Volume 143 — California Reports

PETITION for Supersedeas to stay execution pending ar appeal from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court.

<p>Chattel Mortgage — Want op Acknowledgment — Validity — Construction op Code.—A chattel mortgage, properly verified and recorded without acknowledgment, though void as to the creditors of the mortgagors, is not void as between the parties, nor as to a purchaser with actual notice, nor as to any parties not included in the classes named in section 2957 of the Civil Code. The words of the statute cannot be extended by implication to other classes of persons than those named.</p> <p>Id.—Assumption op Debt by Purchaser—Novation—Lien not Extinguished—Estoppel.—Where a corporation purchased the mortgaged property and assumed the payment of the mortgage debt, in consideration of the release, of the mortgagors from personal liability, the novation thus accomplished did not operate to extinguish the lien of the mortgage; and the corporation is estopped from claiming the property as free from the mortgage lien, as against the mortgagee, or his assigns.</p> <p>Id.—-Insolvency op Purchaser—Rights op Assignee—Representation op Creditors—Eppect op Novation.—The assignee in insolvency of the corporation purchaser can be allowed no greater rights than the corporation to dispute the mortgage lien as against the mortgagee or his assigns. Although such assignee properly represents the creditors of the purchaser, he does not represent the creditors of the mortgagors. The novation of the debt and the assumption thereof by the corporation did not have the effect to make the corporation the mortgagor, nor place the corporation where it is in the same position as the mortgagors, as to its creditors.</p>

<p>Criminal Law—Grand Larceny—Theft of Cattle—Evidence—Hearsay.—Upon the trial of a defendant charged with grand larceny-committed hy the stealing of cattle, the evidence of the defendant was not admissible to prove that his mother told him to go to the county of the venue for cattle at a very remote date, prior to that of the alleged larceny, nor to prove what his mother said as explanatory of another, remote trip to that county at her request in relation to cattle claimed by her of the same brand as that of the cattle charged to have been stolen. His mother’s declarations were hearsay, and not part of the res gestee, and could not reflect light on his intentions at the much later time of the alleged larceny.</p> <p>Id.—Question as to Eange of Cattle.—A question asked by a defendant of a prosecuting witness as to the range of his cattle, not so framed as to include a stolen cow belonging to such witness, was properly disallowed as immaterial.</p>

<p>Judgment by Default—Setting Aside—Lapse of Time—Publication of Summons—Sufficiency of Affidavit—Jurisdiction.—A judgment by default cannot be set aside after the lapse of time for vacating a valid judgment, unless it appears to be void upon its face. Where the affidavit for the publication of summons, though defective, shows some diligence, the court has jurisdiction to make the order of publication, and the judgment is valid.</p> <p>' Id.—Record upon Appeal from Order—Affidavit not Included in Bill of Exceptions—Certificate of Clerk.—An affidavit printed in the record upon appeal from the order refusing to vacate the judgment by default, which is not contained in any bill of exceptions, cannot be considered, notwithstanding the certificate of the clerk that the aflidavit was used on the motion.</p> <p>Id.—Name op Attorney upon Summons—Publication.—It was only-required, prior to the amendment of 1897 to section 407 of the Code of Civil Procedure, that the name of the plaintiff’s attorney should be indorsed on the summons, but that section did not make such indorsement a part of the summons, nor make it necessary to. publish the attorney’s name.</p>

APPLICATION to the Supreme Court for a Writ of Mandate to compel the settlement of a bill.of exceptions by the Judge of the Superior Court of San Diego County. E. S. Torrance, Judge. The facts are stated in the opinion of the court.

<p>Election Contest—Order for Special Session-—Statutory Time.— Where the statement of a contest of election was filed on the first day of the month, and the order for a special session to hear the contest made- on that day fixed the eleventh day of the same month, there was a sufficient compliance with section 1118 of the Code of Civil Procedure, requiring the time fixed to be “not less than ten days” from the date of the order.</p> <p>Id.—Service of Citation.—The service of the citation by delivering to the eontestee personally “a copy of the said citation attached to a copy of the statement of contest, and of order,” was a sufficient compliance with section 1709 of the Code of Civil Procedure, requiring a citation to be served in the same manner as a summons in a civil action.</p> <p>Id.—Pleading—Statement of Ground of Contest—Malconduct of Board—Distinguishing Marks—Amendment. — The code expressly dispenses with any great particularity or nicety of pleading in a statement of contest, and where it sufficiently informed the contestee that the ground of contest was malconduct of the election officers in counting ballots containing distinguishing marks, a demurrer thereto was properly overruled; and an amendment allowed at the trial, which was only a more specific averment of the same ground, before sufficiently stated, did not inaugurate a new cause of action, and was not erroneous.</p> <p>Id.—Proof of Integrity of Ballots—Discretion.—The question whether ballots have been sufficiently taken care of to preclude reasonable suspicion that they are not in their original condition is largely within the judgment and discretion of the trial court, and where it was satisfied that they were properly identified, and had not been tampered with, the determination will not be disturbed upon appeal, if the evidence fairly warrants its conclusion.</p> <p>Id.—Distinguishing Marks.—Ballots containing crosses after the words “No nomination” or double crosses after a name have distinguishing marks. But a stamp under the word “Yes” to a constitutional amendment instead of after it is not a distinguishing mark; nor should very light and faint pencil-marks after nearly all the names on numerous ballots, which were probably made by an election officer for the purpose of cheeking names as they were called and counted, be deemed distinguishing marks.</p> <p>Id.—Count by Court against Objection of Parties.—It seems that the court has no right of its own motion, against the objection of the parties, to continue to introduce and count other ballots after both parties have rested; but the question is not definitely determined in this case, as the error in so doing, if any, did not affect the result.</p>

<p>APPEAL from an order of the Superior Court of Modoc County setting aside a verdict. J. W. Harrington, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action fob Death—Negligence of Bailroad Company—Contributory Negligence of Deceased—Failure to Look and Listen.— In an action for the death of plaintiff’s wife, in which, notwithstanding proof of the negligence of the defendant, a steam-railroad company, in running its train in a city at a rate between twenty-five and thirty miles an hour, and in failing to give the customary signals, it appeared from the evidence that the deceased, while in full possession of her faculties, advanced slowly from a distance of thirty feet from the track, where no train was seen, along a path which led at an angle of thirty degrees across the track, and stepped upon the track with her face turned partly away from the approaching train, which was plainly visible at a distance of eight hundred feet, and which she would have seen and escaped injury if she had looked and listened, her failure to do so was contributory negligence as matter of law, which precluded a recovery.</p> <p>Id.—Wanton Negligence of Defendant—Concurrent Acts.—The rule that,' notwithstanding the contributory negligence of the plaintiff, the defendant is still responsible if he was guilty of wanton negligence, when he might with reasonable care have avoided the injury after discovery of the plaintiff’s danger, has no application where both parties are equally guilty of concurrent acts of negligence, each of which at the very time when the accident occurred contributed to it.</p> <p>Id.—Bights and Duty of Engineer—Presumptions.—The engineer had the right to presume that a person seen in a place of safety was in possession of natural faculties, and would not recklessly move directly in front of the approaching train, and was not required to stop or check the train to ascertain whether such person was about to do so; and the engineer did his whole duty in giving the alarm and trying to stop the train as soon as the person was seen to step upon the track, though such effort was unavailing.</p>

<p>Trespass—Upsetting op Buggy—Bunaway—Becovery Limited to Complaint.—In an action for injuries to plaintiff’s horses, buggy, and harness, alleged to have been caused by defendant’s act of trespass in upsetting the buggy while in motion, resulting in a runaway, plaintiff’s recovery is limited to proof of the act of trespass alleged, and he cannot rely upon any other act of the defendant not alleged which may have caused the runaway.</p> <p>Id.—Instructions Construed in Harmony.—An instruction to the effect that plaintiff could not recover unless the act of upsetting the buggy was proved by a preponderance of evidence, and another to the effect that if the jury found that defendant “wrongfully inflicted injury” upon plaintiff’s horses, buggy, and harness the plaintiff is entitled to recover, are to be construed in harmony, and not in conflict; and the latter instruction must be deemed to refer to the act of injury alleged, where the court read the complaint to the jury, and the plaintiff only attempted to prove the act alleged.</p>

<p>Action fob Death of Minor Employee—Negligence—Contributory Negligence—Questions of Pact—Improper Instructions.—In an action for the death of a minor employee, where the alleged negligence of the defendant employer in ordering the deceased to work out of his usual employment in an unsafe place, without instructions as to the dangers, and in not taking proper precautions to prevent accident, presented a question of fact which the plaintiff was entitled to have placed before the jury, under correct instructions, it was improper to give instructions to the jury which ignored the alleged negligence of the defendant, and which were addressed solely to contributory negligence of the deceased, who cannot be said, as matter of law, to have accepted all the ordinary risks incident to the dangerous work at which he was set.</p> <p>Id.—Measure of Care Esquired of Minor—Improper Instruction.— A minor is only held to the exercise of such degree of care and discretion as is reasonably to be expected from one of his age; and it was improper to instruct the jury that he “must be presumed to have been of sufficient discretion to take care of himself and to have taken notice of all patent and obvious dangers which any ordinarily prudent man could see from inspection."</p>

<p>Criminal Law—Assault with Deadly Weapon—Levy of Execution —Protection op Officer and Assistant.—An officer charged with the duty of enforcing a judgment by execution has the right to enter peaceably into the house of the execution debtor, and to take with him the execution creditor as an assistant; and the execution debtor has no right to treat the officer or his assistant as a trespasser, or to expel either of them by force, or to commit an assault with a deadly weapon upon the execution creditor with intent to expel him from the premises.</p> <p>Id.—Assault with Unloaded Gun—Want of Ability—Instructions. —The pointing of an unloaded gun at the prosecuting witness, accompanied by a threat to shoot him, without any attempt to use it otherwise, is not an assault with a deadly weapon, and cannot sustain a conviction for an assault for want of a present ability to commit a violent injury on the person threatened in the manner attempted; and where there was a serious dispute as to whether the gun was loaded, the defendant was entitled to definite instructions for an acquittal upon that theory of the case; and it was error to refuse them where the instructions given were ambiguous.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Albert G. Burnett, Judge.</p> <p>The facts are stated in the opinion of the court.</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 the City and County of San Francisco. George H. Bahrs, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Malicious Prosecution—Arrest for Crime—Obtaining Money under False Pretenses—Insufficient Charge—False Promises.— An action for damages for a malicious prosecution will lie where the defendant maliciously and without probable cause procured the arrest and imprisonment of plaintiff for felony under a false charge of having obtained money under false pretenses, notwithstanding it appears that the complaint for arrest did not state facts sufficient to constitute a public offense, for the reason that the false pretenses and promises charged related to future events, and not to past or existing facts.</p> <p>Id.—Demurrer to Complaint.—Upon demurrer to the complaint for malicious prosecution the facts alleged must be accepted as true, that the arrest was malicious and without probable cause; and upon such demurrer the case cannot be considered as one where there was a fair and full statement of facts to the magistrate, who came to an erroneous conclusion that a crime was committed, nor as one where the offense charged was not a crime. The demurrer should have been overruled.</p> <p>Id.—Injury to Plaintiff—Ground of ’Action.—The injury to the plaintiff is the same, whether the malicious criminal prosecution was instituted on a false statement of facts or a false conclusion of law. The action lies not solely because of the danger of punishment, but because of the disgraceful imputation put upon the plaintiff, the injury caused by his arrest, and the trouble and expense he was put to in defending himself.</p>

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

<p>Patented Mine—Description of Boundaries—Monuments Controlling Location.—Where there was an ambiguous description in the patent of a mine, and there is a sufficient description by ascertained boundaries and natural objects and permanent monuments to identify the claim, the ascertained boundaries and monuments will control the courses and distances, and the land so described is not open to location. ■</p> <p>Id.—Patent Conclusive of Survey.—A patent to a mine, duly signed, • countersigned, and sealed, not only operates to pass the title, but is in the nature of an official declaration that all the requirements preliminary to its issue have been complied with, and the presumptions attending it are not open to rebuttal.</p> <p>Id.—Deed of Corporation—Batification of Stockholders.—The ratification by the stockholders of the deed of a corporation is only required as between the corporation and its stockholders or those connected with the corporation title, and the want of a ratification does not render it void as against a trespasser.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. George E. Church, Judge.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Criminal Law—Sending Forged Telegram—Information.—An information charging the crime of sending by telegraph a false and forged message, purporting to be from another person, and averring that defendant, at a certain time and place, “did then and there knowingly, willfully, unlawfully, feloniously, fraudulently, and falsely make and forge a certain telegraphic message,” purporting to be from a person named, which message was set forth in full, and that defendant, “well knowing the same to be false and forged, did then and there . . . send the said message,” sufficiently shows that the message was sent by telegraph.</p> <p>Id.—“ Intent to Deceive ”—Language op Statute.—Under section 474 of the Penal Code, the crime of forging telegraphic messages “with the intent to deceive” is a specific offense, these words not being found in the general section upon forgeries. An information under that section need not allege the nature of the deceit; but it is sufficient that it embodies the language of that section; and in such ease it cannot be said that the instrument, if genuine, would not have legal efficacy, or that it could not injure, defraud, or deceive the person addressed.</p> <p>Id.—Sufficiency of Proof of Deceit—Obtaining Marriage by Deceit —Forgery of Mother’s Name.—It was sufficient proof of deceit that the person addressed by a forged message in the name of her mother was induced thereby to change her status and intermarry with the defendant, which she would not otherwise have done but for the false belief induced by the forged telegram that her mother had withdrawn her objections to such marriage.</p> <p>Ed.—Dismissal—Delay Caused by Mistrial.—The defendant is not entitled to dismiss the information upon the ground that the defendant had not been brought to trial within sixty days, where he was in fact brought to trial within that period, and the result was a mistrial, and within sixty days thereafter the defendant consented to a further postponement.</p> <p>Id.—Evidence—Variance—Delivery of Telegram to Operator.—Evidence that the forged telegram was delivered to a telegraph operator by the defendant, to be sent by telegraph, and that it was so sent, does not show a material variance from the averment that the defendant sent the forged telegraphic message.</p> <p>Id.—Prior Conviction—Change of Plea—Plea of Guilty.—Where the defendant, after having pleaded not guilty to a prior conviction, withdrew his plea after the jury were sworn and substituted a plea of guilty before the information was read to the jury, which did not include the reading of the prior conviction, the defendant cannot be prejudiced by the failure of the jury to find upon the original plea,, upon which no issue was presented to the jury.</p> <p>Id.—Error in Modification of Instructions.—Where instructions were properly requested by the defendant, which were legal as applied to the evidence for the defendant, it was erroneous for the court to modify them by repeatedly introducing foreign matter in them in relation to the credibility of the defendant as a witness. It was unjust for the court, where hypothetical instructions, given of its own motion, contained no word of caution, to modify hypothetical requests of the defendant by words of caution, though it would be proper to give in general terms words of caution as to such instructions.</p>

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

<p>Promissory Note—Execution out of State—Statute of Limitations —Constitutional Law.—The statute of limitations of two years applicable to a promissory note executed out of the state, under subdivision 1 of section 339 of the Code of Civil Procedure, is valid, and not in conflict with the provisions of the federal constitution, relating to the regulation of commerce, nor of the fourteenth amendment thereof, relating to the rights of citizens of the United States in the several states. .....</p> <p>Id. — Action upon Note — Pleading — Construction — Written Acknowledgments—Sufficiency of Denial—Failure of Proof— Plea of Statute.—Where the complaint in an action upon such note, in order to take the case out of the statute, alleged various acknowledgments by the defendant of his indebtedness on the note, setting them out in liceo verba, it is to be construed as alleging written acknowledgments, with a description of their identity; and an answer denying each acknowledgment in the words alleged, and also denying that by any of the promises and acknowledgments set out in the complaint defendant promised to pay any indebtedness upon said note, sufficiently denies the acknowledgments, and upon failure of the plaintiff to prove the same, the defendant’s plea of the statute of limitations must prevail.</p>

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

<p>Estates of Deceased Persons—Pinal Account op Executor—Appeal by Executor’s Attorney—Jurisdiction—Dismissal.—An attorney for the executor is not a party to the proceeding for the settlement of the final account of the executor, and has no claim to compensation against the estate that he can enforce against it in any manner. This court has no jurisdiction of an appeal taken by the attorney from a decree settling the executor’s final account, and such an appeal must be dismissed.</p> <p>Id.—Interest op Attorney—Agreement for Sum to be Awarded.— An attorney who renders services to an executor upon an express or implied agreement that he will be content to receive such sum as the court in probate may award the executor or administrator is interested in the action of the court solely by reason of his agreement not to hold the executor personally responsible for any sum in excess of such allowance, but such interest does not make Mm a “party interested in the estate” within the meaning of the statute.</p> <p>Id.—Allowance Must be Solely to Executor.—Whatever allowance is made from the estate for the services of an attorney must be made solely to the executor, and cannot be made to the attorney.</p> <p>Id.—Negligence of Attorney to be Considered.—In determining the amount of the allowance to the executor for the services of an attorney, his actionable negligence in the performance of his services is to be considered; and parties interested in the estate have the right to show that his services have been so negligently .performed as to cause damage to the estate, and that consequently the estate should not pay for his services.</p> <p>Id.—Claim of Attorney against Executor—Jurisdiction.—The question as to what the attorney shall receive from an executor or administrator is one of which the probate court has no jurisdiction, and is dependent for its determination upon the agreement between the parties. While the probate court has sole and exclusive jurisdiction to determine what amount shall be allowed to the executor or administrator from the estate for services rendered by him through others, it cannot adjudicate between him and those employed to assist him.</p>

<p>■ APPEAL from a judgment of the Superior Court of Sacramento County. E. C. Hart, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Murder — Conspiracy to Bob — Testimony of Co-Defendants—Improper Cross-Examination.—Upon the separate trial of one of three defendants jointly charged with murder, where the theory of the prosecution was that the murder was committed in pursuance of a conspiracy of the three defendants jointly to rob the deceased and his associate, and the defendant called his co-defendants as witnesses solely to rebut the charge of conspiracy, it was prejudicial error to allow the prosecution to cross-examine the other interested defendants to prove that the murder was committed by the defendant, and that they tried to persuade him not to commit it.</p> <p>Id.—Bebuttal—Beport of Surgeon’s Evidence at Inquest.—It was at least irregular to admit in rebuttal the report of the autopsy surgeon’s evidence given at the coroner’s inquest, but such irregularity could not prejudice the defendant.</p> <p>Id.—Error in Instruction as to Aiding and Abetting.—An instruction that one who aids or abets in a murder is a principal is erroneous. He must both aid and abet. But such error cannot be deemed to have actually prejudiced the appellant.</p> <p>Id.—Becobd upon Appeal—Bepetition of Charge.—Where the charge to the jury has been properly certified by the court it is part of the record, and ought not to be again repeated in the bill of exceptions.</p>

<p>Bight of Way—Prescription—Adverse User of Land—Loss of Title. —A right of way by prescription may be acquired by one in adverse possession of the servient tenement. Where the title to land adversely possessed was not acquired, but was lost under patent to a railroad company, and its contract of sale and deed to a third person, whereby any merger of the right of way in the title was prevented, the adverse user of the right of way for the full period of prescription confers the right to use the same for the benefit of other lands owned by the adverse claimant.</p> <p>Id.—Maxim—Greater Adverse Claim Includes the Less.—Under the maxim, Omne majus continet in -se minus, the adverse claim to use the right of way situated across the land adversely possessed was necessarily included in the general adverse»claim to the land; and where the title to the land did not vest in the adverse claimant by prescription or otherwise, and the intention is apparent to appropriate the land to the use of the right of way, the claim thus to use part of it will, as part of the general claim to the land, be adverse to the owner.</p> <p>Id.—Temporary Obstruction by Stranger.—A temporary obstruction of the roadway by a stranger on other land for part of one year cannot inure to the benefit of the owner of the land across which it extends, or materially affect the user of such way, where there was no intention of abandonment thereof.</p> <p>Action to Quiet Title—Defenses—Oral Agreement—Conflict of Evidence—Support of Binding.—In an action to quiet title to land claimed under title from a railroad company, where the answer of the defendant set up an oral agreement with plaintiff’s predecessor in interest to purchase the land from the railroad company for their joint benefit, and the evidence is conflicting as to the existence of such agreement, a finding against its existence cannot be disturbed on appeal.</p> <p>Id.—Agreed Boundary—Lands not Contiguous.—A defense of agreed boundary has no application where the lands of the parties are not contiguous.</p> <p>Id.—Preferred Bight of Purchase from Bailroad Company—Acceptance not Shown—Occupancy.—The defense of a preferred right of the defendant to purchase from the railroad company is not tenable where there is no pretense of acceptance by the defendant of the company’s offer to sell, by application to purchase or by occupation with such intent, otherwise than to purchase under oral agreement with a third party, which agreement was found not to exist. Mere occupancy, in the absence of privity with the purchaser, did not affect the right of the railroad company to sell or of the purchaser to buy the land.</p>

<p>APPLICATION for Writ of Mandate to a Judge 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>Certiorari—Certification of Record—Costs—Fees of Clerk.—An applicant for a writ of review from this court to the superior court and a judge thereof to compel the certification of a transcript of the record, in which it is claimed that the superior court has exceeded its jurisdiction, must pay to the clerk of that court the fees fixed by law for making and certifying the return to the writ; and the clerk cannot be required to perform that service without prepayment of the fees therefor.</p>

<p>Municipal Corporations—Power op City Council—Amendment op Contracts—Designation op Funds.—A city council, if it has power to make contracts for the supply of the city with a fire-alarm telegraph system, and with a system of police telegraph, has power also after their execution to agree to amend the contracts by designating, as the charter of the city requires, the fund out of which each system should be paid.</p> <p>Id.—Validity op Contracts—Sufficiency op FuNbs—Future Kental ■—Option to Purchase.—A city has the right to make contracts otherwise unobjectionable, to continue for a series of years, and to provide for payments thereunder at different times. Where the contracts provided for a future monthly rental of each of the telegraph systems, which might continue for five years, subject to the option of the city to purchase either of them, no present liability was created thereunder, either for the rental or for the contingent purchase money. The rental could not begin to accrue until the contract was performed and the systems put into operation.</p> <p>Id.—Sum Payable upon Contingency—Debt in Excess op Kevenue.— A sum payable upon a contingency is not a debt, and cannot become such until the contingency happens. In order to render a contract void under the constitution, it must appear that an indebtedness or liability has been incurred for some year exceeding the income and revenue provided for that year; and to render it void under the charter, it must appear that a liability has been created against a fund in excess of the amount of money existing in the fund.</p> <p>Id.—Pbima Pacte Validity op Contracts.-—The law presumes all contracts to be fair and reasonable, and to be made by proper authority; and it is sufficient that there may be ample funds to pay the rental when it accrues, if it ever should accrue; and it is only where any future liability of the city under the contract becomes greater than the revenue in any particular year when it accrues that any loss can occur under the contract.</p>

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

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

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

<p>Action by Taxpayer—Injunction against Election—Appeal—Moot Question—Dismissal.—Where a taxpayer sued to enjoin the holding of an election to fill certain offices, and the expending of money therefor, and the judgment was against the plaintiff, and before the hearing of an appeal by him the election had been held and the money expended, and the officers elected were incumbents in place of others whose terms had expired, such appeal raises merely a moot question, and no judgment which could be entered thereupon could afford plaintiff any relief, and the action will be ordered dismissed.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. S. P. Leib, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardian and Ward—Premature Action upon Bond—Final Determination op Accounts—Time por Appeal.—An action will not lie upon the bond of a guardian until the order settling his accounts becomes final either by the lapse of the time for appeal therefrom or the final determination of an appeal taken therefrom; and an action brought upon such bond by an adult ward after an order settling the accounts of the guardian, but before the expiration of the time for appeal therefrom, is premature.</p> <p>Id.—Construction op Code—Settlement op Accounts a “Proceeding.” —The settlement of the accounts of a guardian is a “proceeding” within the meaning of section 1049 of the Code of Civil Procedure.</p> <p>Id.—Statute op Limitations—Final Discharge op Guardian.—The statute of limitations of three years, fixed by section 1805 of the Code of Civil Procedure against the sureties on the bond of a guardian, does not begin to run until the final discharge or removal of the guardian by an order of the court.</p> <p>Id.—Adult Age op Ward.—The fact that the ward became an adult more than three years before the settlement of the accounts of the guardian in the probate court, though it operated to suspend the authority of the guardian, did not operate as a discharge of the guardian within the meaning of section 1805 of the Code of Civil Procedure or set that special statute in motion.</p> <p>Id.—Statute of Limitations—Construction—Inequitable Operation. ■—A statute of limitations should not be enlarged in its operation by judicial construction so as to embrace a class of cases not comprehended in its terms, where by such enlargement it would be capable of working inequitably.</p> <p>Id.—Rights of Sureties—General Statute—Reasonable Diligence. —Though the sureties cannot avail themselves of the statute of limitations prescribed by section 1805 of the Code of Civil Procedure, unless they are within its terms, they are not without protection against stale claims. They may avail themselves of the general statute, and of the rule requiring reasonable diligence from an adult ward in procuring settlement of the guardian’s accounts.</p>

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

<p>Justices’ Courts—Judicial Townships—Consolidation by Supervisors.—The board of supervisors of a county may by ordinance abolish two contiguous judicial townships having a justice’s court in each, and may establish one new consolidated township, comprising the territory of both of them.</p> <p>Id.—Taking Effect of Ordinance—Certainty—Declaration of Law —Bights of Incumbents.—A provision in the ordinance that it should “take effect and be in force for the next general election of county and township officers,” is merely declaratory of the law that such changes in townships “shall not affect any present incumbent of the office of justice of the peace or constable.” The ordinance is not void for uncertainty as to when it takes effect. Under the statute, it takes effect within fifteen days, so far as it can take effect, subject to the legal rights of incumbents.</p> <p>Id.—Abolishing Justice’s Court—Merger—Constitutional Law— Bower of Legislature.—The ordinance was not void as abolishing a justice’s court. The general constitutional provision as to justices’ courts operates specifically only by means of such local legislation as the state legislature has delegated to the supervisors under general laws, and merely automatically establishes a justice’s court in each township established by the local body, which continues while such township exists, and is merged in another justice’s court when two townships are merged into one.</p> <p>Id.—Powers of Consolidated Court.—The justices’ courts of the two former townships are combined and consolidated into one court by the consolidation of the judicial townships, which constitutes the justice’s court of the new township, and which for all purposes of process and jurisdiction possesses all the powers of the pre-existing courts of the same territory.</p> <p>Id.—Successors of Former Justices—Omission in Ordinance—Validity.—The validity of the ordinance is not affected by failure of the board to provide “as to what justices shall be successors of the justices of the townships so changed,” as provided in section 107 of the Code of Civil Procedure. The two townships having been made into one, and the two pre-existing courts merged into one, the law, of its own force and from the nature of the case, fixes the ■ succession, and the failure to designate it is immaterial.</p> <p>Id.—Name of New and Old Townships.—The fact that the new township had the same name as one of the old townships is wholly immaterial.</p>

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

<p>Foreclosure of Mortgage—Counterclaim—Insufficient Pleading— Indebtedness—Facts not Stated.—A counterclaim in an action to foreclose a mortgage must be shown to have existed as a counterclaim at the time of the commencement of the action; and a pleading which merely alleges an indebtedness of plaintiff to defendant’s assignors, existing before the commencement of the action, and that the same has not been paid, and is now due and payable, without the statement of any facts showing that such indebtedness was mature when the action was commenced, is not sufficient, and a demurrer thereto was properly sustained.</p> <p>Id.—Mortgage to Building and Loan Association—By-Laws—Withdrawal Value of Stock—Deduction in Expense Account.—The rights of the mortgagor under a mortgage to a building and loan association as to the withdrawal value of the stock, and deductions from installments paid in on the stock for a share of expense account, must be measured by the terms of his contract, under the valid by-laws of the association, in case of his withdrawal therefrom, and he cannot claim in such case contrary to such by-laws that the expenses of the association must be paid out of its earnings, and not by deduction from installments paid in on stock.</p> <p>Id.—Invalid Law against Deduction—Title of Statute Creating-Commissioners.—Section 19 of the act of March 23, 1893, “creating a board of commissioners of the building and loan associations, and prescribing their duties and powers” (Stats. 1893, p. 229), providing that the withdrawal value of shares is the full amount paid in, with no deduction for expenses, is invalid under section 24 of article IV of the constitution, as not being embraced within the title of the act.</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. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Construction of Will—Devise of Life Estate to Widow—Future Sale of Land and Distribution to Children—Conversion, When Effected.—Where the testator devised a life estate in certain real property to his widow, and, without making any devise of the remainder, directed its sale by the executor after the widow’s death, and distribution of the proceeds to some of Ms eMldren, the children named were vested with the entire interest therein, and the result of such direction was to convert the land into personalty, to take effect when the executor had power to make the sale.</p> <p>Id.—Title of Heirs Subject to Administration—Distribution under Will—Partition not Maintainable.-—Although upon the death of the testator the land descended to his heirs at law, their right •thereto was subject to administration of the estate and to the testamentary disposition of the testator, and was superseded by the provisions in the will, and a decree of distribution in accordance therewith, and they had no such estate or interest in the land or right to its possession as will enable them, to sustain an action for partition.</p> <p>Id.—Election to Take Land—Reconversion—Unanimity Essential— Minors Incapable of Election.—The beneficiaries, having the sole interest in the proceeds of sale of the land, might, before a sale, elect to take the land instead of the proceeds, and such election, when exercised unequivocally and manifested to the executor, would divest the executor of his future power of sale and effect a reconversion of the estate into real property, and the relation of the beneficiaries to the land would be the same as if it had been directly devised to them, and an action for a partition could be maintained in such case. But unanimity of all the beneficiaries is essential to effect such election and reconversion, and where some of them are minors incapable of election, there can be no reconversion of the property by any part of the beneficiaries, though they may have manifested their intention to take the land.</p> <p>Id.—Effect of Distribution under Will—Administration not Closed —Executor to Report Sale and Distribute Proceeds before Discharge.—The effect of the distribution of the life estate under the will, with the direction to the executor to sell and distribute the proceeds upon termination of the life estate, was to leave the ad- • ministration of the estate unclosed until such sale should be made by the executor and reported to the court for confirmation; and the executor will not be entitled to his discharge until he has accounted for the proper distribution of the proceeds.</p> <p>Id.—Foreclosure of Mortgage against Beneficiary—Effect of Deed. —The foreclosure of a mortgage made by one of the children named as beneficiaries of his interest in the land, followed by a sale and deed thereunder, though indicative of his election to take the land, could not effect a reconversion. The sheriff’s deed passed his interest in the land, and in the proceeds of a sale thereof, in ease the power of sale should be subsequently executed.</p> <p>Id.—Action for Partition—Insufficient Complaint—Finding—Dismissal.—In an action of partition brought by the purchaser under the mortgage, where the complaint does not allege that all of the beneficiaries under the will had elected to take the land, and two of the beneficiaries capable of such election made default, and did not indicate their desire for partition, and it appeared that the remaining defendants were minors incapable of election, a finding of the court that the plaintiff and defendants were not cotenants of the land was sufficiently sustained, and its action in dismissing the complaint was without error.</p>

<p>Action to Becovek Personal Property—Exchange for Land—Failure op Title—Conversion op Property—Admission op Pleadings —Judgment por Value.—In an action to recover personal property transferred to one of the defendants in exchange for land in another state, where it appeared that such defendant had no title to such land, and that plaintiff had rescinded the contract, and the verified complaint alleged that the personal property had been sold by the defendants and the proceeds converted to their own use, and the answer does not deny this, a judgment for the value of the property without an alternative was proper.</p> <p>Id.—Evidence op Failure op Title — Foreign Judgments against Grantor—Presumptions.—It was proper, in order to show a failure of the defendants’ title, to offer in evidence the judgment of a court of general jurisdiction of the state in which the land was situated, adjudging that the defendants’ grantor had no title to the land. Full faith and credit must be given in each state to the judicial proceedings of every other state, and all presumptions must be indulged in favor of the jurisdiction of the court to render the judgment offered in evidence.</p> <p>Id.—Judgment upon Publication op Summons—Presumption op Verity—Collateral Attack.—The same presumption of verity which attends the determination of the question of jurisdiction of the person of the defendant, except as against a direct attack upon appeal, and which does not depend upon the existence of any record of the decision, applies equally to a judgment affecting real property obtained against a non-resident by publication of summons, which, if not questioned by any direct proceeding, cannot be collaterally attacked if it does not appear to be void upon its face, although no order of publication or affidavit of service may appear in the record.</p> <p>Ed.—Recital in Judgment—Absence of Order—Presumptions.—Where the foreign judgment offered in evidence recited that the defendants had been fully notified by publication more than thirty days before the first day of the term of court, it must be presumed that an order was made for publication, which is no part of the judgment-roll, and that the notice was given as provided by the laws of the state where it was rendered.</p>

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

<p>Fire Insurance—Breach op Condition op Policy—Keeping op Dynamite.—The terms of a policy of fire insurance constitute the measure of the insurer’s liability; and where the policy provided that it should be void if dynamite should be kept upon the premises, a breach of such condition will preclude a recovery upon the policy, although the dynamite kept in violation of the policy did not cause the fire.</p>

Edward A. Belcher, Judge. The main facts are stated in the opinion. The deed to the Jaekson-Street property was executed to Mourning E. Bollinger June 7, 1887, by a bargain-and-sale deed from Samuel Goldthwaite.

<p>Mining Claims—Location of Placee Claim—Legal Subdivision— Marking of Boundaries—Mistake.—Where the notice of location : of a placer mining claim on land surveyed by the government of the United States called for a specified quarter-section of such land, and in attempting to mark the boundaries thereof a mistake was made in locating the quarter-section corners on one side of the land so as to leave a strip thereon which was in controversy, the stakes being marked for the quarter-section corners, the whole quarter-section will be deemed to be included in the location.</p> <p>Id. —Boundaries of Government Survey Sufficient—Case Overruled. —In locating a placer claim under the laws of the United States, where the notice of location calls for a legal subdivision, it is a sufficient notice of its boundariesand “the location is distinctly marked on the ground” by the government survey thereof, “so that its boundaries may be readily traced.” There need be no other marking of boundaries of a placer claim so located. (Tho case of White v.' Lee, 78 Cal. 593, is overruled.)</p>

<p>Oil Lease—Construction op Contract.—In construing an oil lease the contract must be considered as a whole, and regard must be had to the situation of the parties, the surrounding circumstances, and the object to be accomplished, in order to arrive at the intention of the parties.</p> <p>Id.—Division op Net Proceeds—Loss on Unproductive Well.—Where the oil lease provided that the lessee should furnish all machinery, tools, and materials, and pay one half of the cost of pumping oil from productive wells, and half the cost of drilling and casing unproductive wells, and that the lessor should pay one half of the cost of drilling, easing, and pumping all wells sunk one thousand feet deep which did not produce fifteen barrels a day for the first thirty days, and that the net proceeds of oil over the cost of pumping should be equally divided, the lessor must pay one half of the entire loss upon an unproductive well, including one half of its entire cost from the time when the first work was begun on the ground until the machinery was removed, and one half of the expense of removal, and one half of the reasonable value of the use of machinery, tools, and materials belonging to the lessee which were used in the work.</p> <p>Id.—Independent Covenant—Equal Division op Loss—Conduct op Parties.—The clause for division of the cost of unproductive wells is an independent covenant intended to cover the loss incurred on account of them, primarily suffered by the lessee, and to divide it equally between the parties interested. This conclusion is confirmed by the conduct and declarations of the parties during and immediately after the transaction showing that the clause was understood in this way.</p> <p>Id.—Cost op Pumping Producing Wells—Import op Agreement— Division op Expenses Seasonably Incurred.—Where a clause in the lease provided that the lessee should pay one half of the cost of pumping oil from producing wells, and that the lessor, if dissatisfied, might assume the pumping at a less sum than that charged by the lessee, one half of which would be paid by the lessee, the provision imports that in the absence of an agreed price one half of the actual expenses reasonably and prudently incurred should be paid by the other party, including the cost of cleaning out the wells ■when they became clogged, and all other unavoidable expenses necessary to do the required pumping, not arising from fault or neglect of the party doing the work.</p> <p>Id.—Inadmissible Evidence.—Evidence was improperly received to show what was the usual charge for pumping oil by those engaged in that business, in order to reduce the amount of actual expense and outlay reasonably incurred by the plaintiff in doing the work.</p>

<p>Divorce—Custody op Child—Power op Court to Modify Degree.— Notwithstanding the award of the custody of a child to the mother in a decree of divorce granted to her, the court has power at any time thereafter, upon a sufficient showing,, to modify the decree "by awarding the custody of the child to the father.</p> <p>Id.—Delivery up of Child—Subsequent Appeal—Stay-Bond—Habeas Corpus.—Where, after modification of the decree, the mother delivered up the custody of the child to the father, a subsequent stay-bond on appeal from the modifying order was ineffectual. The mother is not entitled to the return of the child pending such appeal, and it will not be awarded to her upon habeas corpus.</p>

H. Z. Austin, Judge. The main facts are stated in the opinion of Commissioner Cooper. Further facts are stated in the concurring opinion of Beatty, Chief Justice.

<p>Lands Uncovered by Recession of Lake—Subjection to Overflow— Construction of Statute—Reclamation District—Rights to Swamp-Land Fund.—The act of March 24, 1893, providing for the sale of “any of the lands uncovered by the recession or drainage of the waters of inland lakes,” etc., and also providing that such lands, when subject to periodical overflow and susceptible of reclamation, may be reclaimed “subject to all of the provisions of law regulating the reclamation of swamp and overflowed lands,” is to be construed with the same effect as if the sections of the Political Code providing for the reclamation of swamp and overflowed lands were re-enacted and made part of that act. A reclamation district may be formed by the purchasers of such lands, and, when reclaimed, each purchaser is entitled to his proportion of the moneys in the hands of the treasurer to the credit of the swamp-land fund of the county. ..</p> <p>Id.—Provision for Payment into School Fund—Appropriation— Amendment—Payment into Swamp-Land Fund—Power of Legislature.—The provision in section 5 of the act of 1893 for the payment of the proceeds of the sale of lands uncovered by the recession or drainage of lakes “into the school fund of the county where the land lies,” does not of itself constitute an appropriation of the moneys for that purpose; and the legislature had power by the amendment of 1899 to that section to provide that all such proceeds remaining in the treasury, or subsequently received, should be paid into the swamp-land fund.</p> <p>Id.—Contract with State—Amendment not a Gift.—The provision in the act of 1893 for the reclamation of lands uncovered by the recession or drainage of lakes, “subject to all the provisions of law regulating the reclamation of swamp and overflowed lands,” was part of the act authorizing the sale of such lands, and formed part of the consideration for which the purchases were made, and the state could not disregard its contract for repayment after reclamation of the purchase money paid, and the amendment of 1899 was in fulfillment of its contract, and not a gift of public moneys belonging to the state.</p> <p>Id.—Mandamus—Statute of Limitations—Claim upon Written Contract of State.—A proceeding for a writ of mandate by the owner of reclaimed land to compel the repayment of purchase money out of money remaining in the county treasury as part of the swamp-land fund, in contemplation of law, is for a claim upon a contract evidenced by a statute, which is an instrument in writing executed by the state, and is subject to the statute of limitations of four years, and not to the two years’ limitation of subdivision 1 of section 339 of the Code of Civil Procedure.</p>

MOTION to Dismiss an Appeal from an order of the Superior Court of Santa Clara County modifying a preliminary injunction. S. F. Leib, Judge. The facts are stated in the opinion of the court.

<p>MOTION to Dismiss an Appeal from a judgment of the Superior Court of San Joaquin County. E. L. Jones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contest of Election—Rejection of Precinct by Canvassers—Failure to Return Tally-List—Power of Court to Count Ballots. —Notwithstanding the ministerial action of the board of canvassers in rejecting the entire vote of a precinct merely on account of the failure of the election officers to return the tally-lists therefrom, as required by law, the election being otherwise valid at such precinct, the court upon a contest of election is not thereby precluded in its judicial action from counting the ballots returned from such precinct.</p> <p>Id.—Rights of Voters—Errors of Officers.—The rights of voters should not be prejudiced by the errors or wrongful acts of the officers of election, unless it shall appear that a fair election and an honest count were thereby prevented. An honest or mistaken disregard of directory provisions of the statute not resulting in manifest fraud will not justify the rejection of the entire vote of a precinct.</p> <p>Id.—Preservation of Ballots—Sufficiency of Evidence—Discretion of Trial Court.—The question whether ballots have been sufficiently taken care of so as to preclude any reasonable suspicion that they are not in their original condition, is largely within the judgment and discretion of the trial court, and its determination thereof will not be disturbed on appeal if the evidence fairly warrants its conclusion.</p>

<p>Criminal Daw—Assault with Intent to Commit Bape—Support of Verdict.—The evidence in the case is held sufficient to support a verdict of guilty of an assault with intent to commit rape upon a girl eleven years of age.</p> <p>Id.—Evidence—Objections to Answers.—Where the defendant failed to object to questions asked, and only objected to the answers after they were given, he having an opportunity to object before the questions were answered, the objections and exceptions taken to the answers were unavailing.</p> <p>Id.—Motion to Strike Out Answers—Waiver of Objection.—The defendant having failed to object to questions indicating that the evidence sought to be solicited was inadmissible, objection to the answers was waived, and a motion to strike out the answers came too late, and was properly denied.</p> <p>Id.—Conversations of Father and Mother of Girl with Defendant —Conflicting Statements—Admission—Motion to Strike Out. —Testimony was admissible to show that on the evening of the alleged attempt upon the girl by the defendant he told the mother of the child, who had asked why he had her girl locked in his barber-shop, that the girl had not been in his shop, and to show that, in a separate conversation the same evening with the father, the defendant stated that the girl had been in his shop, but he had done nothing to her, and a motion to strike out such evidence was properly denied.</p> <p>Id.—Inference of Complaint of Girl—Proof of Complaint.—The objection was not tenable to such conversations that there was an inference that the girl had made complaint to her parents, where no language was employed in the conversations in reference to any complaint of the girl; but the defendant could not be prejudiced by any inference that she had made complaint, where evidence went to the jury without objection that prior to the visits of the parents to the defendant the girl had complained of the defendant’s treatment of her and that they sought the interview with him for that reason.</p> <p>Id. — Testimony of Physician — Cross-Examination — Hypothetical Question.—Upon cross-examination of the physician who examined the prosecutrix on the evening of the alleged assault, a hypothetical question, assuming facts not proved, was properly excluded.</p> <p>Id. — Cross-Examination of Defendant — Contradictory Statements Already Testified to.—Where the defendant, in his examination as a witness in bis own behalf, denied that he had seen the prosecutrix during the evening of the alleged assault, and explained that he was absent on a stroll prior to and during the time of .its alleged commission, it was proper on cross-examination to show that his statement was untrue, that he was at the door of the shop, locking it, during the time of his alleged absence, and of a conversation then occurring with a witness who had testified to a contradictory statement as to the purpose of his absence, and also to ask if he had not told the girl’s father that she was in the shop that evening. The fact that these witnesses had already testified did not affect the right of cross-examination, which was the same as if they had not yet testified, and was independent of their testimony.</p>

<p>Criminal Law—Burglary—Pleading—Description of Property—Im- * material "Variance between Complaint and Information.— A variance between the complaint and information for burglary in the description of the property entered by the defendant is immaterial, where each describes the property by designation of the same number and street in the same city, though the information further describes it as being at the corner of two streets, and as being the “house, room, store, dwelling, and apartment of Charles Ghalup,” so situated and designated by number and street.</p> <p>Id..—Presumption of Identity.—Identity of the house will be presumed from identity of number, name of street, and city.</p> <p>Id.—Averment of Ownership.—An averment of ownership is not necessary, either in the complaint or in the information, where the building in which the burglary was committed is otherwise so described that the defendant cannot be misled as to the property referred to. The name of the owner is immaterial, except where necessary to identify the property.</p> <p>IP.—Indorsement of Commitment on Complaint.—It was proper to indorse the commitment on the original complaint, treating it as a deposition for that purpose, within the meaning of section 872 of the Penal Code.</p>

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

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

WRIT OF HABEAS CORPUS to W. H. Kline, Constable, to test the validity of an ordinance of the County of Los Angeles. The facts are stated in the opinion of the court.

<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. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Guardian and Ward—Custody op Ward—Collateral Attack—Habeas Corpus by Parent.—The right of a guardian to the custody of a minor ward duly appointed is superior to that of a parent, whose authority ceases upon the appointment of such guardian; and the appointment cannot be collaterally attacked by the parent upon habeas corpus, except upon the ground of want of jurisdiction in the superior court to make the order of appointment.</p> <p>Id.—Jurisdiction of Superior Court—Parent and Child.—Section 203 of the Civil Code is not a limitation upon the jurisdiction of the superior court, in guardianship proceedings, to determine the question as to whether the parents of a minor were for any reason unfit and improper persons to have the custody of a minor child, and, upon the ground that they were so unfit and improper, to appoint another the guardian of the person of the minor.</p> <p>Id.—Abandonment of Child by Parent—Custody of Third Person— Notice of Appointment of Guardian.—Where the mother of a child, as its only surviving parent, had abandoned its custody, and for the space of two years had allowed another person to have its custody, the superior court may, upon directing notice to be given to the person in custody of the child, without giving any notice to the absent mother, whose residence was unknown, determine the question of her unfitness for its custody, and has full jurisdiction to appoint a guardian of its person, which appointment cannot be collaterally attacked by the mother upon habeas corpus.</p> <p>Id.— Sufficiency of Findings — Collateral Attack upon Order.— Where the petition alleged the abandonment of the child by the parent, and the order of appointment does not so recite, but recites that the parent was an improper person to have the custody of the child, which was not alleged, the question of the sufficiency of the findings to support the order cannot be considered upon a collateral attack. The order is not void for failure to find or recite facts upon which the jurisdiction depends.</p>

<p>Physicians and Surgeons — Board op Medical Examiners — State Agency — Constitutional Law.—The act of February 20, 1901, regulating the practice of medicine and surgery, providing for a board of examiners, to be elected by various medical societies, is not unconstitutional. The board when so constituted, is not the agent of the medical societies, but constitutes a state agency for the regulation of the practice of medicine and surgery.</p> <p>Id.—Power op Legislature.—The legislature has the power to establish the offices held by the board of medical examiners, and to declare the manner in which they should be chosen, and they, not being officers established by the constitution, had the power to delegate their appointment to any persons or class of persons.</p> <p>Id.—Special Privilege or Immunity-—Public Duty.—The act providing for such appointment is not a special law granting any special right, privilege, or immunity to the medical societies, in contravention of subdivision 19 of section 25 of article IV of the constitution. The societies only discharge a public duty for the benefit of the state; and the board of examiners are sworn officers whose duty it is to act impartially, for the benefit of the people, and not in the interest of any school of medicine or medical society.</p> <p>Id.—Habeas Corpus—Validity op Appointment op De Facto Oppicers. —Irrespective of the validity of the appointment of the board of . examiners in the mode provided for in the act, the right of de facto members of the board to discharge the duties of their office cannot be inquired into upon habeas corpus by one who is in custody charged with practicing medicine Without the certificate provided for in the act. If such mode of appointment were invalid, it would not affect the validity of the statute as a whole.</p> <p>Id.—Provision for Medical Diploma—Standard of Scholarship.—The provision of section 5 of the act of February %0, 1901, that as one of the steps toward procuring the certificate required by the act, the applicant must produce a diploma issued by some legally chartered medical school, the requirements of which shall be in no particular less than those prescribed by the association of American medical colleges for that year, is not to be construed so as to require different schools or colleges of medicine to have the same course of study and other requirements prescribed by that association, but only that there shall be an equal standard of scholarship. If that association belongs to any one school of medicine, the provision for the standard of efficiency is not arbitrary or unjust.</p> <p>Id.—Power of Board to Make Discriminations—Separable Invalid Provision.—The provision at the close of section 5 of the act, empowering the board in its discretion to discriminate between persons holding certificates from medical examining boards of other states, by subjecting one to examination and admitting another without examination, if invalid, would only make it the duty of the board to require the examination of all applicants; and the provision is a separable one, the invalidity of which does not affect the general plan or operation of the law, or its remaining provisions.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. Lucien Shaw, Judge presiding.</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. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tuolumne County. G. W. Nicol, 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 an order of the Superior Court of Solano County granting letters of administration. A. J. Buckles, 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. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Distribution—Construction of Will. —Bequest of Fund to Trustees—Monthly Payment out of Income.—Where the will of the deceased testatrix bequeathed a fund: of five thousand dollars to trustees, to "be invested, and out of the income arising therefrom to pay monthly to her sister the sum of twenty dollars during her natural life, the monthly payment is not an annuity dating from the death of the testator, but is an uncertain payment out of income, which may be less than twenty dollars per month, and the payment does not commence until after final distribution of the fund to the trustees and the receipt of income by them from the fund.</p> <p>Id.— Petition for Partial Distribution to Trustees — Legacy for Maintenance — Interest — Findings — Ultimate and Probative: Facts—Becord upon Appeal.—Upon a petition by the sister for a. partial distribution of the fund to the trustees, claiming that the legacy was for her maintenance, and should hear interest from the death of the testatrix, under section 1369 of the Civil Code, where the court found the ultimate fact that the legacy was not for maintenance, its finding of probative facts that the petitioner was a cripple, and dependent upon the testatrix for support and mainten- . anee, is not sufficient to overcome the ultimate fact, which must prevail, and be conclusively presumed to have been supported by evidence when there is no evidence in the record upon appeal.</p> <p>Id.—Interest not Chargeable to Executors.—Interest on the legacy cannot be charged to the executors where the will by its terms provided that the executors should not be charged with interest on any bequest therein made.</p> <p>Id.—Provision of Code Inapplicable.—The provision of section 1366 of the Civil Code, in reference to payments from income of a certain or specific fund accruing from the testator’s death, is inapplicable where the bequest was not of the income of a certain fund, to be paid by the executors as such, but is for the income of a fund to be distributed to trustees.</p>

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

James M. Troutt, Judge hearing evidence. M. C. Sloss, Judge rendering decision. Frank J. Murasky, Judge signing order. The facts are stated in the opinion of the court.

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

<p>Mortgage—Void Foreclosure—Homestead Claim—Second Foreclosure—Deformation.—A party holding a mortgage lien has an absolute right to an effectual foreclosure. Where a prior foreclosure against a wife who, after the execution of the mortgage by her, had declared a homestead upon the premises was void as to the security, because the husband was not made a party thereto, the mortgagee may bring a second action of foreclosure, making the husband a party, and may therein seek a reformation of the mortgage for mistake in the description'of the premises mortgaged in omitting an adjoining strip of land intended to be included therein.</p> <p>Id.—Laches—Statute of Limitations.—Where the second suit of foreclosure was begun much less than four years after the cause of action accrued, no question can arise as to the effect of laches or as to the sufficiency of any excuses therefor.</p> <p>Id.—Effect of Former Judgment—Construction of Code.—Without regard to the effect of the former judgment of foreclosure with respect to the note secured, it being void as a foreclosure of the security, it did not operate as a waiver of the mortgage lien nor of the tight to foreclose the same in a second action, by reason of anything contained in section 726 of the Civil Code.</p>

MOTION to dismiss appeal from an order of the Superior Court of San Joaquin Comity settling and surcharging the second annual account of the administratrix of the decendent and directing certain payments of allowed claims. The facts are stated in the opinion of the court.

<p>Election Contest—Sufficiency of Statement — Uncertainty—Motion to Dismiss.—The statement of the grounds of contest of an election should not be dismissed for uncertainty where there was sufficient in the grounds of contest to apprise the contestee of the nature of the cause for which the election was contested. The certainty of allegation required by the statute in such cases is not the highest degree of certainty known in pleading.</p> <p>Id.-—Ground of Special Demurrer—Candidates for Justice of the Peace—Judgment Curing Defect.—The failure of the statement to aver that the contestant and contestee were the only candidates for the office of justice of the peace in question was only ground for special demurrer, which was cured by the judgment for the contestant against the contestee declaring that “no other person received any votes for said office at said election in said township.”</p> <p>Id.—Vote of Precincts not Invalidated by Conduct of Officers.— Where the trial court found upon sufficient evidence that there was no. malconduct on the part of the officers of election in certain precincts which in any way injured the contestee or prevented a full and fair expression of the will of the qualified electors of the precinct, or diminished the number of legal votes that the contestee would otherwise have received, any mere irregularities on the part of the officers cannot prevent the count of the vote of such precincts as against the contestee.</p>

<p>Estates op Deceased Persons—Determination op Heirship—Petition and Notice—Decree op Default—Added Statement.—Where, after the filing of a petition for the determination of heirship, the court ordered service of notice to all parties interested to appear at a named time and place, in terms as provided in section 1664 of the Code of Civil Procedure, an order establishing the defaults of all persons who have not appeared is not rendered nugatory by adding to it a statement that the order shall be without prejudice to the rights of such persons as have theretofore filed petitions for distribution. Such added statement is not an exception, but is an expression of the opinion of the court as to the rights of such persons.</p> <p>Id.—Jurisdiction op Proceeding—Time op Filing Complaint—Directory Provision — Dismissal not Justified.— The court acquires jurisdiction of the proceeding to determine the heirship upon proof of the service of notice to the satisfaction of the court; and provisions as to the time of future steps in the proceeding are merely directory, notwithstanding the proceeding is statutory or in rem. The fact that the complaint was filed by the petitioner more than twenty days after the decree establishing-the proof of the service of notice cannot justify a dismissal of the proceeding for want of jurisdiction.</p> <p>Id.—Want op Prosecution—Delay not Unreasonable.—If there is unreasonable delay on the part of any heir to file a complaint, after the lapse of twenty days, it might be the duty of the court to dismiss the proceeding for want of prosecution; but that question does not arise where the complaint was filed by the petitioner within two days after such lapse, and the rights of numerous persons were involved in the proceeding.</p>

MOTION to dismiss an appeal from a decree of distribution of the Superior Court of the City and County of San Francisco. • J. V. Coffey, Judge. The facts are stated in the opinion.

<p>Corporation—Transfer of Certificates of Stock—Indorsement bt Ostensible Agent — Batifioation — Estoppel — Bona Fide Purchasers.—Where the owner of certificates of stock ratified an indorsement thereof in his name by an ostensible agent, and informed the secretary of the corporation that the indorsement was all right, the principal is bound by the indorsement, and is chargeable with knowledge that the indorsement gave the indicia of ownership to the holder of the certificates, and is estopped to deny the agency as against tona fide purchasers for value, to one of whom the stock was transferred on the books of the corporation by the secretary, who acted upon faith of the statement made to him by the principal.</p>

<p>Execution Sale of Parm—Time fob Redemption—Eights of Purchaser—Action for Receiver of Crops.—The purchaser of a farm sold under execution cannot, before the expiration of the time for redemption, bring an action to have a receiver appointed to harvest and sell the crop and apply the proceeds toward satisfaction of the judgment. The purchaser during such period is not entitled to the possession as against the judgment debtor or his successor in interest in possession.</p>

<p>Estates op Deceased Persons—Settlement of Pinal Account of Executor—Bate of Commissions.—Where the executor in his final account settled an estate of more than twenty thousand dollars, and it appeared that the executor had had active management and supervision of the estate, and had performed ■ services in collecting moneys due to the estate from various eastern bankers, the court properly allowed the full rate of commissions on the estate above the value of twenty thousand dollars.</p> <p>Id.—Claim for Services—Measure of Value—Land. Agreed to be Conveyed.—Where the executor individually rendered services for the decedent in his lifetime, for which the decedent agreed to convey a tract of land to him of the value' of fifteen hundred dollars, but which the decedent failed to convey before his death, the executor was properly allowed a claim for his services against the estate, and the value of the land agreed to be conveyed was properly taken as the measure of the value of his services, without other proof of reasonable value.</p>

<p>Estates oe Deceased Persons—Distribution—Void Devise in Trust. —A devise by a deceased testator to trustees in trust to receive the income of Ms real and personal property, and to dispose of the same far the support of a grandson until he shall reach the age of thirty years, and then to transfer the property to him, is void as to the real estate; and where it is apparent that the testator would not have devised a small amount of personal property in trust if he had known that the devise of the realty was void, the whole trust scheme must fail, and the property was properly distributed to the grandson as the sole heir at law of the decedent.</p>

<p>Promissory Note—Delivery and Acceptance—Support of Finding.— A note is not delivered when the payee refuses to accept it; and no action can be maintained upon an undelivered note. In an action upon a promissory note a finding that it had never been delivered is sustained by evidence that the payee had intended a gift of the money to the maker of the note, who wished to consider the gift as a loan, but the payee refused to have anything to do with the note which the maker had signed, and that the maker had deposited the note in a bank without the payee’s knowledge or consent, with the intention to make deposits in the name of the payee to be credited in the note. -;</p> <p>Id.—Evidence—Bank’s Beceipt for Note to Distributee op Payee’s. Estate—Recital.—The bank’s receipt for the note to plaintiff as distributee of the deceased payee, reciting that it had been left in its keeping by the deceased payee during his lifetime, was properly excluded from evidence, where there is nothing to show that the contents of the receipt were known to the defendant.</p> <p>Id.—Deposition of Defendant—Impeaching Evidence—Harmless Error.—Where the original wording of the deposition of the defendant was different from its final wording, as corrected before her signature, the original wording may be shown for the purposes of impeachment, as a statement in conflict with her testimony at the trial upon the question of her indebtedness to the deceased; but where it appears that the subject-matter of the impeaching evidence had no bearing upon the question of the delivery of the note, upon which the case depends, the error in refusing to allow the contradictory statement was not prejudicial.</p>

MOTION to dismiss appeal from an order of the Superior Court of San Benito County refusing to set apart the estate to the widow of the deceased. M. T. Dooling, Judge. The facts are stated in the opinion of the court.

<p>. Estates of Deceased Persons — Allowed Claim for Funeral Expenses—Assignment—Interest.—Where a claim for funeral expenses has been allowed and filed, an assignee thereof is entitled to payment of the claim, and is entitled to interest thereon from the date of its allowance,- whether the allowed claim therefor be deemed to have the force of a judgment, or whether it be deemed an ascertained balance, bearing interest, under section 1917 of the Civil Code.</p> <p>Id.—Notice of Assignment.—Where notice of the assignment of the claim was given to the executrix, she was not authorized to make payment to the assignor.</p> <p>Id.— Assignment for Security — Beal Party in Interest — Legal Title.—If the assignment of the claim was for security, it nevertheless passed title to the assignee; and the defense that the assignor was the real party in interest cannot be maintained.</p>

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

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

<p>Election Contest — Tie Vote—Plurality — Certificate not An? nulled.—Where upon a contest of election the contestant and contestee have received an equal number of legal votes for the office contested, which was higher than the number of ballots cast for other candidates for the same office, the certificate of election cannot be annulled.</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. The facts are stated in the opinion of the court.

WRIT OF HABEAS CORPUS to the Town Marshal of Santa Clara, holding petitioner under a judgment rendered by a justice of the peace of Santa Clara Township. I. Herrington, Justice. The facts are stated in the opinion of the court.

WRIT OF HABEAS CORPUS to the City Marshal of the City of Marysville, Yuba County, holding petitioner undér a judgment of conviction in the Police Court of said city. R. R. Raisle, Judge. The facts are stated in the opinion of the court.

WRIT OF HABEAS CORPUS to the Marshal of the City of Whittier, County of Los Angeles, holding the petitioner under a judgment of conviction in the recorder’s court. WR. Bunting, Recorder. The facts are stated in the opinion of the court.

<p>Criminal Daw—Evidence—Deposition at Preliminary Examination —Proof of Diligence.—The question whether it has been satisfactorily shown that a witness whose deposition was taken at the preliminary examination of the defendant cannot with due diligence be found within the state is one of fact addressed to the trial court, to be determined by it from the evidence adduced before it; and where a sufficient basis for the admission of the deposition appears in the evidence, the ruling of the court will not be disturbed upon appeal.</p> <p>Id.—Subpcenas to Sheriffs.—Subpcenas issued to the sheriffs of several counties which were returned unserved were properly admitted in evidence, in connection with other evidence of diligent search, for the purpose of showing what had been done toward making service upon the missing witness.</p> <p>Id.-—Deposition Taken through Interpreter.— Where the proper foundation has been laid for the admission of the deposition, the fact that it was taken through an interpreter in a foreign language</p> <p>does not affect its admissibility, if it is properly transcribed in longhand and certified by the reporter as provided by the statute.</p> <p>Id.—Explanation bt Reporter—Identification op Dependant—Absence op Objection.—An explanation by the reporter that the word “pointing” used in the deposition, was used in reference to a pointing at the defendant, if objectionable, was properly treated as evidence, where it was admitted without objection, and not stricken out, and the defendant could not be prejudiced thereby where he was otherwise sufficiently identified.</p> <p>Id.—Reasonable Doubt—Instruction.—An instruction as to reasonable doubt, in the language used by Chief Justice Shaw in Commonwealth v. Webster, 5 Cush. 320,1 will not be considered misleading.</p>

<p>Estates of Deceased Persons—Contest of Will—Sufficiency of Evidence—Support of Verdict.—Upon the contest of a will admitted to probate, for alleged unsoundness of mind of the testatrix and undue influence exerted over her, where the evidence was conflicting as to the unsoundness of mind and positive against the existence of undue influence, a verdict in support of the will is conclusive as to the facts, and will not be disturbed upon appeal for alleged insufficiency of the evidence.</p> <p>Id.—Competency of Witnesses as to Sanity—“Intimate Acquaintances”—Discretion of Court.—The determination of the question of fact as to whether witnesses in support of the will were “intimate acquaintances” of the deceased, qualified to testify to their opinion as to the sanity of the testatrix, is within the discretion of the trial court, and this court will not interfere with the exercise of that discretion, where no abuse of it appears.</p> <p>Id.—Refusal of Instructions Substantially Given.—It is not error to refuse requested instructions which are substantially embodied in the charge given by the court.</p> <p>Id.—Instructions as to Insane Delusions.—Where no insane delusions of the testatrix had any relevance to the contestants, it was proper for the court to particularly instruct the jury upon that subject so as to leave no doubt in the minds of the jury that it was only such insane delusions as actually influenced her in the making of the will, and which caused its production to the prejudice and injury of the contestants, which would invalidate the will.</p> <p>Id.—Declarations of Persons not Interested—Knowledge of Will— Hearsay—Anticipation of Cross-Examination.—The declarations of a person not interested in the will, and not made in the presence of any interested person, as to his knowledge of the will and its contents, are hearsay and inadmissible as testimony in chief for the contestant. Such declarations were not admissible in anticipation of the cross-examination of the person who made them as a witness for the defense, who subsequently testified in full as to the conversations, the accuracy of whose statement was not then questioned, no foundation being laid for the admission of his declarations in rebuttal.</p> <p>Id.—Evidence upon Question of Sanity.—It was proper to admit conversations had with the testatrix prior and subsequent to the making of the will so as to permit the jury to judge of the mental condition of the testatrix at those times, as disclosed by her conversations, declarations, acts, and conduct.</p> <p>Id.—Cross-Examination—Answers not Responsive Stricken Out.— A party cross-examining the witnesses of his adversary is entitled to have answers not responsive to the questions asked stricken out on that ground.</p> <p>Id.—Temporary Separation of Jury—Affidavit of Bailiff.—In civil cases mere temporary separation of the jury after they had retired to deliberate upon their verdict is not sufficient to set it aside, if no prejudice appears to the moving party, and no misconduct is shown materially affecting his substantial rights. Where any presumption of improper conduct is repelled by the affidavit of the bailiff in charge of the jury which leaves it doubtful whether the jury were separated at all, except technically, there is no ground for disturbing the verdict.</p> <p>Id.—Issue as to Non-Execution of Probated Will—Burden of Proof upon Contestant — Absence of Evidence — Finding.—Upon the contest of a will after probate, where the non-execution of the will was made an issue, the burden of proof is upon the contestant to prove its non-execution, and if he introduces no evidence upon that subject, but abandons the issue, the court was not required to take any additional evidence in favor of the probate of the will; and where the verdict was in support of the will upon other issues, the court was authorized to find and adjudge that the will was duly executed.</p> <p>Id.—Setting Aside of Judgment—Verdict not Affected—Findings and Judgment.—An order setting the judgment aside on motion of the contestants, did not have the effect to set aside the verdict or to entitle the contestants to a new trial of all the issues, and the court was authorized to refuse to allow the contestants to introduce further evidence as to the non-execution of the will, and could again render findings and judgment upon the verdict and the former probate of the will.</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. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Action for Divorce—Publication of Summons—Denial of Relief— Appeal—Submission of Cause.—In an action for divorce, where the defendant was served by publication of summons, and the default of the defendant was duly entered, and where upon appeal from a judgment denying any relief to the plaintiff the appellant has duly filed his transcript and brief, and there is no appearance for the respondent, the appellant is entitled to an order that the case be placed upon the list of causes for submission.</p>

<p>Action for Divorce—Publication of Summons—Denial of Relief— Appeal—Submission of Cause.—In an action for divorce, where the defendant was served by publication of summons, and the default of the defendant was duly entered, and where upon appeal from a judgment denying any relief to the plaintiff the appellant has duly filed his transcript and brief, and there is no appearance for the respondent, the appellant is entitled to an order that the case be placed upon the list of causes for submission.</p>

<p>Criminal Law—Petit Larceny—Dismissal from Justice’s Court— Charge of Felony—Prior Conviction of Burglary—Former Acquittal.—The dismissal of a charge of petit larceny in a justice’s court on motion of the district attorney, for the purpose of charging a felony for the same offense against the same defendant, based upon a prior conviction of burglary, does not operate as a former acquittal.</p> <p>Id.—Bemarks of District Attorney not Prejudicial—Caution of Court.—Bemarks of the district attorney, made in good faith, in allusion to the former conviction, not definitely stated, by way of address to the court in opposition to defendant’s offer of evidence of the proceedings in the justice’s court, under his plea of former acquittal, and objecting that the question was one of felony (though the district attorney would better not have alluded to the former conviction, of which the defendant had pleaded guilty), were not prejudicial, where the court immediately cautioned the jury to pay no attention to what the district attorney had said, as it was not evidence for the jury,, and the question was merely one of law for the court.</p> <p>Id.—Criminal Intent of Defendant—Unexplained Taking and Possession of Stolen Goods—Inference by Jury.—Where the defendant was found in recent possession of the stolen goods, which he had taken from a tailor-shop, and he did not testify as to his intention in taking them, nor explain his possession of them, the jury might infer his criminal intent from all the circumstances of the case, and their verdict of guilty will not be disturbed.</p>

<p>Estates of Deceased Persons—Action by Widow to Avoid Deeds— Invalid Trusts — Quieting Title — Statute of Limitations.— Where the deceased had executed deeds of distinct parcels of land to his daughter which were absolute and unlimited upon their face, an action begun more than five years after the execution of the deeds by the widow of the deceased against the daughter and other children and the adminstrator, to quiet her title to one third of the property, and to have it adjudged that the defendants have no other title or interest therein than as heirs of the deceased, on the alleged ground that the deeds were made upon certain alleged trusts which were invalid and contrary to law, is barred by the statute of limitations.</p> <p>Id.—Assignment of Choses in Action to Son.—Where the deceased at the time of the execution of the deeds assigned and delivered to his son, one of the defendants, certain notes, bonds, and other evidence of indebtedness, upon like trusts, such assignment is also barred by the statute of limitations as against the action of the widow.</p>

<p>Criminal Law—Support op Verdict—Refusal op New Trial.—Where there was legal evidence to prove all the facts constituting the crime alleged, the verdict of the jury and the discretion of the court in refusing a new trial will not be interfered with upon appeal.</p> <p>Id.—Newly Discovered Evidence—Distrust op Application—Change op Result—Lack op Diligence.—Application for a new trial on the ground of newly discovered evidence, in criminal cases, are regarded with distrust and disfavor; and where it cannot be said that a new trial would change the result or that the application was not properly denied because of the lack of diligence in endeavoring to procure the witnesses in time for the trial, the action of the court in denying the application will not be disturbed.</p>

<p>Estates of Deceased Persons—Right to Letters opon Mother’s Estate—Conveyance by Son to Father—Death of Father— Preference of Daughter.—A son who has conveyed all his interest in the estate of his deceased mother to his father is not entitled to administer upon his mother’s estate in preference to his sister, notwithstanding the intervening death of the father prior to the application for letters. Such son is not entitled to any distribution of his mother’s estate; and if he obtains any part of it, it can only be as heir of his father, and through distribution of his father’s estate.</p>

<p>Fraudulent Conveyance—Action by Attaching Creditor—Judgment and Execution Required.—A creditor who has merely levied an attachment upon real property as the property of his debtor, subsequent to the date of an alleged fraudulent conveyance made thereof by the debtor to his wife, cannot prior to the rendition of a judgment against the husband maintain an action in equity to set aside the conveyance.</p>

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

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

PETITION to the Supreme Court for a Writ of Review to annul an order of the Superior Court of the City and County of San Francisco for payment of counsel fees, and adjudging the defendant in contempt. M. C. Sloss, Judge. The facts are stated in the opinion of the court.

APPLICATION by Hugh O’Neill for Writ of Habeas Corpus on behalf of Joseph Reed to the Warden of the State Prison at San Quentin, who holds the prisoner pursuant to a judgment of the Superior Court of the City and County of San Francisco. F. H. Dunne, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Trial—Advice by Court to Jury—Saving op Expense to County by Agreement.—Where the jury in a criminal case had announced to the court the inability of the jurors to agree upon a verdict, it was not error for the court to call their attention to the great additional expense to the county of another trial, and to urge that they, as taxpayers, should seek to avoid such expense and to agree upon a verdict if possible. This was but a statement of what the jurors were presumed to know, and involved no intimation as to any opinion of the court as to how they should decide.</p> <p>Id.—Instructions'—Presumption op Innocence.—Though a requested instruction that the presumption of innocence of the defendants remained with them from the commencement to the close of the trial should have been given, yet where the court instructed the jury that the burden of proof was upon the prosecution, and that the defendants are presumed to be innocent until their guilt was established by proof beyond a reasonable doubt, the jury as reasonable men of ordinary intelligence must have known that the presumption of innocence mentioned by the court continued throughout the trial, and there was no injury to the defendants from refusal of the requested instruction.</p> <p>Id.—Instruction as to Circumstances Surrounding Witness.—The court in instructing the jury as to the circumstances or facts surrounding a witness in testifying, is not limited to the circumstances enumerated in section 1847 of the Code of Civil Procedure, and it was not improper to state that the jury might scrutinize not only the manner of the witness while on the stand, his relation to the case, and other facts, but also “his degree of intelligence.”</p> <p>Id.—Violation op Fishing Law—Use op Set-Net in Slough.—Under the Fishing Law prescribed in section 636 of the Penal Code, the use of a set-net in any waters of the state is forbidden, and it is 'not material whether the waters have a current or tide. A net in a slough connected with a navigable river must be left free to drift, and not be set or permanent.</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. William .R Daingerfield, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Benefit Association—Action by Members—Recovery Measured by Contract, Constitution, and By-Laws.—In an action by a member of an unincorporated fraternal and mutual benefit association, his right to recover must be measured by his contract, which must be read with the constitution and by-laws of the association, to which he has agreed.</p> <p>Id.—Brotherhood of Railroad Trainmen — Injury Addressed to Benevolence—Absence of Legal Liability—Nonsuit.—Where the character of the injury suffered by the plaintiff was by the terms of the constitution and by-laws of the “Brotherhood of Railroad Trainmen,” to which he had agreed as a member, such that his "claim was “addressed to the systematic benevolence of the brotherhood, and shall in no ease be made the basis of any legal.liability on the part of the brotherhood,” and that the approval of a beneficiary board was “required as a condition precedent to the right of any such claimant to benefits,” and it appeared that the beneficiary board had rejected the plaintiff’s claim, a nonsuit was properly granted in this action thereupon.</p>

<p>Negligence—Collision op Car with Buggy—Findings—Inference— Support op Judgment.—In an action for injuries arising from the alleged negligence of the defendant in causing a collision of its electric car at a • crossing with a buggy in which plaintiffs were riding, findings that “plaintiffs acted with due care and caution in approaching said crossing and did not contribute to the said accident by any negligent conduct on their part,” and “that defendant was guilty of negligence in the operating and managing of said car, and in running at said rate of speed,”—viz., from twenty-five to thirty miles per hour,—and that by reason of said negligent acts and conduct of defendant the plaintiff’s wife was severely injured in her person, to her damage in a specified sum, reasonably involve . the inference that the collision was the result of the 'defendant’s negligence, and will sustain the judgment as if expressly found.</p> <p>Id.—Construction of Findings—Inference of Fact—Province of Trial Court.—The findings made by the trial court are to be liberally construed so as to uphold rather than to defeat its judgment. It is the province of the trial court to make any inference of fact from the evidence or- from the facts found by it; and the appellate court will not draw a different inference from that drawn by the trial court to defeat the judgment.</p> <p>Id.—Support of Findings—Absence of Bill of Exceptions.—In the absence of a bill of exceptions, it will be assumed that the evidence before the court was sufficient to sustain the findings when liberally construed in support of the judgment.</p> <p>Id.—Findings of Injury to Wife—Judgment for Husband and Wife —Parties.-—Upon findings of injury to the wife only, judgment was properly rendered in favor of the husband and wife. Damages for a personal injury to the wife are part of the community property; and the husband is a necessary party in an action for their, recovery.</p>

<p>Vaccination of School Children—Constitutional Law—Case Affirmed.—The act of 1899 requiring the vaccination of school children is in substantial compliance with the state constitution as to its title, operates uniformly upon a natural class of persons, is not special legislation, nor against public policy, but is within the police power of the state, and for the public good. (The ease of At eel v. Ciarle, 84 Cal. 226, affirmed.)</p> <p>Id.—Federal Constitution.—Neither the fourteenth amendment nor any other provision of the federal constitution interferes with the power of the state to prescribe regulations to promote the health and general welfare of its people.</p>

<p>Mortgage—Foreclosure Sale—Conditional Title of Purchaser— Tender of Redemption Monet—Refusal—Divestiture of Estate —Ejectment.-—Though the purchaser at a sale under the foreclosure of a mortgage acquires all the right, title, and interest of the mortgagor, yet he acquires it only conditionally during the period for redemption; and a lawful tender of the redemption money refused by the purchaser ipso facto defeats his estate, and leaves the title in the successor of the mortgagor, who may, without keeping the tender good, maintain an action of ejectment against the purchaser.</p> <p>Id.—Purchase Subject to Laws in Force—Constitutional Law.— The purchaser at a public sale, though protected against any future impairment of his rights by subsequent legislation, is wholly governed by the laws in force at the time of the sale, including the law of redemption therefrom and of its incidents and rights then existing; and the operation of the law then existing can in no sense be violative of the constitutional rights of the purchaser or deprive him of his rights without due process of law.</p> <p>Id.—Effect of Refusal of Tender.—If the purchaser refuses a lawful tender of the redemption money, he does so at his own risk, and his refusal cannot prevent the legal effect of the tender to defeat the sale and to extinguish the purchaser’s interest in the mortgage lien; and the purchaser is remitted to his action at law for the recovery of the money which still remains due.</p>

<p>Judgment not Void—Jurisdiction to Vacate—Limitation—Setting Aside Void Order.—A judgment which is not void upon its face cannot he vacated on motion after the lapse of the time limited in section 473 of the Code of Civil Procedure; and an order purporting to vacate such judgment, on motion of a successor of the defendant, after the lapse of one year, is without jurisdiction and void, and may be set aside by the court of its own motion at any time, and the plaintiff cannot be prejudiced by his omission to appeal therefrom or by failure to move to set it aside within six months.</p> <p>Id.—Inspection of Judgment-Roll—Statute in Force.—-The question whether a judgment is or is not void upon its face is to be determined from an inspection of the judgment-roll, under the statute in force at the time of the entry of the judgment.</p> <p>Id.—Affidavit and Order of Publication.—Under section 670 of the Code of Civil Procedure, as it stood prior to the amendment of 1895, the affidavit and order of publication were no part of the judgment-roll, and their sufficiency could not be inquired into as affecting the invalidity of a judgment rendered upon publication of the summons, but their sufficiency must he conclusively presumed in favor of its validity.</p> <p>Id.—Sufficiency of Publication—Immaterial Discrepancies.-—Slight discrepancies in the publication of the summons which were not capable of misleading the defendant as to the nature of the proceeding, the land affected, and the relief demanded, and which do not affect the substantial identity of sense and meaning between the original summons and the published version of it, are immaterial.</p> <p>Id.—Return of Original Summons—Alias Summons—Recital of Service in Judgment.—Where the judgment-roll shows that the original summons was returned before the publication, hut does not show that no alias summons was not issued prior to the publication, a recital in the judgment that the defendant had been “regularly served with process as required by law” is not rebutted by anything in the judgment-roll, and the judgment is not void upon its face.</p> <p>Id.—Remedy of Aggrieved Party in Pquity.—Where the judgment is not void upon its face the sole remedy of an aggrieved party who has not been served with summons, after the lapse of one year, is to be found in a new action on the equity side of the court. It is thereafter entirely beyond the reach of the court that rendered it, except in a separate action.</p>

<p>APPEAL from a judgment of the Superior Court of Ventura County. Felix W. Ewing, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action for Conversion—Demand and Befusae—Defense—Loss by Fire without Negligence—Burden of Proof.—In an action for a conversion of personal property by a bailee, proof of a demand and refusal to deliver the property is sufficient, prima facie, to sustain the action; and the burden of proof is on the defendant to prove a defense that the property was destroyed by fire without fault or negligence on his part.</p> <p>Id.—Findings—Gross Negligence in Exposing Property to Loss— Omission to Find — Beversal of Judgment.—Where the court found that the defendant was grossly negligent in keeping the property where it was exposed to risk and danger of fire, and that the origin of the fire was unknown; but omitted to find upon the issue as to whether the defendant had exercised the ordinary care required of him as a warehouseman, and whether his negligence in that respect had contributed to the loss of the plaintiffs’ property, a judgment for the defendant must be reversed, with directions to make a- finding upon that issue.</p> <p>Id.—Ignorance of Cause of Fire not Conclusive—Facts to be Considered.—The question whether the fire occurred without the knowledge "of the defendant, or whether the origin of the fire is unknown, is not conclusive of the question of the defendant’s negligence having caused the fire. The character of the building provided by him for the storage of the property, the character of the business for which he had permitted a portion of the building to be used, and the precautions taken for the prevention of fire and its extinguishment were elements proper to be considered in determining that issue.</p> <p>Id.—Finding Esquired against Party Having Burden of Proof.— Where the findings show that there was evidence before the court that the defendant did not exercise the ordinary care required of him as a warehouseman, this was sufficient to east upon him the burden of showing that the loss was not the result of his negligence, but was the result of some agency with which he was entirely disconnected; and if there was no evidence on the subject, the finding must be against the defendant who has the burden of proof on that issue; but the finding must be made thereon before judgment can be properly rendered.</p> <p>Id.—Stipulation against Liability for Fire — Want of Ordinary Care not Excused.—A stipulation against liability for loss by fire cannot be construed so as to excuse a bailee from the exercise of ordinary care to protect the property from fire.</p>