties acted with reference to that map, it controls any other and inconsistent particulars in the description in case of ambiguous or equivocal calls, under subdivision 6 of section 2077 of the Code of Civil Procedure.</p> <p>Id.—Effect of State Patent—Construction—Conflicting Calls.— A patent is conclusive between the parties and their privies against any collateral attack; but before it concludes anything it must be construed and its meaning determined, and conflicting calls therein are to be reconciled upon the same principles and by the same rules that govern the construction of other deeds of conveyance.</p> <p>Id.—Earlier State Surveys—Mistake in Final Call for Rancho— Visible Monuments—Change in Survey.—Earlier state surveys for the same swamp lands, of which the survey for the state patent was a recompilation, made before the township plat was approved in the federal land ofiice, showing the visible monuments first erected to mark the eastern line of the rancho, according to the first survey thereof for a patent, were properly admitted to show the origin of the description in the state survey and patent, and to explain a mistake in the final call for the rancho therein, as compared with the final survey of the rancho as patented, and as shown on the township map.</p> <p>Id.—Effect of Prior Survey—Subsequent Application.—Where state swamp lands applied for have been previously surveyed, the law does not require a resurvey in the field upon a subsequent application to purchase.</p> <p>Id.—Township Map at Date of State Patent—Call for Rancho in Patent—Exceptions to Rule as to Monuments.—A call for the same rancho in the state patent, which was then shown on the township map, to be so located as to give a quantity of swamp land in excess of the state survey of one hundred and seventy-one acres, not paid for, does not show that the rancho was at the date of the patent a monument which inflexibly controls courses, distances, and quantity. This never was an absolute and inflexible rule; but calls for monuments have been made to yield to other calls to effectuate the intention of the parties. The rule, with its exceptions and modifications, is embodied in section 2077 of the Code of Civil Procedure.</p>

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

J. M. Seawell, Judge. The main facts are stated in the opinion of the court, rendered upon the former appeal, in 127 Cal. 532. Further facts are stated in the opinion of the court upon the present appeal.

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

<p>APPEAL from a judgment of the Superior Court of Colusa County and from an order denying a new trial. H. M. Albery, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Estates of Deceased Persons—Petition for Partial Distribution —Construction of Will and Codicil—Eevooation of Bequest.— Where by the express terms of the codicil to a will of a deceased testator a desire was expressed to revoke and change some of the former devises and legacies, and that the codicil shall control the provisions of the former will, and the codicil, after specific gifts, disposes of the whole residue of the estate to certain persons named, of whom a petitioner for partial distribution of the estate is not one, though such petitioner was named as one of the persons entitled to a portion of the residue in the original will, the bequest thereof in the original will is expressly revoked by the codicil, and the petitioner has no interest in the estate.</p>

<p>Criminal Law—Bobbery—Description of Property in Information —Immaterial Averment of Value.—In an information for robbery, committed in the felonious taking of personal property from the person or immediate presence of the prosecuting witness, accomplished by means of force or fear, an averment of value of the property taken is immaterial, and may be disregarded. Where the property taken is described as “one purse containing twenty-eight dollars and sixty-two cents, in lawful money of the United States of America, of the value of twenty-eight dollars and sixty-two cents,”'the information charges the taking both of the money and of the purse, and is sufficiently certain as against a motion in arrest of judgment.</p> <p>Id.—Proof of Bobbery—Larceny.—Where the evidence showed that the prosecuting witness slept with defendant, after hanging his pantaloons containing the money in question on the headboard of the bed, and awoke to find the defendant standing over him, with the pantaloons in one hand and a razor in the other; that the prosecuting witness then seized the pantaloons from the defendant anil jumped toward' the door, to which defendant ran and stood against, and threatened him with the razor, unless he delivered up his “stuff”; that the prosecuting witness then, through fear, threw the pantaloons on the bed, and while defendant was engaged in rifling them unlocked the door and escaped,—the facts show a case of robbery, though the original taking of the pantaloons may have been a larceny.</p> <p>Id.—Proof of Intrinsic Value—Gold Money—Judicial Notice.— Where it appeared that a twenty-dollar gold piece was part of the money taken, the court will take judicial notice that it had intrinsic value, without further evidence. It was not necessary to show that the purse was of intrinsic value.</p> <p>Id.—Immaterial Instructions as to Larceny.—Where the evidence was such that if the defendant was not convicted of robbery, he could not be convicted at all; and where the information was directed solely at the final act of forcible robbery, and not against the act of taking down the pantaloons from the headboard, instructions on the subject of larceny were immaterial; and the defendant having been convicted of robbery, it is immaterial whether larceny was correctly defined in any instruction given.</p> <p>Id.—Improper Bequests—Nature of Bobbery.—Bequested instructions as to robbery, each of which ignored the forcible taking of property from the “immediate presence” of the owner by force or fear, were properly refused.</p> <p>Id.—Bequest against Evidence.—A requested instruction based upon the assumption, without evidence, and against the evidence to the contrary, that the money was taken from the pantaloons while the owner slept, was properly refused.</p> <p>Id.—Instruction—Distrust of False Witness.—An instruction to the jury that “if any witness examined before you has willfully sworn falsely as to any material matter, it is your duty to distrust the entire evidence of such witness,” was proper, and in substantial accord with the statute.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Review of Evidence—Sufficiency of Specifications—General Findings—Issues Joined—Case Overruled.—A specification of insufficiency of the evidence to support the findings is sufficient where it points to a particular finding, or if the motion for a new trial is- directed against a general verdict or an omnibus finding that all or certain allegations of the complaint or answer are true, or, if there aré no findings, the specification need be no more specific than the issues distinctly made by the pleadings. [De Molerá v. Martin, 120 Cal. 544, is overruled so far as holding to the contrary.]</p> <p>Id.—Action to Quiet Title—Ultimate Findings as to Ownership-General Specifications.—In an action to quiet title, where the findings are merely general as to the ultimate facts of ownership by the defendants, and that plaintiff: did not have title to the premises, specifications of insufficiency of the evidence to support each of these findings as made are sufficient to entitle the plaintiff to a review of the evidence upon appeal.</p> <p>Id.—Findings against Evidence—Title of Assignee in Insolvency— Declaration of Homestead—Limited Description.—Where the appellant claimed title to the disputed premises under conveyance from an assignee in insolvency of the respondent’s husband, and a declaration of homestead under which the respondents, husband and wife, claim, did not describe the disputed premises, though the husband in fact owned and resided upon the same, as part of his inelosure, the disputed premises were not exempt as a homestead from the claims of creditors, and findings that the respondents are entitled to the disputed premises, and that plaintiff is not entitled thereto, are against the evidence.</p> <p>Id.—Deed by Assignee in Insolvency—Proof of Proceedings not Required.—A party claiming title under a deed by an assignee in insolvency is not required in support of his deed to offer proof that the assignee made full report of his proceedings under the order of sale, and that the insolvency court made an order confirming the sale.</p>

<p>Eminent Domain—Opening of Public Street—Stipulation—Injunction Suit—Delay of Trial—Loss of Equitable Belief.—Where by .stipulation entered into at the trial of an action to condemn land the condemnation had become final, it being also stipulated that an ordinance should be passed to vacate an alley as a street or thoroughfare, and an injunction was sought to restrain the opening of the street over plaintiff’s land until a valid ordinance should be passed as stipulated, but no injunction was enforced, and for seven or eight years before the trial of the suit the street had remained open and occupied as a public street, and plaintiff paid assessments on her property for its improvement, the plaintiff was not entitled upon the delayed trial of the injunction suit to the equitable relief sought.</p> <p>Id.—Damages—Absence of Issue—Pleading—Claim not Presented to Council—New Trial.—Where no issue was raised on the trial upon the question of damages, and the plaintiff merely sought to sustain her prayer for an injunction by an averment that she would be damaged in the sum of ten thousand dollars by failure to vacate the street, as stipulated, or to sustain the injunction sought, and where no claim for damages was presented to the city council, as required by the city charter, a new trial cannot be granted to try the question of damages.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. F. J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>New Trial—Delay in Serving Statement—Excusable Neglect.— The court has authority, upon a proper motion made therefor, to relieve a party moving for a new trial for his failure to serve the statement in time, on the ground of excusable neglect. And where such motion is granted and afterwards the new trial is denied, the appellate court will not presume that the denial was based on the ground of the delay in the service of the proposed statement.</p> <p>Id.—Evidence—Medical Experts—Extracts prom Books Inadmissible.—A medical expert cannot, on direct examination, recite instances from medical reports and authors illustrating the difficulties attending the diagnosis of a case similar to the one involved in the trial. Medical works are hearsay and inadmissible in evidence, except on cross-examination, when a specific work may be referred to, to discredit a witness who has based his testimony upon it.</p> <p>Id.—Negligence—Physician—Instructions.—In an action against a physician, in which the complaint charged the defendant with negligence and want of skill in treating the plaintiff, an instruction as follows, “The defendant in this action is not charged by the plaintiffs with any lack of general skill or competency as a physician and surgeon. This amounts to an admission, and you are bound to hold accordingly, that the defendant was possessed of that ordinary medical and surgical knowledge and skill which the law requires him to possess; there being no degree other than that of ordinary knowledge and skill recognized by law as a standard or applicable as a measure of knowledge and skill in such cases,”—is erroneous.</p>

<p>Custody or Minor—Voluntary Departure prom State—Hearing on Habeas Corpus—Good Baith or Respondents.—Where the return to a writ of habeas corpus sued out by a father to obtain the custody of his minor son showed that he had of his own volition departed for Honolulu, and there remained with Ms sister, and where upon the hearing it appeared that the minor was a son fifteen years of age and in size a man, and that he had quarreled with his father, and had determined never to return to him, and that respondents did not encourage him to go to Honolulu, but merely from motives of humanity furnished him with funds for the trip which he determined to take, and that this was not done to evade the writ or to deprive the father of his custody or for any ulterior or sinister motive or purpose, and that the child is not in their control, the writ of habeas corpus must bo discharged.</p>

<p>Trusts—Void Trust to Convey.—A deed of trust to a son of the trustor, providing for a deed by him to another son of all of the residue of the real property remaining five years after the death of the trustor, and providing that no property or the proceeds thereof shall vest in such other son until the expiration of such period, and until a transfer and delivery thereof to .him at the expiration thereof, creates a void trust to convey, under the authority of Estate of Fair, 132 Cal. 523.1</p> <p>Ed.—Void Trusts Over.—Trusts over, to the effect that in the event that the beneficiary named shall die before the expiration of the period fixed, without a testamentary disposition by him provided for in the trust, the property shall then vest in the trustee named or his surviving children, thoúgh not void per se, are absolutely dependent upon the void trust, and cannot be separated therefrom, and must fall with it. [Beatty, C. J., Shaw, J., and Angellotti, J., dissenting.]</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County and from an order denying a motion for a new trial. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract for Annuity—Construction.—A contract whereby a son agreed to pay to Ms father a monthly sum during the period of the life of the father, and further to pay said sum to his sisters Bose and Esther, “or to their order, during the period they remain single or unmarried, and said payment is to cease as soon as both are married, but the payment as aforesaid is only to be made to said Bose and Esther in case the said Bose and Esther are unmarried after the death” of the father, should be construed as requiring the payment to be made to a sister who was unmarried at the father’s death, so long as she continued unmarried, although the other sister, prior to the death of the father, became and ever since has been a married woman.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting letters of administration with the will annexed. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Taking Away or Female Minor eor Prostitution— Venue oe Oeeense.—If the original taking away of a female minor from the custody of her father in another county than that of the place of trial was with the intent then and there existing to place her in a house of prostitution in the county of the place of trial, the offense was committed and was triable alone in such other county; but where it appears that the female minor was placed by the father in the custody of the defendant, to be taken to the county of the place of trial for a lawful purpose, and that the defendant there formed the unlawful purpose of placing her in a house of prostitution therein, which purpose was accomplished, the taking of her away from the father without his consent for that purpose was in the county of the place of trial, within the meaning of section 267 of the Pena] Code, and that county has jurisdiction of the offense.</p> <p>Id.—Elements of Offense—Abduction—Befusal of Instruction.— The actual placing of the minor female in a house of prostitution is not made an essential element of the crime by the statute. It is the taking away from the parent or other.person having the legal charge of the minor for the prohibited purpose that constitutes the crime; “abduction” alone does not import the offense; and a requested instruction, to the effect that if “the defendant abducted the girl from her home,” the jury must find the defendant not, guilty of the offense charged, was properly refused.</p>

<p>Criminal Law—Instruction—“MpRAL Certainty.”—An instruction upon a charge of murder, that “moral certainty is described as a state of impression produced by facts in which a reasonable mind feels a sort of coercion to act in accordance with it,” and that “it is also declared to be a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it,” is not prejudicial to the defendant because amplifying the definition of “moral certainty” beyond section 1835 of the Code of Civil Procedure.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Cruz County denying a new trial. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Election Contest—Declaration of Election—Failure to Qualify.— No other right is involved in a contest of “the right of a person declared elected to any office" than the apparent legal right which is created by the declaration of the canvassing board that such person has been elected. The contest attacks the election itself, and is not concerned with the certificate of election or the proceedings subsequent thereto; and the jurisdiction of the court to entertain, or the right of the elector to commence, the contest, is not in any manner affected by the failure of the person declared elected to qualify before the contest was begun.</p> <p>Id.—Interest of Public.—The contest does not merely concern the personal and pecuniary interest of rival candidates for the office; but paramount to their claims is the deep public concern involved as to who are entitled to hold an office for which the suffrages of the electors have been cast. The public interests imperatively require that the ultimate determination of the contest should in every instance, if possible, reach the very right of the case, and ascertain and declare whether either of the rival candidates before the court or some other candidate has been elected.</p>

<p>Action tor Death—Vessel Tied to Private Whaet—Insecure GangPlank—Licensee—Negligence not Imputed—Insutticient Complaint.—A complaint in an action for death, alleging that the defendant corporation had caused a vessel in its possession to be tied to its private wharf, and had placed an insecure gang-plank from the wharf to the vessel, and that deceased, “having business to perform upon the vessel,” lost his life while attempting to board it, as the result of the slipping of the gang-plank, but not stating any employment by or business with the defendant, or permission from the defendant to be upon the premises, does not show that deceased was not a trespasser, but, construing it most favorably, as showing that deceased was a mere licensee, it shows no duty owed to him by the defendant to keep the premises or passageway in a secure condition, and no negligence which can be imputed to the defendant, and does not state a cause of action.</p>

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

<p>Foreclosure of Mortgage—Clerical Misprision in Judgment—Misnomer—Power of Correction—Appeal by Misnamed Defendant. —Where a defendant named in the complaint, summons, and default in an action to foreclose a mortgage was by a clerical misprision misnamed in the judgment, by the insertion of an additional initial before the name, the court had the power at any time to correct the clerical misprision appearing upon the face of the record, and its right so to do was not suspended or impeded by an appeal from the judgment taken in the name of the misnamed defendant.</p> <p>I'd.—Effect of Correction Pending Appeal—Cure of Error—Affirmance of Judgment—Costs of Appeal.—The appeal by the misnamed defendant having been taken by a stranger to the record, the effect of the correction of judgment pending the appeal was to relieve the appellant from all liability under the judgment, and to cure the error appealed from. The judgment must therefore be affirmed; but as the error, until corrected, pending the appeal, substantially affected the appellant, the costs qf appeal should be allowed.</p>

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

<p>Criminal Law—Sufficiency of Information—Language of Statute —Qualification of Rule.—The general rule that it is sufficient in an information to charge an offense in the language of the statute is subject to the qualification that where a more particular statement of facts is necessary in order to charge the offense definitely and certainly, it must be made.</p> <p>Id.—General Words of Statute.—Where the words or terms used in the statute have no technical or precise meanings which of themselves imply the offense, or where the particular facts or acts which constitute it are not specified, but from the general language used many things may be done which may constitute an offense, it is necessary to set forth the particular things or acts done with reasonable certainty and distinctness.</p> <p>Id.—Assault “By Means Likely to Produce Great Bodily Injury” —“Heavy Wooden Stick.”—An information charging the defendant generally with the crime of assault “by means likely to produce great bodily injury, to wit, with a heavy wooden stick,” is not a sufficient designation of the offense. The word “heavy” is too indefinite, and there is no description as to the weight, strength, or size of the stick, or other qualities, properties, or characteristics, showing that it was a means likely to produce great bodily injury.</p>

<p>Malicious Prosecution—Legal Termination of Suits—Determination of Merits not Required.—In order to maintain an action for malicious prosecution the plaintiff must show that the prosecution or suits complained of as malicious had been legally terminated; but it is not necessary to show that there was a determination upon the merits. The prosecution may be regarded as terminated when it has been disposed of in such a manner that it cannot be revived, so that the prosecutor if he intends to proceed further must institute proceedings de novo.</p> <p>Id.—Burden of Proof.—The burden of proof is upon the plaintiff not only to show that the action complained of as malicious had terminated, but also to show that it was commenced maliciously and without probable cause.</p> <p>Id.—Improper Nonsuit—Evidence—Repeated Dismissal of Unfounded Actions—Appearance for Defense—Malice—Want of Probable Cause.—A judgment of nonsuit will be sustained, if sustainable, upon any ground assigned; but where the pleadings and proof showed that plaintiff applied to defendant for a policy of life insurance for one thousand dollars, and defendant tendered a policy for two thousand dollars, and demanded the premium therefor, which plaintiff refused to pay, and that defendant had brought three several suits for such premium, which plaintiff appeared to defend, and each of which was dismissed by defendant, and there was evidence tending to show that the one who secured the application was defendant’s agent, and that the suits were malicious and without probable cause, the granting of a nonsuit for want of proof that such suits were determined upon the merits, and for want of proof as to such agency, malice, and want of probable cause, was improperly granted.</p> <p>Id.—Error in Striking Out Parts of Complaint.—Where the court struck out from the complaint some redundant matter, but also struck out matter which was not redundant, and which related to the origin and causes of the suits complained of as malicious, and which left the complaint incomplete and without grammatical connection, the order striking out such proper matter was erroneous.</p> <p>Id.—Evidence of Agency—Notice of Withdrawal of Agency.—A notice published by the defendant while the lawsuit was pending, which stated that the one who solicited plaintiff’s policy had been acting as agent for the defendant, but was no longer connected with the company defendant, and which tended to show the previous existence of the agency when the transaction alleged took place, was improperly excluded.</p> <p>Id.-—Letter of Plaintiff to Defendant.—A letter written from plaintiff to defendant before the third suit was commenced, the receipt of which was acknowledged by the defendant, and which informed defendant of what had occurred, and that the company’s agent had raised the policy, etc., was admissible to show knowledge of the alleged fraud of the agent, and that the company was put on inquiry as to the facts before the last suit was commenced.</p> <p>Id.—Suit by Collector—Authority for Dismissal—Evidence Improperly Excluded.—Where one of the suits dismissed was brought in the name of a collector, to whom the claim for premium had been assigned for collection, and he was notified that the suit was dismissed, it was error for the court to refuse to allow the plaintiff to ask him at whose request it was ’dismissed, and whether he had orders therefor, and from whom.</p> <p>Id.—Unexplained Dismissal—Malice and Want of Probable Cause. —If the defendant procured the dismissal of the suit by the collector, without just reason shown therefor, that fact would be some evidence tending to prove malice and want of probable cause.</p>

<p>Criminal Law—Murder—Insanity—Evidence—Observation oe Witnesses.—Upon a prosecution for murder, where the defense was insanity, and it appeared that the defendant more than one month prior to the homicide had received a severe injury to his head, and there was evidence tending to show a concussion of the brain and a derangement of his mental faculties; it was error in such case to refuse to allow witnesses not intimate acquaintances within the meaning of subdivision 10 of section 1870 of the Code of Civil Procedure to testify to their observation of his acts and conduct at various times between the time of such injury and the time of the homicide, and to his appearance at those times as being rational or irrational, or acting rationally or irrationally.</p> <p>Id.—Opinion of “Intimate Acquaintance”—Discretion of Court.— The question whether a witness is such an “intimate acquaintance” as to be allowed to give his opinion on the general question of sanity or insanity is from its nature peculiarly addressed to the discretion of the trial court, and the appellate court will not interpose, unless there is a clear abuse of discretion.</p> <p>Id.—Instruction—Caution against Counterfeit of Insanity.—An instruction taken verbatim from a decision of this court, and designed to caution the jury against being imposed upon by an “ingenious counterfeit of insanity,” though it would be better omitted, will not be held prejudicially erroneous.</p> <p>Id.—Befusal of Proper Instruction—Mental Delusion.—Under the circumstances shown by the record a requested instruction upon the subject of insanity or mental delusion as to a particular matter which is not erroneous should have been given.</p> <p>Id.—Self-Defense—Irrelevant Matter—Evidence—Befusal of Instruction.—Where there was no question or evidence of self-defense, any error in excluding evidence as to the position of the hands of the deceased at the time of the homicide which had no relevance except upon that question was without prejudice; and it was proper to refuse a requested instruction upon the law of self-defense.</p>

<p>Action for Goods Sold—Bill op Particulars—Service after Statutory Time—Evidence—Discretion.—In an. action for goods sold, where the defendant demanded a bill of particulars, which was furnished after the lapse of the statutory period, but was served more than a month before the trial, where no objection was made to its form, or completeness, but only that it was filed too late, the defendant has not an absolute right to exclude evidence for the plaintiff, but the allowance thereof was within the discretion of the court.</p> <p>Id.—Requested Instruction—Incorrect Rule for Damages.—-A requested instruction for the defendant, stating rules for estimating damages which were neither pertinent nor correct, was properly refused.</p> <p>Id.—Instruction—Sale—Counterclaim.—Where the defendant set up two counterclaims against plaintiff, an instruction that if the jury found that the transaction between the plaintiff and defendant was a sale of goods from plaintiff to defendant, they should find a verdict against defendant for their value, less the amount of any counterclaim in his favor, is not objectionable.</p> <p>Id.—Growing Crop—Surrender of Possession—Sale.—An instruction to the effect that a tenant who surrenders the leased premises surrenders his right to a growing crop of beets to the landlord, in the absence of an agreement on the part of the landlord to pay for the same, is not objectionable. ■</p> <p>Id.—Counterclaim—Damages for Abandonment of Lease—New Lease for Tears—Evidence.—Under a counterclaim in such action for damages for the abandonment by plaintiff of a lease from the defendant where it appeared that a new lease for a long term of years had been made to other parties, the true measure of damages is the difference in the rental value of the premises; and defendant is not entitled to offer evidence of profitable and unprofitable months, and to show that the new lease was made at the beginning of an unprofitable season.</p> <p>Id.—Counterclaim not Recoverable—Consent to Rescission of Lease—Surrender- to New Lessees.—The defendant was not entitled to recover any damages under such counterclaim where it appeared that the lease was rescinded by the consent of the plaintiff and defendant, and possession was surrendered by plaintiff to new lessees, to whom the defendant had leased the premises upon different terms and for a different period prior to such surrender.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial, and from an order denying a motion in arrest of judgment. B. N. Smith, 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>Municipal Ordinance—Validity—Conviction in Police Court—Affirmance upon Appeal—Certiorari.—The writ of certiorari will not lie to determine the validity of a municipal ordinance properly involved in an appeal taken to the superior court from a judgment of conviction of a violation thereof in the police court which has been affirmed upon said appeal. The writ only lies where there is no remedy by appeal, and will not lie either where such remedy has been lost by laches or where a judgment has been affirmed upon appeal.</p> <p>Id.—Prohibition—Bench-Warrant to Enforce Judgment Affirmed— Ministerial Act—Judicial Acts Performed.—Prohibition cannot be resorted to where there is a plain, speedy, and adequate remedy by appeal; and where a judgment of conviction of an offense has been affirmed upon appeal, prohibition will not lie to prevent the ministerial act of a bench-warrant to enforce the judgment. The writ of prohibition is confined to preventive relief, and is not intended as a writ of review, nor to serve the purpose of a second appeal, nor to prevent judicial acts already done, nor to secure the annulment of proceedings already had.</p>

<p>Unlawful Detainer—Assignment of Lease by Assignee—Possession Delivered before Notice to Quit.—An action for unlawful detain-er will not lie against an assignee of a lease who had assigned the lease and delivered possession to another assignee before the service upon him of notice to quit.</p> <p>Id.—Breach of Covenants—Remedy by Action.—The fact that the first assignee of the lease had been guilty of a breach of covenants of the lease prior to the assignment by him and delivery of the possession under it to another assignee does not render him liable in the summary action of unlawful detainer to damages therefor. In such case the only remedy for such breach is by an ordinary action.</p> <p>Id.—Special Verdict—Order Granting New Trial—Insufficiency of Evidence—Lack of Specifications—Absence of Ground as to Appellant.—Where the jury found a special verdict, that the appealing defendant had assigned his interest in the lease to a co-defendant prior to the service of notice to quit, and that the co-defendant had taken possession as assignee of the lease prior to such service, an order granting a new trial to the plaintiff as against the appellant cannot be sustained for insufficiency of the evidence to justify the special verdict, where there are no specifications thereof in the statement; and where there is no assignment of any error of law material to the special findings, and no other ground for granting the order as against the appellant appears in the record, the order will be reversed as to him.</p>

<p>APPEAL from an order of the Superior Court of Fresno County settling the final account of an administratrix. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Felony—Judgment—Amendment Nunc pro Tunc—• Power of Court.—The inherent right and power of a court to cause its record to be amended in accordance with the facts,- where the record made by the clerk is incorrect, exists in criminal as well as civil cases; and where a defective minute entry of a judgment for imprisonment in the state prison, rendered upon conviction of felony embezzlement, afforded sufficient evidence to justify an order nune pro tune correcting the defects therein, such order will be affirmed upon appeal therefrom.</p>

<p>Criminal Law—Evidence—Cross-Examination op Dependant.—A defendant in a criminal case who has by his testimony in chief contradicted the evidence for the prosecution may be cross-examined with reference to all facts or denials necessarily implied from his testimony in chief, as well as with respect to the facts expressly stated by him in such testimony; and the cross-examination is not limited by the exact period of time fixed by the testimony in chief, but may extend to the whole transaction of which he gives a part, and which occurred in immediate connection with the part which he relates, shortly before or after, and in which he must have been concerned, and of which he may be reasonably supposed to have had knowledge.</p>

<p>Estates of Deceased Persons—Appeal from Order of Sale—General Demurrer to Petition—Waiver, of Special Objections.—Upon appeal from an order of sale of real property of a deceased person, taken "by the surviving wife, who is also a devisee and legatee under the will of the decedent, the appellant occupies no more advantageous position, so far as the. insufficiency of the petition is concerned, by having filed a general demurrer thereto, than if she had not presented such demurrer, the question being in either case whether the petition is substantially defective in any of the requirements of section 1537 of the Code of Civil Procedure. Where no ground of special demurrer or special objection was urged to the petition in the lower court, all special objections thereto which might have been successfully urged in the court below are to be deemed waived.</p> <p>Id.—Values of Realty—Reference to Schedule—Appraised Values —Where the petition for the order of sale refers to a schedule for the values and condition of the real estate, and the values there set forth are the appraised values thereof, this, in the absence of special objection, is a sufficient statement of the present values.</p> <p>Id.—Condition of Realty—Tenable Special Objection—Evidence.— Where the only description of the condition of two city lots is, that each of the two parcels was improved, that one had been set apart as a homestead for the period of administration, and that the other was encumbered by a mortgage for ten thousand dollars, if timely special objection had been urged to the petition for insufficiency of such statement of condition, it should have been sustained. But, in the absence of such special objection, the statement of condition of the real property is not to be deemed fatally defective. It was sufficient to authorize the court to receive evidence of the condition of the lots, and to determine, in view of such evidence, whether it would authorize a sale.</p> <p>Id.—Omission as to Family Allowance—Purpose of Sale—Presumption upon Appeal.—The omission of the petition to state the amount due or to become due on the family allowance does not render the petition insufficient in the absence of special objection; and where the sale was not ordered to pay the family allowance, it will not be presumed upon appeal that anything was due or to become due thereon.</p> <p>Id.—Omission to Name Heirs as Such.—The omission of the petition to state that the persons named therein as devisees and legatees were also the only heirs of deceased, as appears from the order of sale, was not fatal to the order.</p> <p>Id.—Petition by Executors—Official Character.—A petition by executors for an order of sale in the matter of the estate, presented to the court in which the estate was pending, and by which they were appointed, if appointed at all, is not objectionable upon the ground that it did not sufficiently show their official character.</p>

APPEALS from an order of the Superior Court of the City and County of San Francisco setting apart a homestead to the widow of a deceased testator. James M. Troutt, Judge. The facts are stated in the opinion of the court.

<p>Foreclosure of Mortgage—Parties—Unrecorded Deed—Lis Pendens —Representation of Grantee by Mortgagor.—A grantee of the mortgagor who holds an unrecorded deed made prior to the commencement of an action to foreclose the mortgage, in which a notice of lis pendens has been filed for record, and of which deed the plaintiff had no actual notice when the action was commenced, is not a necessary party to the action, and is bound by the decree rendered therein against the mortgagor, who fully represents the grantee for all the purposes of obtaining jurisdiction.</p> <p>Id.—Subsequent Knowledge Immaterial.—It is immaterial that subsequent to the commencement of the action it comes to the knowledge of the plaintiff that the mortgagor, prior or subsequent to the commencement of the action, conveyed the mortgaged property to another. The situation is determined by the condition of affairs at the time of the commencement of the action.</p> <p>Id.—Jurisdiction oe Person oe Mortgagor—Voluntary Appearance. ^-The voluntary appearance of the mortgagor at any time within three years after the commencement of the action gives jurisdiction of his person, and is equivalent to personal service of the summons and copy of the complaint upon him within that period.</p> <p>Id.—Return oe Summons—Power oe Court.—Notwithstanding the return of the summons and the fact that the clerk had lost power to issue an alias summons, the court had the power either to order the returned summons to be served, or to order a new summons to be issued for service.</p> <p>Id.—Eights oe Purchaser—Defense of Interests—Special Appearance—Motion to Vacate and Dismiss.—A purchaser holding an unrecorded deed ante litem has the same right as a purchaser pendente lite to appear and ask to be made a party defendant, for the protection of his interests; but by his course in appearing specially before judgment to move to vacate the appearance of the mortgagor and dismiss the action, he in effect declined to become a party; and Ms subsequent motion after judgment to vacate the judgment, and to set aside the default and appearance of the mortgagor, and to dismiss the action on the same grounds on which his former motion was made, was properly denied.</p>

<p>Public Park—Dedication by Legislature—Power of Lease under Charter—Injunction by Taxpayer—Dissolution.—Where a public park of several hundred acres, at a distance of seven miles from the center of a city, was never dedicated by individuals, but was originally surveyed for a park by the city authorities, and was dedicated as a public park by an act reincorporating the city, and such act and each subsequent charter of the city, including the present charter, approved by concurrent resolution of the legislature, authorized a lease of some portion of the park, and a lease of two and a half acres thereof was made for hotel purposes, as provided in its present charter, in such a way as not in any manner to restrict or interfere with the free use of the waters or grounds of the park by the public, and the lease was for the evident benefit of the public and of the city, a taxpayer cannot sustain an injunction to prevent the execution of such lease; and a temporary injunction issued at his suit was properly dissolved.</p> <p>Id.—Charter—Civil Code.—The injunction was properly dissolved, whether the lease is to be deemed authorized by the express terms of the city charter or is subject to the limitations of sections 711 and 718 of the Civil Code. The lease, if subject to those sections, would be valid as to the period allowed thereby, and only void as to the excess of the period.</p>

<p>Trust-Deed—Sale to Pat Indebtedness Secured—Injunction—Dissolution.—An injunction to restrain a sale under a trust-deed to pay the indebtedness secured thereby was properly dissolved where it appeared by the plaintiff’s own showing that the sale would not be made if he should pay the amount secured; and by the defendants’ showing that no tender of any sum of money was ever made in payment or satisfaction of the indebtedness, and that plaintiff did not accept an offer of the creditor secured to receive a specific sum in full payment of his claim, except on account of his liability as an indorser of other notes of the plaintiff, which were secured by the deed of trust, and to discontinue the sale on payment of said sum, no part of which was ever paid.</p> <p>Id.—Equity not Done by Plaintiff.—He who seeks equity must do equity; and where equity was not done before bringing the action and obtaining the injunction, nor when an opportunity was offered upon the hearing of the motion to dissolve the injunction, the order dissolving it was right and proper.</p> <p>Id.—Bight of Sale fob Money Due—Liability as Indobser of Notes. ■—The trustees under a deed of trust seeuring money advanced, and also a liability of the creditors as indorser for the grantor of the trust, had a right of sale for moneys due and unpaid to the creditors, and were not compelled to wait until the notes of plaintiff which he indorsed were all paid by the makers or by the creditors, before he could realize on the security held for the money actually advanced.</p> <p>Id.—Amended Complaint not Filed—Counter-Affidavit.'—An amended complaint not allowed to be filed cannot be considered as any part of the showing on which the temporary injunction was granted, and can only be considered in the light of a counter-affidavit on the motion to dissolve the injunction.</p> <p>Id.—Sufficiency of Advertising—Postponement of Sale upon Bequest before Suit.—Where the deed of trust provided that the ad- - vertisement of sale should be made twice a week in some newspaper published in the city and county of San Francisco at least twice a week for three weeks, and the advertisement was claimed in the amended complaint to be insufficient because published in a paper not devoted to general news and of small circulation, such objection is not tenable where it appears that the sale was twice postponed at plaintiff’s request, and was advertised twice a week for the period . of eight weeks prior to the issuance of the injunction.</p> <p>Id.—Demand—Pleading—Sufficiency of Answer.—Where the answer alleges a demand, and also alleges that the defendants have duly performed all the requirements of the deed of trust and agreement on their part to be performed as a condition precedent to the sale of the land, the answer is not objectionable on the ground that it does not allege a demand in writing.</p>

<p>Bond—Suretyship—Commission Agent — Continuing Guaranty— Revocation as to Future Transactions.—A bond conditioned in substance that if an agent- of the plaintiff for the sale of sewing-machines on commission should pay all indebtedness then existing, or that he might thereafter in any way incur, to the plaintiff, the bond should be void, though technically a contract of suretyship, is as to all future liability, for successive transactions not begun, governed by the same rule as a continuing contract of guaranty, under section 2815 of the Civil Code, and may be revoked at any time as to future independent transactions, with respect to which "the consideration is not continuing.</p> <p>Id.—Mode of Revocation—Demand for Release of Surety—Release by Agent of Plaintiff.—A demand by the surety for a release, and the consent thereto by plaintiff’s agent, followed by the execution of a release, is the equivalent, and was in substance a revocation, of the contract by the surety; and the fact that the authority of the agent to make the release was not in writing is -not material. No formal release was necessary to terminate the contract.</p> <p>Id.—Future Sale of Machines.—The liability of the surety, after such revocation and release, was extinguished in reference to a future sale of maeMnes by the plaintiff to the agent, and the surety cannot be held liable for the price.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Diego County and from an order denying a new trial. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Bate—Instruction—Complaint op Wrong—Bule op Evidence.—Where the defendant was accused of rapo, and the testimony was uneontradieted that the prosecutrix made prompt complaint, it was proper to instruct the jury that “upon the trial of a defendant accused of the crime of rape, the fact that the prosecutrix made prompt and early complaint of the wrong and injury done to her person and to her character and chastity, is independent and original evidence, and is admissible, and may be received and considered by the jury in corroboration of her other testimony given in the ease.” Such instruction merely states a well-recognized rule of evidence, applicable generally in such cases, and does not inform the jury of the facts or testimony in the case, and is not objectionable as singling out the testimony of a particular witness for comment.</p> <p>Id.—Instruction as to Province op Jury—Conviction upon Testimony op Prosecutrix.—An instruction to the effect that it is the province of the jury to determine the weight and credibility to be given the testimony of the prosecutrix “as of any other witness testifying in the case,” and that “if such testimony creates in the mind of the jury a satisfactory conviction and belief beyond a reasonable doubt of the defendant’s guilt, it is sufficient of itself, without other corroborating circumstances or evidence, to justify a verdict of guilty,” is not objectionable, either as omitting to refer to a complaint of the prosecutrix, or as telling the jury that if they believe the prosecutrix they should convict.</p> <p>Id.—Bepusal to Instruct as to Lesser Oppenses—Inapplicability to Evidence.—Where the evidence admitted of no doubt of the fact "of sexual intercourse, which, if without consent, was rape, or, if with consent, included no offense within the crime charged, a requested instruction that the jury might find the defendant guilty of less offenses specified, was properly refused as inapplicable to the evidence.</p> <p>Id.—Reasons for Refusal of Instructions.—It is not material what reasons were assigned by the judge for the refusal of requested instructions, if they were properly refused for any reason.</p> <p>Id.—Instruction Singling Out Testimony of Witness.—It is not error to refuse an instruction which singles out the testimony of a particular witness for comment.</p> <p>Id.—Requests Embodied in Charge.—Requested instructions embodied in the charge of the court may be properly refused.</p> <p>Id.—Evidence—Physical Condition of Prosecutrix—Treatment.— Where the prosecuting witness testified to a prompt complaint to her mother, the admission of further evidence by her relative to her physical condition at that time, and to treatment by her mother to relieve that condition, was not objectionable as telling about the facts of the complaint.</p> <p>Id.—Remarks of Court—Caution against Error.—Where the court in sustaining an objection made by the defendant, remarked, “I don’t propose to have this case go up there, and be reversed again, if I can help it,” the reasonable inference from the remarks is, that the court only desired to be right in his ruling and to avoid error or mistake therein, and though unnecessary, there is no prejudicial error in the remarks.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Vendor and Purchaser—Contract op Sale—Option to Purchase— Exchange op Land—Tender op Deed—Prior Withdrawal op Option—Action por Breach.—Under a contract for the sale of land, expressed to be for value received, and conferring an irrevocable option to purchase within fifteen days, and good thereafter until withdrawn, the consideration of which was in fact an oral agreement for the exchange of land, where it appears that the tender of the deed in exchange for the land described in the option was not made until after the lapse of the fifteen days, and until after notice of withdrawal of the option by the vendor, the proposed purchasers cannot thereafter maintain an action for damages for breach of such contract.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Bailroad Ticket—Special Train—Bule Esquiring Berth—Notice to Purchaser—Action for Damages—Parol Evidence.-—A railroad company has the right to run a special train at night for those only who procure «sleeping-berths thereon; and a ticket for such train is subject to a rule making it a condition of the purchase that a berth shall be procured, of which the purchaser had notice, though not expressed in the ticket. In an action for damages for being put off of such train, all of the berths on which had been sold, parol evidence is admissible to prove such rule, and notice to the plaintiff by the ticket-agent that the ticket would not be good for such train, unless he procured a berth thereon. [Shaw, J., and Beatty, C. J., dissenting.]</p> <p>Id.—Ticket not a Full Contract-—Beceipt for Fare—Subjection to Bules.—A railroad ticket is not a contract expressing all of the conditions and limitations usually contained in a written agreement; but it is more in the nature of a receipt, evidencing that the passenger has paid his fare for a certain kind of passage on the proper trains of the company, as limited and regulated by its lawful rules, to which the passenger may be required to conform, though not expressed in the ticket. [Shaw, J., and Beatty, C. J., dissenting.]</p>

H. M. Albery, Judge. The facts are stated in the opinion in this ease, and in the opinion rendered upon the former appeal, 128 Cal. 637.