Volume 144 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, J. C. Daly, Deputy Attorney-General, and C. E. Peters, District Attorney, for Appellant.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge. The facts are stated in the opinion of the court. Charles E. Naylor, and William P. Hubbard, for Appellant.

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

<p>WRIT OF REVIEW to the Board of Supervisors of the County of Ventura to review proceedings for the incorporation of the City of Oxnard.</p> <p>The facts are stated in the opinion of the court.</p> <p>T. O. Toland, M. J. Rogers, and Barnes & Selby, for Petitioner.</p> <p>■ The proceedings of the board of supervisors, in so far as they are quasi-judicial, are reviewable upon this writ. (4 Ency. of Pl. & Prac., p. 96; People v. El Dorado County, 8 Cal. 58; People v. Marin County, 10 Cal. 344; Whitney v. Board of Delegates, 14 Cal. 480; Miller v. Sacramento County, 25 Cal. 94; Murray v. Mariposa County, 23 Cal. 492; Fall v. Paine, 23 Cal. 302; Robinson v. Sacramento County, 16 Cal. 208; Keys v. Marin County, 42 Cal. 252; Kimball v. Alameda County, 46 Cal. 23; Keena v. Board, 89 Cal. 11; Stumpf v. Board of Supervisors, 131 Cal. 364.1) The presentation of a proper petition and affidavit of electors is essential to the jurisdiction of the supervisors under the Municipal Incorporation Act. (Stats. 1883, p. 94; People v. Town of Linden, 107 Cal. 94, 95.) The affidavit of publication was not sufficient, and perjury could not be assigned upon it. (Stats. 1889, p. 371; 1 Ency. of Pl. & Prac., p. 310; Miller v. Munson, 34 Wis. 579;2 State v. Henning, 3 S. D. 492.) No proof of the posting or publication of the notice of election was presented to the supervisors before canvassing the votes. For the purpose of acquiring jurisdiction to canvass the votes, what was not proved did not exist. (Stumpf v. Board of Supervisors, 131 Cal. 364, 368.1) The notice of election was illegal and void, as changing the constitutional qualifications of electors. (People v. Los Angeles, 133 Cal. 338; Russell v. McDowell, 83 Cal. 77; Tebbe v. Smith, 108 Cal. 111;3 Spier v. Baker, 120 Cal. 370, 374, 378.)</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles E. Wilson, and John R. Glascock, for Edson F. Adams et al., Plaintiffs, Appellants, and Respondents.</p> <p>John O’B. Wyatt, for Sarah A. Wilson, Defendant, Appellant.</p> <p>Philip G. Galpin, and Garoutte & Goodwin, for Victor Castro and his Executrix, substituted, Defendant, Appellant.</p> <p>R. H. Countryman, for Joseph Wohlfrom et al., Defendants, Appellants.</p> <p>John Reynolds, Rodgers & Paterson, and J. B. Mhoon, for Elizabeth Rodgers et al., Defendants, Appellants.</p> <p>John Reynolds, for J. Reynolds and C. F. Reynolds, Defendants, Appellants.</p> <p>A. B. McKenzie, and H. V. Alvarado, for W. J. McLane, Executor, etc., et al., Respondents.</p>

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

<p>Criminal Law—Murder—Support op Verdict—Conspiracy.—Where the verdict oí the jury finding the defendant guilty is sustained by evidence that the deceased was deliberately murdered, and there was evidence from which the jury might infer that there was a conspiraey, and that defendant was one of the confederates, it cannot be held that the verdict is unsupported by the evidence, or that it is against law.</p> <p>Id.—Bight of Accused to Speedy Trial—Dismissal—Good Cause for Delay.—The defendant has a constitutional right to a speedy trial, and is entitled to a dismissal under section 1382 of the Penal Code, if not brought to trial within sixty days, unless good cause to the contrary is shown; but where good cause was shown for delaying the trial a motion to dismiss was properly denied.</p> <p>Id.—Bequested Instructions Properly Befused—Verdict of Not Guilty — Conspiracy — Bequests Otherwise Given. — Bequested instructions that the jury should return a verdict of not guilty, and that there was no evidence of a conspiracy, and requests substantially included in the charge of the court, were properly refused.</p> <p>Id.—Modification of Bequests—Accomplice—Purpose of Presence.— A requested instruction that an accomplice is one who not only aids by his presence or otherwise in the commission of an offense, but is also a participant of the criminal purpose of the perpetrator, was properly modified by stating that “an accomplice may aid and abet without taking physical part in the actual violence." And a requested instruction that if the defendant was merely present to witness the murder, or to witness a beating or a fight, and did nothing to aid and abet the person or persons committing the act, the verdict should be not guilty, was properly modified by adding: “But it is exclusively for the jury to determine whether the defendant was present, and, if so, for what purpose, if any, and to what extent, if any, he was connected with the person or persons, if any, committing the act, if any was committed.”</p> <p>Id.—Evidence—Dying Declarations.-—Where the evidence shows prima facie that the dying declarations of the deceased were made when he was fully persuaded that he was about to die, to the effect that one of the other defendants did the shooting, they were admissible and very material evidence in connection with other evidence in the case against this defendant.</p> <p>Id.—Denials and Admissions of Defendant.—Where the defendant at first and repeatedly denied being present at the time of the murder, and finally admitted that he was at the scene of the murder, his admissions made the previous denials of that fact evidence against him, on the same principle that his flight was evidence against him.</p> <p>Id.—Competency of Admissions — Corpus Delicti — Participation in Crime.—Though extrajudicial admissions of the defendant cannot be received to establish the corpus delicti, yet where it was fully established by proof that the deceased had been deprived of his life by criminal agency, his admissions that he went with the murderer to the scene of the murder were competent for the distinct purpose of showing that he was a participant in the crime.</p> <p>Id.—Foundation fob Admission of Deposition.—Evidence was competent in laying a foundation for the admission of a deposition taken at the preliminary examination, on the part of the father of the witness, that he had taken her to the City of Mexico for the sake of her health, and left her there, in the care of her mother, and as to the intention of the mother as to the duration of her stay, and his refusal to let the daughter come back with him; and where there was other evidence sufficient to show that she was beyond the jurisdiction of the court, the deposition was properly admitted.</p> <p>Id.—Certificate to Deposition—Presumption upon Appeal.—Where it abundantly appears from the record that there was a certificate to the deposition, though the certificate was omitted from the bill of exceptions, it must be presumed to have been in due form. It was the duty of the party objecting that it was not in due form to have it inserted in the record.</p> <p>Id.—Evidence as to Firing of Fatal Shot.—The evidence in the deposition that a co-defendant fired the fatal shot was admissible and material to the charge against the defendant; and the fact that the cross-examination ■ was by counsel for co-defendants, in the presence of all the defendants, cannot affect its admissibility.</p> <p>Id.-—Statement of Defendant.—A statement of the defendant, that some one in the saloon spoke of going out to “get a scab,” was admissible in connection with proof that he acted upon the suggestion, and went with others to wait for the ear conveying the “scab” who was killed, and at the concerted signal boarded that car.</p> <p>Id. — Reputation for Peace and 'Quietness — Cross-Examination — Arrest of 'Defendant — Misconduct of District Attorney.— Where a witness for the defendant had testified to his good reputation for peace and quietness, it was proper to ask him on cross; examination if he had not heard that he had been arrested for disturbing the peace; and it was not misconduct of the district attorney to have first asked if he had not been arrested for vagrancy and disturbing the peace, and then to withdraw the question as to vagrancy after exception taken to his conduct in putting the question.</p> <p>Id.—Instructions as to Verbal Admissions.—Instructions requested as to the receiving of verbal admissions with caution, which embraced matters in addition to that prescribed by section 2061 of the Code of Civil Procedure, were properly refused.</p> <p>Id.—Matters of Commonplace—Case Affirmed.—An instruction in the language of section 2061 of the Code of Civil Procedure states a mere commonplace, within the general knowledge of jurors, and neither the giving nor refusing of it is ground for reversal. (People v. Wardrip, 141 Cal. 233, affirmed. Beatty, C. J., and Henshaw, J., contra.)</p>

<p>Mortgage—Husband and Wife—Note of Husband—Foreclosure— Deficiency Judgment—Appeal—Modification.'—Where a mortgage was executed by husband and wife to secure the note of the husband, a deficiency judgment rendered upon foreclosure thereof, against both of them, the wife not being personally liable, is erroneous and will be modified upon appeal.</p> <p>Id.—Pleading—Appointment of Beoeiver—Presumption as to Jurisdiction.—Where there is nothing in the complaint to justify the appointment of a receiver pending the foreclosure suit, unless it be a stipulation in the mortgage providing for the appointment of a receiver on ex parte application, which is not alone sufficient without the necessary showing, it may be presumed in support of the judgment that the appointment was not made upon the complaint, but upon motion and affidavits showing the necessary facts to give jurisdiction to the court.</p> <p>Id.—Order to Beoeiver to Pat Bents and Profits on Debt—-Absence of Basis in Pleading—Default—Appeal—-Modification.—Where there is no basis in the allegations or prayer of the complaint for an adjudication against the right of the defendants to receive the rents and profits, pendente lite, and the defendants had made default, it was not competent for the court to adjudicate against that right; and an order directing the receiver to apply the rents and profits in his hands to the payment of the mortgage debt is erroneous, and will be modified upon appeal by directing the court to order them paid over to the defendants.</p>

<p>Water-Eights—Action to Quiet Title—Issues—Duty of Court to Determine Extent of All Eights.—In an action to quiet the title of the plaintiff to all of the waters of a creek, where the complaint does not allege the nature of plaintiff’s right to the water, whether riparian or prescriptive, and the answer sets up riparian rights of defendants in the creek on lands several miles above the lands of the plaintiff, and also a prescriptive right to use all of the waters flowing through their lands for irrigation, domestic use, and the watering of stock, upon the issues thus joined it was the duty of the court to determine and in its judgment declare the extent of the right of the defendants as well as that of the plaintiff.</p> <p>Ld.—Improper Measure of Biparian Eights—Proportion to Frontage of Lands.-—Where the judgment declares that plaintiff and defendants, as riparian proprietors upon the stream, have respectively the right to use .the waters of the stream “proportionately to the frontage of their lands upon the stream, considered with regard to the whole frontage of land upon the stream,” it declares an improper measure of their respective riparian rights. In addition to the extent of each ownership along the hanks, the length of the stream, the volume of water in it, the character of the soil owned by each, the area sought to be irrigated by each, and many other considerations, must enter into the solution of the problem.</p> <p>Id.—Insufficiency of Water—Seasonable Use.—Where there is not water enough to supply the wants of all riparian proprietors, each owner has the right to a reasonable use of the water, taking into consideration the rights and necessities of each.</p> <p>Id.—Prescriptive Eights of the Defendants—Improper Judgment.—■ With respect to the prescriptive rights of the defendants the court should not have adjudged that they were the absolute and unqualified owners of the right to divert and use all the waters of the stream,</p> <p>Id.—Limitations of Prescriptive Eight—Injury to Biparian Bights of Plaintiff—Injunction.—The defendants have no unconditional prescriptive right to change the place of use at their pleasure. That right can only he exercised so as not to injure the subordinate rights of the plaintiff. They have only a limited right to divert the water for their use on the land for which it was acquired, and cannot divert it beyond the watershed to the injury of the riparian rights of the plaintiff, who has the right to have it flow in its natural channel as a part of his estate, and to have such diversion enjoined without any showing of damages.</p> <p>Id.—Prescriptive Eight to Water on Government Lands.—The fact that luring the time when the defendants were using the water adversely to the plaintiff the defendants’ lands upon which they were using the water were vacant government lands did not make their use the less adverse, nor prevent the acquiring of a prescriptive right thereby; nor is it material whether plaintiff’s lands were held by a title under a United States patent or otherwise.</p>

<p>Criminal Law—Robbery—Accessory to Crime—Sufficiency of Evidence.—Where the defendant was informed against jointly with others for the crime of robbery the evidence is sufficient to support a verdict against him, where it shows clearly that the other defendants actually committed the crime charged, and is sufficient to warrant the jury in concluding that the defendant incited the ethers to its commission, and, not being present, advised and encouraged its commission, and was thus an accessory to the crime before the fact.</p> <p>Id.—Sufficiency of Information—Charge of Accessory as Principal —Evidence.—The crime of robbery being a felony, the information properly charged the defendant as a principal under sec Lion 971 of the Penal Code, and such information was sustained by evidence that the defendant was an accessory before the fact.</p> <p>Id.—Constitutional Law—Federal Constitution.—Section 971 of the Penal Code is not violative of the sixth amendment nor of the fourteenth amendment to the constitution of the United States. The sixth amendment has no application to state courts; and the provisions of section 971 of the Penal Code, as to charging an accessory before the fact as principal, in a criminal pleading, gives to the defendant sufficient notice of the accusation against him to satisfy every requirement of the fourteenth amendment.</p> <p>Id.—Reference of State to Federal Constitution.—Section 3 of article I of the state constitution, providing that the constitution of the United States is the “supreme law of the land,” does not have the effect to make the various provisions of the constitution of the United States a part of our state constitution.</p>

<p>Appeal—Order Denying New Trial—Review.—Upon appeal from an order denying a new trial, the sufficiency of the complaint and the sufficiency of the findings to sustain the judgment cannot be considered.</p> <p>Contract for Clay Suitable for Cement—Breach—Measure of Damages.—Upon breach of a contract to take all of the clay on the lands of the plaintiffs which was suitable for the manufacture of cement, where the clay left in plaintiffs’ land has no recognized market value, the measure of damage is the contract price per cubic yard of the unextracted clay, less the cost, per cubic yard of extracting it.</p> <p>Id.—Unsuitableness op Clay for Cement—Mixture with Other Clay—Certificate of Chemist—Acceptance of Part—Refusal of Remainder.—Where the clay in plaintiffs’ land was not “suitable for the manufacture of cement,” as stipulated, the fact that its suitability was to be determined by defendant’s chemist, who certified that it was not so suitable, if not mixed with a different clay, and the subsequent delivery and acceptance of part of plaintiffs’ clay, which was mixed with other clay without satisfactory results, the delivery of which was discontinued as soon as a more suitable clay was found, do not indicate that the contract was for the purchase of plaintiffs’ clay to be mixed with other clay; and the acceptance of part of the unsuitable clay so delivered, and payment therefor, did not preclude the defendant from refusing to accept the remainder.</p>

<p>Taxes—Redemption op Land Sold to State—Excessive Payment— Allowance op Barked Claim—Jurisdiction op Supervisors.—The board of supervisors is an inferior tribunal of special and limited powers, and it has no jurisdiction to allow a claim for an excessive payment made upon the redemption of land sold to the state for taxes, which was presented for allowance more than one year after the payment was made and the claim therefor accrued. The board has no power to dispense with the express mandates of the statute forbidding such allowance.</p> <p>Id.—Duty op Auditor and Treasurer—-Mandamus.—It was the duty of the auditor and treasurer to disregard an allowance which upon its face shows that it was barred by statute and allowed by the supervisors without jurisdiction; and the writ of mandamus will not lie to compel the auditor to draw his warrant upon the treasurer for payment of such allowance.</p> <p>Id.—Mistaken Estimate op Auditor—Discovery op Mistake—Province op Writ op Mandate.—The fact that the excessive payment was owing to a mistaken estimate of the auditor as to the amount of redemption money required, and that the plaintiff did not discover the mistake until a short time before the claim was presented for allowance, cannot sustain the jurisdiction of the board to allow a claim on its face barred by statute; nor can the writ of mandate be used to obtain relief on the ground of fraud or mistake. It can only be allowed in a clear case to “compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”</p>

<p>Building Contract—Action on Bond—Former Judgment—Bes Judicata.—In an action by the owner on the bond of a contractor for the construction of a building, the contract for which was void for want of record, to recover an amount paid by the owner to discharge liens, after the contractor had abandoned the contract, a judgment for costs in favor of the owner in a former action by the contractor to recover the reasonable value of his labor and materials, in which the owner set up such abandonment, and a payment made to the contractor and the amount paid in discharge of the liens, and prayed judgment' for the sum paid in excess, of the contract price, although the judgment rendered is erroneous, is res judicata as to the subject-matter, and is a defense to the action.</p> <p>Id.—Extent of Estoppel of Judgment—Belative Position of Parties —Privity—Issues Baised by Defendant.—The estoppel of a former judgment of a court of competent jurisdiction, upon the same matter directly in question in another court, is not limited to an action identical in form, or where the same parties are plaintiff and defendant, but may be invoked by parties in privity with them. The determination in the former action of an issue presented by the defendant by way of counterclaim, recoupment, or cross-complaint is res judicata as fully as if determined in a separate action by the defendant against the plaintiff.</p> <p>Id.—Erroneous Omission of Affirmative Belief—Failure to Appeal —Finality of Judgment.—The omission to give affirmative relief prayed for by the defendant in the former action, even though erroneous, is in legal effect a denial of such relief; and where the defendant failed to appeal therefrom the judgment became a final determination of the respective rights of the parties upon the same subject-matter.</p> <p>Id. — Principal and Surety — Estoppel of Principal Available to Surety.—Where the principal is discharged from liability, the surety is also discharged therefrom; and where the plaintiff is precluded, as the result of his own action in a former suit by the judgment rendered therein, from claiming any liability against the principal, he cannot be allowed to recover from the surety on his bond.</p>

<p>Lien upon Mine—Services of Watchman—Progress of Work—Order Denying New Trial—Review upon Appeal.—In an action to enforce an alleged lien upon a mining claim for services rendered as a watchman, the question whether the plaintiff is entitled to a lien for such services, though the work of mining may be in progress, where such question depends upon conclusions of law to be deduced from the facts found, or upon the sufficiency of the complaint to constitute a cause of action, cannot be raised or considered upon appeal from an order denying a new trial.</p> <p>Id.—Watchman Employed while Mine is Idle—Construction of Code.—Section 1183 of the Code of Civil Procedure implies that the labor to be performed upon any mining claim for which a lien is given must be performed in the course of the actual work of mining or development in the mining claim, and such labor does not include the services of a watchman engaged in earing for the mine while it is lying idle.</p> <p>Id.—Agency for Owner—Incompetent Evidence—Waiver of Objection—Specification of Insufficiency—Importance of Evidence Objected to.—Where incompetent evidence was received to show agency for the owner in the employment of the watchman, consisting of the suppositions of witnesses and general repute of such agency, such evidence, if admitted without objection, cannot be questioned as incompetent upon a specification of the insufficiency of the evidence to prove the fact. But in view of the unsatisfactory nature of such evidence this court is justified- in attaching great importance to any other incompetent evidence improperly admitted to prove the same fact to which objection and exception were taken.</p> <p>Id.—Incompetent Evidence against Owner—Contracts of Sale— Watchman Employed for Purchaser—Constructive Agency.— "Documentary evidence, consisting of contracts of sale under which the purchaser was authorized to work the mine, but who did no work thereupon, are not admissible evidence against the owner, where they have no relevancy other than for the purpose of proving that a watchman employed on behalf of the purchaser was employed by him as constructive agent for the owner. A person not expressly authorized by the owner of the mine to act in Ms behalf cannot be his constructive agent for" the purpose of a lien against the owner under the statute, unless he is a person in charge of the actual work of “mining,” as contemplated by the statute.</p> <p>Motion for New Trial—Minutes of Court—Statement of Grounds —Deference to Notice of Intention'—Duty of Clerk.—Where a motion for a new trial is made upon the minutes of the court, the statement to the court of the grounds for the motion is necessary; but this may be done by reference to the notice of intention on file, wMch reference may be incorporated in the bill of exceptions, if the notice is made part of it. The clerk should incorporate the grounds of the motion in the minutes of the court in substance, as stated by counsel.</p> <p>Id.—Sufficiency of Eeoord of Grounds—Deview upon Appeal—Bill of Exceptions.—To enable this court to review the action of the court below, the record upon appeal must show precisely the reasons or grounds upon which the action of the court was based. But, though no grounds of the motion for a new trial appear in the minutes of the court, and though the notice of intention, not being incorporated in the bill of exceptions, is no part of the record, yet where such grounds fully appear from the specifications in the bill of exceptions, they sufficiently appear in the record for the purpose of review upon appeal.</p>

<p>Foreclosure of Mortgage—Amended Complaint—Count upon Former Mortgage Renewed.—For the purpose of determining the plaintiff’s right of action to foreclose a mortgage, the complaint, as amended so as to count upon a former mortgage, of which the note and mortgage in suit are alleged to have been given in renewal, and which prayed judgment upon the former mortgage, if the renewed mortgage should be held invalid, is to receive the same consideration as if the matters alleged in the amendment had been included in the original complaint, where it appears that the cause of action upon the former note and mortgage set forth in the amended complaint is not barred by the statute of limitations.</p> <p>Id.—Acceptance of New Note and Mortgage as Renewal.—The acceptance of the new note and mortgage as a renewal of the former note and mortgage, in the absence of evidence of any agreement that the,new note and mortgage should be accepted in payment and satisfaction of the old, does not operate as an extinguishment or discharge of the latter.</p> <p>Id. — Entry of Satisfaction — Presumptive Evidence — Mistake of Fact—Foreclosure.-—Although the entry of satisfaction of record of the old mortgage is presumptive evidence that it has been satisfied, it is not conclusive thereof; and if it appears that the acknowledgment of satisfaction was made by reason of a mistake of fact, it will be held inoperative in equity, and the mortgage may still be foreclosed.</p> <p>Id.—Jurisdiction of Equity as to Mistake.—It is the peculiar province of a court of equity to relieve against a mistake of fact, and it has jurisdiction to set aside and cancel the release of a mortgage given under a mistake of fact, and may cause it to be canceled where no intervening rights have accrued by reason of the mistake.</p> <p>Id.—Mistake as to Continuance oe Absent Power oe Attorney— Ignorance or Forgetfulness.—Where the release and satisfaction of record of the former mortgage, and the surrender of the old note, 'and the giving of the new note and mortgage, were made under a mistake as to the continuing authority of an attorney in fact, under which the former note and mortgage were authorized, and which, in the absence of the instrument, were mistakenly believed by the plaintiff and the attorney in fact to authorize the renewal, the mistake is one of fact, as being “an unconscious ignorance or forgetfulness of a fact past or present, material to the contract,” within the terms of section 1577 of the Civil Code, against which equity will relieve and enforce the former mortgage.</p> <p>Id.—Estoppel oe Principal.—Equity will not permit the principal, who authorized the first note and mortgage by his attorney in fact, to avail himself of a release given to the attorney in fact in sole consideration of the renewal of the note and mortgage, and at the same time repudiate the act of his attorney in fact in giving the new mortgage. He cannot accept the benefit of the transaction without assuming the obligation, nor can he ratify a portion of the unauthorized act of his attorney in fact without ratifying the whole.</p> <p>Id.—Decree oe Foreclosure oe Former Mortgage—Cancellation of Discharge not Necessary.—Where upon the facts before the court the plaintiff was entitled to a decree of foreclosure of the former mortgage, it was not necessary that the plaintiff should first have obtained a decree canceling its discharge of record before commencing an action to foreclose it, nor was it necessary that the decree should formally direct its cancellation before rendering the decree of foreclosure.</p> <p>Id.—Pleading—Avoidance oe Defense—Facts Showing Discharge Inoperative—Evidence in Eeply.—It was not necessary that plaintiff should set forth in his complaint the facts under which he claimed that the discharge of the former mortgage was inoperative, or to ask that it be canceled. He was not required to anticipate that the defendant would rely upon this discharge as a defense; and when it was pleaded by the defendant the law operates as a reply, under which evidence of any facts controverting this defense could be introduced as fully as if specially pleaded.</p>

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

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

<p>Estates op Deceased Persons—Probate op Will—Validity op Provisions.—A will regular in form and properly executed cannot be denied probate on the ground that some of its provisions are invalid.</p> <p>The probate merely determines the validity of its execution; and the will cannot be admitted to probate in part and denied probate as to the remainder. The validity of any of its provisions will be determined only when effect is sought to be given to them.</p> <p>Id.—Express Trust not Created—Power op Alienation not Suspended—Sale in Course op Administration—Power op Court.— Where the will does not purport to devise the land to the executors in trust, but merely directs them as executors to have the property sold at the expiration of two years after his death, and to distribute the proceeds among designated beneficiaries, to whom the estate is bequeathed, and to maintain the estate for two years, the will does not create an express trust in the executors, nor suspend the power of alienation during that period. The sale must be made by the executors in the course of administration; and the court may at any time order a sale, if necessary to pay creditors, or for the advantage of those interested in the estate, or when they consent thereto.</p> <p>Id.—Nugatory Directions.—To the extent that the directions to the executors contained in the will are inconsistent with law, they are nugatory.</p> <p>Id.—Trust Character of Executors.—Executors, as such, are not trustees of an express trust, and the authority conferred upon them, as such, by the directions of the will creates only such a trust as pertains to the office of an executor.</p> <p>Id.—Sale by Executors—Confirmation by Court—Devise in Trust. —All sales made by executors, as such, under the directions of a will must be reported to the court, and will be ineffectual without confirmation by the court. But if a devise were made to them in trust, to make sale and distribute the proceeds, the land could be sold by them without the necessity of a report of the sale and confirmation thereof.</p> <p>Id.—Suspension of Power of Alienation—Delay in Delation to Sale.—Section 715 of the Civil Code only forbids a suspension of the power of alienation, and a provision for the exercise of that power at a future time is not within' its provisions, unless such exercise is itself suspended beyond the period therein limited. The delay incident to the execution of a power of sale by conversion of the land into money, or in procuring an order of court for the sale, or for its confirmation, does not operate as a suspension of the power of alienation.</p> <p>Id.—Equitable Conversion of Land into Money—Construction of Will — “Desire” of Testator — Devise and Bequest to Beneficiaries.—The provisions of the will manifesting the intention of the testator for the sale of the real property and the distribution of the net proceeds to beneficiaries named operates as an equitable conversion of the real estate into personalty. This result is not overcome by reason of the testator having used the word “desire” instead of “direct”; but that word must be construed as a command when addressed to his executors. The testator’s use in different clauses of the will of the words: “I give, bequeath, and devise” to each of the beneficiaries “one-sixth part of my estate,” is subordinate to his previous direction that the real property be sold and the net proceeds distributed to them, and must yield thereto.</p> <p>Id. ¡Reconversion — Election to Take Bealty—.Union op Bene\ficiaries Essential—Petition by One Beneficiary—Partial Distribution.—The beneficiaries may accomplish a reconversion of the personalty into realty by election to take the land instead of the proceeds before a sale is had; but a united election of all the beneficiaries is essential to accomplish that result. One beneficiary cannot effect it; and a petition of such beneficiary for partial distribution of her share of the estate was properly denied.</p>

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

<p>The facts are stated in the opinion.</p> <p>Grant Jackson, J. W. Smith, and E. A. Rizor, for Appellants.</p>

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

<p>Estates op Deceased Persons — Probate Homestead — Community Property—Title op Widow.—An order of the superior court setting apart a probate homestead to the widow out of the community property, there being no minor children, vests title thereto absolutely in the widow; and a foreclosure of a mortgage executed by her vests title in the purchaser.</p> <p>Id,—Piling and Entry op Order—Prior Mortgage by Widow.—The fact that the order setting apart such homestead to the widow was not filed or entered until after she had executed the mortgage, which was foreclosed against her, does not affect the validity of the title of the widow, nor of the mortgage executed by her. The entry of the order is a mere ministerial act of the clerk, and the lack of it does not affect the adjudication; and the mortgage would include any after-acquired title, even if the entry were deemed necessary.</p> <p>Id.—Failure to Eecord Order.—The failure of the widow to record the homestead order in the office of the recorder cannot render the order ineffectual. The probate homestead is the creation of the court, and its existence is complete when the court has concluded its action. The provision for recording it is designed only to impart notice to third persons.</p> <p>Id.—Declaration op Homestead—Adjudication—Collateral Attack —Action to Quiet Title.—The court in making the adjudication for a probate homestead, necessarily determined that the facts existed which authorized it to do so; and where the pleadings in an action to quiet title did not make any direct attack upon such adjudication, it cannot be collaterally attacked by showing that the deceased in his lifetime made a declaration of homestead, which had not been abandoned at the time of his death.</p> <p>Id.—Order without Notice—Absence op Appeal—Power op Legislature—Exclusive Control.—The fact that no notice is required to be given before making the order setting apart a probate homestead from community property, and that such order is not appealable, does not affect its validity against the heirs or devisees. The legislature has exclusive control over the right of inheritance and of testamentary disposition, and over the course of administration, and the character of the evidence required therein, and over the right of appeal in probate matters.</p> <p>Id.—Due Process op Law—Inheritance Subject to Contingency.— The heirs and devisees of the decedent are not deprived of their property without due process of law because such order for a probate homestead is made without notice or the right of appeal; but they take their right of inheritance subject to such a contingency.</p>

<p>Taxation—Possessory Right to Mining Claim—Duty of Immediate Payment.—The possessory right to a mining claim, is properly assessed as real estate under section 3617 of the Political Code; and under section 3634 of that code such assessment is immediately due and payable to the assessor, and it is the duty of the possessor to pay the same upon demand of the assessor.</p> <p>Id.—Payment under Protest—Threat of Sale—Action to Recover Taxes Paid.—The fact that such taxes were paid under protest, ana under a threat of the assessor to sell the possessory right in the land, which he hs£d no right to do, cannot alter the immediate duty of the possessor to pay the tax, and cannot sustain an action by him to recover back the taxes which were properly paid to the assessor.</p>

<p>The facts are stated in the opinion of the court.</p> <p>T. G. Elliott, D. E. Alexander, and J. B. Webster, for J. T. Summerville, Appellant.</p> <p>C. H. Fairall, and H. R. McNoble, for W. G. Hersom, Appellant.</p>

Instruction number 32 was as follows: “With respect to all verbal admissions or statements made by one and repeated by another, they ought to be received by the jury with great caution. The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him.

WRIT OF HABEAS CORPUS to George W. Wittman, Chief of Police of the City' and County of San Francisco, holding petitioner under warrant from the Police Court. A. J. Fritz, Judge. The facts are stated in the opinion of the court.

The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, George A. Sturtevant, Deputy Attorney-General, and Frank H. Short, for Appellants. The end attained and not the form of the transaction must be considered by the court in determining its substance, and legal effect under the constitution.

<p>Criminal Law—Assault with Deadly Weapon—Support of Verdict-Intoxication—Questions for Jury.-—The evidence reviewed and held sufficient to support a verdict of an assault with a deadly weapon, notwithstanding the defendant’s intoxication to a considerable degree. The question was one for the jury, whether the defendant was in fact unconscious, and the verdict will not be disturbed when the evidence was conflicting on that question.</p> <p>Id.—Unconsciousness of Act—Burden of Proof—Instruction as to Insanity.—Where the theory of the defense was that the defendant was unconscious of the act from the dual effects of liquor and epilepsy, it was not prejudicial error to instruct the jury that the burden of proof is on the defendant where the defense of insanity is relied upon. The jury could not be misled, and the rule as to the burden of proof was correctly stated whether applied to insanity or unconsciousness as a defense.</p> <p>Id.— Cautionary Instruction — Insanity.— A cautionary instruction concerning the defense of insanity applies with equal force to any aberration of mind that might be claimed as a defense. Such an instruction, though disapproved, is not ground for reversal.</p> <p>Id.—Instructions as to Drunkenness.—Instructions to the effect that evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of" the crime, and that “it must be received with great caution,” are not ground for reversal, though the latter clause would be better omitted.</p> <p>Id.—Arrest for Breach of Peace—Absence of Prosecution.—The defendant was properly arrested without a warrant for a breach of the peace, by the city marshal, and the fact that he was not prosecuted therefor was not material.</p> <p>Id.—Opinion Evidence—Hearsay.—The testimony of a witness to the effect that the defendant did not know on the morning after the assault what he had done the night before, called for the mere opinion of the witness, based on what the defendant had stated to him, and was incompetent.</p> <p>Id.—Testimony as to Mental Condition—Bebuttal.—The testimony of a witness for the prosecution as to the mental condition of the defendant on the night of the assault was admissible if objected to solely on the ground that it was not rebuttal.</p> <p>Id.—Bias of City Marshal as Witness—Cross-Examination-—Error not Prejudicial.—The defendant should have been allowed on cross-examination of the city marshal who arrested him for breach of the peace, 'to ask if he had not visited the defendant in jail for the purpose of securing a confession from Mm, in order to show the bias of the marshal as a witness; but the error in disallowing the evidence is not ground for reversal, where the interest of the marshal in the prosecution of the ease was otherwise clearly shown.</p>

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

<p>MOTION to recall Remittitur from the Superior Court of Santa Clara County. William G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Employment Agents—Act Limiting Compensation—Constitutional Law—Police Power.—The statute passed in 1903 (Stats. 1903, p. 14) limiting the compensation of employment agents, and making it a misdemeanor to receive any money in excess of the percentage therein provided for, is an invalid exercise of the police power, and is unconstitutional and void. [Shaw, J., dissenting.]</p> <p>Id.-—Lawful Business—Bight to Make Contracts—Protection of Constitution.—Where a lawful business is of a beneficial character, and not dangerous to the public, either directly or indirectly, it cannot be subjected to any police regulation whatever, which does not fall within the power of taxation for revenue. The right to make contracts, common to all legitimate vocations, is a part of the property in the enjoyment of which the person engaged therein is guaranteed protection by the constitution.</p> <p>WRIT OF HABEAS CORPUS to the Sheriff of the City and County of San Francisco, holding petitioner under judgment of the Police Court of said city and county. George H. Cabaniss, Judge.</p>

<p>Prior Foreclosure—Parties—Second Mortgage—Statute of Limitations.—The right of a second mortgagee to rely upon the statute of limitations as against a prior mortgagee who • foreclosed Ms mortgage and became a purchaser thereunder without making the second mortgagee a party, cannot be affected by any agreement or act by and betweeen the mortgagor and first mortgagee alone, to which the second mortgagee was not a party, and is the same as if nq foreclosure of the prior mortgage had been had.</p> <p>. Id.—Objection to Evidence—Bar of Statute.—Where the first note and mortgage were barred at the time of an answer of the prior mortgagee setting up the prior foreclosure, the second mortgagee had the right, when the prior judgment oí foreclosure was offered in evidence, to avail himself of the 'bar of the statute, by way of objection to the introduction of such evidence.</p>

<p>Criminal Law—Beview upon Appeal.—Ho appeal lies in a criminal case from the verdict, or from a motion in arrest of judgment; and a motion for a new trial and an exception to an order denying the same, which are not authenticated in the hill of exceptions aa required hy rule 29 of this court, cannot he reviewed upon appeal.</p> <p>Id.—Grand Larcent—Instructions—Definition of Offense.—Upon a charge of grand larceny in stealing calves, it is not prejudicial or injurious to the defendant to give an instruction defining grand larceny in the language of the statute, where the jury were told that they could convict the defendant only if they believed from, the evidence beyond a reasonable doubt that he had done the specific thing charged, or aided and abetted the same.</p> <p>Id.—Aiding and Abetting Offense.—There was no error in the instruction in using the words “or aided and abetted.” One who aids and abets an offense is a principal.</p> <p>Id.—Cautionary Instructions—Befusad of Bequest.—It was not error to refuse to give an instruction in the language of subdivision 4 of section 2061 of the Code of Civil Procedure, “That the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution.” [Beatty, C. J., dissenting.]</p>

<p>Vendor and Purchaser—Sale op Option to Purchaser—Assignment by Purchaser—Rejection op Title by Assignee—Recovery op Deposit.—A contract granting an exclusive option to purchase land to the purchaser, and to his heirs and assigns, and agreeing to extend the time therefor in consideration of a total deposit amounting to five hundred dollars, and making the purchaser the exclusive judge of the title, and agreeing to credit said sum upon the purchase price if the property were purchased, and to return the deposit if the title were rejected, is assignable, and the right to pass upon and reject the title in good faith and to recover the deposit passed to the assignee of the purchaser, in the absence of anything to indicate peculiar trust or confidence reposed by the vendor in the purchaser. [McFarland, J., and Henshaw, J., dissenting.]</p> <p>Id.—Assignment op Whole Interest—Notice—Estoppel op Vendor. ■—The assignment of the interest of the purchaser imports an assignment of his whole interest, including his right to pass upon the title, and where the vendor, after notice of the assignment, delivered his certificate of title to the assignee, the vendor is estopped to deny the assignability of the particular stipulation in reference to passing upon the title, as well as the other portions of the contract.</p> <p>Id.—Presumption as to Good Faith—Answer.—It will not be presumed that the assignee of the purchaser acted in bad faith in rejecting the title, but it will be presumed that he did so in good faith, because the title was defective and not marketable, where the vendor does not allege and show the contrary.</p>

The facts are stated in the opinion of the court. Johnston & Jones, Frank Kauke, and S. C. St. John, for Appellant. The legislature has power to place limitations on the amount of fees which a justice of the peace may retain.

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

<p>SUGGESTION of Respondent for diminution of record upon appeal from an order of the Superior Court of the County of Riverside granting a new trial. J. S. Noyes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Santa Clara County and from orders denying motions for new trial and in arrest of judgment. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion.</p> <p>Louis P. Boardman, George P. Carroll, and G. A. Whitehurst, for Appellant.</p> <p>U. S. Webb, Attorney-General, George A. Sturtevant, Deputy Attorney-General, and James H. Campbell, District Attorney, for Respondent.</p>

MOTION to dismiss a Writ of Certiorari from this court to the Superior Court of the City and County of San Francisco. Thomas F. Graham, Judge.

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

<p>Criminal Law—Bape—Beview upon Appeal — Instructions — Presumptions.—Upon appeal from a conviction for rape, where the attack is upon the instructions given by the court, and no statement of the case or bill of exceptions embodying the evidence is in the record, it must be presumed, in considering the instructions, that they were pertinent to the evidence; and all reasonable presumptions in this regard must be indulged to support them.</p> <p>Id.—Beview op Instruction Assuming Fact.—In the absence of the evidence it will be presumed upon review of an instruction assuming as a fact that the drawers of the prosecutrix were thrown through a window, at the time of the commission of the offense relied upon, that such fact was undisputed or admitted.</p> <p>Id.—Selection op Particular Act—Circumstances—Instruction as to Time.—"Where an instruction showed that the prosecution having proved several acts cf sexual intercourse with a female under the age of consent, had selected, as the offense charged, a particular act committed at a particular house, at the time when the drawers of the prosecutrix were thrown through the window, it having been selected by reference to circumstances rather than the date, it was proper in the instruction to charge the jury that the prosecution had made out its case if it established the crime according to the circumstances, as having been perpetrated upon any day within three years prior to the filing of the information.</p> <p>Id.—Refusal of Instruction as to Verdict—Presumption.—In support of the action of the court in refusing an instruction that the jury might convict of the crime alleged or of the lesser crime of an assault with intent to commit rape, the refusal being based on the alleged ground that the case was not one of force or assault, it will be presumed, in the absence of the evidence, that upon the evidence a verdict of guilty or not guilty was the only verdict which could properly be rendered in the case.</p> <p>Id.—Refusal of Instruction as to Corroborative Evidence.—The refusal of an instruction upon the subject of corroborative evidence, which admonished the jury of the danger of a conviction upon uncorroborated evidence, was justified both on the ground that it was argumentative and in the nature of a special plea, and upon the ground of a presumption, in the absence of the evidence, that the instruction was not applicable to the facts.</p> <p>Id.—Instruction to Disregard Evidence—Absence of Evidence.—An instruction to the jury to- disregard testimony concerning the fact of sexual intercourse by the defendant with other little girls cannot justify a reversal of the case, in the absence of the evidence. In such absence a statement in appellant’s brief that this was an attempt to cure a gross error made in admitting the evidence over defendant’s objection cannot be accepted; nor can it be known to this court whether the court’below was not right in its first ruling and wrong in its direction to the jury.</p> <p>Id.—Refusal of Instruction—Absence of Outcry—Presumption.— In the absence of the evidence it will be presumed that the court properly refused as inapplicable to the facts an instruction requested by the defendant that the jury should consider the fact that the prosecuting witness made no outcry at the time of the alleged rape, and concealed the fact for a considerable length of time thereafter. It will be presumed in justification of the court’s refusal that the rape was not committed by force or violence, but was committed upon a female actually consenting who by reason of her tender years was incapable of legal assent.</p>

<p>The facts are stated in the opinion.</p> <p>M. Walter Dinkelspiel, J. M. Mannon, Jr., and Benjamin I. Block, for Appellant.</p>

<p>Vendor and Purchaser — Contract of Sale — Misrepresentation — Defective and Litigated Title—Rescission—Recovery of Purchase Money.—Vendors are presumed to know the condition of their own title, and where they represented at the time of a contract of sale that they had a good marketable title, which representation was untrue in fact, the title being then defective and involved in litigation, the purchaser had the right to rely upon the representation in making payments, and upon discovering the defective and litigated character of the title had the right to rescind the contract of sale and recover back the purchase money paid.</p> <p>Id.—Rights of Purchaser.-—The purchaser, having contracted for a present marketable title, was not bound to take a title perfected after suit brought, and more than four years after the date of the contract; nor was he bound to take steps himself and incur expense for the purpose of correcting the title, or obtaining a title which the vendor did not possess.</p> <p>Id.—Actual Fraud—False Statement—Belief of Truth Immaterial. —Actual fraud is committed where one, with intent to induce another to enter into a contract, makes a positive assertion in a manner not warranted by the information of such person, of that which is not true, even though he believes it to be true. A party will always be held to make good his statement in the form in which he makes it.</p> <p>Id.—Lands Erroneously Patented-—Title in Government—Protection of Bona Fide Purchasers.—Where the defendant’s title primarily depended upon the title of a railroad company to lands erroneously patented, the title to which remained in the United States as the result of litigation, but it appeared that bona fide purchasers from the railroad company were to be protected under regulations of the secretary of the interior, involving expense to obtain a patent, the purchaser was not bound to incur such expense, nor to prove that his grantors were bona fide purchasers under such regulations.</p> <p>Id.—Defective Title not Waived—Unauthorized Record of Deed.— Where a deed tendered by the vendors was sent by the purchaser to CXLIV. Cal.—20 a title-insurance company in answer to a request for a correct description of the land, and the purchaser subsequently requested the company to have the title examined and draw upon him for the balance of the purchase money “as soon as the title should be examined and found to be clear and marketable,” the purchaser did not thereby authorize the record of the deed .by such company, and did not by such record waive a defective and unmarketable title which he never intended to accept or take.</p>

<p>APPEAL from a decree of the Superior Court of Sacramento County distributing the estate of a deceased person. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion of the court. George D. Blake, E. C. Bower, and Edwin A. Meserve, for Appellant. Appellant has the prior lien under the notice of lis pendens (Code Civ. Proc., sec. 409; McNamara v. Oakland B. and L. Assn.; 132 Cal. 247; Sun Ins.

<p>Irrigation Districts—Bonds—Invalid Provision for Security.—That portion of section 17 of the Wright Act, as amended March 11, 1893, (Stats. 1893, p. 175,) which provides for the power of the board of directors of an irrigation district to pledge by mortgage, trust deed, or otherwise, all of the property of the district as additional security for the payment of its bonds, is unconstitutional and invalid.</p> <p>Id.—Construction op Statute.—Such statutory provision cannot be construed as authorizing a change in the custodian of the public use, leaving the use itself and the rights of the land district unaffected; but, in the absence of qualifying expressions, the provision necessarily implies the right of foreclosure and sale in the ordinary way.</p> <p>Id.—Powers not to be Delegated.—To convey in addition to the legal title to the property the statutory powers of the board to the possession and management of the water system and other property of the district would contravene section 13 of article XI of the constitution forbidding the delegation of such powers.</p> <p>Id.—Construction op Constitution — “Municipal Corporations.”— Section 13 of article XI of the constitution must (with section 12 of the same article) be construed as applying equally to public or municipal corporations, such as irrigation districts, as to ordinary municipalities or cities. The term “municipal,” as commonly used, is appropriately applied to all corporations exercising governmental functions, either general or special.</p> <p>Id.—Irrigation Districts — How Classed.—Irrigation districts with respect to their public functions are to be classed with public corporations; but with regard to the private rights of the individual landowners, they are to be classed as private corporations.</p> <p>Id.—Protection op Bights op Landowners—“Due Process op Law” —Powers op State.—The state legislature has not an unlimited constitutional power to dispose absolutely of the property of all public or municipal corporations, and where, in the ease of irrigation districts, the legal title is vested in the district only in trust for the landowners as beneficiaries, the rights of such landowners are private rights within the protection of section 13 of article I of the state constitution and section 1 of the fourteenth amendment to the constitution of the United States, prohibiting that any person shall be deprived of his property without “due process of law.”</p> <p>Id.—“Obligation of Contracts” — Federal Constitution.—The act providing for the organization of the district, and its organization thereunder by the vote of the electors, must be regarded as a contract between the state and the individuals whose property is affeeted; and the provision in question conflicts with section 10 of . .. article I of the federal constitution forbidding the enactment by the state of any law “impairing the obligation of contracts.”</p>

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

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

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

<p>Specific Performance—Contract for Oil Stock—Performance by Plaintiffs—Findings—Conflicting Evidence.—In an action to enforce specific performance of a contract for one hundred thousand shares of the capital stock of an oil company, in consideration of the sinking of an oil-well as stipulated, where the judgment was for the plaintiffs, and the court found upon conflicting evidence that the plaintiffs had duly performed all the conditions of the contract on their part to be performed, and had finished and operated the well as stipulated, and that oil was not found therein in paying quantities, the findings cannot be disturbed upon appeal.</p> <p>Id.—Failure to Keep Out Water.—Where there was no provision in the contract that the plaintiffs should keep the water out of the well, and it appeared that the plaintiffs used proper and necessary casing, and used diligent effort to keep out the water, which they were unable to do by reason of the porous character of the shale, the failure to do so does not tend to show that the contract was not completed when it was complied with in every respect called for by the contract.</p>

<p>Quieting Title—Action against City—Defense—Lien for Delinquent Taxes—Statute of Limitations—Extinguishment of Lien. —In an action to quiet title against a city, a defense of a lien for delinquent taxes cannot be sustained where the right of action for the collection of the taxes is lost under the statute of limitations. In such case the lien therefor is extinguished under section 2911 of the Civil Code.</p>

The complaint alleged that the defendant carried on the business of selling liquor without a license from the first day of April, 1902, to find including the thirtieth day of June following, after having refused to take out the license-fee of fifty dollars therefor, as required by the ordinance pleaded, and demanded judgment therefor.

<p>The facts are stated in the opinion.</p> <p>James Burdett, William P. James, and William M. Northrup, for Appellant.</p> <p>Stephens & Stephens, and Charles Lantz, for Respondents.</p>

<p>Street Assessment—Eights op Property-Owner.—While the property-owner against whom an action is brought to foreclose the lien of a street assessment may demand that all requirements of the law must have been followed, the law itself should not be frittered away by sustaining objections to trivial irregularities and slight negligent omissions of public officers, not including anything material.</p> <p>Id.—Resolution op Intention—Expense Made Chargeable on District—Size not Jurisdictional—Lots Fronting on Street.—The fact that the resolution of intention declares that the work was “of more than local and ordinary public benefit,” and that the expense was made chargeable on a district, the size of such district is not jurisdictional; and the Vrooman Act does not make it mandatory on the city to establish a district of larger area than that of lots fronting on the streets improved.</p> <p>Id.—Omission op Lots prom Assessment.—Under any view, the omission of lots from an assessment does not make the assessment void.</p> <p>Id.—Waiver op Objections to Extent op District.—Parties who have not availed themselves of the remedy provided by the statute by filing written objections to the extent of the district within the time therein provided, to be laid before the council by the clerk, and to be passed upon by the council, and who have allowed the work to progress and be completed, without such objections, cannot thereafter be heard to object to the extent of the district in an action to enforce the lien of an assessment.</p> <p>Id.—Failure to Include Other Lots — Fourteenth Amendment— Violation not Shown.—Where there is nothing in the record to show that lots not included in the district should have been in-eluded therein, and all objections to its extent have been waived, it does not appear that any excessive or unjust burdens were placed upon the lots assessed, in violation of the principle of equality declared by the fourteenth amendment to the constitution of the United States.</p> <p>Id.—Street-Improvement Bonds—“Estimates” of Engineer — Construction of Statute.—Under section 2 of the Street Improvement Bond Act of February 27, 1893, providing that serial bonds may be issued when the council find, “upon estimates of the city engineer,” that the cost will exceed one dollar per front foot, etc., the use of the plural number does not require that the city engineer shall go into detailed “estimates,” but the clear meaning of the statute is, that the city engineer should inform the council what his estimate is of the cost of the proposed work per front foot.</p> <p>Id.—Validity of Bonds not Involved—Notice by Owner.—The question of the validity of the street-improvement bonds is not involved in an action to foreclose an assessment against an owner who has notified the treasurer in pursuance of the statute that “he desires no bonds to be issued for the assessments on his land.”</p> <p>Id.—Certificate of City Engineer—Validity—Assistance to Street Superintendent—Contents Immaterial.—A certificate of the city engineer as to the quantum of the grading, and that the work was done in accordance with the lines and grades, is not defective because it does not state that the engineer examined the work or measured it. The engineer is not required by law to make a certificate, except where the owner of the lot does the work. In other cases his certificate is merely to assist the superintendent of streets, who must determine whether the work has been satisfactorily performed; and if the certificate satisfies him, it cannot be defective, and its contents, though recorded, are not material to the validity of the lien.</p> <p>Id.—Lien of Assessment Paramount to Prior Lien of Mortgage.— A lien for public taxes and assessments is upon the property, and is paramount to all liens acquired by personal contract; and the lien of an assessment for a street improvement is superior to the lien of a prior mortgage upon the property assessed.</p> <p>Id.—Change of Grade of Part of Street—Appellant not Injured.— Where a petition for the change of grade of part of a street included a majority of the owners of land which at the time of the petition was to be affected by the proposed change, which change was effected prior to the assessment proceeding, its sufficiency, conceding that it can be considered in this case (which is doubtful), cannot be affected by the fact that subsequently the council created a larger district for the purpose of assessment. The owners of lands fronting on such changed grade cannot be injured by having their burdens lightened as against other owners elsewhere in the district, who do not appeal.</p> <p>Id.—Remedy by Appeal to Council.—If the change of grade was invalid, the grade remained as originally established, and appellants’ remedy, on that supposition, would be an appeal to the council under section 11 of the Yrooman Act from the acceptance of the work by the city engineer.</p>

<p>Bonds for Municipal Improvements—San Francisco Charter—Title of Ordinance.—The provision in the charter of the city and county of San Francisco that “an ordinance shall embrace but one subject, which shall be expressed in its title,” is directory. But an ordinance providing for the issuance, sale, and redemption of bonds in an aggregate sum, distributed specifically in the title, in aid of ten specified municipal improvements, embraces but one subject— that of the incurring of a bonded indebtedness for specified distinct purposes, all of which are properly set forth in the title and in the ordinance itself, and all of which are germane to the general subject submitted to the voters—the expediency or inexpediency of bonding the city for specified public improvements.</p> <p>Id.—Bonds for Sewer System—Construction of Charter.—All of the provisions of the charter upon the subject of a sewer system are to be considered as a whole, and to be construed harmoniously. A provision for a special fund for “the construction of a general system of drainage and sewerage” does not constitute an exclusive mode by which sewers may be constructed in the city. The phrase “improvement or improvements” includes the construction of sewers, and the provision in the charter for submitting to the voters the question of a bonded indebtedness for an “improvement or improvements,” in the emergency specified, authorizes the submission of the question of “bonds for the construction of a sewer system,” where the expenditure proposed will exceed the amount annually provided by taxation for the special fund.</p> <p>Id.— Bonds for Parks for Children’s Playgrounds.— The right being unquestioned to provide for bonds for the acquisition of lands for park purposes, it is a legitimate part of park purposes to acquire “lands for public parks to be used as children’s playgrounds.”</p> <p>Id.—Bonds for Schoolhouses—• “Municipal Affair” — Effect of Charter—General Improvement Act.—The issuance of bonds for the repair of existing schoolhouses and for new schoolhouses is for a “municipal affair,” within the meaning of section 6 of article XI of the constitution. Schoolhouses are municipal buildings, and their erection is within the functions of municipal government. The charter provisions for a bonded indebtedness for municipal improvements, including schoolhouses, must prevail on that subject over the General Improvement Act of 1891, so far as there may be any conflict between them.</p> <p>Id.—Election for Acquisition of Land—Construction of Charter.— The charter provisions in regard to an election for the acquisition of land must be construed in harmony. The provisions of section 21 of chapter 1 of article II of the charter, in reference to submitting to the voters an ordinance for the purchase of land exceeding fifty thousand dollars in value at the ensuing municipal election, contemplates a specific purchase of particular land with available funds, and the submission merely of the question of the wisdom and propriety of buying the land. Those provisions do not conflict with the provisions of section 29 of article XVI of the same charter for a special election for a bonded indebtedness for the acquisition of any land or lands in the case specified therein.</p> <p>Id.—Amount op Bonded Indebtedness—Percentage op Appraisement. —A provision for a bonded indebtedness in the total amount of $17,771,000 cannot violate the charter provision preventing such indebtedness in an excess of fifteen per centum of the assessed value of all real and personal property, where it appears that such assessed value exceeds $420,000,000, and that the municipality has no other bonded indebtedness. •</p> <p>Id.—Immaterial Variance—Change in Denominations op Bonds— Charter not Violated.—-Where the same number of bonds of all denominations appears in the ordinance providing for a special election, and in the subsequent ordinance for the issuance, sale, and redemption of the bonds, the fact that in some instances the denominations of the bonds were changed in the latter ordinance, though in no instance did the denominations fail to conform to the requirements of the charter that no bonds shall be issued of a less denomination than ten dollars or greater than one thousand dollars, the variance is immaterial.</p> <p>Id.—Failure op Requsite Vote upon One Bond Issue—Others not Appected.—Under the charter of the city and county of San Francisco a bond issue for a special purpose fails if the requisite vote of two thirds of all the electors voting at the special election were not east therefor, notwithstanding more than two thirds of the electors voting upon that particular question were cast in its favor. But the failure of one bond issue to carry does not affect the validity of the others which received the requisite number of votes.</p>

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

<p>Sale of Carload of Lemons—Agreed Prices—Commissions—Factor —Obligations Imposed by Contract.—Where the authorized agents of the defendant corporation agreed with the plaintiff in this state to take from him a carload of lemons at prices agreed, for the purpose of carrying into effect a sale made by defendant’s agent at a city in another state, and agreed upon its delivery of the lemons thereat, to account to plaintiff for them, after deducting an agreed commission, though the defendant was not in the transaction within the technical definition of a factor, yet its relation to the plaintiff, after delivery to it of the lemons, as directed, was substantially that of a factor.</p> <p>Id.—Performance by Plaintiff—Breach by Defendant.—The contract of sale was performed on plaintiff’s part when he delivereo the carload of lemons as directed by the defendant; and as the lemons were delivered to it for a special purpose, it was not at liberty to divert them from that purpose and ship them to another point without plaintiff’s consent, and by so doing it broke its contract with the plaintiff.</p> <p>Id.—Action fob Breach—Recovery of Value.—Where the defendant, by its breach of the contract, caused the lemons to be sold for less than the cost of their transportation, the plaintiff was entitled to recover from the defendant the value of the lemons as damages for such breach. I</p> <p>Id.—Agency fob Corporation — Functions of Secretary — General. Manager.—Where the evidence shows that the functions of the' secretary of the corporation defendant were not limited as such, but included nearly all of the functions of a general manager of the business, there appearing to be no other person charged with the management of its affairs, the action of such secretary in making the contract with plaintiff on behalf of the defendant corporation was binding upon it.</p> <p>Id.— Express Delegation of Authority not Required — Circumstances to Be Considered.—The question whether the corporation defendant is bound by the transaction of the plaintiff with its secretary acting as manager, does not depend upon the presence or absence of any express delegation of authority to him or resolution therefor by its board of directors, but is to be determined upon a consideration of all the circumstances connected with the transaction, including the relation of the defendant to subordinate fruit exchanges, the mode in which the fruit exchange defendant ordinarily conducted its business, and the plaintiff’s previous dealings with it.</p> <p>Id.—Use of Subordinate Fruit Exchange—Conflicting Evidence.— Where the evidence of the plaintiff showed that the shipment of the lemons was made through the Orange County Fruit Exchange, a subordinate corporation, for which the manager of the defendant was acting, and was so made by his direction as manager of the defendant, the finding of the court in favor of such evidence, as against conflicting evidence to the contrary, will not be disturbed upon appeal.</p> <p>Id.—Evidence—Market Brice of Lemons—Information—Support of Finding.—The testimony of the plaintiff with reference to the market price of the lemons was not incompetent merely because his knowledge was derived from the information of others, and, in the absence of any other evidence, was sufficient to sustain a finding as to their value. The market price of an article is often shown by reference to published statements of that fact.</p>

<p>Action to Quiet Title and Set Aside Judgment—Pleading—Single Cause of Action.—A complaint to quiet the plaintiff’s title as against the defendant to the land described, and, as incidental thereto, to set aside a former judgment in favor of the defendant quieting his title as against the plaintiff, on the ground of fraud in its procurement, states hut a single cause of action.</p> <p>Id.—Parties—Action by Woman—Sufficiency of Complaint.—In an action by a woman to quiet title, where the complaint alleges that she is the owner in fee of the land, it is not necessary to allege whether she is a married or a single woman. In either ease the plaintiff is authorized by the code to sue alone with reference to her own property.</p> <p>Id.—Direct Attack upon Former Judgment—Fraudulent Procurement.—The attack by the plaintiff upon the former judgment, on the ground that it was procured by fraud, is a direct attack upon the judgment.</p> <p>Id.—Publication of Summons in Former Action—Effect of Judgment—Misdirection of Summons—Want of Notice—Absence of Laches—Equitable Showing.—Although the judgment in the former action was by its recitals a judicial determination of the sufficiency of the service of the summons therein by publication, which was supported by the affidavits of publication and of deposit in the post-office as ordered by the court; and although the court cannot relieve against such judgment merely on the ground that the summons was not directed to plaintiff’s place of residence, in the absence of an equitable showing; yet, where it appears that under a false affidavit of residence the summons was directed to a place where plaintiff never resided, and that she in fact had no notice of the action or judgment until more than one year after it was entered, she is thereby relieved of any charge of laches or negligence during the time within which a motion might have been made to set aside the judgment, and she may show such misdirection and want of notice in support of her equitable action to set aside the judgment, as having been procured by fraud.</p> <p>Id.—Fraud in Procurement of Judgment—Willfully False Complaint—Meritorious Defense—Belief in Equity.—Where it appears that, in addition to plaintiff’s ignorance of the action, the defendant took advantage of plaintiff’s absence from the state, and presented to the court wholly false averments as to his ownership of the property, which were known by him to be false, and thereby procured a judgment quieting his title against the plaintiff, and it appears that the plaintiff was at all times the owner of the property, a meritorious defense to the action is shown, and the judgment so procured was fraudulently obtained, and should be set aside and annulled in equity. To knowingly present to a court a false petition, and to have it acted upon without the knowledge of the adverse party, is a fraud upon the court.</p> <p>Id.—Support of Finding—Knowledge of Falsity—Silence of Defendant — Presumption — Frustration of Plaintiff’s Efforts. — A finding that the defendant knew that the averments of his complaint in the former action were false is a matter peculiarly within the knowledge of the defendant; and when, having the ability to show whether or not the averments were willfully false, he simply stood mute, he must be presumed to have known the state of his own title, and such presumption, and clear proof by plaintiff of the falsity of the averments as to such title, together with reasonable efforts of plaintiff to show that defendant had no plausible grounds for his false averments, which were frustrated by the objections of the defendant, are sufficient to support the finding.</p>

<p>State Lands—Foreclosure op Interest op Purchaser—Publication op Summons.—In an action to foreclose the interest of a purchaser of state lands, where the service of summons upon the defendant is made by publieátion, it may be properly ordered for the period of only four weeks, under section 3549 of the Political Code. As to matters expressly provided for in that section, section 413 of the Code of Civil Procedure, providing for two months’ publication, is inapplicable.</p> <p>Id.—Validity op Appidavit por Publication—Showing op Diligence— Error op Court not Collaterally Assailable.—An affidavit for publication of the summons in such an action, which contains a substantially similar showing of diligence in inquiry to find the defendant within the state without avail, to that involved in former decisions of this court in similar actions, is not void; and though the court may have erred in its finding based thereupon, that defendant is a non-resident of the state, and cannot after due diligence be found therein, its error is not collaterally assailable, and cannot vitiate a judgment by default based upon a proper service of the summons by publication.</p> <p>Id.—Judgment Valid upon Face op Eecord—Motion to Vacate por Want op Jurisdiction—Lapse op Six Years—Inadmissible Evidence.—The judgment foreclosing the interest of the purchaser, being valid upon the face of the record, upon a motion by him to vacate it for want of jurisdiction of his person, made six years after its entry, no evidence dehors the record is admissible to impeach the judgment. A showing that his post-office address'was inserted in his application by the rules of the land office, and that he had never changed his residence, and of other facts assailing the propriety of the service by the publication of the summons, is inadmissible, and cannot affect the ease.</p> <p>Id. — Invalid Part op Judgment — Personal Judgment por Costs — Foreclosure not Vitiated.—An invalid part of the judgment, consisting of a personal judgment for costs of suit and publication, which, it may be admitted, the court had no jurisdiction to render, and which is long since outlawed, cannot affect the validity of the judgment of foreclosure in any other respect.</p>

<p>Dismissal fob Want of Prosecution—Delay in Service of Summons —Excuse—Abuse of Discretion.—In an action upon a judgment in favor of the estate of a deceased person, a judgment of dismissal for want of prosecution, on account of delay in the service of summons of two years and one month, will be reversed for abuse of discretion where it is admitted that the judgment has never been paid, and it was shown as an excuse for the delay that an effort had been in progress between the parties to compromise the judgment, and that the plaintiff feared that the service of summons pending the negotiations would embarrass the settlement.</p> <p>Id.—Discretion, How Exercised.—No definite or fixed rule can be laid down for the exercise of discretion in dismissing a ease for want of prosecution in cases not regulated by statute; but the discretion to be exercised, under the circumstances of the particular case, is a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of substantial justice.</p>

<p>Action to Quiet Title—Order Striking Out Cost-Bill—Jurisdiction upon Appeal.—In an action to quiet title the court has jurisdiction of an appeal from an order striking out a cost-bill in a sum less than three hundred dollars. In all cases, legal or equitable, where this court has appellate jurisdiction of the matter brought in controversy in the lower court, the appealability of an order made before or after final judgment is not controlled or affected by the amount involved in such order.</p> <p>Id.—Bight op Plaintipp to Costs—Equitable Character op Action— Statutory Bight.—The right of the plaintiff in an action to quiet title is not to be determined by the equitable character of the action, or by its form or nature, but depends upon the terms of the statute. Costs are allowed, of course, to the plaintiff in such action upon judgment in his favor, under the terms of section 1022 of the Code of Civil Procedure.</p> <p>Id.—Judgment in Part por Each Party.—Where the plaintiff has any judgment in his favor in an action to quiet title, though it be for only a part of the property, and though the defendant has judgment in his favor for the residue, the plaintiff is entitled, under the terms of the statute, to recover his costs, as of course.</p>

<p>Taxation—Construction or Constitution—Liens upon Land—Solvent Credits—Security upon Wheat Taxed Elsewhere.—Section 4 of article XIII of the constitution is to be construed as having reference only to taxation in the case of liens upon land, and does not apply to personal property. Solvent credits may be taxed by a city to the owner domiciled therein, though secured, by a lien upon wheat situated and taxed elsewhere for full value.</p> <p>Id.—Aids to Construction.—Deference may be had, in aid of the construction given to section 4 of article XIII of the constitution, to the debates had in the constitutional convention upon the adoption of that section, and to the legislative and executive construction thereof", as being entitled to a certain amount of persuasive force, and to the universal practice of assessors.</p>

<p>Mining Claims—Location of Oil-Lands—Discovery—Eight of Transfer.—Though mere surface indications, such as seepage of oil, is ordinarily not a sufficient discovery to support a mining location of oil-lands, and oil must be actually discovered within the limits of the claim, yet it need not be discovered prior to the location. A discovery subsequently made will relate back to and perfect the location, except so far as the rights of others may have intervened; and the rights of the locators are the subject of sale and transfer as well before as after discovery.</p> <p>Id.—Protection of Bona Fide Locators—Active Work toward Discovery.—The prior locators of oil-lands who are in actual possession thereof, engaged in active work in erecting buildings, derricks, and machinery for the purpose of drilling a well to discover oil thereon, are protected against any clandestine subsequent entry and location of the same ground made prior to the actual discovery of oil therein.</p> <p>Id.—Prior Discovery upon Adjoining Claim—Consolidated Location —Interference with Bona Fide Claimants.—A prior discovery upon an adjoining claim which perfects a prior location of eighty acres of oil-lands cannot he used to support a consolidated location of the whole one hundred and sixty acres so as to interfere with the first locators of the adjoining eighty acres, who are in possession, by their lessees, preparing to drill a well in good faith, with proper diligence, for the purpose of discovering oil, when the consolidated location is made.</p> <p>Id.—Action to Quiet Title—Burden upon Plaintiffs.-—The plaintiffs in an action to quiet title to lands in controversy must recover, if at all, upon the strength of their own title; and in such an action by the consolidated claimants against the prior locators in possession of the oil-lands sued for, judgment was properly rendered for the defendants upon the facts.</p>

<p>The facts are stated in the opinion.</p> <p>E. R. Bush, District Attorney, for County of Yolo, Appellant.</p>

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

<p>Water-Rights—Tenancy in Common in Water-Ditch—Proportion or Flow.—Where no special or other agreements have existed among the owners of a ditch, and of the flow of water therein, as to their proprietary rights constituting them something else, they are tenants in common, and their rights are governed hy the rules of law regulating tenancy in common. Evidence that each is entitled to a certain proportion of the flow of the water in the ditch does not show sole ownership or disprove a tenancy in common.</p> <p>Id.—Abandonment of Appropriation—Evidence of Verbal Sale.— Though evidence of a verbal sale and transfer of an appropriated water-right by defendant’s grantor cannot prove title in the vendee* it is admissible as a declaration against interest, and as showing an abandonment of the water-right ipso facto, to defeat the subsequent conveyance to the defendant.</p> <p>Id.—Effect of Abandonment — Water Publici Juris — Subsequent User by Vendee and Associates—Title by Appropriation.—The. vendor’s share of the water, by his own act of verbal sale, became publici juris, and open to appropriation; and though the sale conferred no title on the vendee, the subsequent exclusive user of all the-water by him and his associates and their successors, the plaintiffs, under a claim of right^ was an appropriation thereof which conferred title upon them.'</p> <p>Id.—Adverse User by Defendant—Support of Finding.—Where the defendant claimed the acquisition of a subsequent title by adverse user, but the evidence is conflicting, and there is abundant evidence to show that her use was neither uninterrupted, nor continuous, nor open, nor with plaintiffs’ acquiescence, the finding of the court against such adverse user is sufficiently supported.</p>

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

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

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

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

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

<p>■Fraudulent Conveyance to Non-Resident—Action by Defrauded Creditor—Publication of Summons.—Real estate situated within this state, and fraudulently conveyed to a non-resident for the purpose of defrauding the creditors of the grantor, may be reached in an action by one who shows himself to be a defrauded creditor, by constructive service of the summons upon the non-resident grantee by due publication thereof.</p> <p>Id.—Effect of Conveyance—Allegation and Proof of Indebtedness Essential.—The fraudulent conveyance is good as between the parties, and as to all persons except the creditors thereby defrauded; and in an action to set it aside it is essential that a plaintiff bank should allege and prove that it was a creditor of the grantor before it will be allowed to question the conveyance.</p> <p>Id. — Insufficient Averment, Proof, and Einding — Void Personal Judgment against Non-Resident.—Where there is no allegation, evidence, or finding that the plaintiff was a creditor of the grantor, and the only allegation, evidence, and finding are, that the plaintiff procured a mere void personal judgment against the non-resident grantor, under an order for publication of summons, and personal service upon him out of the state, which is only the equivalent of publication, a judgment setting aside the fraudulent conveyance in favor of the'plaintiff must be reversed.</p> <p>ID.—Judgment In Rem—Attachment—Personal Judgment.—A judgment in rem may be obtained against property within the jurisdiction of the court belonging to an absent non-resident, or where the property of the non-resident is attached the court may in the suit dispose of the seized property against the non-resident; but it cannot go farther and render a personal judgment against him, except one which can be enforced as to the seized property against such non-resident.</p> <p>Id.—Action by General Creditor of Non-Resident Grantor—Exception to Rule Requiring Judgment.—An action may be maintained by a general creditor of a non-resident grantor to set aside his fraudulent conveyance to a non-resident grantee. Such an action is a clear exception to the general rule which requires a previous reduction of the claim to judgment, for the reason that no personal judgment can be obtained against the non-resident grantor.</p>

<p>Action by Corporation—Lease of Oil-Lands by Treasurer—SubLease—Beal Party in Interest—Parol Evidence.—Where a corporation, by its treasurer, acting as its agent, took a lease of oil-lands in the name of its treasurer, who described himself as treasurer of the corporation, and by its treasurer, in the same manner, made a sub-lease of a part interest to the defendant, who agreed to comply with the conditions of the original lease in drilling for oil, and broke his contract, an action for damages for such breach may be brought by the corporation as the real party in interest in both contracts, and parol evidence is admissible to show that the defendant knew that he was dealing with the plaintiff through its treasurer as its agent.</p> <p>Id.—Sufficiency of Complaint—Exhibits.—A complaint by the corporation averring that the lease to it set forth as an exhibit was taken by its treasurer for and on behalf of the plaintiff, which was the real party in interest, and that this fact was well known to the lessor when the lease was executed, and also averring that at the time of the sub-lease by its treasurer to the defendant, also set forth as an exhibit, defendant well knew that plaintiff was the party in interest, and that the same was executed by its treasurer as such, and setting forth the breach of its covenants by the defendant and the resulting damages, both liquidated and actual, in separate counts,</p> <p>. states a cause of action.</p> <p>Id.—Surplusage—Assignments by Treasurer—B-atification of SubLease.—Averments in the complaint that the lease and sub-lease were assigned by the treasurer to the corporation, and that at the time of the sub-lease the defendant knew that the lease had been' so assigned, are matter of surplusage and immaterial. A statement in the sub-lease that It had been ratified by two thirds of its stockholders is also surplusage and immaterial, and the statement in the pleading that the corporation made contracts not on their face Mitra vires is a sufficient averment of such fact.</p> <p>Id.—Counts for Liquidated and Actual Damages—General Demurrer.—Where the complaint contained two counts, one for liquidated damages, in the sum of five hundred dollars, fixed by the contract, and the other for actual damages resulting from the breach of the contract, in a larger sum, the sufficiency of the contract to sustain liquidated damages is not reached by a general demurrer to the complaint, in absence of any special demurrer to the first count on that ground.</p> <p>I'd.—Contract to Drill Oil-Wells—Preservation of Future Interests—Liquidated Damages.—A contract by a sub-lessee to drill oil-wells and develop and extract petroleum within a specified time, and to comply with all the terms and conditions of an original lease to the sub-lessor, in order to preserve future interests of the sub-lessor in oil-lands, under the terms of the original lease, which may be lost by breach of the contract, is such that, in the nature of the ease, it would be impracticable or extremely difficult to fix the actual damages, and liquidated damages for such breach may be properly provided for therein.</p>

<p>PETITION for Writ of Certiorari to review orders 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>James A. Gibson, William J. Hunsaker, and Hunsaker & Britt, for Petitioners.</p>

PETITION for a Writ of Certiorari to review orders of the Superior Court of San Diego County. E. S. Torrance, Judge. The facts of the case are identical with those stated in the case of J. M. Elliott et al. v. Superior Court etc. et al., ante, p. 501.

<p>Mining Corporations—Disposition op Mining Ground—Batipication by Two Thirds op Stockholders—Constitutionality op Statute —Bule op Property.-—Section 1 of the statute of April 23, 1880, in relation to mining corporations, which requires a ratification by two thirds of the stockholders in order to insure the validity of any disposition of its mining ground, is constitutional, and its validity has become a rule of property under the previous decisions of this court affirming it.</p> <p>Id.—Construction op Statute—Benefit op Actual Stockholders— Assignment por Benefit op Creditors—Ownership op Stock by Directors.—The statute of April 23, 1880, is to be construed as intended primarily for the benefit of actual owners of stock, rather than creditors of the corporation, and the consent of two thirds of such actual owners, and not of those who appear to be such, is required to validate an assignment for the benefit of the creditors of the corporation. If the directors consenting to such assignment then owned two thirds of the stock, such consent, though given in their capacity as directors, is, at least as against such creditors, equivalent to a subsequent ratification.</p> <p>Xd.—Assignment Prior to Judgment.—"Where the assignment for the benefit of creditors of the corporation antedates a judgment against the corporation, if the assignment is valid, the judgment became no lien upon the property, and a deed under the assignment is a complete defense to a sheriff’s sale under the judgment.</p> <p>Id.—Waiver of Objections by Creditors to Assignment.—As a general rule, apart from the provisions of the code as to the validity of an assignment for the benefit of creditors, creditors who prove and file their claims thereunder in the manner prescribed by law thereby waive all objections to the regularity of the assignment and to the title of the assignee to the assets.</p> <p>Id.—Estoppel as to Mining Ground.—Though creditors who have filed their claims are not estopped to deny the validity of an assignment by the corporation of its mining ground for their benefit during such time as it may be unra'tified by its stockholders, yet if they allow their claims to remain on file until after a sufficient ratification, the waiver and estoppel to deny its validity thereafter is the same as if it had been originally authorized by two thirds of the stockholders.</p> <p>Id.—Waiver and Estoppel as to Judgment Lien—Ratification of Assignment—Conveyance of Mining Ground by Assignee.—Where the assignee of certain claims of creditors, which were duly proved and filed under the assignment for the benefit of the creditors of the corporation, sued upon the claims, and obtained a judgment, which was docketed after the date of the assignment, and the assignee subsequently treated the claims as unsecured and remaining on filo as such until after a formal ratification of the assignment by the stockholders, and thereafter until after the assignee of the corporate property, who had remained in possession of the mining ground from the date of his appointment, conveyed it to a purchaser, any claim of lien of the judgment was thereby waived as against the purchaser, and the claimant thereof was estopped to deny the purchaser’s title or to enforce the claimed lien by a subsequent sheriff’s sale of the mining ground.</p> <p>Id.—Effect of Suit upon Claims—Right of Creditors to Sue.—The suit on the claims cannot be considered as a repudiation or withdrawal of the claims. There is nothing forbidding such suit in the statute or in the assignment; and the creditors had the right to sue on the claims after they were filed and allowed, and to collect the judgment recovered out of any property not covered by the assignment.</p> <p>Id.-—Rights of Purchaser—Inadequacy of Price.—The purchaser at the assignee’s sale had the right to take the conditions existing at the time of the purchase as the measure of his rights and of the claims and rights of other parties to the assignment; and having presumably made the purchase on the faith of those conditions, the other parties to the assignment should not be allowed to change their relations to his prejudice. The fact that he obtained the property at a low or inadequate price cannot justify the court in treating the purchase as invalid.</p>

PETITION for Writ of Mandate to John J. Greif, County Clerk, and to the Superior Court of the City and County of San Francisco. John Hunt, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion.</p> <p>T. M. McNamara, Goodrich & McCutchen, and Calvin Edgerton, for Appellant.</p>

<p>PETITION for Writ of Mandate to compel the Judge of the Superior Court of Los Angeles County to settle a statement on motion for a new trial. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court</p>

<p>Abatement or Nuisance — Injunction — Equitable Jurisdiction— Construction oe Constitution.—Whether an action to abate a nuisance, and for an injunction to prevent it, is referable to the clause of the constitution giving the superior court jurisdiction “in all eases in equity,” or to the clause giving it jurisdiction of “actions to prevent or abate a nuisance,” is immaterial so far as its equitable jurisdiction of such an action is concerned. The prevention or abatement of a nuisance is to be accomplished by means of an injunction either prohibitive or mandatory, and an action therefor is within the equitable jurisdiction of the superior court, and is to be governed by the prinicples prevailing in that jurisdiction.</p> <p>Id.—Jury Trial—Issue oe Damages—Advisory Verdict—Disregard by Court.—Neither the constitution nor the statute gives to a party to such an action the right to a jury trial. Where a jury was called therein to pass upon an issue as to damages claimed, its verdict thereon is merely advisory and may be disregarded by the court, which may upon sufficient evidence find and render judgment in favor of the damages prayed for. The prayer for damages is incidental to the relief sought; and as the action is properly brought in a court of equity, it will determine all the issues in the case.</p> <p>Id.—Sufficiency of Evidence—Absence from Record—Presumption upon Appeal.—Where the evidence is not set forth in the record upon appeal, and there is no specification of insufficiency of the evidence to support the finding of the superior court upon the issue as to damages, this court must assume that the superior court was justified in disregarding the verdict of the jury and making its findings in accordance with the evidence upon that issue.</p> <p>Id.—Abatement of Nuisance by Act of Defendant—Findings—Judgment for Damages—Costs—Discretion of Court.—Where the findings showed that prior to and at the commencement of the action, and up to the time of the trial, the defendant maintained a nuisance, and that plaintiff had sustained damages in the sum of fifty dollars, for which judgment was given, and also found that pending trial the defendant had abated the nuisance by its own action, for which reason a judgment of abatement and injunction was properly withheld, the action did not by such act of the defendant cease to be of equitable jurisdiction, and the court had disereation to award costs to the plaintiff, notwithstanding the amount of the judgment for damages was less than three hundred dollars.</p>

<p>Appeal—Conflict of Evidence—Support of Findings—Law of Case.— Where this appeal presents the same conditions as to a substantial conflict of evidence and the support of the findings of the trial court as existed upon a former appeal, upon which it was held that this court was not justified in disturbing the finding of the lower court then under review, the decision of the court upon the former appeal is controlling in the disposition of the present appeal, although the finding is the other way, upon the same evidence.</p> <p>Id.—Action to Enforce Trust or Lien—Fraudulent Transfer by Agent to Bank—Notice of Equities—Different Trials—Appeals—Change of Findings—Conflicting Evidence.—In an action by the plaintiff to enforce a trust in a vendor’s lien upon lands described in a mortgage fraudulently taken by her agent in his own name and transferred by him to the defendant bank, where it was held upon conflicting evidence upon a former appeal that a finding that the hank had notice of the plaintiff’s equities, was sufficiently supported, a finding upon the same state of conflicting evidence upon another trial that the bank had no notice of the plaintiff’s •equities, must be sustained and controlled by the decision upon the former appeal.</p>

<p>Estates op Deceased Persons—Partial Distribution—Condition op Estate—Commissions and Attorney’s Fees.—A partial distribu-' tion of the estate of a deceased person is justified where it appears to the court that all of the debts of the estate have been paid, that a large sum is in the hands of the executor, that the petitioner is assignee of the widow, that no distribution had ever been before made to the widow or her assignee, and that the sum distributed could be paid without injury to the estate, and that after such payment more than enough would remain in the executor’s hands tp pay his commissions, with a reasonable attorney’s fee, and the charges of closing the estate.</p> <p>Id.—Mode of Determining Commissions and Fees.—The commissions to which an executor is entitled is a matter of pure computation, based on the amount of the estate accounted for by him. The allowance to be made to the attorney for the executor as a reasonable fee is a matter of discretion, and may be determined by the knowledge and experience of the court, without evidence of a professional nature.</p> <p>Id.—Carrying on Business by Executor—Profits to Estate—Controversy not Shown by Becord.—Where it appeared that the executor had carried on the business of the deceased, and had earned profits, which were returned as" part of the estate, this court cannot consider a suggestion of a controversy between himself and respondent as assignee of the sole devisee over the business of the deceased continued by him as executor, determinable only in equity, where no such objection was raised in the lower court or appears in the record upon appeal.</p>

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

<p>Mortgage—Parol Debt—Statute of Limitations—Extinguishment of Lien.—Where a mortgage is given to secure a debt resting merely in parol, which is barred in two years by the statute of limitations, the lien of the mortgage is extinguished by the lapse of that period under the terms of section 2911 of the Civil Code.</p>

<p>CROSS-APPEALS from a judgment of the Superior Court of Santa Barbara County. Prank P. Oster, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>George H. Gould, R. B. Canfield, and William G. Griffith, for Montecito Valley Water Company, Appellant and Respondent.</p> <p>The defendants had no right to injure the plaintiff’s right to the surface flow by subterranean tunnels. (Gould v. Eaton, 117 Cal. 542; City of Los Angeles v. Pomeroy, 124 Cal. 635; Vineland Irr. Dist. v. Azusa Irr. Co., 126 Cal. 486; Proprietors of Mills v. Braintree Water Supply Co., 149 Mass. 478;1 Hart V. Jamaica Pond Aqueduct Co., 133 Mass. 488; Strait v. Brown, 16 Nev. 317;2 Emporia v. Soden, 25 Kan. 588.3) The title of plaintiff by appropriation and prescriptive right is good as against the defendants. (Breon v. Robrecht, 118 Cal. 473;4 Wood v. Etiwanda Water Co., 122 Cal. 157, 158; Langford v. Poppe, 56 Cal. 76; Carpenter v. Natoma Water etc. Co., 63 Cal. 616.) A corporation may acquire a prescriptive title. (Bear River etc. Co. v. New York Mining Co., 8 Cal. 527;5 Stein etc. Co. v. Kern Island etc. Co., 53 Cal. 563; Lakeside Ditch Co. v. Crane, 80 Cal. 181; South Yuba Water Co. v. Rosa, 80 Cal. 333; Gallagher v. Montecito Valley Water Co., 101 Cal. 242; San Luis Water Co. v. Estrada, 117 Cal. 168.) The plaintiff is entitled to enjoin the diversion of the surface flow by defendants till plaintiff’s rights are satisfied. (Hulsman v. Todd, 96 Cal. 231; Hillman v. Newington, 57 Cal. 56; Stein etc. Co. v. Kern Island etc. Co., 53 Cal. 563; Steinberger v. Meyer, 130 Cal. 157; Learned v. Castle, 78 Cal. 454.) The statement of ultimate facts in the opinion of the judge are findings. (Wixson v. Devine, 67 Cal. 342; Meet v. McClure, 49 Cal. 626; Hidden v. Jordan, 28 Cal. 301; Jones v. Block, 30 Cal. 227; James v. Williams, 31 Cal. 211; In re Kingsley, 93 Cal. 576.) A finding of a diversion of six inches of the surface flow cannot be changed by a different finding. (Wunderlim v. Cadogan, 75 Cal. 618; Smith v. Taylor, 82 Cal. 542.) The answer in relation to the Baton tunnel is insufficient to show a prescriptive right. It does not show an adverse user. (American Co. v. Bradford, 27 Cal. 360.) Notice of adverse user is essential.</p> <p>Henley C. Booth, and Thomas McNulta, for City of Santa Barbara, Respondent and Appellant.</p> <p>The corporation plaintiff could not acquire a prescriptive right. The charter is the source of its power in respect to property rights. (Civ. Code, sec. 355; Dillon on Municipal Corporations, 3d ed., p. 562; 4 Am. & Eng. Ency. of Law, 1st ed., p. 230, notes 1, 2; San Francisco v. Spring Valley Water Works, 48 Cal. 493; Smith v. Morse, 2 Cal. 524; Weston v. Hunt, 2 Mass. 502; Vernon Irr. Dist. v. Los Angeles, 106 Cal. 238, 252.) It can obtain title only by actual purchase (Civ. Code, sec. 354), or by condemnation. (Civ. Code, sec. 361.) A prescriptive right cannot be acquired in percolating water. (2 Washburn on Real Property, 70.) Plaintiff’s user was interrupted. (Alta Land etc. Co. v. Hancock, 85 Cal. 227.1) There was no finding of plaintiff’s prescriptive right. (Ball v. Kehl, 95 Cal. 606.) There was a misjoinder of causes of action, and the complaint is multifarious and demurrable. (15 Ency. of Plead, and Prac., p. 180; Boyd v. Hoyt, 5 Paige, 65; Swift v. Eckford, 6 Paige, 22 Emans v. Emans, 13 N. J. Eq. 205.) The evidence shows no certain injury to the plaintiff from the acts of the city. The court did not find upon every issue upon which evidence was introduced, and the judgment must be reversed. (Malone v. Bosch, 104 Cal. 680; Roeding v. Perasso, 62 Cal. 515.) The court could not refer the issues to another action. (Leviston v. Ryan, 75 Cal. 293.)</p> <p>Richards & Carrier, for Charles F. Eaton and others, Respondents.</p> <p>The prescriptive right in the Eaton tunnel was properly pleaded. The averment that the adverse user was uninterrupted was a sufficient averment that it was peaceable. (Code Civ. Proc., sec. 322, 324; American Co. v. Bradford, 27 Cal. 360; Chauvet v. Hill, 93 Cal. 407; Smith v. Hawkins, 110 Cal. 122.) The plaintiff corporation had means of knowledge of the adverse user, and the means of knowledge are equal to notice. (Montgomery v. Keppel, 75 Cal. 131;1 Unger v. Mooney, 63 Cal. 586.2) The knowledge of Gould as an officer of the corporation plaintiff imported notice to the corporation. (Phelps v. Maxwell etc. Co., 49 Cal. 337; Jefferson v. Hewitt, 103 Cal. 624; Balfour v. Fresno Canal etc. Co., 123 Cal. 395.) The finding that defendants are entitled to all the water save 1.43 inches is sufficiently definite. (James v. Williams, 31 Cal. 214; Fogarty v. Fogarty, 129 Cal. 46.)</p> <p>Richards & Carrier, for George E. Coleman and others, Respondents and Appellants.</p> <p>The complaint states no cause of action against these defendants. It does not show that they have any hostile or adverse claim. (Code Civ. Proc., sec. 738; Pfister v. Dascey, 65 Cal. 403.) The plaintiff had the burden of proof to show injury, and the finding and judgment should have been against him. (Speegle v. Reese, 51 Cal. 415; Golson v. Dunlap, 73 Cal. 157; Reviston v. Ryan, 75 Cal. 293; Monterey County v. Cushing, 83 Cal. 507.) The court had no right to refer the issues to another suit.</p>

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

<p>Mechanics’ Liens—Construction of Code.—The Mechanics’ Lien Law is a part of the Code of Civil Procedure, adopted in obedience to the requirements of the constitution. It is remedial in its character, and should be liberally construed, with a view to effect its objects and to promote justice.</p> <p>Id.—Foreclosure of Lien for Materials—Excessive Claim under Contract—Absence of Fraud—Evidence—Harmless Judgment.— A recorded notice of a claim of lien for materials furnished which correctly stated the whole amount due to the claimant, but erroneously, though without fraud, stated it as due under the original contract, whereas a small part thereof was in fact due under an implied contract, is valid and admissible in evidence; and where the judgment foreclosing the lien was confined to the amount actually due under the original contract, it cannot be harmful to the owner appealing therefrom, and should be affirmed.</p> <p>Id.—Place of Delivery of Materials—Support of Finding.—Where the place of delivery of the materials stated in the claim of lien accorded with the finding of the court, held, that although the evidence showed that the materials were, in the first instance, to be delivered on board the cars at respondents’ place of business, yet, taking the evidence altogether, it was fair to find that the materials were to be delivered at the place stated in the claim of lien, where the building was constructed, and were not to be paid for until so delivered.</p> <p>Id.—Finding as to Statement of Demand.—A finding that, so far as the amount included in the original contract and judgment is concerned, the notice of lien contained a true statement of the demand is in accord with the evidence.</p>

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

The judgment was one of nonsuit on the specified grounds that none of the material allegations of the complaint have been proven, that it is not shown that plaintiff performed the conditions on his part to be performed, or that he cared for, kept, maintained, supported, or properly at all educated the child of defendant, as agreed. Further facts are stated in the opinion.

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

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

<p>Mining Claims—Quieting Title—Location of Claim—Burden of Proof—Conflicting Evidence—Support of Finding.—In an action to quiet title to a mining claim, the location of which was claimed to include the mining ground in controversy, the burden is upon the plaintiffs to prove that the location of the original monuments of their claim included such ground, and where the evidence is substantially conflicting on that question, a finding against the plaintiffs thereon will not be disturbed upon appeal.</p> <p>Id.—Failure of Plaintiff’s Title—Bights of Defendant—Immaterial Inquiry.—In an ordinary action to quiet title not involving a contest in the United States land office, the plaintiff must recover, if at all, upon the strength of his own title; and if it be shown and found that he has no title, it becomes immaterial to inquire into the rights of the defendant, or as to whether he had failed to prove that the original locators of his claims were qualified, or that he had properly marked the boundaries of his claims by monuments.</p>

<p>PETITION for Writ of Supersedeas to stay execution upon 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>

PETITION for discharge under Habeas Corpus by a defendant held by the sheriff under an indictment by the grand jury filed in the Superior Court of the City and County of San Francisco. William P. Lawlor, Judge. The facts are stated in the opinion of the court.' A. S. Newburgh, and William H. Schooler, for Petitioner.

<p>The facts are stated in the opinion of the court.</p> <p>Henry C. Campbell, Donald Y. Campbell, and Campbell, Fitzgerald, Abbott & Fowler, for Appellant.</p> <p>The action was not barred by statute. Reclamation districts could not sue or be sued until the amendment of April 5, 1899, to section 3453 of the Political Code. Reclamation districts cannot sue or be sued in the absence of the express authority of statute. (Whittaker v. County of Tuolumne, 96 Cal. 100; Mayrhofer v. Board of Education, 89 Cal. 110;1 Skelly v. School District, 103 Cal. 652; Colusa County v. Glenn County, 117 Cal. 434; Witter v. Mission School District, 121 Cal. 350;2 Savings etc. Society v. San Francisco, 131 Cal. 356; People v. Declamation Dist. No. 551, 117 Cal. 114; Hensley v. Reclamation Dist. No. 556, 121 Cal. 96; Reclamation Dist. No. 551 v. County of Sacramento, 134 Cal. 477, 478.) The warrants were drawn upon a particular fund, and the statute of limitations cannot run against them until the right to sue upon them existed; nor can the defendant plead the statute of limitations without showing that the particular fund has been provided, or the particular method pursued. (Sawyer v. Colgan, 102 Cal. 283; Freehill v. Chamberlain, 65 Cal. 603; Robertson v. Blaine County, 90 Fed. 63; County of Lincoln v. Luning, 133 U. S. 529; 1 Wood on. Limitations, 2d ed., p. 363; Gasquet v. School Directors, 45 La. Ann. 342; Potter v. New Whatcom, 20 Wash. 589;1 Apache County v. Barth, (Ariz.) 53 Pac. 187; Underhill v. Sonora, 17 Cal. 173; Chapman v. Douglas County, 107 U. S. 359; King Iron Bridge etc. Co. v. Otoe County, 124 U. S. 459; Wetmore v. Monona County, 73 Iowa, 88.)</p>

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

<p>Criminal Law—Conviction or Manslaughter—Appeal—Stay or Execution—Certipicate or Probable Cause.—Though an appeal from a judgment of conviction of manslaughter does not stay execution without a certificate of probable cause for the appeal, yet the defendant is entitled to a stay of execution where his appeal is not clearly frivolous, and he is entitled to a certificate of probable cause as matter of right, if there is room for an honest difference of opinion as to the existence of any prejudicial error in the proceedings leading to the conviction.</p> <p>Id.—Duty of Trial Judge.—If there is room for such difference of opinion, it is the duty of the trial judge to grant the certificate, notwithstanding his own opinion that the record is free from error. It is the plain duty of the trial judge to stay proceedings during the time of the preparation and settlement of a bill of exceptions, if proper diligence has been used in its preparation, and also during a reasonable time thereafter, to allow for notice of an application for a certificate of probable cause.</p> <p>ID.—Action oe Trial Judge not Conclusive—Order to Stay Proceedings.—Though the duty of granting the certificate of probable cause rests primarily upon the trial judge, Ms refusal to grant it is not conclusive; and the defendant has a clear right to renew Ms application before a justice of this court, and in default of a proper order by the trial judge to stay proceedings pending the preparation of a record from which probable cause may be determined upon proper application here, this court will make the reqmsite order.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hudson Grant, Arthur C. Huston, Harry L. Huston, North & Love joy, and H. G. W. Dinkelspiel, for Appellant.</p>

<p>Estates op Deceased Persons—Sale op Land—Relation op Title— Mortgage by Heir—Assignment op Estate as" Security—Lien upon Moneys.—The title of land sold by an administrator under . an order of the court, to pay debts and expenses of administration, relates to the death of the decedent, and divests the lien of a mortgage made thereon by an heir, and such mortgage cannot be foreclosed as against the purchasers; but where the heir also assigned to the mortgagee, as security for the same debt, all of his interest in the estate, the assignee is entitled to enforce a lien upon the interest of the heir for the amount found due, with costs, to be paid out of moneys in the hands of the administrator belonging to the heir.</p> <p>Id.—Sale op Whole op City Lot.—Though the aggregate of the debts and expenses of administration is small in comparison with the value of a city lot sold therefor, this court cannot inquire as to the propriety of the action of the court in ordering a sale of the whole of the lot instead of a part only thereof.</p> <p>Id.—Sale for Advantage op Estate.—A sale of land for the advantage, benefit, and best interest of the estate, though invalid as to titles vested prior to the amendment of 1893 to section 1536 of the Code of Civil Procedure, is valid as to titles vested subsequent to that amendment.</p> <p>Id.—Erroneous Judgment op Foreclosure—Costs.—A judgment foreclosing the mortgage to the heirs as against the purchasers at the probate sale is erroneous; and the purchasers are entitled to recover their costs in the court below.</p> <p>Id.—Construction op Findings—Defense op Purchasers.—Findings that the property involved was sold at private sale by the administrators to the defendants as purchasers for the sum named are to be construed in connection with other findings as intending to find upon a defense of the purchasers to the foreclosure of the mortgage of the heir, that the property was sold under an order of the court, that the sale was confirmed, and a deed executed to them as'purchasers.</p>

<p>Contract to Bore for Oil—Construction—Price per Foot—Payment for Hole Abandoned by Consent—Prevention of Drilling.—A contract to bore two thousand feet of well-holes in the oil-lands of the defendant, under a scale of prices per foot, is to be construed according to its plain common-sense meaning, as gathered from all of its parts read together, and where so construed it means that the plaintiff should be paid at a fixed price per foot for each and every foot of hole sunk by him in an honest endeavor to carry out the contract. He is entitled to payment for sinking a hole five hundred and eighty feet, which was abandoned by consent of the parties, by reason of a broken stem, or bit, upon which there was a cave of one hundred and fifty feet, preventing further drilling therein.</p> <p>Id.—Breach of Contract—Failure to Provide Casing—Prevention of Work—Action for Balance Due.—Where by the terms of the contract the defendant, as owner of the land, was to provide all necessary casing-pipe, and he failed after demand by the plaintiff, as driller, to deliver the kind of pipe demanded, without which plaintiff could not continue to sink a fourteen-hundred-and-twenty-foot well to a greater depth, the plaintiff, after waiting three months without such delivery, was authorized to consider further work as prevented by the fault of the defendant, and to maintain an action for the balance due for drilling done at the fixed price per foot.</p> <p>Id.—Intentions of Parties'—Duty of Defendant.—Whatever may have been the intentions, or good faith, of the respective parties, or want of such good faith, those questions are not for this court to determine; and in any event it must be held that it was the duty of the defendant before it could place the plaintiff in default to furnish and deliver on the ground the necessary casing-pipe for the further prosecution of the work.</p>

APPEALS from a judgment of the Superior Court of Sacramento County and a separate appeal by plaintiff from an order granting a new trial. F. B. Ogden, Judge presiding. The motion for a new trial was noticed only by the railroad companies, defendants; but it is stipulated in the transcript that the bill of exceptions settled on the motion for a new trial shall be available on behalf of the intervener, the city of Sacramento.

The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, George A. Sturtevant, Deputy Attorney-General, and Devlin & Devlin, for Appellant. George E. Bates, W. C. Van Fleet, and Edward F. Treadwell, for Respondent. Robertson T. McKisick, Amicus Curiœ, also for Respondent.

The facts are stated and referred to in the opinion of the court. George E. Bates, W. C. Van Fleet, and Edward F. Treadwell, for Appellant. U. S. Webb, Attorney-General, George A. Sturtevant, Deputy Attorney-General, and Devlin & Devlin, for Respondent.

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

<p>Fraudulent Transfer—Action bt Creditor—Support of Findings.— In an action by a creditor to set aside a fraudulent transfer from the debtor to her son by a deed of gift without consideration, leaving the debtor insolvent, where the son claimed title prior to the deed of gift by reason of a parol executed gift, and title thereunder by prescription, and the court found against him and in faVor of the creditor, every presumption is in favor of the findings; and it is only where there is an absence of substantial evidence to support them that this court will interfere.</p> <p>Id.—Parol Gift of Land—Evidence Required.—The legal title to land cannot rest in parol, and it is only where the donee by parol has gone into possession, made valuable improvements, and changed his condition, and the facts are such that it would be a fraud upon him as an innocent party not to enforce the contract, that equity will grant relief. The evidence to support the enforcement of such a contract must be clear and convincing, and leave no reasonable doubt as to the fact of the gift, and as to other facts making it inequitable to avoid it. The fact that the donee was allowed to take the rents and profits shows no equitable ground for relief.</p> <p>Id.—Findings Supported.—The evidence reviewed and held sufficient to sustain findings that there was no parol gift of the land prior to the deed, that the possession was not delivered in pursuance of any such gift, and that it was not adverse or hostile to the donor, but was permissive from her.</p> <p>Id.—Rights of Son under Deed of Gift—Subjection to Burden.— The son may take the land conveyed to him by the deed of gift, but he must take it subject to the burden of the debt incurred by the owner while she kept it in her name.</p> <p>Id.-—Evidence—Insolvency of Maker of Note.—It was proper to admit evidence to show the insolvency of a joint maker of the note and of his estate. It was necessary for plaintiff to show that the claim could not be collected from his estate, or from other property of the donor of the deed of gift before it could complain as to the deed.</p>

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

<p>State School Land—Reference of Contest—Jurisdiction—Pleading —Want of Cause of Action—Default—Refusal to Hear Evidence.—The superior court does not get jurisdiction of a contest against a certificate of purchase of state school land by the mere reference of the contest by the surveyor-general. An action must be commenced and a cause of action stated; and in the absence of a complaint stating a cause of action, notwithstanding the default of the defendant, there is no case before the court, and it is warranted in refusing to hear evidence.</p> <p>Id.—Foreclosure of Plaintiff’s Certificate—Insufficient Attack upon Affidavit for Publication.—Where the plaintiff’s certificate of purchase had been foreclosed at suit of the state, and the judgment-roll is attached to the complaint, upon the reference of the contest, and the affidavit for publication is sufficient to show diligent search, an attack upon the judgment in the complaint, on the ground that the affidavit was false and fraudulent, does not state a cause of action, where the contradictions of the affidavit in the complaint are addressed only to its general statements and conclusions, and the complaint does not deny or controvert the specific statements of the affidavit as to the inquiries and efforts made and the names of the parties inquired of to ascertain the whereabouts of the defendant, which are the material and essential averments upon which the court acted in making the order for publication.</p>

<p>Irrigation District—Action by Landowners—Injunction .against Collector—Intervention by Bondholders—Affirmative Belief Improper.—In a suit by the landowners in an irrigation district to enjoin the collector thereof from selling land for an assessment for interest upon bonds, the collector represents the district for the purpose of defense only, and not for the purpose of seeking any affirmative relief. Bondholders merely permitted to intervene by reason of their interest in the success of the defendant are equally precluded with him from seeking any affirmative relief; and they cannot maintain a cross-complaint to enforce a lien on the land in their favor as bona fide purchasers for value of the bonds held by them.</p> <p>Id.—District a Necessary Party to Cross-Complaint.—If the cross-complaint were permissible, the irrigation district would be a necessary party thereto; and in its absence the court had no authority to render a judgment determining the questions whether the bonds held by the interveners constitute a lien upon the land within the district, and whether the district is estopped from questioning the validity of the bonds in their favor as bona fide purchasers for value.</p> <p>Id.—Lien Purely Statutory.—Whatever lien the bondholders may have against the lands within the district does not exist by reason of any equity in their behalf or spring from contract between the parties, but it is purely the creation of the statute under which the bonds were issued and the assessment levied.</p> <p>Id.—Taxation—Lien of Assessment—Power of Courts.—The colleetion of taxes belongs to the executive branch of the government, and can be assumed by the judiciary only under express legislative authority therefor. Courts may inquire into and determine the validity of the assessment or other proceedings, but unless the statute has declared it to be a lien, the court cannot adjudge it to be one. A court of equity, as such, in the absence of statutory authority, has no jurisdiction to enforce a lien that is created by statute, for the enforcement of which the statute has provided a mode. The enforcement of the lien in such case can be only in the mode provided by the statute.</p> <p>In..—Invalid “Bond Expense Fund”—Absence op Election—Collection op Interest-—Duty op Court.—Where there was no valid special election authorizing an assessment for a “Bond Expense Fund,” the amount sought to be raised for such fund was improperly included in the assessment; but upon so determining, it was the duty of the court to determine whether the disparity between the amount levied and the amount which the board in its discretion was authorized to raise for the collection of the annual interest was such as to vitiate the entire assessment. If so, it should be declared void. If not, its collection should not be interfered with.</p> <p>Id.—Improper Judgment—Collection op Interest in Favor op Interveners Only—Excess op Jurisdiction.—It was an excess of jurisdiction for the court, without determining the validity or invalidity - of the assessment for interest as a whole, to enjoin the collector from enforcing the interest except in favor of the few bondholders who had intervened in the action, to the exclusion of other bondholders who had equal rights, if any existed, in the collection of the interest.</p> <p>Id.—Assessment por Interest—Margin—Discretion—Jurisdiction op Board, and op Courts.-—-The statute has given to the board the authority to determine whether it is necessary to provide a margin in excess of the actual amount of the interest, and also the extent of that margin, and the amount to be raised by the assessment for interest must in all instances be determined by the board. The courts will not interfere with the action of the board, unless it has abused its discretion. Though its action is subject to the control of the judiciary, and the collection of the assessment may be enjoined if the assessment is excessive, yet the courts have no authority to determine the amount to be raised or what proportion of the assessment shall be collected. The board has the exclusive right under the statute to levy assessments, and to determine the percentage to be levied uniformly upon all of the property within the district.</p> <p>Id.—Validity op Sale by Collector.—The collector has authority under the statute to sell the property in case of non-payment of the assessment thereon which is levied by the board; but a sale by him in satisfaction of an amount directed by the court is unauthorized and would vest no title in the purchaser.</p>

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

<p>Coyote Bounty Act—Action by Assignee in Trust for Collection.— Under the act of 1901, authorizing suits against the state upon claims accruing under the Coyote Bounty Act of 1891 by the “owners or holders of claims or demands,” actions may be maintained either by assignees succeeding absolutely to the title of the former owners by assignment, or by assignees of such claims in trust for collection.</p> <p>Id. — Evidence — Execution of Supplemental Instruments — Sufficiency of Proof.—One who personally procured the bounty claims in suit, and obtained powers of attorney from each óf the claimants to a bank, and subsequently obtained a supplemental instrument from each of them constituting the bank an assignee in trust for collection in its name, with power of substitution, may by his positive testimony sufficiently prove the execution of the supplemental instruments. The mere fact that he was not personally present at the time of their execution does not negative his knowledge of the signatures, in the absence of any cross-examination as to his means of knowledge.-</p> <p>Id.—Construction of Separate Instruments as One.—Where each of the supplemental instruments signed by a claimant is by its terms made part of the original power of attorney executed by the same claimant, the two instruments are to be deemed as one.</p> <p>Id.—Resolution by Bank—Substitution of Plaintiff—Evidence of Assignment in Trust—Improper Ruling—Nonsuit.—A resolution by the board of directors of the bank (which had been, by the several supplemental agreements in proof, constituted an assignee in trust for collection, with power of substitution), by which the bank substituted the plaintiff to each and all of the powers conferred upon the bank, was admissible to prove an assignment in trust to the plaintiff for the purpose of collection, and it was error to exclude such evidence and to nonsuit the plaintiff.</p> <p>Id.—Depositions Properly Excluded—Notice of Continuance not Given.—Where the depositions of witnesses noticed for a particular day were not then taken, they were properly excluded if it appears that the opposite party had no notice of a continuance of the time for taking them.</p>

<p>Criminal Law—Burglary—Evidence—Character por Honesty and Integrity—Cross-Examination—Misconduct op District Attorney.—Upon a prosecution for burglary, where witnesses have testified to the defendant’s general good character for honesty and integrity, it was not misconduct for the district attorney to ask the witnesses on cross-examination whether they had heard that he was charged with burglary and convicted of petit larceny in another county at a specified time, if the district attorney had reasonable cause to believe that such were the facts, although the facts were not proven in the case.</p> <p>Id.—Scope op Cross-Examination—Knowledge op Accusation, or op Acts Inconsistent with Good Character.—Where a witness has testified to the defendant’s general good character, his opinion and the value of it may be tested by asking the witness on cross-examination whether he has ever heard that the person in question has been accused of doing acts wholly inconsistent with the character attributed to him, by asking him as to his knowledge of specific acts and with reference to such specific acts themselves for the purpose of overcoming the effect of his testimony upon direct examination.</p> <p>Id.—Misconduct as to Questions Asked out of Court.—It was not misconduct for the district attorney to ask some of the character witnesses out of court if they had heard of the charge of burglary and conviction of the defendant of petit larceny; and he is not bound by the answers given by them when not on the witness-stand.</p> <p>Id.—Misconduct in Argument to Jury—Instruction op Court—Presumption.—It was not prejudicial misconduct for the district attorney to answer a question put to him in argument, why, if the defendant had been convicted of petit larceny, he had not charged it in the complaint, by stating that when the information was drawn he did not know the facts, where the court directed the jury not to pay the least regard to the matter one way or the other. It is to be presumed that they followed the instruction of the court.</p> <p>Id.—Friendliness op Witness for Dependant—Impeachment—Harmless Evidence.—Where a witness for the defendant stated on cross-examination that she was not very friendly with the defendant, the refusal of the court to strike out the testimony of the under-sheriff in rebuttal that he had seen the witness and other ladies, including defendant’s wife, kiss the defendant during the trial in the courthouse corridor, which was admitted simply for the purpose of showing the friendly feeling between the witness and defendant, cannot be ground for reversal, it being clear that it did not affect the substantial rights of the defendant.</p> <p>Id.—Degree of Burglary—Instruction.—An instruction that if the defendant entered the building in question in the night-time,—viz., between sunset of one day and sunrise of another day,—with the intent to commit larceny, the jury should find him guilty of burglary in the first degree, is correct, and in strict compliance with the statute.</p> <p>Id.—Emphatic Instructions.—Instructions merely stating the law too emphatically furnish no ground for reversal.</p> <p>Id.—Baseless Bequests.—Bequested instructions without evidence upon which to base the same were properly refused.</p> <p>Id.—Harmless Befusal of Instruction—Seasonable Doubt—Duty of Each Juror—Instructions Given.—The refusal of a requested instruction that “if, after a consideration of the whole case, any juror should entertain a reasonable doubt, it is the duty of such juror entertaining such doubt not to vote for a verdict of guilty, nor to be influenced in so voting, for the simple reason that the majority should favor a verdict of guilty,” is harmless, where the court instructed the jury that they must determine the case according to the evidence, and that no juror could conscientiously base his verdict upon any other consideration, and repeatedly and correctly instructed them upon the law of reasonable doubt.</p>

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

<p>Life Insurance—Conditions in Policy—Forfeiture for Non-Payment of Premium—Inapplicable Concession.—Where conditions made part of a policy of life insurance provided for a forfeiture for non-payment of any premium or installment thereof when due, and conceded that a grace of one month should be allowed in the payment of the second annual or any subsequent premium due on the policy, and payment of the first semi-annual installment was acknowledged in the policy, the policy was forfeited for non-payment of the second installment of the first annual premium when due, though the insured died fifteen days thereafter. The concession of one month’s grace was not applicable to any part of the first year’s premium.</p>

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

<p>Venue—Beal Action—Enforcement of Trust in Mining Property.— Where the plaintiff, by his complaint and the probative facts stated therein, seeks to have it adjudged that he is the owner of an undivided third of the mining property described in his complaint, and that the defendants hold the same in trust for him, and that defendants be directed to execute to him a conveyance thereof, the action involves the title to real property, and is properly brought in the county-where the mining property is situated; and the defendants are not entitled to a change of venue to the county of the residence of the defendants merely on the ground of such residence. In.—Nature of Action—Belief upon Default.—The nature of the action is to be determined by the character of the complaint and from the character of the judgment which might be rendered upon default, which cannot exceed that demanded in the complaint.</p> <p>Id.—Accounting not Demanded—Contention upon Appeal.—Where the complaint in a real action does not demand an accounting, nor state facts looking thereto, the contention of respondents upon appeal from an order changing the place of trial to the residence of the defendants, that there might possibly be upon the trial an accounting of a mining partnership, and a personal judgment under the prayer for general relief, is unavailing to sustain the order.</p>

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

<p>Void Trust to Convey.—A trust-deed requiring the trustee to convey the land to certain children after the death of a child of the trustor is invalid and void.</p> <p>Id.—Levy of Attachment—Delivery by Mail to Trustee.-—The levy of an attachment in an action against the trustor, upon the land described in the void deed of trust, does not require any delivery of a copy of the attachment to the trustee, and the fact that a copy thereof was delivered to him by mail is immaterial if the levy was otherwise valid.</p> <p>Id.—Attachment against Non-Resident—Affidavit for Publication of Summons.—Though an attachment against the non-resident owner of the land is essential to give the court jurisdiction to render a valid judgment under which a sale of the land may be enforced by execution, yet the service of summons by publication is distinct from the proceedings by attachment, and an affidavit for publication need not state that a writ of attachment has been issued or levied. The attachment may be levied at any time before the service of the summons.</p> <p>Id.—Proof of Non-Residence—Information and Belief as to Place of Residence.—Where the affidavit for publication of the summons positively states the non-residence of the defendant in the state, the fact that it stated his particular place of residence in another state, upon information and belief, does not affect the sufficiency of the affidavit.</p>

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