Volume 142 — California Reports

<p>Estates of Deceased Persons—Separate Property of Testator.— The question as to whether the property of a testator is separate or community property does not depend upon any expression of opinion in his will, but upon the mode of acquisition of the property. Property acquired by him during a former marriage, and held in possession after the death of his first wife, and before a second marriage, and property acquired by him by legacy, and all interest therein, and the income from investments made therewith, as well as the increase in value and profits derived therefrom, during a second marriage, are the separate property of the testator, and subject to his testamentary disposition.</p> <p>Id.—Construction of Will—Residuary Devise—Declaration in Will. —A will making certain bequests, and devising all of the residue of the estate of the testator to his daughter, passes to the daughter all the property which the testator was entitled to devise or bequeath at the time of his death not otherwise effectually devised or bequeathed; and such residuary devise is not affected or limited by a declaration in the will that all his estate therein devised is his separate property, and was the community property of his first wife and himself, but includes all other separate property.-</p> <p>Id.—Rules of Construction—Devise of Absolute Estate not Limited—Intestacy not Favored—Broad Interpretation of Residuary Devise.—The devise of an absolute estate in one clause of a will cannot be cut down or limited by subsequent words merely raising a doubt or suggesting an inference, and not indicating as clear an intention as the words used in creating the absolute estate nor by any reasons assigned therefor. Constructions leading to total or partial intestacy are not favored; and the rule that in the interpretation of wills residuary clauses are to be given a broad rather than a narrow interpretation has a stronger foundation in natural reason than some other rules adopted by courts.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County and from an order denying a new trial. Carroll Cook, Judge presiding.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Nevada County. F. T. Nilón, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Lake County. R. W. Crump, Judge.</p> <p>The facts are stated in the opinion.</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>Attachment by Domestic Creditors—Receiver op Foreign Corporation—Fund in California.—Where a domestic attaching creditor and the receiver of a foreign insolvent corporation both claim a fund situated in this state, the fund will be decreed to the domestic creditor without inquiring into the legality of the appointment of the receiver, or as to his rights under the laws of this state. No rule of state comity or law requires the rights of a domestic attaching creditor to be set aside in deference to a foreign receiver claiming under the laws of another state.</p> <p>Id.—Representation of Creditors not Parties.—The receiver appointed in another state, presumably without the assent of other creditors in this state, who are not parties to the action, cannot represent such creditors in a suit between the receiver and a domestic attaching creditor. It is time enough to consider the rights of such creditors when brought before the court in some manner and through some agency recognized by the law of California.</p> <p>Id.—Beneficiary Order—Death of Member—Attachment by Beneficiary.—Upon the death of the member of a beneficiary order, the beneficiary under the certificate of membership, suing after the death of the member, is a creditor of the order, and may attach a fund belonging thereto in this state.</p> <p>Id.—Admission of Answer.—An answer which does not controvert the claim of the beneficiary as an attaching creditor, but alleges that the claims asserted by the beneficiary, "and sued on herein, were based upon, and grew out of, membership certificates in said order, and not otherwise,” is an admission of the claim of the beneficiary as being a creditor of the order.</p>

<p>Private Wat—Cul-de-Sac—Highway—Question of Fact—Support of Findings.—A cul-de-sac laid out by the owner of a fifty-vara lot as a private way is not a thoroughfare, and very clear and satisfactory evidence is required to prove it a public highway. Whether it is a highway is mainly a question of fact, it being a strong observation to a jury that the way leads nowhere. Findings that it is a private way, and not a public highway, will not be disturbed upon appeal, where the evidence is not very clearly to the contrary, but fully sustains the findings.</p> <p>Id.—Judgment in Former Action—Admissibility—Joint Objection. —A judgment rendered in a former action against one of the defendants, adjudging that the cul-de-sac was a private way, and not a public way, was admissible as an adjudication against such defendant, and was also proper evidence against the other defendants, as tending to show that plaintiff had not consented to the use of it as a public highway.</p> <p>Ed.—Support of Injunction—Preservation of Fence at Inner End of Cul-de-Sac—Ownership of Passageway.—Where plaintiff’s lots, which were part of the fifty-vara lot out of which the cul-de-sac was formed, were situated at its inner end, and plaintiff had erected a fence across the inner end thereof, and brought suit to restrain a defendant who only owned part of another fifty-vara lot extending from another street laterally across the lower end of the cul-de-sac, and her husband, and the superintendent of streets, from destroying the -fence, and to have it adjudged that the cul-de-sac was a private way, and not a public highway,—under the complaint and findings in favor of the plaintiff, plaintiff was entitled to the injunction prayed for, and it was immaterial whether or not plaintiff owned the fee to the center of the passageway.</p> <p>Id.—Invalid Ordinance op Supervisors—Absence op Compensation. —If the findings be true that the way was only a private way, an ordinance of the supervisors declaring it to be a public highway, without condemnation proceedings or compensation to the owners of the private way, was of no legal consequence.</p> <p>Ib.—Threat to Destroy Pence.—Where the defendant. owning land on the other side of the fence contested the main issue, and the superintendent of streets admitted his purpose to destroy the fence, it is immaterial whether it was or was not proved that such owner had expressly threatened to destroy the fence.</p> <p>Id.—Conveyances by Original Owner—Dedication not Shown—Provision por Extinction op Way.—Conveyances of lots adjoining the cul-de-sae by the original owner, which expressly provided for an extinction of the cul-de-sac, by agreement in writing of the owners of the adjoining allotments, show no conclusive intention to dedicate a public highway, but show the contrary.</p>

<p>Accord and Satisfaction—Extinction of Obligation of Contract.— An accord is an agreement to accept in extinction of an obligation something different from or less than that to which ' the person agreeing to accept is entitled, and an acceptance by the creditor of the consideration of an accord constitutes satisfaction. In an action upon a contract, where the admitted findings show beyond question that there was a dispute between the parties as to what was due under the contract, and that plaintiff accepted of something different from or less than that to which the person agreeing to accept was entitled, the acceptance extinguished the obligation, and there was an accord and satisfaction.</p> <p>Id.—Intention of Parties—Legal Effect of Conduct—Acceptance of Check Given as Payment—Estoppel of Plaintiff.—The intention of the parties must be determined from all the circumstances attending the transaction, and the legal effect of the conduct of the parties is for the court to pronounce. Where the defendant gave a check in full payment of a disputed account, and it was signed at plaintiff’s request, and accepted and cashed by plaintiff, plaintiff must be held to have known that the defendant signed the check on the supposition that it closed the transaction, and ended their dealings under the contract; the plaintiff is estopped to deny the effect of his deliberate act in obtaining and cashing the cheek, under the circumstances disclosed; and he cannot be heard to say that he regarded the payment as having been made only on account.</p>

<p>Lease by Trustee—Legal Title—Enforcement of Trust—Decree for Conveyance—Action for Bents under Decree.—Where a lease was made by a trustee who held the legal title in Ms own name, a mere decree for a conveyance, in an action to enforce the trust, does not operate to change the legal title before conveyance; and the owner of the equitable title cannot maintain an action to recover rents eo nomine which accrued under the lease prior to the conveyance.</p> <p>Id.—Landlord and Tenant—Bents—Mesne Profits.—Bents as such cannot be recovered by one who has not succeeded to the legal title of the lessor, or between whom and the lessee the conventional relation of landlord and tenant does not exist. Where that relation does not exist, or where the possession is adverse or tortious, the action by the owner of the land must be for mesne profits.</p>

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

<p>County Boundary—Statutes Controlling Political Code.—The act of April 1, 1872, as amended by the act of February 11, 1874, defining the boundary-line between Mariposa and Fresno counties, which line was adopted by the act o"f March 11, 1893, creating Madera County out of the northern portion of Fresno County, are determinative of the boundary between Mariposa County and Madera County, and control the provisions of section 3938 of the Political Code.</p> <p>Id.—Liberal Construction of Statutes—Mistake in Description— Intention of Legislature.—The court will not declare a statute defining a county boundary void and ineffective for uncertainty because of a mistake in description in one definition of the boundary, but -will liberally construe the statute in support of the evident intention of the legislature.</p>

<p>Trust—Action to Compel Conveyance—Security for Indebtedness —Partial Interest of Plaintiff—Erroneous Dismissal.—In an action to compel a conveyance from a trustee who purchased real estate at a sheriff’s sale, in his own name, with money alleged to belong to plaintiff, and to have been paid by her agent, but which the court found to have been paid in part from plaintiff’s money and in part from money belonging to her alleged agent personally, and further found that the deed was taken by defendant as security for a note of the plaintiff to the defendant, and another note from plaintiff’s alleged agent to the defendant, and for cash advanced at the sale, it was error for the court upon such findings to dismiss the action without any relief to the plaintiff, though without prejudice to a subsequent action.</p> <p>Id.—Bight of Plaintiff to Bbdeem and Iíeceive Conveyance—Bights of Alleged Agent not a Party—Defendant not Concerned.— The plaintiff is entitled to redeem the entire property and receive from defendant a conveyance to her of 'the property. The defendant not having made plaintiff’s alleged agent a party, and she not having concerned herself to become a party to the action, the defendant is not interested in any controversy that may arise between plaintiff and such third party with respect to the ownership of the money received by him, nor in their respective rights to the land as against each other, in ease of redemption by either. He is only entitled to hold the property conveyed to him until all the money secured thereby is paid.</p> <p>Id.—Litigation between Plaintiff and Alleged Agent-*-Findings not Conclusive.—The findings of the court in this action, that the money with which the defendant purchased the property was partly the money of the plaintiff and partly that of her agent personally, and upon other matters in issue, will not be binding upon the plaintiff in any litigation between her and her alleged agent concerning their interests in the property or in the money advanced to purchase it.</p> <p>Id.—-Costs—Absence of Tender.—Where the plaintiff made no tender of payment of the sums due to the defendant for which he holds the legal title as security, the costs of the action and of the appeal must be paid as a condition of the relief indicated.</p> <p>Id.—Offset—Bents Beceived by Defendant.—It is not intended to decide that the plaintiff, if she redeem the property, is not entitled to a credit for any rents which the defendant may have received during the time he has been in possession, as an offset to the amount due upon the redemption.</p>

<p>Quo Warranto—Validity of Election for Mayor—Registration of Voters—Insufficient Complaint.—A complaint in quo warranto, to determine the validity of an election for mayor of the city of San Jose, which merely alleges that copies of an old great register were used at the polls instead of copies of a new one required by law, but which does not aver that the names of all the voters were not on the new register, does not state a cause of action.</p> <p>Id.—Neglect of Officers of Election-—Qualified Voters not Affected—Constitutional Law.—Qualified voters, who were properly registered, could not be deprived of their votes because the officers of election neglected to perform the ministerial and directory duty of having the proper register before them for examination, and any provision of law having that effect would be unconstitutional.</p> <p>In.—Municipal Election—City Charter—Copies of Last Completed Great Register—New Registration not Completed.—Under the freeholders’ charter of the city of San Jose, copies of the last completed great register are to be used at .a general municipal election held in said city, besides a supplemental list of all voters who have registered since the time of the last completed great register; and a new registration commenced in January for the year 1902, which was not to be completed until September, was intended only for the general state election in November of that year, and war not required to be used at a municipal election held in said city in the month of May, 1902.</p> <p>Id.—Qualification of Voters—Object of Registration—Construction of Registry Law.—Registration is not a constitutional qualification of voters 5 but is simply a reasonable method of identifying qualified voters. A registry law should not be construed so as seriously to impair the practical working of a city government, and leave it without a legislative department, unless clearly imperative.</p> <p>Id.—Ballots Improperly Cast—Insufficient Averment.—An averment in the complaint that one hundred and twenty-four ballots were cast by voters who were registered after the commencement of forty days next preceding the general election is not sufficient, where there is no showing in the complaint that such ballots, if improperly received, could have changed the result of the election.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. J. S. Noyes, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

William T. Wallace, Judge, rendering original judgment. Frank H. Dunne, Judge, rendering judgment appealed from. The main facts are stated in the opinion of the court.

J. V. Coffey, Judge. In addition to the facts stated in the opinion of the court, the record shows that the sole surviving executor of the will of Thomas Bell, deceased, was suspended March 23, 1900, and removed May 5, 1900, and that on March 23,1900, Teresa Bell was appointed special administratrix, and rendered her final account February 10, 1902, which included payments made by her to herself since March 23, 1900, on account of family allowances unpaid by the executors,…

<p>Contract with City—Allowed Claim for Public Work—Mandamus to Auditor and Treasurer—Insufficient Answer—Violation of Eight-Hour Law.—Where a petition for a writ of mandate is filed against the auditor and treasurer of a city to compel the drawing of a warrant by the auditor upon the treasurer for a claim for services in replanking the city wharves, in pursuance of a contract with the city, which claim was duly approved and allowed by "the city board of public works against the general fund of the city, an answer of the defendant alleging that the petitioner incurred a specified amount as penalties for violation of the eight-hour law of March 20, 1899, in permitting mechanics and laborers to work more than eight hours per day, but not alleging nor attempting to show that the contract contained any stipulation as to the hours of work required, nor as to the penalties referred to in the act, nor that any inspector or officer had reported any violation of the act, or of any stipulation in the contract, or the amount of any penalties stipulated in any contract, is insufficient; and a demurrer thereto was properly sustained, and judgment properly ordered for the writ of mandate as prayed for.</p> <p>Id.—Butt of Auditor.—The city auditor has no duty to pay moneys due under the contract, and has no authority to refuse to draw his warrant for the amount allowed by the board of public works. His duties are ministerial and he must not anticipate the violation of the law by any one else.</p>

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

<p>Interpleader—Funds in Hands op Sheriff—Conflicting Claims— Omission in Findings—Priority of Assignment of Accounts Collected.—Upon interpleader to determine conflicting claims to funds in the hands of a sheriff, collected under an execution, which was subsequently quashed, and the judgment under which it was issued vacated, by the court on motion of the execution debtor, the creditor thus affected is entitled to a finding by the court, upon an issue tendered by his answer of an assignment by the execution debtor of all his interest in the accounts collected by the sheriff, which was prior in time to an assignment thereof to a person under whom the other defendant claimed the moneys collected, where there was evidence that such prior assignment was for collection and application on the debts of the execution creditor and two other creditors, whose rights he represented.</p> <p>Id.—Instructions to Sheriff—Execution Creditor not Estopped.— The execution creditor is not estopped from claiming under his prior assignment, by reason of the fact that he gave instructions to the sheriff to levy upon the accounts in question as the property of the execution debtor, when it appears that the latter was not thereby misled to his prejudice, but resisted the proceedings, and had them set aside, and that the former did not successfully maintain his judgment and execution, and when it does not appear that his conduct was the result of intentional deceit or gross negligence, but it may have been the result of innocent mistake.</p> <p>Id.—Inconsistent Claims—Unsuccessful Claim.—A party is not precluded from asserting a claim because inconsistent with some claim previously asserted by him, which was not successfully maintained.</p> <p>Id.—Assignment for Collection—Interest of Assignor Subject to Execution.—Where a debtor assigns accounts for collection and application to certain debts, he has an interest remaining which is subject to execution.</p>

<p>Estates of Deceased Persons—Special and General Administration — Distinct Proceedings — Effect of Appeal — Jurisdiction. — Special and general letters of administration are "separate and distinct proceedings. An appeal from an order granting general letters of administration has only the effect to suspend the order appealed from, and does not in any manner affect or suspend the jurisdiction of the court over the distinct proceeding of special administration of the estate, the object of which is to preserve the estate until general letters testamentary or of administration are granted, and the executor or administrator empowered to take charge of it. The court has jurisdiction, pending such appeal, to order a special administrator to turn over all the property in his possession forthwith to a special administratrix appointed by the court.</p>

<p>Husband and Wife—Conveyance to Wife—Presumption of Community Property—Burden of Proof—Bindings—Separate Property. —A conveyance to a wife made prior to the amendment of 1889 to section 164 of the Civil Code raises a presumption that she took as community property; but such presumption is not conclusive, and is a mere rule of evidence throwing the burden of proof upon her. The presumption is overcome where there is sufficient evidence to support findings that the property was her separate property.</p> <p>Id,—Estoppel of Husband—Stipulation in Mortgage.—The husband is estopped, both as against a mortgagee of the property and as against his wife, to claim it as community property, where he stipulated in the mortgage, in which he joined with her, that “in case of foreclosure of the same, rendering the overplus of the purchase money (if any such there shall be)” unto his wife, named and described as “one of the parties of the first part, her heirs, executors, administrators or assigns.”</p> <p>Id.—Agreement of Husband and Wife—Evidence—Mutual Statements.—A husband and wife may agree together that property purchased by the wife and conveyed to her in 1880, shall be regarded as her separate property, where there were no creditors to be affected by the agreement; and such agreement may be shown by the statements of each made in the presence of the other.</p>

<p>PETITION in the Supreme Court for Writ of Habeas Corpus to W. J. Nesbitt, Sheriff of Monterey County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PETITION in the Supreme Court for Writ of Habeas Corpus to W. J. Nesbitt, Sheriff of Monterey County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a- petition to revoke letters of administration to the public administrator and to issue letters to the petitioner. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Attachment—Non-Eesibent Defendants—Motion to Dissolve—Sufficiency of Complaint.—Where the proper affidavit is made as required for an attachment against non-resident defendants, a motion to dissolve the attachment cannot be turned into a demurrer' to the complaint, and if it states a cause of action upon contract, express or implied, or can be made to do so by amendment, it cannot be attacked for any ambiguity or uncertainty, and it may be amended pending the motion so as to state an unambiguous cause of action upon contract.</p> <p>Id.—Sufficiency of Affidavit.—An affidavit for attachment against non-residents which states that the indebtedness is “upon an express contract,” is sufficient in that "respect.</p> <p>Id.—Writ for Less than Demand of Complaint.—A writ of attachment is not defective because it states an amount less than that demanded in the complaint.</p> <p>Id.—Cause of Action for Breach of Contract—Damages Ascertainable from Contract.—An attachment will lie upon a cause of action for damages for a breach of contract, where the damages are readily ascertainable by reference to the contract, and proof of what was done under it, and the basis of computation of damages appears to be reasonable and definite.</p> <p>Id.—Delay in Delivery of Steel for Building—Averment of Performance by Plaintiff.—Where the damages claimed are for breach of contract by delay for three months in the delivery of steel for a building, consisting mainly of the loss of ground-rent paid during that period, and of the reasonable value of the use of the building for the period of three months, a mere general allegation that plaintiff has performed the contract on his part does not necessarily imply that plaintiff intended to discharge the contract or the liability of the defendant for damages under it. The effect of such allegation cannot be considered on motion to dissolve the attachment; nor can it be assumed that defendants will make a defense of such discharge in their answer.</p>

<p>action upon Judgment—Defense—Compromise with Assignees—Receipt of Local Attorney—Satisfaction of Judgment in Name of Plaintiff.—In an action by a judgment creditor to recover the unpaid balance of a judgment, in which the defendant pleaded as a defense, and the court found upon sufficient evidence, that the plaintiff had assigned the judgment to a partnership firm who had been his attorneys, and that a part of the judgment was paid to them in pursuance of an agreement of compromise with the assignees named, and in full settlement and satisfaction of the judgment, an objection that the settlement was not made directly with them, but with their local attorney, who was authorized to act for them, and whose acts were ratified by them, and who gave a receipt in full and a satisfaction of the judgment, as attorney for the plaintiff in the suit, is untenable. The use of the name of the nominal plaintiff in the suit was not improper.</p> <p>Id.—Assignment of Judgment—Collateral Agreement as to Collection—Absence of Power of Compromise—Improper Exclusion of Evidence.—Where, besides the absolute assignment of the judgment, a contemporaneous written agreement was made between the assignor and assignees showing that the assignment was for collection, for a compensation of one half of the judgment, the assignor reserving the privilege of negotiating a compromise, the two instruments formed one contract between the parties; and though the effect of the assignment was to transfer the legal title and authorize the assignees to sue in their own name, yet under the contract they had no power to compromise the judgment to the extent of the interest reserved by the assignor. The court erred in excluding evidence of the collateral agreement, and should have admitted it and found accordingly, or directed an amendment.</p> <p>Id.—Filing of Assignment without Collateral Agreement—Absence of Noíice—Defense not Pleaded—Leave to Amend upon Reversal.—Where it appears that only the assignment itself, which was absolute in form, was filed among the papers in the ease, and the collateral agreement was not filed, and there is no evidence tending to show that the defendant had notice of it, if the defense had been pleaded and sustained that the defendant dealt with the assignees, relying on the assignees alone, and without any notice of the collateral agreement, the exclusion of it would have become immaterial; but in the absence of such plea the judgment must be reversed for error in the ruling, with leave to the defendant to amend his answer, if so advised.</p>

<p>APPEAL from a judgment of the Superior Court of Napa County and from an order denying a new trial. William S. Wells, Judge, presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Sale of Property by Executors—Power in Will—Memorandum of Sale—Statute of Frauds.—Where a sale of real estate and personal property of a deceased testator is made under a power in the will, the purchaser deals with the executor as he would with any other vendor, except that the court must confirm the sale; and a memorandum of sale by the executor is sufficient under the statute of frauds if it contains the names of the parties and a sufficient description of the property for identification, and the price and terms of purchase, and states that the sale is made subject to confirmation by the superior court.</p> <p>Id.—Untenable Objection to Sale.—Where the evidence shows without conflict that the amount of twenty thousand dollars bid at the sale was a fair price for the property sold, which consisted of real property appraised at sixteen thousand dollars, and personal property appraised at less than three hundred dollars, and that a sum ten percent in excess of the amount bid could not probably be obtained on a resale, the appellant corporation, which after such sale made an offer not binding to pay six hundred dollars more for the property, lbut refused to offer ten per cent in advance of the bid, and which was not a legatee, is not in a position to object that the sale en ■masse was voidable because of such increased offer, and because the amount bid was not sufficient to pay the legacies in full.</p> <p>Id.—Confirmation of Sale—Duty of Court.—Where at the time of the written memorandum of sale no binding offer to increase the amount bid had been made, it was the duty of the court to confirm the sale unless the price bid was disproportionate to the value of the property, and it is made to appear that an increased bid of ten per cent may be obtained.</p> <p>Id.—Appeal from Order of Confirmation—Return of Sale not in Record—Objections not Appearing—Presumptions.—Upon appeal from an order of confirmation, it is the duty of the appellant to make the return of sale, which was used upon the hearing, a part of the record; and where such return does not appear, and it does not appear that appellant filed any objections to the return, all presumptions are against error in the order appealed from, and it must be affirmed. It may be that the return showed that the appellant had withdrawn its bid and consented to the order appealed from.</p>

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

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

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

APPLICATION to the Supreme Court for a Writ of Mandate to the Auditor of the City and County of San Francisco. The facts are stated in the opinion of the court.

<p>Action to Recover Taxes Paid—Fatally Defective Protest—Insufficient Complaint—Amendment—Dismissal of Action.—In an action to recover taxes paid, where the complaint was radically defective, and not amendable so as to state a cause of action, by reason of a fatal defect in the notice of protest made part thereof, the court properly refused to admit the notice of protest in evidence, and dismissed the action, and the plaintiff could not have been prejudiced in not allowing him leave to amend the complaint, for which he did not. ask, and which could not have benefited him.</p> <p>Id.—Taxes in Drainage District—Protest—Common-Law Rule— Voluntary Payment.—The Drainage Act of 1897 did not adopt the Political Code in reference to the collection of taxes, and did not provide that a payment of taxes in a drainage district under protest should be regarded as voluntary; and the general common-law rule as to the payment of taxes under protest, in the absence of statutory provision, applies to such payment. Where the notice of protest merely assailed the legality of the drainage district and the validity of the assessment and levy of the tax, and did not show any acts amounting to duress or coercion, it is insufficient to divest the payment of its voluntary character; and one who is deemed to have made such voluntary payment has no right of action to recover the same.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. J. R. Webb, 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 Joaquin County. W. B. Nutter, Judge,</p> <p>The facts are stated in the opinion.</p>

<p>Taxation op Street Railroads—Jurisdiction op State Board over “ Rah,roads ”—Construction op Constitution.—Section 10 of article XIII of the state constitution, providing for the assessment of all “railroads" operated in more than one county by the state board of equalization, is not to be construed as including “street railroads,” though operating in more than one county. [McFarland, J., and Henshaw, J., dissenting.]</p> <p>Id.—Distinction as to Nature op Franchises.—“Railroads” operate under one general franchise obtained by compliance with the general railroad law, for purposes of general transportation, without any advantage of local traffic along the streets, and may be justly assessed and apportioned for taxes according to mileage. But “street railroads” are organized solely for the accommodation of local passenger traffic, and the franchises of a street railroad, operating as such in more than one county, are necessarily separate and distinct, and local in origin, situation, and character; and it would be an unjust discrimination against a city in which its franchise for a street railroad has much greater value than in the country, in going to a local village terminus in another county, to assess it only according to mileage.</p> <p>Id.—Local Assessment.—The assessment of the portion of a street railroad which operates in the city and county of San Francisco, and also in the county of San Mateo, of that portion of its property which lies in such city and county, together with its franchise to operate a street railroad therein, may be properly made by the assessor of such city and county. [McFarland, J., and Henshaw, J., dissenting.]</p>

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

<p>Homestead—Prior Use op Property for Business—Discontinuance. —The prior use of property claimed as a homestead for a hotel and other business purposes does not affect the validity of the homestead where it appears that all business had been discontinued thereon before the homestead declaration was filed, and that the property was used at the time of the declaration solely as a residence and family home.</p> <p>Id.—Instruction not Prejudicial.—An instruction that “the use of a building partly, or even chiefly, for business purposes, or the renting of part of it, does not deprive the owner of his exemption of the building as a homestead, if the building is, and continues to be, the bona -fide residence of the claimant and his family,”—conceding, without deciding, that it is erroneous cannot be prejudicial, where upon the undisputed fact the jury could return no verdict other than for the claimant of the homestead.</p>

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

<p>Sheriff—Abuse of Authority in Service of Process—Breaking into Dwelling-House—Becovery of Damages.—A sheriff, or his deputy, has no authority in the service of civil process to break into a dwelling-house, and damages may be recovered for the trespass thus committed by reason of such abuse of authority, in serving process upon the owner of such dwelling.</p> <p>Id.—Exemplary Damages—Actual Damages—Segregation in Findings.—Where the complaint states facts justifying the recovery of exemplary damages, the court in its findings need not segregate the amount of actual damages from the amount of exemplary damages, unless requested so to do.</p> <p>Id.—Tort of Deputies—Extent of Liability of Sheriff.—The sheriff is only liable for compensatory damages for the tort of his deputies in serving the process in an unlawful manner, by breaking into a dwelling-house, and not for exemplary or punitive damages therefor, unless the malicious or oppressive acts of the deputies were authorized or ratified by the sheriff.</p> <p>Id.—Principal and Agent—Malice of Agent—Liability of Innocent Principal.—The law of principal and agent is applicable to the relation between a sheriff and his deputy; and where an innocent master incurs no penalty for the malice of his servant, an innocent sheriff should not be punished with vindictive damages for the malice of his deputy.</p> <p>Id.—Ratification of Misconduct of Agent.—The retention or promotion of an offending agent after knowledge of his misconduct is evidence of ratification, which may be very conclusive or very slight, according to circumstances. If the facts are promptly called to the attention of the principal, and if, with the means of verifying the truth of the charge, he neglects to make due inquiry, and afterwards retains the guilty agent in his employment, or promotes him to a better position, he makes himself particeps criminis, and lays the foundation of an action against himself for punitive damages.</p> <p>Id.—Torts of Deputies not Ratified by Sheriff.—Where it appears that the sheriff had no notice of any oppressive action of his deputies in the service of summons, other than the fact of the service of summons, and was furnished with no proofs, and had no means of informing himself, except by inquiry from his deputies, and learned from them that they had done nothing except what they were specifically directed to do by order of the justice’s court, which, though it was invalid, they had complied with in good faith and without any wanton or unnecessary violence, the sheriff ought not to be held, under these circumstances, to have ratified their unlawful acts by mere failure to discharge them in advance of the investigation of their conduct, in the mode invited by the plaintiff.</p> <p>Id.—Rule as to Vindictive Damages against Principal—Information of Pacts Before Suit.—It is a safe and just rule that if a plaintiff in such a case as this desires to charge a principal with vindictive damages on the ground of ratification, he should make his cause of action complete before commencing the action, by informing the principal of the facts and giving him an opportunity of redressing the wrong before being forced to defend it.</p>

<p>Contest op Election—Marked Ballots.—Upon a contest of election, all ballots marked with a cross after the words “No nomination” are illegal and void, and must be rejected, regardless of the number of such ballots that may be found in the ballot-box of any precinct.</p> <p>Id.—Evidence—Official Returns-—Ballots.—Though the ballots are the best evidence of their contents, and must prevail over the official returns when in conflict therewith, yet the official returns are prima facie correct, and constitute legal evidence of the true vote and result in any precinct, in the absence of impeaching evidence.</p> <p>Id.—Proof of Returns by Contestant—Objection—Motion for Non-suit.—The contestant, though he attacked in his statement the official returns of certain precincts, was at liberty at any time before the actual admission of the ballots in evidence, to accept as true the denial of the answer that there was any error in such returns, and may abandon his contest in relation thereto, and offer the official returns of those precincts in evidence against the objection of the con-testes, and a motion for a nonsuit because the ballots cast therein were not counted was properly denied.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County and from an order denying a new trial. W. M. Conley, Judge presiding.</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. M. C. Sloss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>New Trial—Burden upon Moving Party—Dismissal op Motion por Lack op Diligence—Review upon Appeal.—A motion for a new trial is an independent proceeding, in which the burden of acting is at all times upon the moving party, and it devolves upon him to proceed with diligence. The court had discretion to refuse to sign an engrossed bill of exceptions on the motion, where there was an evident lack of diligence in engrossing the same, after knowledge of the action of the judge in relation thereto, and to dismiss the motion for lack of diligence in the prosecution thereof; and his order will not be disturbed upon appeal where no abuse of discretion appears, and where the proposed engrossed bill failed to show any ground for a new trial.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Emmet Seawell, Judge.</p> <p>The facts axe stated in the opinion of the court.</p>

<p>Foreclosure of Mortgage—Sale en Masse—Offer of Distinct Parcels—Combinations of Parcels—Mandate of Statute.—Where the decree of foreclosure of mortgaged property described the parcels to be sold by nineteen separate descriptions, and it appears that the sheriff first offered the property for sale by each of such descriptions, and received no separate bid for either parcel, and then offered a sale of the whole of the mortgaged property en masse, whereupon the plaintiff became purchaser thereof, the mandate of the statute was sufficiently complied with. The statute did not require an offer by sale of three separate combinations of parcels, if it is not made to appear that such combinations themselves constituted “several known lots or parcels," in the absence of a request for such sale by some party interested.</p> <p>Id.—Motion to Set Aside Sale—Burden to Show Material Departure.—A party who moves to set aside the sale has the burden to show such an irregularity or material' departure from the statute as will justify the court in setting it aside; and where it does not appear from the showing made by the moving party that the conditions which would authorize the sale of all of the property together did not exist, and no showing of injury appears by reason of such sale, the motion is properly, denied.</p> <p>Id.—Inadequacy of Price—-Redemption.—Inadequacy of price is not sufficient ground to set aside the sale; and if it was legally made, it cannot be set aside merely because in order to redeem any of the property the defendant must redeem all of it.</p> <p>Id.—Sale for Gold Coin.—The fact that the sale was made for gold coin when the decree of foreclosure did not specify such coin, is not a material departure.</p> <p>Id.—Descriptions—Identification.—Where the description of the property in the notice of sale was precisely the same as that contained in the judgment, and, so far as the record discloses, cannot be said to fail to sufficiently identify the land sold, an objection that the description was indefinite, uncertain, and imperfect cannot be sustained.</p>

<p>APPEAL from a judgment of the Superior Court of Los-Angeles County. M. T. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Criminal Law—Burglary—Description of Premises—Number of Boom—Sufficiency of Proof.—Where an information for burglary contained a sufficiently full description of the “house, room, apartment, tenement, shop,” etc., of a person named, where the burglary was alleged to have been committed, independent of a phrase giving to the room or apartment a certain number, and the evidence was that the burglary, if committed at all, was committed at the place otherwise fully described, the mere failure to prove the unnecessary averment of the number of the room or apartment cannot have deprived the appellant of any of his rights or prevented him from having a fair trial.</p>

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

<p>Criminal Law — Murder — Construction op Code — Conviction in First Degree—Sufficiency of Information.—The definition of murder in section 187 of the Penal Code, as being “the unlawful killing of a human being, with malice aforethought,” includes murder in both degrees; and a_conviction of murder in the first degree, if warranted by the evidence, is sufficiently supported by an information based upon the language of that section, without averring that the killing was “deliberate and premeditated.”</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>Water Supply of City—Springs Running in Defined Channel—Surplus Water—Injunction—Issue—Support of Findings—Decree Protecting Rights.—In an action to enjoin the obstruction of the water supply of a city by hindering the flow of surplus water in a defined channel from numerous springs on defendant’s lands to lands of the city forming the site of its waterworks, where there was no issue as to the number of the springs, but only as to the defined channel, findings upon sufficient evidence that the surplus water from three or four springs on defendant’s lands was accustomed from time immemorial to flow in a defined channel to plaintiff’s lands were proper; and where the findings and decree were as favorable to the rights of the defendant as the evidence would warrant, and he was protected in the use of the water of the springs to the full extent of his rights, the findings and decree will not be disturbed upon appeal.</p>

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

<p>APPEAL from a judgment of the Superior Court of Orange County. J. S. Noyes, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Tulare County denying a petition for partial distribution of the estate of a deceased testator. W. B. Wallace. Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Sale op Lands—Title op Heirs— Vested Eights—Inoperative Amendments—Sale for Best Interest.-—The title to land vests in the heirs of a deceased person at the time of his death, subject only to the law for the sale of lands of the decedent then operative. Where the deceased died prior to the amendments of 1893 to sections 1536, 1537, 1542, and 1543 of the Code of Civil Procedure, authorizing a sale when it appears to be for the advantage, benefit, and best interest of those interested, the vested rights of the heirs cannot be affected or impaired thereby.</p> <p>Id.—Valuable Farm Containing Oil—Power to Sell Entire Tract-Equitable Partition Impracticable.—Under section 1542 of the Code of Civil Procedure, as it stood prior to the amendments of 1893, a sale of the whole of a valuable tract of farming land, containing valuable deposits of oil and asphalt, unevenly distributed, and worth in the aggregate seven hundred and fifty thousand dollars, may be ordered to pay the sum of fifty-one thousand six hundred and fifty dollars for debts, expenses of administration, and legacies, where it appears that the character of the land is such that if a part be sold the residue could not be beneficially or equitably partitioned among the heirs and devisees without a sale. "</p> <p>Id.—Sufficiency of Evidence—Immaterial Finding—Detriment to Residue.—Where the court found upon sufficient evidence that it was impracticable to make an equitable partition of the residue of the tract, another finding, that a sale of part of the land would be a detriment to the residue, is immaterial, and it is unnecessary to inquire whether it is supported by the evidence.</p> <p>Id.—Raising of Money by Mortgage—Necessity of Sale.—The fact that the money needed for administration might be raised by mortgage on the land is not conclusive; and where it does not appear that the heirs have any other property or interests, and that the present income of the land is not sufficient to pay the mortgage without a sale of the property, the court did not err in finding that a sale of the entire tract was necessary and in ordering the sale thereof.</p> <p>Id.—Pendency of Action Involving Strip.—The pendency of an action involving a narrow strip along the southern line of the farm will not preclude a sale, where the circumstances are not such as to make a sufficient cause to refuse the order.</p>

<p>Corporations—Liability op Stockholders—Statute op Limitations. —The liability of a stockholder of a corporation for his proportionate share of its debts is created by statute, and is barred within three years after the cause of action accrues.</p> <p>Id.—Collection by Bank—Deposit on Open Account—Accrual of Cause of Action against Stockholders—Change to Savings Account.—The cause of action against the stockholders of a bank for a collection made by the bank for the plaintiff, and immediately credited to the plaintiff on his open account with the bank by plaintiff's authority, then accrued, and the statute of limitations in favor of the stockholders then began to run, and its running cannot be affected by a subsequent transfer of the credit to a savings account for the purpose of drawing interest.</p> <p>Id.—Bower of Corporation—Extension op Time.—The corporation has no power, without the consent of the stockholders, to extend the time for the commencement of an action against them, by any subsequent renewal or extension of time for the payment of its original debt.</p> <p>Id.—Inapplicable Instruction—Agency of Bank for Payor—Directions to Bank.—It was error to instruct the jury that if they found certain material facts, the bank was agent for the payor in receiving the money, and he might withdraw it before certain directions were complied with, where there was no evidence from which such facts, agency, or directions could be found or inferred.</p> <p>Id.—Order Granting New Trial—Sufficiency op Specifications— Liberal Bule—Bar of Statute.—Upon an order granting a new trial, the specifications of the statement as to insufficiency of the evidence to sustain the verdict will be deemed sufficient under the liberal rule now adopted and followed, where they were not objected to when the statement was settled, and it contains substantially all of the evidence; and where the verdict was against the evidence as to the bar of the statute, an objection upon appeal from such order that the specifications went to probative facts connected with the original bar of the statute which might possibly not be inconsistent with the verdict against the bar of the statute, will not be entertained.</p> <p>Id.—Plea of Statute not Waived—Presumption.—Defendants did not waive their plea of the statute of limitations by failing to ask the withdrawal of the question from the jury or to ask an instrue- • tion in relation thereto. They had the right to rely upon the presumption that the verdict would be in accord with the law and the facts.</p>

<p>APPEAL from orders of the Superior Court of Tulare County vacating a previous order denying a motion to dissolve an attachment and dissolving the attachment. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Lueien Shaw, Judge.</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. Prank P. Oster, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Specific Performance—Contract of Sale—Statute of Frauds— Agency—Ratification—Estoppel—Ignorance of Owner.—An alleged contract for the sale of real estate cannot be specifically enforced, where it was made by a real-estate agent whose authority was not in writing, and where there was no ratification of the contract in writing, nor any estoppel of the owner. He could not ratify the contract without knowledge of its existence; nor could he be estopped to deny it where he received and retained nothing under it, and had no notice of it.</p> <p>Id.—Letters not Conferring Authority—Agency not Shown.—Letters of the owner to the real-estate agent answering inquiries as to the owner’s price for the land, but not giving him any power or authority concerning the disposal of his property, do not prove any written contract or agency. A person cannot make himself the agent of another by writing letters and acting as agent without the assent of the owner.</p> <p>Id.—Meeting of Minds—Acceptance of Offer—Conditions—Withdrawal of Offer—Waiver of Conditions.—An acceptance of an offer, in order to make a contract complete, must be unconditional, and it must be accepted as made. Where conditions are attached to the acceptance, and the offer is then withdrawn, it cannot be made binding by a waiver of the conditions insisted upon when the offer was made.</p> <p>Id.—Evidence—Custom of Real-Estate Agents.—It was not error to exclude evidence of a local custom of real-estate agents which was not material to the ease, and could not have affected the conclusions reached by the court.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County appointing a guardian of a minor child. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Landlord and Tenant—Agent in Possession of Lodging-House—Collection of Bents—Tenancy at Will not Established.—Where the husband of the deceased owner of a lodging-house remained in possession, by agreement with her executor, for the purpose merely of collecting rents for the executor, without any agreement for the payment of rent by himself, the relation between the parties is that of principal and agent, and not of landlord and tenant, and a tenancy at will is not thereby established; and thirty days’ notice to quit is not required before the commencement of an action by the executor to recover possession of the lodging-house from such agent.</p>

<p>Claim and Delivery — Cattle — Cross-Complaint — Counterclaim— Trespass upon Beal Property—Injury to Crops.—In an action of claim and delivery, to recover the possession of certain cattle, of wMeh plaintiff took possession at the time of the commencement of the action, the defendant cannot by way of cross-complaint or counterclaim recover damages to his real property committed by the cattle by unlawful entry and trespass and injury to crops growing thereupon.</p> <p>Id.—“Transaction”—Meaning op Code—Independent Belief not Intended.—The word “transaction,” used in sections 438 and 442 of the Code of Civil Procedure, whatever it may signify, is not intended to include a ease where the counterclaim or cross-complaint has no connection with the relief asked for by the plaintiff, but is of a different nature, and where to grant the relief asked for by the defendant would require two separate and distinct judgments.</p>

<p>Guardian and Ward—Letters of Guardianship to Grandmother of Child — Order Vacating — Bights of Mother — Sufficiency of Showing.—Where letters of guardianship of the person of a minor child were granted to the grandmother of the child, without the knowledge or consent of the mother entitled to the custody of the child, upon a showing of her right to its custody, and upon a seasonable showing by uncontradicted affidavits that the proceeding by which she was adversely deprived of the custody of her child was taken against her by surprise, and through her excusable neglect, without any information on her part as to the pendency thereof, the mother is entitled, notwithstanding conflicting affidavits as to her fitness for the custody of the child, to an order vacating the appointment and all proceedings thereunder.</p> <p>Id.—Affidavit of Merits.—The statement in the affidavit of the mother as to her competency and fitness to have the custody of the child was a sufficient showing of merits in that behalf.</p> <p>Id.—Separation of Father and Mother—Agreement as to Custody-Enforcement of Mother’s Bight.—Where the father and mothei are living separate and apart from each other, the father, as such, has no rights superior to those of the mother as to the care and custody of a child; and where, without any order of court, upon divorce, it was agreed between them that each should have the custody of a child alternately for six months, and the mother was entitled under the agreement to its. custody when the grandmother was appointed guardian, upon the fraudulent consent of the father, in violation of the agreement, without notice to or knowledge of the mother, the court, upon a proper showing of the facts, properly enforced her right to the custody of the child, upon her motion to vacate and set aside the proceedings.</p> <p>Id.-—Ability and Fitness of Mother—Refusal to Hear Testimony.— The court upon the application for the order vacating the appointment of the grandmother properly refused to hear testimony upon the question as to the ability and fitness of the mother properly to care for the child. The court could not thereupon determine any question as to the ultimate custody of the child.</p> <p>Id.—Order Dismissing Proceedings—New Proceeding.—The fact that the court set aside and dismissed all proceedings in the matter of the guardianship, instead of allowing the petition to stand, and allowing the mother to contest the same, is not of sufficient importance to justify a reversal. A proceeding of this kind is different from a civil action; and no prejudice could result from the dismissal. If the interests of the child so demand, a new application may be made for letters or other appropriate proceedings taken.</p>

<p>APPEAL from an order of the Superior Court of Tulare County dismissing a petition for letters of guardianship. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Could of the City and County of San Francisco and from orders denying a motion for a new trial and a motion in arrest of judgment. Carroll Cook, Judge.-</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Swamp Land—Reclamation—Purchaser’s Share op Fund—Mandamus—Demand—Statute op Limitations.—The right of the owner of reclaimed swamp land to a share of the swamp-land fund arising from the payment of purchase money for swamp lands into the county treasury is based upon contract with the state, and does not arise until demand is duly made therefor; and the statute of limitations does not begin to run against a mandamus to compel payment of such share until the payment is actually demanded.</p> <p>Id.—Trust por Purchaser.—The swamp land granted to the state by the general government was by its nature and object a trust for reclamation; and under the state laws both the land and money are held by the state in trust for the purchaser until the statutory conditions have been fulfilled by him entitling him to a patent and to his share of the swamp-land fund payable upon, demand to the purchaser or his assigns.</p>

<p>Estates of Deceased Persons—Will—Election between Devise and Indebtedness—Estoppel.—Where a devise was made in full satisfaction of any and all claims of the devisee against the testator for moneys loaned and services performed, the devisee was not estopped from claiming under the will by reason of the fact that she presented a claim against the estate, where such claim was presented in ignorance of the value of the property devised, and was allowed only in part, and was then withdrawn, and a written election made to take under the will.</p> <p>Id.—Sale under Deed of Trust—Surplus—Devise Subject to Contribution with Other Devises.—Where a sale of the land devised was made under a deed of trust, and a surplus remained, the devise made in payment of all indebtedness due from the testator to the devisee remains, as to such surplus, subject, along with other devises, to contribution for the payment of the debts and charges of administration. There is no exception in the statute on account of the nature of such devise.</p> <p>Id.—Partial Distribution—Amount not Ascertainable.—A decree of.partial distribution of such surplus proceeds to the assignee of the devisee must be reversed. The amount to be distributed under the devise is not ascertainable until after the settlement of the final account and by the decree of final distribution.</p>

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

<p>Order Denying New Trial—Review upon Appeal.—Upon appeal from an .order denying a new trial, the sufficiency of the pleadings to support the judgment or of the findings of fact to support the conclusions of law cannot "be considered, and nothing can be considered that does not go to show that a re-examination of some issue of fact is necessary to protect the rights of the appellant. If every material issue of fact has been decided in favor of the appellant, a new trial cannot be awarded; and his only remedy in such case is by motion under section 663 of the Code of Civil Procedure, or by appeal from the judgment.</p> <p>Id.—Specific Performance—Agreement to Dismiss Action to Quiet Title—Further Prosecution-—-Findings—Election to Eescind. —In an action to enforce specific performance of a contract for the sale of land involved in the plaintiff’s action to quiet title, which plaintiff agreed to quitclaim and dismiss for certain purchase money to be paid by the defendants, where the court found that plaintiff renewed the prosecution of the action after failure of defendants to pay the remainder of the purchase money, the argument that such renewed prosecution of the action amounted to an election to rescind the contract sued upon, which was inconsistent with the findings and judgment for plaintiff, cannot be considered upon appeal from an order denying a new trial to the defendant.</p> <p>Id.—Renewed Prosecution not a Breach.—The renewed and continued prosecution of the action was not a breach of the plaintiff’s contract, she not having agreed to suspend the prosecution of that action. It was not inconsistent with her ability to perform her contract, the only question arising upon this appeal, and whatever bearing it may have had upon the question of her repudiation of the contract, such question cannot be considered.</p> <p>Id.—Adequacy of Consideration—Pleading and Evidence.—The objection that the complaint does not allege that the contract price sued upon was a fair and reasonable price for plaintiff’s interest in the land cannot be considered upon appeal from the order denying a new trial; and in so far as the question of adequacy of consideration arises -upon the evidence, it is sufficient that the evidence showed a sufficient consideration for the contract at the time it was made, notwithstanding the action to quiet title was finally determined against the plaintiff.</p> <p>Id.—Ability to Perform Contract—Conveyance to Third Party— Finding Outside of Issues—-Probative Fact—Findings of Ultimate Facts.—Where the court found the ultimate facts alleged that plaintiff since the date of the contract has always been ready, willing, and able to perform all the conditions of the contract on her part to be performed, etc., a finding of a probative fact, outside of any issue, that plaintiff had conveyed her interest to a third party, cannot modify or control the finding of the ultimate facts.</p> <p>Id.—Conveyance in Pursuance of Contract—Payment not to be Contested.—The conveyance to the third party was not wholly inconsistent with the plaintiff’s ability to perform, and the findings as to such ability are not against the evidence where the evidence shows that such conveyance was in actual performance of plaintiff’s contract to convey to defendants or their assigns. The fact that plaintiff received a payment from such third party, which it was agreed should not be applied upon the balance of the purchase money due from the defendants, is a matter of no concern to the defendants, who had parted with all their interest in the property, yet remained liable on their contract with the plaintiff.</p> <p>Id.—Tender of Deed before Suit.—The failure of the complaint to allege, and of the court to find an actual tender of, a deed to the defendants before suit cannot be considered on this appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. J. R.'Webb, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Pledge—Statute of Limitations—Extinction of Lien.—Under section 2911 of the Civil Code, the lien of a pledge as security for indebtedness is extinguished by the lapse of the time within which an action can be brought upon the principal obligation.</p> <p>Id.—Pledge of Life-Insurance Policies — Interpleader — Plea of Statute—Omission in Finding.—Where paid-up policies of life insurance payable to the wife of the insured were transferred by the husband and wife as security for the indebtedness of the husband, which was allowed to become barred by the statute of limitations, and after the death of the insured an action of inter-pleader was brought by the insurance company against the wife and the debtor, and the wife pleaded the statute of limitations against the debt, it was error for the court to fail to find thereupon, and to award judgment in favor of the debtor.</p>

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

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

<p>Election Contest—Marked Ballots—Failure of Officers to Be-hove Number.—The failure of the officers of election, through carelessness or ignorance, to remove the number from ballots cast does not leave such an identifying mark as renders the ballots illegal. It is only distinguishing marks made by the voter which demand the rejection of a ballot on that ground.</p> <p>Id.—Amendment of Statement at Trial—New Charge of Fraudulent Conduct.—Where the original statement of the grounds of contest did not allege any fraudulent or corrupt misconduct of the election officers in failing to remove the numbers from ballots at a certain precinct, but assailed the ballots as haying an identifying mark, it was not error to refuse to allow the statement to be amended at the close of the trial, by charging that such failure was for the intended purpose of enabling a record to be made of how each voter voted, and to prevent a fair election at that precinct.</p> <p>Id.—Special Proceeding—Strict Pursuance of Statute—Object of Law.—An election contest is a special proceeding, and the requirements of the code in reference thereto must be strictly followed. The object of the law is plainly to require notice in advance of the trial to the defendant, who is declared elected, and whose right to the office is questioned, of the grounds on which his right to the office is contested.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. S. K. Dougherty, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporation Act—Legislative Power op Supervisors— Power op Repeal and Besoission.—The power devolved on boards of supervisors by sections 2 and 3 of the Municipal Corporation Act to determine boundaries of a proposed town is a legislative and not a delegated power, and in the absence of any statute or rule limiting its powers its legislative power includes the power of repealing and rescinding its previous acts while the proceedings are in fieri, and before rights have become vested under the act, or the town has been declared duly incorporated.</p> <p>Id.—Protest against Proposed Boundaries—Resolution—Order por Election—Mistake—Rescission—Readjustment op Boundaries. —Where protests were made against being included in the boundaries proposed in a petition for the incorporation of a town, and the protests and petition were submitted together to the board for its decision, and the supervisors had intended to exclude the protestants from the boundaries, but afterwards upon an ex parte showing by the petitioners were led to believe that the protestants had abandoned their protests and had consented to be included, and under that mistake and misapprehension passed a resolution fixing the boundaries as prayed for and ordering an election, the board may at its next meeting, upon notice to the petitioners, rescind its resolution and order a further consideration, and may pass another resolution excluding the protestants from the boundaries of the proposed town.</p> <p>Id.—Absence op Further Showing—Dismissal op Petition.—Where the petitioners made no further showing as to whether a sufficient number were included in the readjusted boundaries to authorize an incorporation, the petition was properly dismissed.</p> <p>Id.—Election Held under Rescinded Order—Mandamus.—Where an election was held under the order therefor, notwithstanding the rescission of the order, and notice to the officers of election that it would not be held, mandamus will not lie to compel the supervisors to canvass the votes.</p>

<p>Divorce—Desertion—Cancellation of Deed—Former Judgment— Maintenance—Appeal—Evidence—Jurisdiction.—In an action by a wife for divorce for alleged desertion and for the cancellation of a deed of the husband to his daughter, for the purpose of enforcing alimony, a former judgment for the defendant in an action by her for a maintenance, grounded upon the same alleged desertion and seeking the same relief, in which the court found that there was no desertion, and that plaintiff was not entitled to cancel the deed, or to enforce alimony upon the property conveyed, though such judgment was suspended by an appeal, and did not become res adjudicata, until affirmed upon the appeal, and though not a proper subject of a plea of another action pending, is admissible in evidence to show that the court in the former action had acquired vested jurisdiction of those matters, and to preclude a retrial of the validity of the transfer or of the alleged desertion in the action for divorce.</p> <p>Id.—Validity of Deed to Husband—Separate Property.—A husband, in the absence of fraud, has the right to convey his separate property to his daughter; and if the deed was valid when made, it could not afterwards be invalidated by any act of his.</p>

<p>Guardian and Ward—Services of Attorney—Claim to be Allowed by Court—Ward not Liable—Action against Estate.—The claim of an attorney for a guardian who has rendered services at the guardian’s request in the execution of the trust for the ward cannot be enforced by an action against the ward or his estate.' The ward is not personally liable therefor, and no.action can be maintained by the attorney upon a rejected claim against the estate of the deceased ward.</p> <p>Id.—Effect of Order for Substitution of Attorney for Guardian.— An order of the court having jurisdiction of the guardianship for the substitution of an attorney for the guardian, in place of a former attorney, simply makes such attorney the attorney of record, and does not attempt to authorize a contract directly affecting the property of the ward or to require the performance of any legal services.</p>

APPEALS by plaintiff and cross-complainant from a judgment of the Superior Court of San Joaquin County, and from separate orders denying a new trial to each. Edward I. Jones, Judge. The facts are stated in the opinion of the court.

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

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

<p>Taxation—Equalization—Raising of Assessment—Proof of Action of. Board.—Where a board of equalization passed a resolution directing a taxpayer to show cause why his assessment upon particular property described should not be raised from the assessment stated to a much larger sum specified, due notice of the hearing of which was given, and upon the hearing the board had before it the preliminary order, entered upon its minutes, the assessment-roll containing the assessment, and other evidence, and then resolved that the assessment “stand as raised,” the latter resolution cannot be considered as the only proof of what was done, but the court must consider the context, the other entries made in its minutes, and the testimony showing that its action had reference to the figures in the original order to show cause, to ascertain what was in fact done by the board.</p> <p>Id.—Tax Proceedings—Strict Construction—Limitation of Rule.— While it is the general rule that tax proceedings and the levy and raising of assessments must be strictly construed, yet the rule should not be carried to the extent of looking solely to the record of an order made by the board of equalization.</p> <p>Id.—Construction of Resolution.—Where the board of equalization possessed the power claimed to have been exercised, and had jurisdiction of the subject-matter, and substantially followed the method prescribed by the statute, and in fact exercised the power, the court will not construe the language used by it in a resolution in a strictly technical sense, but will endeavor, by a view of the whole proceedings, to ascertain to a common certainty what was done.</p> <p>Id.—Powers of Board—Presumption.—The board of equalization of a county possesses great powers under our constitution and statutes as to raising or lowering assessments, and, in the absence of fraud or malicious abuse of its powers, it seems to be the sole judge of questions of fact and of values of property; and it must be presumed in all cases that, as a public oficial body, it has performed its duty.</p>

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

<p>Contract for Pumping Outfit—Insufficiency—Agreed Modification —Substituted Pump-Head—Increased Cost not Recoverable— Support of Finding.—Where a pumping outfit, furnished under contract, was found insufficient for the service, and it was agreed that the outfit should not be considered as complete until a different and stronger pump-head should be furnished as a substitute for the first, and that the use of the plant in its insufficient condition should not be considered an acceptance, in the absence of any express contract of defendant to pay for the substituted pump-head, and of any evidence from wMeh such contract can be implied, a finding that the new pump-head was by the mutual agreement and understanding of plaintiff and defendant to be furnished without additional cost to the defendant is sufficiently sustained.</p> <p>Id.—Performance of Contract—Liability for Price—Findings.—-In view of the agreed modification of the original contract, and plaintiff’s substantial compliance with the contract as modified, and that the pumping outfit, as changed, did the work called for, defendant cannot escape liability to pay the original contract price on the ground that the original contract was not performed as originally agreed; and the defendant is not injured by a finding that “plaintiff duly performed all the conditions on his part to be performed under the terms of the contract,” nor by the apparent inconsistency with the finding that a substituted pump-head of a different pattern was agreed upon, without additional cost to defendant.</p> <p>Id.—Cross-Complaint—Damage for Delay—Exclusion of Evidence. —Where the first pump-head and machinery were completed according to the contract, so far as the workmanship and pattern were concerned, but the pump proved too weak, and it was agreed that a new and stronger pump-head of a different pattern should be substituted, and the delay in making such substitution was not unreasonable, and the court was justified in finding that there was no unreasonable or unnecessary delay, the defendant cannot recover any damages for delay under a cross-complaint therefor, and was not injured by the exclusion of evidence upon that subject.</p>

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

<p>Watee-Rights—Injunction—Former Adjudication—Findings Supported by Evidence—Appeal from New-Trial Order.—In an action to restrain the defendants from running water across plaintiff’s land, based upon a judgment in favor of plaintiff’s vendors against one of the defendants, where the pleadings involved the sufficiency of the judgment pleaded, and its effect upon the rights of the defendants, and also involved conflicting appropriations of water, and upon each and all of these the findings were in favor of the plaintiff and against the defendants, and were supported by the evidence, an order denying the defendants’ motion for a new trial will be affirmed upon appeal.</p> <p>Id.—Appropriation—Alleged Trespass—Effect of Former Judgment. —The contention of defendants that the appropriation of plaintiff’s vendor was a trespass upon the land of defendants’ vendor is not tenable when it is in contravention of the effect of a former judg- • ment between the parties, which was affirmed upon appeal to this court, and also upon appeal to the supreme court of the United States.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Placer County denying a new trial. J. E. Prewitt, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of San Diego County. Frank F. Oster, Judge presiding.</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. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Information—Commitment—Complaint—Ministerial Functions of District Attorney.—In the filing of informations the functions of the district attorney are ministerial only, and not appellate over those of the committing magistrate. He has no power to file an information for any greater or other offense than that specified in the commitment hy the magistrate, though in accordance with the complaint made before the magistrate.</p> <p>Id.—Commitment for Assault with Deadly Weapon—Setting Aside Information Charging Intent to Murder.—Where the commitment was for an assault with a deadly weapon, and the information charged an assault with a deadly weapon with intent to commit ' murder, a motion to set aside the information for want of a legal commitment for the offense charged must he sustained. It is immaterial that the record does not show the complaint filed with the committing magistrate.</p>

<p>APPEAL from a judgment of the Superior Court of Butte County. John C. Gray, 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. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sale op Piano—Executory Contract—Breach by Vendor—Ese op Different Piano—Bight op Possession—Bepuevin.—Where a piano company sold a numbered piano of a particular make, under an executory contract for payment in installments, reserving title until full payment, and after part performance by the purchaser broke its contract by shipping the piano to the manufacturers, and then agreed to furnish the purchaser the use of a cheaper piano of its own make until she could be furnished with a piano of the same make as that contracted for, or one of equal merit, the purchaser had the right of possession of the latter piano until the contract was substantially fulfilled; and after the purchaser had made payments equal to the value of the cheaper piano the piano company cannot maintain replevin therefor on the ground that all of the payments had not been made under the original contract, while it was itself in default in'not substantially complying therewith, and had not returned the money which the purchaser had been induced to pay by reason of its promise.</p>

<p>Negligence—Fire Caused on Bailroad Bight of Way—Extension to Adjoining Field—Injury to Harvester—Pleading—Cause of Action—Evidence.—A complaint alleging that the defendant railway company willfully, carelessly, and negligently set fire to certain grass, weeds, growing grain, and herbage on its right of way, which adjoined plaintiff’s premises, and carelessly and negligently suffered the fire to extend beyond defendant’s land to plaintiff’s land, whereby plaintiff’s harvester was injured and damaged in a specified sum, states a cause of action at common law.</p> <p>Id.—Penal Provision—Prayer for Treble Damages—Sufficiency of Evidence—Instruction for Verdict.—Where the complaint, in addition to the common-law cause of action, prayed for treble damages, under the provisions of section 3344 of the Political Code, which are penal in their nature, and must be strictly construed, the fact that the evidence was not sufficient to sustain a recovery under that section would not justify an instruction for a verdict for the defendant, where there was sufficient evidence to sustain a recovery under the common-law cause of action for the actual damage alleged.</p> <p>Id.—Evidence of Damage—Estimate—Cross-Examination.—Where the character and extent of the injury to the harvester were fully described by the witnesses, and expert evidence had been given to show the extent of injury, the defendant could not be injured by allowing the plaintiff to testify how much the machine was damaged, where the defendant had ample opportunity to test the plaintiff upon cross-examination as to the basis of his estimate, and did so.</p> <p>Id.—Verdict Unwarranted by Complaint—Improper Amendment— Appeal—Costs.—Where the verdict was for actual damage in excess of that alleged in the complaint, and there was not sufficient evidence to warrant a recovery of the excess, it was error for the court to allow an amendment of the complaint after verdict to sustain the verdict; and the judgment will be modified on appeal at costs of the respondent to the extent of such excess.</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>

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco refusing to vacate an order setting apart a homestead. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.

<p>Official Bond of Constable—Liability of Sureties.—The sureties upon the official bond of a constable are to be held according to the strict terms of their contract; and such contract cannot be extended by implication so as to make them liable beyond its terms. The officer and his sureties are liable for every abuse of his official powers, and for a trespass committed under cover of a valid writ in his possession, under which he claims to act, but goes beyond it; but the sureties are not liable for trespasses committed not under color of office, nor in the line of official duty, nor for malfeasance .and extra-official acts.</p> <p>Id. — Action upon Bond — Pleading — Trespass — Necessary Averments.—In an action upon the bond of a constable for damages for an alleged personal trespass, in order .to charge the sureties, it is necessary to allege and prove that the constable, while attempting to perform some official act in the general line of his ' official duties, committed the unlawful trespass complained of.</p> <p>Id.—Insufficient Complaint—Conclusion of Law — Inconsistent Averments.—Where the complaint in such action does not state that the constable had any writ or any order directing him to do anything, nor state any facts tending to show that he was acting under color of office, a mere averment that he was acting in his official ' capacity does not state any fact, but only a mere conclusion, and an averment that while acting in his official capacity he was acting without authority of law in committing the trespass alleged is inconsistent and félo de se, and the complaint states no cause of action against the sureties.</p>

<p>Divorce—Alimony—Community Property—Compromise with Guardian of Insane Wife—Discontinuance of Alimony for Inability —Discretion.—Where a husband was divorced from his wife and obtained the community property, and was ordered to pay alimony for the support of the wife, and it appeared that she had been adjudged insane before the summons was served, and a guardian appointed for her sued to vacate the judgment on that ground, whereupon the suit was compromised with approval of the court appointing the guardian, and' dismissed, upon payment to her of one half of the proceeds of the community property, she still reserving the claim for alimony, there was no abuse of discretion in a subsequent order setting aside the allowance of alimony where, in view of the circumstances of the plaintiff, as shown by his uncontrádicted affidavits, he was unable to pay the same.</p> <p>Id.—Exception in Compromise of Claims for Alimony.—The exception in the compromise of the claim for alimony only evinced an intention to reserve that claim, and left the question of its validity or invalidity unaffected; and it cannot preclude the discontinuance of it for inability of the divorced husband to pay it.</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. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Trust-Deed—Sale—Relation of Title—Unsevered Fruit Crop— Chattel Mortgage.—The title of a purchaser at a sale under a deed of trust relates back to the date of the deed of trust, and the conveyance to him thereunder passes title to an unsevered fruit crop upon trees growing on the land, which is part of the realty; and where the purchaser takes possession, he is entitled to gather the fruit crop, as against a chattel mortgage executed subsequent to the deed of trust and prior to the sale.</p> <p>Id.—Severance of Growing Crop—Delivery—Effect of Chattel Mortgage—Notice of Trust Deed.—The chattel mortgage, whatever effect it may have as between the parties thereto, cannot operate as against the purchaser under the trust-deed as a severance of the growing crop from the land, or as a delivery of the crop. The mortgagee took with knowledge of the deed of trust, and that the purchaser under it, when the claim of the creditor should be enforced, would take an absolute title to the land, as of the date of the trust-deed.</p>

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

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

<p>Recovery of Taxes Illegally Collected—Pleading—Payment under Protest not ¡Required—Presentation 'oe Claim to Supervisors. —In an action based on section 3804 of the Political Code, to recover from the county taxes illegally assessed and collected by the county for road purposes on property situated within the limits of a city, it is not necessary to aver in the complaint nor in the claim presented to the supervisors that the taxes were paid under protest. It is sufficient to aver the facts showing the illegality of the tax collected, and that a verified claim of plaintiff for refunding of the tax was presented to the board of supervisors for allowance, and that they had refused to refund the tax.</p> <p>Id.—Construction oe Code—Independent Remedy.—The remedy given by section 3804 of the Political Code affords independent relief in all cases coming within its provisions, and is not excluded by the terms of section 3819 of the Political Code, nor is the plaintiff, proceeding under the terms of section 3804, required to proceed in any manner under section 3819.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. W. S. Day, 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. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion. Further facts are stated in the case of Mohr v. Byrne, 132 Cal. 251, 252, and 135 Cal. 88-90.</p>

<p>APPEAL from an order of the Superior Court of Nevada County granting a new trial. F. T. Nilón, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Order after Judgment—Denial of Motion for Different Judgment—Exception—Review.—An order after judgment denying a motion for a different judgment upon the findings is appeal-able, and must be deemed excepted to; but it is immaterial whether such order be reviewed, since this court, upon appeal from the judgment, may order a different judgment to be entered upon the findings, if the facts found and admitted justify such order.</p> <p>Assault and Battery by Waiter—Liabimty of Innkeeper.—An innkeeper is not liable for an assault and battery committed by a dining-room waiter upon a guest, outside of the scope of his employment, without personal fault of the innkeeper. He is not bound to protect his guests from acts of violence by his servant, or other persons, if he does not negligently employ, admit, or retain persons of known violent and disorderly propensities, Who will probably assault or maltreat his guests.</p>

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

<p>Municipal Bonds fob Street Work—City of Sixth Class—Municipal Improvement Act not Repealed by Implication.—Under the Municipal Improvement Act of 1901 (Stats. 1901, p. 27), municipal bonds may be issued for street work by a city of the sixth class. That act was not repealed by implication by the “Local Improvement Act,” passed by the same legislature a few days later (Stats. 1901, p. 34), which is not necessarily repugnant thereto, and does not cover the same ground as the earlier statute. Repeals by implication are not favored; and the two statutes should be construed as standing together, and as offering different schemes for similar ends.</p> <p>Id.—Vote for Bonds for Various Purposes—Bonds for Total Amount.—Where, under a municipal ordinance, several propositions for bonds in a specified sum for street purposes, in another sum for fire apparatus, in another for sewers, and in another for bridges, were submitted to the voters, and were each and all carried by the electors, there was nothing in the law, or in principle, and nothing affecting the interest of the taxpayers, to prevent the municipality from issuing a total amount of bonds for the aggregate sum, payable in accordance with the terms of the ordinance and of the Municipal Improvement Bond Act.</p> <p>Id.—Mandamus to Treasurer—Duty upon Sale op Bonds.—A writ of mandate will lie to compel the treasurer of the municipality to countersign the bonds issued for th.e aggregate sum; but it will be his duty, upon sale thereof, to place the moneys in the municipal treasury to the credit of the proper improvement funds.</p>

<p>Contract with Owners of Mines—Reimbursement of Advances upon Sale—Purchase bt Corporation—Assumption of Advances—Action bt Third Person.—Where the owners of mines agreed with a third person that he should advance money for development thereof in consideration of an interest in the mines, and an agreement that all advances made by the owners and by such third person should be repaid in ease of sale; and a corporation purchased the mines from such owners expressly subject to the contract which was recorded, and expressly agreed by resolution before purchase to assume the repayment of such advances, such assumption must be deemed part of the purchase money, and the third person, who made advances under the contract, may sue the corporation to recover the amount thereof. [Shaw, J., and Angellotti, J., dissenting.]</p> <p>Id.—Vendors Mat Dispose of Purchase Monet.—The vendors had the right to dispose of the purchase money, and to order how it should be paid; and they had the right to require the purchaser to assume and pay the advances which they had agreed should be repaid in ease of sale; and the corporation cannot defend the action for such advances upon the ground that its grantors did not owe the plaintiff.</p> <p>Id.—Contract for Benefit of Third Person—Operation of Law— Privitt—Implied Promise.—A third person may sue upon a contract made expressly for his benefit at any time before the parties thereto rescind it. In such case, the law operates upon the acts of the parties, creates the duty, establishes a priority, and implies the promise and obligation upon which the action is founded.</p>