Volume 145 — California Reports

<p>Criminal Law—Conviction for Murder—New Trial—Newly Discovered Evidence—Discretion.—After conviction of a' defendant for murder, affidavits upon motion for a new trial for newly discovered evidence, in conflict with that given on the trial, and directed to the impeachment of witnesses who had testified at the trial, were addressed to the sound legal discretion of the trial court; and where it is not clear that such evidence, if received, would or should have changed the result, the discretion of the court in denying the motion will not be disturbed.</p> <p>Id.—Counter-Affidavits.—Upon such motion for new trial it was proper for the- court to receive counter-affidavits to enable it properly and intelligently to exercise its discretion in passing upon the motion, and to determine whether a new trial would promote justice or result, with reasonable probability, in a different judgment.</p> <p>Id.—Charge of Interpreters—Insufficient Affidavit.—An affidavit by defendant’s attorney that the interpreter who officiated at the trial of the defendant was relieved upon the trial of another defendant, but which does not show that the interpreter was not in fact competent, is insufficient.</p> <p>Id.—Misconduct of District Attorney.—It must be a very exceptional ease in which a reversal will be ordered by reason of the character of the opening statement of the district attorney; and where such statement was warranted by the evidence, and where there is nothing of such gravity or importance in his cross-examination of the witnesses as to warrant a reversal, and the court carefully instructed the jury to disregard a statement by him in response to the query of the court as to the object of a question asked on cross-examination, there is no misconduct prejudicially affecting defendant’s cause.</p> <p>Id.—Evidence—Declaration of Confederate — Res Gestæ.— Where there is evidence that" the defendant and five other Chinese, all armed, who eo-operated in the killing of the deceased, were standing in front of a house out of which the deceased was to come, evidence is admissible to show, as part of the transaction, a declaration by one of the confederates, then made, that “if Jeong Him [deceased] comes out of the house, we will shoot at him,” which was followed by bis death from shooting by the confederates when he came out a few moments later.</p> <p>Id. — Instructions — Identity of Defendant — Modification of Requested Instruction not Prejudicial.—A requested instruction as to the identity of the defendant, from which the court struck out a statement that the jury were not bound to believe that the witnesses were able to identify the defendant with certainty, because they swore positively to his identity, was not modified prejudicially where the jury were instructed that to justify a conviction of the defendant his identity must be proved beyond reasonable doubt, and that if there was a reasonable doubt as to the ability of the witnesses to identify him as the guilty person, they should acquit him.</p> <p>Id.—Refusal of Requested Instructions Otherwise Given.—It is not error to refuse requested instructions which are fully and fairly covered by other instructions given by the court.</p> <p>Id.—Judgment-Roll—Bill of Exceptions—Instructions—Affidavits. —Where the instructions given and refused are certified in the manner required by law they constitute a part of the judgment-roll, and should not be incorporated in Ike bill of exceptions; but affidavits presented on a motion for a new trial and the minutes of the proceedings had upon such motion should appear only in the bill of exceptions, and the clerk cannot make them a part of the judgment-roll.</p>

<p>Assault and Battery—Damages—Sufficiency of Complaint.—A complaint for assault and battery which alleges that the defendant assaulted the plaintiff and kicked him in the face and on the body, and that he “thereby seriously wounded and bruised the plaintiff, to his damage” in a specified sum, is to be construed as importing that by reason of the acts complained of the plaintiff sustained damage to that amount, and is sufficient as to the damages.</p>

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

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

<p>Accusation of Officer for Misconduct—Purpose of Proceeding—. Effect of Judgment.—An accusation made by a grand jury under section 758 et seq. of the Penal Code, charging an officer with misconduct in his office, has for its main purpose the removal of the accused from his office. The judgment can go no farther than such removal; and if it involves a criminal offense, the judgment is no bar to a criminal prosecution for such offense.</p> <p>Id.—Accusation not an Indictment—Order Sustaining Demurrer— Appeal by People—Dismissal.—The accusation is not an indictment, nor is it to be treated as such. The trial under the accusation is not subject to the rules applying to the trial of an indictment. The people have no right of appeal from an order sustaining a demurrer to the accusation, and its appeal therefrom must be dismissed.</p>

PETITION for Writ of Mandate against the Superior Court of the City and County of San Francisco. William P. Lawlor, Judge, and Platt B. Elderkin, Phonographic Reporter. The facts are stated in the opinion of the court.

<p>PETITION for Writ of Mandate to the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion.</p> <p>U. S. Webb, Attorney-General, George A. Sturtevant, Deputy Attorney-General, Cassius Carter, District Attorney, and W. R. Andrews, Deputy District Attorney, for Appellant.</p>

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

<p>The facts are stated in the opinion of the court in this case, and in the case of Alcorn v. Buschke, 133 Cal. 655.</p>

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

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

. CERTIORARI to review a judgment of the Superior Court of the City and County of San Francisco in contempt proceedings. Frank H. Dunne, Judge. The facts are stated in the opinion of the court. J. T. Houx, Houx & Barrett, and James Taylor Rogers, for Petitioner.

<p>Negligence of Independent Contractor and Subcontractor—Building Contractor not Liable.—A building contractor is not liable for the negligence of another independent contractor employed by the owner to do the plumbing and sewer work; nor is he liable for the negligence of an independent subcontractor employed by himself to do the plastering for the building for a specified sum, who agreed to furnish all the materials and labor required to complete the subcontract, and who had the entire charge of that part of the work and sole control of the workmen engaged therein.</p> <p>Id.—Question of Law—Improper Refusal of Instructions.—Where the undisputed evidence showed that the plasterer was an independent contractor as to the building contractor defendant, and the subcontract did not require him to place his materials in any dangerous position, the meaning and effect of the contract and the relations of the parties to it were a question of law for the court; and it is error to refuse requested instructions that the subcontractor was an independent contractor as to the defendant, and that if the jury believed the injury complained of was the result of negligence on the part of the subcontractor, they must find for the defendant.</p> <p>Id.—Supervision of Architect—Right of Employer to Make Alterations.—The fact that the work was to be done under the supervision of an architect, and that the employer had the right to make alterations, deviations, and omissions from the contract, does not change the relation of an independent contractor or subcontractor to that of a mere servant.</p> <p>Id.—Support of Verdict — Conflicting Evidence — Duty of Trial Court.—Where the evidence in support of the verdict, though not very satisfactory, is sufficient to raise a conflict, its sufficiency to support the verdict cannot be decided by this court; but it is the duty of the judge of the trial court to grant a new trial where the verdict is against the weight of the evidence, according to his independent judgment, notwithstanding a conflict therein.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, E. B. Power, Deputy Attorney-General, and Lewis F. Byington, District Attorney, for Appellant.</p>

<p>Criminal Law—Marking Colt to Prevent Identification by Owner— Slitting of Ears—Customary Use.—One who marks á colt belonging to another person by slitting its ears, with the intent thereby to prevent identification thereof by the true owner, is guilty of a felony under section 357 of the Penal Code, regardless of whether such mark might be legally adopted under the provisions of the Political Code, or is customarily used to indicate a vicious animal, and not ownership.</p> <p>Id.—Matters not Part of Offense—Province of Jury—Question of Intent.—It is not material to the offense that the mark placed upon the colt is not of a character usually adopted to indicate ownership, or that it may not accomplish the purpose of actually preventing identification; though these are matters that may be properly weighed by the jury in determining the intent with which the marking was done.</p> <p>Id.—Construction of Section—“ Marks.”—The word “marks,” as used in section 357 of the Penal Code, is not to be limited to the placing on the animal of some “conventional artificial indication of ownership,” but the provision was designed to protect the owners of animals by making it a crime for one to in any way mark the animal of another with the intent thereby to prevent identification.</p> <p>Id.—Support of Verdict—Conflicting Evidence as to Intent.—Notwithstanding the evidence was without conflict as to the customary use of the slitting of ears of horses to indicate a vicious animal, and not ownership, yet where the evidence shows that where the slitting was done the defendant knew that the colt belonged to the true owner, and was not an estray, and the evidence of the circumstances of the case conflicted with the testimony of the defendant upon the question of intent to prevent identification by such owner, the verdict of guilty of the offense charged will not be disturbed upon appeal.</p> <p>Id.—Character of Mark Used—Refusal of Requested Instructions —Charge of Court.—It was not error to refuse requested instructions as to the character - of the mark used, where the instructions given by the court were as liberal as any that the defendant was entitled to in that regard.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Charles W. Slack, Judge, rendering judgment. James M. Troutt, Judge, amending judgment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco making partial distribution of the estate of a deceased person. James M. Troutt, 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>Election Contest—Verification of Statement—Case Affirmed.— The verification of the statement of an election contest may be in the ordinary form of the verification of a pleading. ([Kirk v. Rhoads, 46 Cal. 403, affirmed.)</p> <p>Id.—Evidence—Preservation of Ballots—Discretion—Review upon Appeal.—Upon the contest of an election the question whether the ballots were safely preserved in their original condition is largely within the judgment and discretion of the trial court; and if the evidence fairly warrants its conclusion, its determination of that question will not be disturbed upon appeal.</p> <p>Id.—Objection to Uncounted Precincts—Waiver by Contestant— Proof by Contestes—Admissibility—Estoppel.—The contestant, after establishing a majority in counted precincts, had the right to waive his objection to misfeasance and maleonduet alleged by him in other uncounted precincts; and where the contestee offered the ballots in the remaining precincts, he cannot be heard to say that the ballots offered by him were not admissible, or were not safely preserved.</p> <p>Id.—Distinguishing Marks.—Ballots stamped with a cross after the words “No nomination” have a distinguishing mark, and were properly rejected.</p>

<p>The facts are stated in the opinion of the court.</p> <p>R. E. Rhodes, Leonard B. Fowler, and George W. Mordecai, Jr., for Appellant.</p>

<p>PETITION for Writ of Mandate to a Judge of the Superior Court of San Diego County. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PETITION for "Writ of Mandate to the Secretary of State.</p> <p>The facts are stated in the opinion of the court.</p> <p>Cameron H. King, Emil Liess, and James Taylor Rogers, for Petitioner.</p>

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

<p>Beach and Water-Dots of San Francisco—Sale under Execution— Power of Legislature — Subsequent Sale by Commissioners of Funded Debt.—The city of San Francisco held its beach and water-lot property as a private proprietor, and such property was subject to execution for the city’s debt, and remained subject to execution therefor until the debt was paid, which right the legislature could not impair. An action for- a prior debt of the city, begun before the passage of the act of May 1, 1851, which provided for a conveyance of such property to the commissioners of the funded debt, and a sale of water-lots under execution upon the judgment in such action, made after the passage of that act, will prevail over a subsequent deed of the same property by the commissioners of the funded debt, executed under the authority given by that act.</p> <p>Id.—Case Applied and Affirmed.—The case of Smith v. Morse, 2 Cal. 524, applied and affirmed, as controlling authority.</p>

<p>Criminal Law—Murder in First Degree—Accidental Killing—Instruction Properly Refused.—Upon a prosecution for murder committed in the perpetration of or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, under section 189 of the Penal Code, the court properly refused an instruction to the jury to the effect that in order to convict of murder in the first degree it must appear beyond all reasonable doubt that the defendant as a fact intended to take the life of the deceased, and that accidental killing, even in an attempt to commit one of the felonies mentioned in that section, is not murder in the first degree.</p> <p>Id.—Construction of Penal Code—Murder in First Degree.—Under section 189 of the Penal Code, murder committed by poison, lying in wait, or torture must be willful, deliberate, and premeditated to constitute murder in the first degree; but where the murder is committed in the perpetration of or an attempt to perpetrate arson, rape, robbery, burglary, or mayhem, the killing, whether intentional or unintentional and accidental, constitutes murder in the first degree.</p>

PETITION for Writ of Mandate to Board of Election Commissioners and Registrar of Voters of the City and County of San Francisco. The facts are stated in the opinion of the court. Lane, Ledeman & Lane, and Cameron H. King, for Petitioner. Percy V. Long, James A. Devoto, Devoto & Richardson, and John S. Partridge, for Respondents.

<p>Declamation District—Title by Deed upon Condition Subsequent— Rights of Grantee—Reversion to Grantor or Assigns.—Under a deed to a reclamation district for the purposes of reclamation only which provides that if the land shall cease to be used for such purposes the same shall revert to the grantor, and the interest of the grantee shall cease, the grantee has no right to use the land principally for other or different purposes; and if the reclamation district or its assigns should cease to use the land for the purposes specified, it would revert to the grantor or his assigns.</p> <p>Id.—Presumption against Forfeiture — Burden of Proof. — Every presumption is against a forfeiture of the estate of the reclamation district, and the burden is on the party claiming that the land has reverted to the grantor to show clearly that the land has ceased to be used for the prescribed purpose of reclamation. Conditions providing for the forfeiture of an estate are to be construed liberally in favor of the holder of the estate and strictly against the enforcement of the forfeiture.</p> <p>Id.—Declamation not Ended—Finding Supported by Evidence—Judgment Protecting Rights:—Where the evidence shows that the work of reclamation was not ended, and that use was still made of the land by the reclamation district, a finding that the land has never ceased to be used for reclamation purposes is sufficiently supported; and where the judgment for the plaintiff protects the rights of appellant, and provides that where the “property shall cease to be used for reclamation purposes it shall revert” to the appellant, who is the assignee of the grantor, the appellant is entitled to no relief.</p> <p>Id.—Judgment Defining Rights between Reclamation District and Its Assignee.—The fact that the judgment for the plaintiff defines the rights of the plaintiff and its assignee as between themselves is no concern of the appellant.</p> <p>Id.—Trial—Waiver of Objection—Agreement upon Facts—Evidence not Objected to.—Where the record shows that all the parties agreed on certain facts, and no objection was made to evidence on the ground that no issue was joined by the pleadings justifying such, evidence, objection upon that ground was waived.</p> <p>Id.—Married Woman—Non-Joinder of Husband—Waiver.—The appellant waived objection on the ground that she was a married woman and that her husband was not a party to the action when she did not raise the objection in the lower court by demurrer or answer.</p>

<p>APPLICATION for discharge under Writ of Habeas Corpus directed to the Warden of the State Prison at Folsom.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion.</p> <p>U. S. Webb, Attorney-General, E. H. Hoar, District Attorney, and B. F. Fowler, Deputy District Attorney, for Appellant.</p>

<p>The facts are stated in the opinion.</p> <p>James A. Stephens, John H. Durst, and Curtis Hillyer, for Appellants.</p>

<p>County Government Act—Office of District Attorney—Services of Stenographer not a Claim against County.—The County Government Act of 1897, defining the duties and fixing the compensation of district attorneys, and making it in full for all services of every kind, and of every deputy and assistant not otherwise provided for in the act, makes the district attorney responsible for the services of a stenographer employed by him to write letters, pleadings, and judgments, and such services cannot be allowed as a legal claim against the county. The traveling and other expenses allowed to the district attorney under section 228 of the County Government Act do not include such service of a stenographer.</p>

<p>Deed Intended as Mortgage—Action for Reconveyance—Accounting —Improper Credit on Family Allowance.—Where a widow, pending the administration of the estate of her deceased husband, made a deed of an undivided half of her interest in the estate to one whom she had constituted her general manager, and sued for a reconveyance of the property and for an accounting against his executors for moneys received by him as agent and trustee, where the court found that the deed was intended as a mortgage to the grantee, and an accounting of the indebtedness was had, the court improperly allowed a credit to the executors of money paid by the mortgagee as manager to a grantee of the other half of the widow’s interest in the estate of her husband out of the family allowance made to her as widow by the court.</p> <p>Id.—Right of Grantee of Widow—Contract.—The grantee of the widow had no right as such to any part of the family allowance, and a contract by him to use his best endeavors to procure a proper monthly allowance to be made to her out of the estate for her support and maintenance conferred no such right, whether the contract is or is not deemed to refer to a family allowance to be made by the court.</p> <p>Id.—Payment—Improper Disallowance.—Where the effect of the pleadings and of the uncontradicted evidence of the plaintiff establishes that she is entitled to a credit in the accounting of a certain sum paid to the mortgagee on account of her indebtedness, a credit for such payment was improperly disallowed.</p>

<p>The facts are stated in the opinion.</p> <p>David E. Marchus, and Charles C. Boynton, for Appellants.</p> <p>M. C. Chapman, Frederick C. Clift, and R. H. Latimer, for Respondents.</p>

<p>Building Contract — Void Bond of Contractor — Unconstitutional Section of Code.—Section 1203 of the Code of Civil Procedure is unconstitutional, and a bond given in pursuance of it under a building contract is void, and cannot be upheld as a common-law obligation.</p>

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

<p>Assault and Battery — Civil Action — Amended Answer — Self-Defense—Order Striking Out—Cure of Error—Allowance upon Bequest before Jury—Presumptions.—In a civil action for damages for an assault and battery, where the defendant, without leave of court, filed an amended answer setting up a plea of self-defense, which was stricken out on motion on the day of trial, but was allowed to be filed on request made before the jury, any error in striking out the answer was cured by such request;' and it cannot be held that the defendant was injured in the eyes of the jury by having to make such request before them, but it must be presumed that the jury did their duty and decided the question of fact under the instructions of the court upon the pleadings as they then were.</p> <p>Id.—Evidence—Plea of Guilty in Criminal Case—Admission—Qualifying Declaration Excluded—Prejudicial Error.—A plea of guilty in a criminal case in regard to the same assault and battery is not conclusive, and does not estop the defendant in a civil action therefor. It has merely the effect of an oral admission, and is governed by the rules applicable thereto. Where the plea of guilty was introduced by the plaintiff from the justice’s docket, it was prejudicial to refuse to allow evidence of all that was said by the defendant when he made the plea qualifying the admission, where the evidence was sharply conflicting as to whether the plaintiff was or was not the aggressor in striking the first blow.</p> <p>Id.—Amendment to Obviate Objection to Evidence—Offer not Renewed — Estoppel. — Where an amendment was allowed upon defendant’s request to obviate an objection to evidence bearing on the question of who was the first aggressor, the offer of which was not renewed after the amendment, he cannot be permitted to ask this court to review the original ruling.</p> <p>Id.—Inapplicable Instructions.—Instructions, though abstractly correct, should not be given if they are inapplicable to the evidence and may mislead the jury.</p>

<p>Partition—Pleading—Sufficiency of Description—Frivolous Appeal —Damages.—Where the description of the property in a complaint in partition is sufficient under the rule in all jurisdictions, and long settled in this state, upon appeal from an interlocutory judgment involving only a demurrer for uncertainty in the description the judgment will be affirmed with damages for a frivolous appeal.</p>

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

<p>Injunction—Execution Sale—Intervention by Creditor—Complaint to Cancel Fraudulent Deeds—Findings against Intervener— Consideration Immaterial.—In an action to enjoin the sheriff from selling plaintiff’s property on execution against her husband, where the execution creditor, without answering the complaint, filed a complaint in intervention to cancel two deeds from the husband to the plaintiff as having been made without consideration, in contemplation of insolvency, to defraud creditors, and the court found for the plaintiff and against the intervener, that there was no fraudulent intent, and that the transfers were made to indemnify plaintiff as surety for the husband, and that he was not then insolvent, and did not contemplate insolvency, the findings show the validity of the deeds, and, as there was in fact no fraudulent intent, it is immaterial whether there was or was not a sufficient consideration for them.</p> <p>Id.—Findings—Deed Intended as Security—Execution Sale Subject to Mortgage—Complaint of Intervener Limited to Cause of Action Alleged.—Under the complaint of the intervener, which was not addressed to the complaint of the plaintiff, and did not purport to answer the same, the intervener, who alone appeals, cannot avail himself of any denial of the complaint by the defendant, who does not appeal, and his averment that plaintiff never was the owner cannot be deemed a denial of plaintiff’s averment that she is the owner. The plaintiff must rest solely on the cause of action to set aside the deeds as fraudulent, and cannot change it so as to seek an execution sale subject to a mortgage, by reason of findings that the deeds were intended as security. Such findings as to the intervener must be deemed to apply solely to the consideration for the deeds.</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>School Law — Dismissal or Teacher — Absence of Certificate.—A teacher who has never held a city or city and county certificate does not come within the terms of section 1793 of the Political Code, providing that holders of such certificates shall be dismissed only for insubordination or other causes.</p> <p>Id.—San Jose Charter—Construction—“ Permanent Positions ”— Dismissal at End of Tear.—Upon a proper construction of the original charter of San Jose, the only “permanent positions” of teachers thereunder were of those who were reported favorably by the classification committee of the board of education at the dose of the school year, and a teacher not protected by the Political Code may be dismissed at the end of any school year under that charter upon failure of the classification committee to recommend a retention of said teacher for the ensuing year.</p>

<p>Appeal from Order Denying New Trial—Review—Sufficiency of Complaint.—The sufficiency of the complaint can only be considered upon an appeal from the judgment, and is not reviewable upon appeal from an order denying a new trial.</p> <p>Id.—Qualification of Witness—Action by Lessee upon Contract of Deceased Lessor—Assignment before Contract.—A witness who had assigned all his interest in a lease and in business upon the leased premises before a fire injuring the leased property and destroying a Min thereupon is not the assignor of a cause of action for breach of a contract of the lessor, made after the fire, to repair the leased premises and rebuild the Min, and is not disqualified to testify to events occurring before the death of the lessor, under section 1880 of the Code of Civil Procedure.</p> <p>Id.—Statute of Limitations—Amendment of Complaint—Cause of Action not Changed-—Immaterial Variance.—Where an amendment to the complaint does not change the cause of action, but refers solely to the cause of action originally alleged and facts existing at the time of its accrual, and merely omits certain matters which do not show a material variance, the statute o”f limitations has reference only to the original complaint, and does not extend to the time of filing the amendment.</p> <p>Id.—Consideration for Promise.—The promise of the lessees to replace the machinery in the destroyed Min was a sufficient consideration for the promise of the lessor to rebuild it.</p> <p>Id.—Amended Answer—Cure of Error.—An error in the refusal of the court to file an amended answer after an immaterial amendment to the complaint allowing a special traverse of each of the material allegations of the original complaint was cured by subsequently allowing an amended answer after all the amendments to the complaint were filed, in wMch he substantially denied all the • allegations of the whole complaint as amended.</p> <p>Id.—Support of Findings.—Held, that the evidence fully warrants the findings of the court for the plaintiffs.</p>

<p>Negligence—Master and Servant—Knowledge of Defective Appliances—Assumption of Bisk-—Nonsuit—Daw of Case.—In an action by a teamster for damages for negligence of the master in failing to furnish proper appliances, in which a nonsuit was granted, and in which a second appeal was taken, where the evidence is the same as was considered upon a former appeal, upon which a judgment in favor of plaintiff was reversed upon the ground that plaintiff’s evidence showed that he had, with the full knowledge of defects in the appliances, voluntarily continued to work therewith for several months prior to the accident, and assumed the risk of working therewith, the decision upon the former appeal is the law of the ease.</p> <p>Id.—Defects Alleged—Employment as Teamster—Element of Negligence not within Issues.—Where the plaintiff was employed as a teamster in hauling lumber, and the only defects complained of were that the lines furnished were too short and that there was no seat on the wagon, evidence of a new element of negligence not within the issues, in not having a brake on the wagon, of which the plaintiff had the same knowledge as of the other defects, cannot be considered as affecting the question of nonsuit or the law of the case.</p> <p>Id.—Evidence — Customary Appliances — Immaterial Euling.—The exclusion of evidence as to whether it was customary in the business of hauling lumber with four horses to have a wagon equipped as this wagon was, and with lines such as were here used, was material, if at all, only on the question of negligence, and, if competent, such exclusion could not prejudicially affect the plaintiff’s rights, where it is determined that he assumed the risk of the appliances used. In such case it is immaterial whether or not there was in fact negligence on the part of the defendant.</p> <p>Id.—Evidence Properly Excluded—Questions Asked Plaintiff.—A question asked the plaintiff as to whether or not, if he had lines long enough to sit back on the load, he would have been pulled off by the lines, which went at most to the question of negligence and the cause of the accident, was properly excluded. It was also proper to exclude a question asked plaintiff as to what use he would have made of a brake if there had been one on the wagon.</p>

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

<p>Master and Servant—Agreed Wages—Continuance after Term— Presumption of Renewal. — Where a master and servant have agreed upon a certain rate of wages for a fixed term, and the’parties continue the relation of master and servant after the term, they are presumed, under section 2012 of the Civil Code, to have renewed the agreement for the same wages and term.</p> <p>Id.—Employment by Bank for Year at Monthly Salary—Renewal— Finding—Conflicting Evidence.—Where the plaintiff was employed by the defendant bank as its cashier and bookkeeper for one year at a monthly salary, and the plaintiff’s testimony was in accordance with the presumption of continuance at the same salary for succeeding years until he was discharged pending a succeeding year, in an action for damages for breach of the contract a finding in favor of the plaintiff upon conflicting evidence cannot be disturbed upon appeal.</p> <p>Id.—Minutes of Directors Unknown to Plaintiff.-—The minutes of the directors of the defendant bank unknown to the plaintiff as one of the contracting parties cannot be considered as conclusive evidence of the terms of the contract for further employment.</p> <p>Id.—-Rescission—Support of Finding.—Where the evidence was conflicting as to whether the contract of employment was rescinded after two months’ employment in the last year by mutual consent, but there was sufficient evidence to support a finding to the contrary, the finding must stand.</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>Action for Value of Services—Mutual Account—Balance Due— Pleading—Answer — General Denial — Account Stated—Findings within Issues.—In an action by the assignee of an attorney to recover the reasonable value of his services, in the amount of an alleged balance due upon a mutual, open, and current account, setting up the items claimed by the defendant in an unverified complaint, where the answer denied that defendant is indebted to plaintiff in the balance alleged, or in any sum, and pleaded an indebtedness of plaintiff’s assignor to the defendant in a certain sum over and above all credits and offsets prior to the assignment, and that while the attorney was so indebted to defendant an account was stated between them in favor of the defendant in a specified sum,—findings that the account was mutual, open, and current, that services of a value greater than the balance claimed were rendered by the attorney under a special agreement for payment out of a particular fund, after making a deduction which would exhaust the fund, and that there was no balance due from defendant to the attorney or to plaintiff, are within the issues raised by the answer.</p> <p>Id.—Sufficiency of Answer.—Under the general issue in assumpsit, anything which shows that plaintiff at the time of the commencement of his action had no cause of action may be taken advantage of; and any allegation in an answer which, if found true, necessarily shows that the allegation of the complaint as to the same matter is untrue, is a good traverse and sufficient as a denial.</p> <p>Td.—Construction of Findings.—The court should not strain the language of a finding to make out a case of conflict; but it should be reconciled if it can be reasonably done. No such error or defect is here shown, in the answer and findings, as to justify a reversal.</p>

<p>Deed—Description—Construction—Third Part of Half of Eancho —Quitclaim — Effect of Patent.—Where a grantor owned an uncertain third part of an undivided half of a rancho, and on the same day when he deeded an undivided third part of the northern half of the rancho, according to a paper title, brought suit to determine what part of the rancho he in fact owned, and subsequently obtained a patent to the undivided third part of the eastern half of the rancho, and in his deed to the grantee, after a description of the whole rancho by boundaries, added “together with "all the estate, right, title, interest, and demand whatsoever which I had or may have, of, in, or to the same, or any part or parcel thereof, to have and to hold the aforesaid premises with all rights, privileges, and appurtenances thereunto belonging,” unto the grantee, etc.,—the deed is to be construed most strongly in favor of the grantee, and so as to give effect to all of its operative words, and in view of the parties, the subject-matter at the time of contracting, and the attendant and surrounding circumstances leading to its execution,—and, so construed, held, that the deed operates as a quitclaim to the whole of the grantor’s interest in the rancho, and the effect of the patent was not to create a new title in the patentee, but to confirm in his grantee, through him, the title which had formerly been his.</p>

<p>Amendment of City Charter—Constitution—Time for Election-Discretion of Municipal Legislature—Mandamus.—Under section 8 of article XI of the constitution, where amendments to a municipal charter are petitioned for by fifteen per cent of the qualified voters of the city, the legislative authority of the city, though required to submit the same to the voters thereof, has discretion either to call a special election or to wait until the next general election to submit the proposed amendments to a vote of the people; and mandamus will not lie to control that discretion by compelling the ordering of a special election.</p>

<p>Criminal Law—Murder—Trial Jury—Challenge to Panel—Absence of Becord of Supervisors—Evidence of Selection.—Upon a trial for murder, the absence of a record of the selection of trial jurors toy the board of supervisors under the order of the superior court does not warrant the court in sustaining a challenge to the panel oh that ground, where it appears clearly from the uncontradicted evidence of members of the board and of the deputy county clerk that the identical list of jurors from which the panel to try the defendant was drawn was in fact selected by the supervisors under the order of the court, and was certified to by the board as so drawn, and was delivered by it into the possession of the county clerk.</p> <p>Id,—Mistake in Number of Jurors Drawn—Omission of Two Numbers not Material—Challenge Properly Denied.—Where the list of jurors drawn purports to be numbered from one to three hundred, as ordered by the court, but, by inadvertence, and evident mistake, an omission of two numbers appears in the list, such omission does not constitute such a material and substantial departure from the provisions of the law as deprived the defendant of an opportunity to secure a fair and impartial jury; and the denial of a challenge to the panel will not be disturbed for such omission where it appears that a qualified and impartial jury was selected from such panel and tried the cause.</p> <p>ID,_Selection from Supervisor Districts—Proportion to Population of Townships — Omission — Presumption — Burden of Proof.— The fact that the jurors drawn were selected from supervisor districts is not material where it appears that they were selected in proportion to the population of townships. The omission to select jurors from a small township will be sustained on the presumption that the supervisors did their duty, and that there were no qualified jurors therein; and it was incumbent upon the defendant to prove that such township contained persons suitable and qualified to have been selected and returned as jurors to sustain a challenge to the panel for omission to select by townships.</p> <p>Id.—Separation of Lists.—Independent of the question whether the separation of lists required by section 206 of the Code of Civil Procedure does not apply solely to the separation of grand and trial jury lists, and not to township lists, and independent of the question whether the township selections may be tabulated from the trial jury lists, if it appears that the jurors had been selected from townships, the mere fact that they are not so listed in the certification to the county clerk is not of such substantial merit as to warrant the sustaining of a challenge to the panel on that account.</p> <p>Id.—Challenges for Actual Bias—Qualified Opinions.—Challenges by the defendant to individual jurors for actual bias were properly denied where their opinions that the defendant had committed a crime in killing the deceased were not unqualified, and were based solely on public rumors and published statements, and were subject to removal by evidence on the trial, and where it appears to the court that the jurors would act impartially and fairly upon the evidence.</p> <p>Id.—Prejudice against Defense of Insanity — Qualifications of Statement—Challenges Properly Denied.—Where questions put to jurors by the defendant tended to bring out an expressed prejudice against the defense of insanity in general, which really related only to the possible interposition of simulated or feigned insanity as a defense, and the jurors upon further examination stated that they had no prejudice against real insanity proved as a defense, and that if such insanity were proven by the defendant, they would recognize and adopt it as a good and perfect defense, and would abide by and follow the instructions of the court as to the law governing the matter of insanity, the court did not err in denying challenges to such jurors.</p> <p>Id.—Contradictory Statements of Juror—Construction—Province of Trial Court.—Where the evidence of a juror upon a challenge for actual bias is contradictory in itself, and subject to more than one construction, and a finding either way would have support in the evidence, the trial court is the final arbiter of the question, and its ruling will not be disturbed upon appeal.</p> <p>Id.—Evidence—Dying Declarations.—Where the preliminary proof showed that the declarations of the deceased as to the circumstances attending the shooting of him by the defendant were made in expectation of death, and after all hope of recovery was abandoned, his dying declarations were admissible in evidence against the defendant.</p> <p>Id.—Oral Declarations—Thought of Deceased—Ruling not Prejudicial—Thought op Dependant.—Where the dying declarations were oral, and contained the statement “that he .thought the defendant thought he was shot through the body,” the overruling of a motion to strike out such statement is not prejudicial error, where it appears that the defendant, in giving his version of the shooting after it occurred, stated that when he fired at the deceased he thought he hit him in the side.</p> <p>Id.—Expert Testimony as to Insanity.—An expert witness for the people is competent-to give his opinion, addressed to the condition of the testimony in the case on the part of the defendant, that it was impossible to have all the symptoms recited in such evidence in the same individual.</p> <p>Id.-—Opinion as to Insanity—Ruling not Prejudicial.—Upon the application of the expert witness to the court as to whether it was necessary to believe all the testimony he heard as an expert, and whether he was compelled to pass his opinion, a ruling of the court that he might pass it upon what he deemed the truthfulness of the testimony is not prejudicial error against the defendant, where the witness, still speaking generally of the testimony for the defendant, answered: “If all these conditions existed in the same individual, 1 would believe the man was certainly insane.”</p>

<p>Master and Servant—Safety and B-epair of Appliances—Liability of Employer—Qualification of Bule.—The general rule requiring an employer to furnish appliances that are reasonably safe, and to use reasonable care to keep the same in repair, and that this duty cannot be delegated, does not apply to defects arising in the daily use of an appliance which are not of a permanent character and do not require the help of skillful mechanics to repair, but which may easily be, and usually are, repaired by the workmen, and to repair which suitable materials are supplied, unless such defects become actually known to the employer, or continue for so long a time or under such circumstances-us to warrant the conclusion that in the exercise of reasonable care he should have known thereof.</p> <p>Id.—Slight Defects Attendant upon Operation of Machinery-—Duty of Master not Involved — Negligence of Fellow-Servant. — Slight defects attendant upon the operation of machinery which, from their nature, require remedying at the hands of the operators themselves, and as a part of the proper operation of the machine, are not required to be remedied by the master; and any negligence in the performance of that duty by a particular employee whose business it is to remedy such defects is the negligence of a fellow-servant.</p> <p>Id.—-Dullness of Knives of Planer—Looseness of Belt—Bemedies for Operation—Employer not Liable.—The mere dullness of the knives of a planer, which may be sufficiently remedied by a file in the hands of an employee, and the mere looseness of a belt, which may be remedied by putting on a dressing with which an employee is supplied, are defects of such a nature that the employer cannot be held responsible therefor, in the' absence of other eireumst'anees.</p> <p>Id.—Evidence—Repairs after Accident.—Evidence simply to the effect that after the accident the knives were sharpened by the foreman before being again used, is not admissible for any purpose; and its admission is error, necessitating a reversal of a judgment for the plaintiff.</p>

<p>Elections—Contest—Insufficient Deposit of Ballots—Error not Shown.—Where it was stipulated that all of the ballots objected to by either party should be withdrawn from the clerk’s office by the party appealing, and be deposited with the clerk of this court, and the contestee appellant only deposited twenty-eight out of two hundred and fifty-one ballots rejected for the contestant, and no other ballots were deposited, no error is shown in counting or rejecting any of them.</p> <p>Id.—Statement of Contest—Bestjlt of Canvass—Number of Legal Votes Cast—Issues'—Finding—Variance—Support of Judgment. —WThere the statement of contest showed the result of the canvass by the election board in counting 4,862 votes alleged to have been cast for the contestee, without alleging that they were legally cast, and also alleged misconduct of election boards in counting for the contestee ballots which were actually cast for the contestant, and further alleged that the contestant received 5,083 legal votes, and that the contestee received a less number of legal votes than the contestant at said election, and the „ease was tried without objection, upon the theory that the court was called upon to decide which of the parties actually received the greatest number of legal votes, a finding that the contestant received 4,004 legal votes and that the eontestee received 4,001 legal votes does not show a material or prejudicial variance from the statement as to the 4,862 votes, and is sufficient upon appeal to support a judgment for the contestant. [Beatty, C. J., dissenting.]</p> <p>Id.—Illegal Ballots-—Distinguishing Marks.—The court did not err in rejecting all ballots as illegal which had crosses after the words “No nomination,” as containing a distinguishing mark. The fact that there were a large number of such ballots does not affect the rule; and the intent of the voter cannot be shown other than by what appears upon the face of the ballot.</p> <p>Id.—Integrity op Ballots.—Where the pouches containing the ballots were shown to have come from the clerk’s office in the same condition as when they were received there, and there was no circumstance to raise a suspicion as to their integrity, an objection to the opening of the pouches by the court is without merit.</p> <p>Id.—Purity op Election Law—Irrelevant Question.—The question whether contestant had complied with the Purity of Election Law, and as to the failure of the court to find thereupon, need not be considered. The matter is irrelevant to an election contest.</p>

<p>The facts are stated in the opinions of the court delivered upon the present and former hearings.</p>

<p>Trust under Will—Jurisdiction—Determination of Rights—Termination of Trust—Power to Order Property Delivered.—Independent of the necessity to determine who are interested as beneficiaries under a trust created by will, arising from a dispute over specific items of an account rendered by the trustees, or over the right to contest the same, the superior court having jurisdiction over the trust, under section 1699 of the Code of Civil Procedure, has general power, upon final settlement at the termination of the trust, to declare it terminated, and to dispose of the entire matter of the trust, by determining who is entitled to the property, and directing the trustees to turn it over to the person or persons entitled thereto.</p> <p>Id.—Nature of Jurisdiction.—Jurisdiction for a certain purpose necessarily includes authority to do all things necessary to accomplish that purpose which can be done by the means afforded.</p> <p>Id.—Nature of Accounting by Trustees—Disposition of Trust Property.—Trustees who have the possession of trust property, under the terms of the instrument creating the trust, are chargeable in their accounts with the whole of the estate committed to them, and they have not fully accounted until the entire estate is finally disposed of, and they will remain subject to be called to account until this is done and the trust is fully executed and the trustees are entitled to their discharge.</p> <p>Id.—Duty of Court.—The court has the power, under section 1699 of the Code of Civil Procedure, and it is its duty wherever the power is invoked, to ascertain who is entitled to the trust- estate already delivered by the trustees, and also that which yet remains to be delivered, and to make such orders as may be necessary to enable the trustees to make final settlement with the beneficiary in safety and secure a final settlement of his account which will entitle him to a discharge.</p> <p>Id.—Prohibition—Remedy by Appeal.—The writ of prohibition will not lie to prevent action by the court, on the ground that the trustees had failed to comply with the provision of law requiring them to name the beneficiaries in their report, nor on the ground of anticipation of error by the court in ordering the property delivered to one who claims under the will of a deceased beneficiary before the time for contest of the will has expired, there being a sufficient remedy by appeal in each ease.</p>

The facts are stated in the opinions of the court. J. C. Campbell, W. H. Metson, Campbell, Metson & Campbell, and John Garber, for Appellant. The contracts involved a breach of trust, and were illegal and not enforceable. (Morawetz on Private Corporations, sec. 517; West St. Louis Bank v. Bank, 95 U. S. 557; Chamberlain v. Pacific etc. Co., 54 Cal. 103; Graves v. Mining Co., 81 Cal. 308; Civ.

<p>Action to Set Aside Deed—Fraud and Undue Influence—Confidential Delations—Appeal—Support of Findings—Presumption.— In an action to set aside a conveyance for alleged fraud and undue influence exercised ny the defendant over the plaintiff, in violation of a confidential relation between them, where the judgment is for the plaintiff, it must be presumed upon appeal, in support of the findings of the court, that the court gave full credit to the testimony of the plaintiff, and refused to believe the evidence adduced by the defendant in conflict therewith.</p> <p>Id.—Inadequacy of Consideration—Taking Advantage of Ignorance and Confidence.—Where the defendant took advantage of the highest trust and confidence reposed in him by the plaintiff, and of the ignorance of the plaintiff, to obtain a deed from her to him for a grossly inadequate consideration, a court of equity is warranted in finding that the deed was obtained by fraud, and that the same should be canceled.</p> <p>Id.-—Equity—Adjustment of Accounts.'—The defendant having ■ obtained the conveyance by fraud, equity invests him with the character of a trustee for plaintiff, and a court of equity will do complete justice between the parties, and to this end will adjust the accounts between them in relation to the land, and will offset the claim of one against the other, and will not require the plaintiff to restore to defendant money received, where it is shown that the latter has already realized out .of the trust estate more than the amount paid by him to the plaintiff in the original transaction.</p> <p>Id. — Unnecessary Tender by Plaintiff — Belief under General Prayer.—The fact that the plaintiff at one time tendered to defendant what he was not entitled to receive is immaterial; and under the prayer for general relief the court can give such relief as plaintiff was entitled to.</p> <p>Id.—Fraud upon Divorced Husband—Estoppel of Defendant.—The defendant will not be permitted to validate his own fraudulent act by showing that the plaintiff, whom he has defrauded, intended by the conveyance to defraud her divorced husband.</p>

<p>Mechanics’ Liens—Foreclosure—Finding as to Lien for Attorneys’ Fees—Support of Judgment—Issues—New Trial.—In an action to foreclose mechanics’ liens, a finding of fact, upon which the land of the owner was charged with a lien for attorneys’ fees, to the effect that after payment of the fund into court the owner had entered into a contest with certain claimants as to the disposition of the fund, which finding is necessary to support the judgment for such lien, is not outside of the issues upon which the court was called upon to pass, and is reviewable upon motion for new trial, on the ground that such finding is unsupported by the evidence.</p> <p>Id.—Appeal from Order Granting New Trial—Beview of Order— New Trial as to Attorneys’ Fees and Costs.—Where the order granting a new trial generally was made, after failure of the plaintiffs to comply with an order to the effect that it would be . granted if attorneys’ fees were not remitted, the order granting a new trial for insufficiency of the evidence to sustain a finding thereupon will be affirmed, so far as it grants a new trial upon the issue as to attorneys’ fees and costs, and the respondents will be allowed to recover their costs of appeal.</p> <p>Id.—Owner, when not Liable for Interest or Costs.—Where the . building contract appears to be valid and the owner before the trial of actions to foreclose mechanics’ liens pays the residue of the fund properly remaining in his hands as due to the contractor, to be applied toward payment of the claimants of liens, the owner is not liable for interest or costs.</p>

<p>Injunction—Interference with Good-Will of Business—Fraudulent Representations as to Identity.—An action may be sustained to enjoin the defendants from attempting by fraudulent representation to the effect that plaintiff’s business is defendants’ business to appropriate the benefit of the good-will of plaintiff’s established business.</p> <p>Id.—Use of Defendant’s Surname—Intention—Consistency of Findings.—Where the plaintiff’s, established business had used the surname of an individual defendant, as a part of the good-will of the plaintiff’s business, while he was connected with it, a finding as to his intention to show his connection with the defendant corporation is not inconsistent with a finding that he and his fellowcorporators caused his name to be adopted therein with the intent and for the purpose of defrauding the plaintiff and appropriating to their own benefit the good-will of plaintiff’s business.</p> <p>Id.—Support of Findings.—Upon a review of the evidence in such action, held, that the findings therein for the plaintiff are sustained by sufficient testimony.</p> <p>Id. — Ownership of Good-Will of Corporate Business — Vendible Interest—Rights of Stockholders.—The good-will of the business of the plaintiff corporation is the property of the corporation alone, and can be transferred only by it. The defendant, whose surname was used as an essential part of such good-will, and who was a stockholder in the plaintiff corporation, had no vendible interest in its good-will, and could not upon ceasing to be a stockholder transfer such good-will or any part thereof.</p> <p>Id.—Right to Use of One’s Own Name—Restriction.—Though the stockholder whose name was used by the plaintiff corporation, by his consent, has the right after he ceases to be a stockholder therein to use his own name in the same line of business, if he does so legitimately, and cannot be restrained therefrom by contract; and though the corporation has no proprietary interest in his name, yet it is entitled to the good-will of its business, and he • cannot be permitted to injure it by palming off its business as his own.</p> <p>Id. — Rights of Trading Corporation — Expectation of Continued Patronage—Protection in Equity.—A trading corporation may, equally with a private person, have a well-founded expectation of continued public patronage, which constitutes the good-will of its business under section 992 of the Civil Code, and may be proteeted by a court of equity against acts of the character complained of.</p> <p>Id.—Right to Use of Name in Forming New Corporation—Interference with Prior Corporation with Similar Name.—Though an individual has the right to do business in his own name, if he does so legitimately, yet he cannot confer upon a new corporation the right to use his name for the purpose of enabling it to engage in á business which had been conducted by a prior corporation under a similar name, which he had caused the prior corporation to use, where the similarity of names would create confusion, and enable the new corporation to obtain the business of the prior corporation.</p> <p>Id.—Injunction to Restrain Simulation.—In such case injunction will lie in favor of the prior corporation against the new corporation, and the defendant whose name is used by it to restrain the simulation so far as may be necessary to protect the rights of the prior corporation. The courts interfere in such cases solely for the purpose of preventing fraud, actual or constructive.</p> <p>Id.—Actual Fraudulent Intent not Essential.—It is immaterial whether the surname used by the plaintiff in its business was used by the defendant corporation on its signs with actual fraudulent intent. If the natural and necessary consequence of defendant’s conduct was such as to cause deception, said defendant, knowing the facts, must be held to the same responsibility, even if it acted under the honest impression that no right of the plaintiff was invaded.</p> <p>Id. — Use of Defendant’s Name by Plaintiff not a Misrepresentation.—The use by the plaintiff of the corporate name conferred upon it by the act of the individual defendant is not a misrepresentation of the fact that any person of that name is connected with it after he ceased his connection therewith. The name, by his acts, had become so bound up in the plaintiff’s business as to indicate the business itself carried on by it; and it indicated nothing more after his retirement.</p> <p>Id.—Extent of Injunction.—Though in other respects the injunction granted was warranted by the case presented, it should not go to the extent of enjoining the defendant corporation from using its corporate name in some other line of business, nor should it enjoin the individual defendant in the matter of using his own name in carrying on the stationery business, to any greater extent than is necessary to protect against fraud.</p>

<p>APPEAL from an order of tlie Superior Court of the City and County of San Francisco allowing alimony and counsel fees pending an action for divorce. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Judgment — Denial of Motion to Vacate — Discretion — Appeal.— Dpon appeal from an order denying a motion to vacate a judgment for mistake, under section 473 of the Code of Civil Procedure, the sole question is whether the discretion of the trial court was abused, and if no such abuse plainly appears, the order will be affirmed.</p> <p>Id.—Judgment bt Default—Copartners Jointly Sued—Mistake of Attorney.—Held, that under the facts of the ease it cannot be said that there was an abuse of discretion in denying a motion by one of two defendants sued jointly as copartners to set aside a judgment by default for mistake of their attorney in not remembering that both defendants were sued, and in making default under the instructions of one of them, who had no ability to pay the judgment, nor to defend the action.</p> <p>Id.—Attorney and Client—Question of Negligence and Mistake of Attorney—Client Bound, notwithstanding Hardship.—Where questions of negligence and mistake of an attorney arise, there must always come a time when, notwithstanding the hardship to the client, he must be bound by the errors or omissions of his attorney.</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.</p>

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

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

<p>Action upon Judgment by Assignee—Pleading—Ownership—Legal Conclusion.—In an action upon a judgment by an assignee thereof, where the complaint alleges an assignment of the judgment, and also alleges that plaintiff is now the owner and holder of the judgment, the latter allegation is of a mere legal conclusion or presumption from the fact of assignment, and is unnecessary; and an answer denying each allegation presents an issue only as to the fact of the assignment.</p> <p>Id.—Proof of Assignment—General Description.—An assignment by the judgment creditor to the plaintiff of each and every judgment entered of record in his name carries the judgment sued upon, which was entered in his favor prior to the assignment, in the absence of evidence of any previous assignment or transfer thereof. Such assignment was admissible in evidence upon proof of its execution.</p> <p>Id.—Effect of Prior Assignment—Executed Contract—Consideration—Subsequent Assignment—Evidence.—The prior assignment to the plaintiff carried the legal title to the judgment with the right to sue thereon, whether it was or was not supported by a consideration. It was an executed contract, and there could he no revocation or subsequent assignment thereof which could affect the legal title of the plaintiff. All evidence to show that plaintiff’s assignment was not for value, and that the subsequent assignment was for a valuable consideration, was irrelevant and immaterial.</p> <p>Id.—Assignment in Trust—Equitable Rights of Second Assignee not Involved.—Although the assignment to the plaintiff was in trust for the assignor, and the assignor could convey his equitable interest therein, yet where the only issue was as to the fact of the assignment, without any plea in abatement, the rights of the second assignee cannot be adjudged, and the plaintiff may maintain the action upon his legal title. The second assignee, though a bona fide purchaser for value, did not acquire a title superior to that of the plaintiff as prior legal assignee.</p> <p>Id.—Notice of Assignment—Rule of Caveat Emptor.—It was. not necessary for the plaintiff to put his assignment on file or to give notice of it to other persons who might be about to take a second assignment. The rule of caveat emptor applies in such case; and if the assignor has no legal title, the subsequent assignee will take none, whether he has notice or not.</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.</p>

<p>Appeal—Order Denting New Trial—Bevibw—Demurrer to Complaint —Support of Judgment—Findings.—Upon appeal from an order denying a new trial, the question whether the court improperly overruled a demurrer to the complaint, or whether the complaint is sufficient to support the judgment, cannot be considered. Such appeal does not involve any consideration of the correctness of the judgment or of the sufficiency of the pleadings or findings to support it.</p> <p>Id.—Motion for New Trial—Distinct Proceeding.—A motion for a new trial is an issue of a distinct proceeding, and is to be heard upon an independent record, distinct from the record upon which the judgment depends.</p> <p>Id.—Motion for Nonsuit—Sufficienct of Evidence—Sufficiency of Complaint not Involved.—Upon motion for a nonsuit, the only question to be considered is as to the sufficiency of the evidence to sustain the complaint; and where the court was warranted by the evidence in refusing the motion, the question whether there was no sufficient complaint to which any evidence offered by the plaintiff could be applied is not involved.</p> <p>Id.—Character of Land Sued for—Negative Allegation—Denial-— Burden of Proof.—Where the action was for the recovery of a lot of land situated on Lake Merritt, in the city of Oakland, comprising one acre and one twelfth, with dwelling-house and other improvements thereon, a negative allegation that it was not agricultural land, denied by the answer, need not be proved by the plaintiff; but the burden is upon the defendant to show that it was agricultural land within the meaning of the code.</p> <p>Id.—Omission in Findings—Decision not against Law.—An omission in findings upon an issue upon which the defendant had the burden of proof, and upon which no evidence was introduced, does not render the decision for the plaintiff against law.</p> <p>Id.—Deed Absolute—Mortgage—Evidence of Purchase—Receipts— Contract of Sale.—"Where there was a controversy as to whether a deed absolute in form, under which plaintiff claims title, was intended as a mortgage or as an absolute grant for purchase money, evidence is admissible for the plaintiff to show receipts for purchase money and a contract for the sale and purchase of the land, in proof of his title under the deed.</p> <p>Id.—Debt Essential to Mortgage by Deed—Burden of Proof—Support of Finding.—A subsisting debt after the conveyance is essential to constitute it a mortgage, and the burden is on the one claiming it to be a mortgage to prove it by clear evidence. Where such burden is not sustained, but the evidence shows that there was no subsisting debt, a finding that the deed was intended as an absolute conveyance for the consideration expressed, and that it was not executed and delivered as security for any obligation, is sufficiently supported.</p>

<p>Estates of Deceased Persons — Partial Distribution — Appeal by Executrix—Issue of Law—Sufficiency of Petition.—An executrix may appeal from an order for partial distribution to legatees under the will, where she presents for review an issue of law as to the sufficiency of the petition to show that there were sufficient assets to pay the legacies without loss to the creditors. In such case both the power of the executrix to comply with the order and the right to an immediate distribution are involved, and upon these questions the executrix is interested, both personally and on behalf of the creditors, and has a clear right of appeal.</p> <p>Id.—Sufficiency of Petition as to Executrix—Demurrer Properly Overruled.—Where the petition for partial distribution alleged, in the exact language of the statute, “that said estate is but little indebted, and that the shares and legacies of your petitioners may now be allowed to them without loss to the creditors of the estate of said deceased,” it is sufficient as against the executrix; and her demurrer thereto, on the ground that the facts stated do not entitle the petitioner to relief, and that the petition was uncertain as to the value or nature of the estate, was properly overruled.</p> <p>Id.—Knowledge of Executrix.—The executrix, generally, must have greater knowledge of the value and character of the property, the amount of money on hand, and the amount of the indebtedness than any other person.</p> <p>Id.—Statement of Ultimate Pacts Sufficient.—A statement of the ultimate facts concerning the nature of the estate and the amount of the debts, which, according to the code, the court must find to exist before making the order for partial distribution, affords sufficient information of the grounds on which the application will be made to enable the executrix at least to make any proper opposition or defense. If it accomplishes this, it serves the purpose for which pleadings are required in such ease.</p> <p>Id.—Controversies as to Legacies—Executrix not Interested.—The executrix, as such, has no interest in any controversy which concerns only the rights of legatees as between themselves; and she cannot urge that the petitioning legatees had forfeited their rights to their legacies because of an alleged violation of the will, that if any one named therein should contest the same he or she should take nothing under it, where that question affects only the rights of residuary devisees, and does not affect the executrix in her representative capacity.</p> <p>Id.—Con clusiveness of Order as to Defaulting Legatees and Devisees.—Where none of the other legatees or devisees appeared as such at the hearing, and in no manner objected to the order for partial distribution to the petitioning legatees, and the order has become final and conclusive as to them, it is equally conclusive upon the executrix in her capacity as residuary devisee, so far as the rights of the petitioning legatees are concerned, where she only appeared and objected to their petition in her representative capacity as executrix. As devisee, she must be considered as one who has suffered default.</p>

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

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

<p>Action bt Husband and Wife—Injury to Building—Joint Ownership—Evidence—Motion for Nonsuit.—In an action by a husband and wife to recover damages for an injury to their building, where issue was joined upon an allegation that they were the owners and possessed of the building and lot upon which it stood, and there was no evidence as to the record title of the property, testimony that the house was built by them, and that they had occupied it for about ten years, was sufficient evidence of joint ownership to justify the court in overruling a motion for nonsuit for failure to prove it.</p> <p>Id.—Tenancy in Common.—Under section 384 of the Code of Civil Procedure, the plaintiffs, as eotenants, or tenants in common, are entitled to maintain the action.</p> <p>Id.—Nature of Title—Construction of Code—Absence of Presumption.—Under section 161 of the Civil Code, the husband and wife may hold property as joint tenants, tenants in common, or as community property; and in the absence of any evidence as to the source of the moneys with which the house was built, or of the manner in which the property was acquired, there is no presumption that it was community property or the separate property of either spouse, rather than that it was held by them in joint tenancy, or tenancy in common.</p> <p>Id.—Injury through Negligence—Careless Use of Steam-Roller— Maxim.—Where it appeared that the injury occurred by the use of a steam-roller by the defendant in street-work, which was carelessly allowed to run against the building of plaintiffs and to injure it and the fences, sidewalk, shrubbery, and lawns surrounding it, the manner in which the injury was caused sufficiently sustains the finding of the jury that it was through the negligence of the defendant. The case is one in which the maxim Bes ipsa loquitur is peculiarly applicable.</p> <p>Id.—Offer of Defendant to Repair Injury—Pleading—Inadmissible Evidence.—The offer on the part of defendant to show that forty-eight hours after the injury it offered to put the building back in as good condition as it was before or to defray the expense thereof was properly refused, where there was no issue presented by the answer that the cost would have been less to the defendant if the repairs were made by it rather than by the plaintiffs or their employees, and there was no showing to that effect.</p> <p>Id.—Inapplicable Rule.—The rule which obtains in actions for damages for breach of contract, that it is the duty of the injured, if within his power to protect himself against any increase of damage that may accrue after the breach, has no application where the damage to the premises of the plaintiffs through the negligence of the defendant is complete at the time of the injury.</p> <p>Id.—Instructions — Prompt Repairs — Change of Residence after Suit.—Where the jury were instructed that if plaintiffs could have prevented any loss by prompt repairs they were bound to do so, and that they could only recover for actual damage suffered by them prior to the commencement of the action, it is not to be presumed that the jury included in their verdict any damage by reason of delay in repairing the house, or any expense incurred by removal from the house after the action was commenced.</p> <p>Id.—Extent of Damages-—Support of Verdict.—Where there was evidence tending to show that the amount of damages was greater than that awarded by the jury, and it was apparent that the permanent injury to the building, by displacing it from its foundations, breaking its chimneys, and destroying its plastering, is a greater damage than the mere cost of patching it up so as to make it serviceable, the verdict as to the amount of damages was sufficiently supported, notwithstanding evidence for the defendant that a portion of the damage could be repaired for less than the amount of the verdict.</p>

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

The facts are stated in the opinion. Reddy, Campbell & Metson, and Campbell, Metson & Campbell, for Appellant. The note was without consideration, having been executed solely on account of her husband’s shortage. (Chaffee v. Browne, 109 Cal. 211.) The surviving executor was not liable for the deceased executor’s shortage, in which he took no part.

<p>The facts are stated in the opinion of the court.</p> <p>Jesse W. Lilienthal, and Frohman & Jacobs, for Appellant.</p>

<p>Action upon Note—Defense—Accommodation of Maker for Payee —Failure of Proof—Evidence—Accommodation for Corporation. ■—In an action on a note which was taken up by the payee at a bank to which it was indorsed, and which was assigned by the bank to the plaintiff by the direction and for the use of the payee, a defense by the maker that he signed it for the accommodation of the payee wholly failed of proof, where the evidence showed that the maker, payee, and indorser of the note were stockholders in a corporation, and that the note was made and indorsed for the accommodation of the corporation, and was delivered to the corporation to be discounted for its use, and that the money was received and used by the corporation.</p> <p>Id.—Suretyship for Corporation—Form of Instrument Disregarded . —Contribution—Bights and Obligations of Sureties Inter Sese. ■—Upon the facts of the ease the form of the instrument may be disregarded, and the parties to the note are to be regarded as mere sureties for the corporation, and as such entitled to contribution from each other, and each surety in reference to the others, disregarding their common relation to the principal debtor, is primarily liable to them for his proportion of the debt, not as a surety, but as principal debtor, and his suretyship for the others applies only to the balance. '</p> <p>Id.—Defense of Want of Consideration—Proof Only in Part.-—The facts in the ease, as to joint suretyship for the corporation, though differing materially from the facts pleaded under the defense of accommodation for the payee, were admissible under the defense of want of consideration, which was proved only in part as respects the suretyship of the defendant in his relations to the payee and indorser as co-sureties, but failed in part as to his own primary liability for one third of the note to the indorsee of the bank for the use of the payee who took up the note.</p> <p>Id.—Action upon Express Promise of Maker of Note—Legal Cause of Action to Extent of Consideration.—The suit brought is not for contribution merely, but is upon the express promise of the defendant, as maker, to pay the note, and there is a legal cause of action in such ease to the extent to which there is a consideration for the note.</p>

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

<p>Estates of Deceased Persons—Will—Undevised Beal Estate—Expenses of Administration.—Where a testator, whose whole estate consisted of realty, devised only one half thereof, without making any provision in the will for payment of the debts and expenses of administration, or appropriating any part of his estate therefor, the burden of such debts and expenses must be borne wholly by the undevised portion of his real estate as to which he died intestate.</p> <p>Id.—Construction of Code—Insufficiency of Appropriation in Will. —Section 1560 of the Code of Civil Procedure is intended to apply where there is an ample and sufficient appropriation in the will for debts and expenses; and section 1562 of the same code is intended to apply to all cases of insufficient appropriation in the will, no matter from what the insufficiency may spring, whether because the appropriation was too small, or because ho appropriation was made.</p>

<p>Writ of Mandate—Arbest for Misdemeanor—Applicant not Interested.—An applicant for a writ of mandate to compel the arrest of a person accused by his complaint, filed in the justice’s court, of a misdemeanor in unlawfully using a slot machine for a game of chance, is not a party beneficially interested, within the meaning of the statute. He is not injured thereby in any manner different from the general public, and his application for such writ was properly denied by the superior court.</p>

<p>Sale of Stock—Action for Purchase Money—Offer and Acceptance —Direction for Draft—Setting Apart of Stock—Delivery.—An 'action may be maintained for the purchase price of certain shares of the stock of a corporation sold by plaintiff to the defendant, where it appears that, as the result of correspondence, there was a complete offer and acceptance for the purchase and sale thereof, with direction to the plaintiff to draw upon the defendant for the purchase money, without direction as to delivery, and that the plaintiff complied with such direction and set apart the stock for the use of the defendant, and requested information as to the mode of its issuance, and tendered the stock thereafter within a reasonable time. In such case there was a completed sale of the stock, as to which an immediate delivery was not essential.</p> <p>Id.—Revocation before Delivery—Absence of Agreement as to Time. —There having been no agreement as to the time of delivery of the stock, and the contract of sale having been complete before delivery, the contract bound both parties, and the defendant could not revoke the contract before actual delivery and tender of the shares within a reasonable time, on the ground that they did not accompany the draft.</p> <p>Ib.—Transfer of Stock—Identified Shares—Passage of Title.— Where the vendor had complied with what was required on his part, and it only remained for the vendee to designate as to the mode of transfer of the stock, which was ready for immediate delivery, and it is evident that if the stock had been delivered immediately to the vendee in San Francisco, it must have been returned to Honolulu for transfer on the books, if desired, the request for an intimation of such desire did not affect the passage of the title to the identified shares of stock sold, which were set apart by the vendor to the use of the vendee.</p> <p>ID.—SUFFICIENCY OF FINDINGS—PBOBATIVE AND ULTIMATE FACTS—CONCLUSIONS OF Law.—Where the findings are in part of probative facts and in part of ultimate facts, and findings of ultimate facts appear in the conclusions of law, they may all .be considered in determining whether they are supported by sufficient evidence, and are sufficiently responsive to the issue made by the pleadings, and support the judgment.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. Ruef, for Appellant.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>E. E. McFarland, Raleigh Barcar, and William M. Sims, for Appellants.</p>

<p>Action for Commissions—Securing Contracts with Foreign Government—Past and Future Services—Sufficiency of Complaint— Trial—Objection upon Appeal.—In an action by the plaintiff corporation to recover commissions under an alleged contract which recited past services rendered by plaintiff through its agents in Guatemala in securing contracts for the defendant corporation with the government of Guatemala, and that such contracts are likely to be awarded, and agreeing to pay five per cent commissions on all moneys received under any contract or contracts awarded to the defendant, either direct or through any other person or contractor, said commissions to be in full compensation for past and future services to be rendered by the corporation plaintiff, which “agreed to continue its efforts to secure the said contracts, and to do everything in its power towards this end,”—where the complaint alleged that the contracts were thereafter awarded to defendant, and that one half of the commissions remained unpaid on amounts received thereafter, the mere failure to allege that plaintiff complied with its agreement to continue its efforts to secure the contracts, etc., is not ground for reversal upon appeal, where there was no demurrer, and the case was tried upon the theory that the fact of such continued efforts was in issue. [Beatty, G. J., dissenting.]</p> <p>Id.—Issue as to Want of Consideration—Evidence—Rebuttal—Correspondence.—Where the defendant had pleaded want of consideration for the alleged contract, and_ had introduced evidence tending to show that the plaintiff had done nothing in the matter of procuring the contracts, it was proper in rebuttal to admit evidence of a correspondence of plaintiff with its agents in Guatemala, the letters to whom were shown to the defendant and in great part dictated by it, which correspondence covered a period both before and after the date of the contract, and also to admit testimony that other letters were written pertaining to one of the contracts which were in court subject to plaintiff’s inspection, though not formally introduced in evidence.</p> <p>Id.—General Question as to Consideration—Ruling not "Prejudicial. —It was not prejudicial error to sustain plaintiff’s objection to a general question asked by defendant of a witness, whether the defendant ever received any consideration for the written agreement, where the witness had already testified that plaintiff had not paid or given defendant anything before or at the time of the agreement, and it appeared the only question before the court touching the consideration was as to plaintiff's services in procuring the contracts from Guatemala.</p> <p>Id.—Past Services as Consideration for Contingent Compensation under Written Contract—Doctrine Inapplicable.—The general • doctrine that a past executed consideration supports only an implied agreement to pay in prcesenti on request, and will not support an agreement to pay in future, has no application where the agreed compensation was to be contingent upon the securing of contracts, and by the written agreement of the parties they merely put into permanent written form what they finally agreed upon as to the future contingent compensation.</p>

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

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

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

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

<p>The facts are stated in the opinion.</p> <p>Frank J. Fallon, and Mullany, Grant & Cushing, for Appellants.</p> <p>James G. Maguire, and Edgar D. Peixotto, for Respondents.</p>

WRIT OF HABEAS CORPUS to Garret Fox and George W. Wittman. The petitioner alleges unlawful restraint under extradition proceedings from the governor of Ohio to the governor of this state, to answer to an indictment found in the state of Ohio November 21, 1904, for the crime of burning a building in that state January 4, 1881, for the purpose of defrauding an insurance company, by aiding and abetting other persons named in the indictment to commit such crime.

<p>Extradition—Regularity of Proceedings—Beview upon Habeas Corpus.—In extradition proceedings, where the indictment in the state to which the extradition is sought charges a public offense within its statute, the regularity of the proceedings had before the extradition is not reviewable upon habeas corpus.</p> <p>Id.—Fugitive prom Justice—Construction op Federal Constitution —Decision op United States Supreme Court.—The question as to whether or not the petitioner is a fugitive from justice within the meaning of the federal constitution having been settled by the decision of the supreme court of the United States, its decision on that question is absolutely binding upon this court.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Santa Cruz County denying a motion to be relieved from default in serving notice of intention to move for a new trial. Lucas F. Smith, Judge. The facts are stated in the opinion of the court.

APPEALS from orders of the Superior Court of the City and County of San Francisco refusing to vacate a dismissal by plaintiffs, and refusing to vacate a judgment of dismissal, and from the clerk’s judgment of dismissal. J. M. Seawell, Judge. The facts are stated in the opinion.

<p>The facts are stated in the opinion of the court.</p> <p>M. K. Harris, W. D. Turner, and Goodfellow & Eells, for Appellant.</p>

<p>Foreclosure of Street 'Assessment—Absence of Notice oe Lis Pen-dens—Purchaser Pendente Lite not Concluded.—Section 409 of the Code of Civil Procedure, as to the filing of notice of lis pendens, applies to an action to foreclose the lien of a street assessment, and in the absence of such filing there is no constructive notice of its pendency, and a purchaser who took title from the defendant pending such action, without actual notice of its pendency, and who was not a party to the judgment foreclosing the lien, is not bound thereby.</p> <p>Id.—Proceeding not In Eem.—Upon the foreclosure of a street assessment the land is not a party, and it is not a proceeding in rem, except in the sense that the amount of the lien can be collected only out of the amount of the property involved in the action. The judgment for the sale of the property is not binding upon the world, and can only affect the interest of an owner made a party to the action or affected with notice thereof.</p> <p>Id.—Conclusiveness oe Judgment—Construction oe Code—Notice oe Pendency of Action.—The provision in subdivision 2 of section 1908 of the Code of Civil Procedure, that a judgment is conclusive with respect to the matter directly adjudged between the parties and their successors in interest by title subsequent to the commencement of the action, is by the concluding clause of the section applicable only to those eases where the parties have had “notice actual or constructive of the pendency of the action.”</p> <p>Id.—Effect of Dismissal—Binding and Judgment against Vendor— Purchaser not Bound.—Where the purchaser was served with summons under a fictitious name, after he had obtained title pendente lite, without prior notice actual or constructive of the pendency of the action, by the dismissal of the action as to the defendants sued by fictitious names the purchaser ceased to be a party to the suit, and where a finding and judgment were thereafter had against the former owner, adjudging her to be the sole owner of the land involved, the effect of the proceeding is the same as if the action had been originally brought against her alone, and the purchaser Is not bound by such finding and judgment.</p> <p>Id.—Statute of Limitations — Continuance of Lien — Discharge against Purchaser.—The lien of a street assessment continues for two years only, and where the purchaser took title without notice actual or constructive of the commencement of the action, and after the lapse of two years from the date of the lien, he took the title discharged from the lien.</p> <p>Id.—Purchase of Land Subject to Lien of Street Assessment— Inapplicable Bule—Absence of Personal Liability.—The title of the purchaser is not affected by the judgment foreclosing the street assessment against the vendor by reason of a provision in the conveyance that it was “subject to any existing lien for street-work.” The rule as to the assumption of a mortgage or lien by a purchaser does not apply where the vendor, has no personal liability. There is no personal liability for a street assessment, and there can be no deficiency judgment in an action for its foreclosure. Such provision created no personal liability for the amount of the assessment.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Jesse W. Lilienthal, and E. B. Martinelli, for Appellant.</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>Arthur H. Barendt, Charles E. Naylor, and William P. Hubbard, for Appellant.</p>

<p>Summons—Substituted Service—Jurisdiction of Defendant—Conditions—Beturn.—A substituted service of summons in an action purely in personam is a radical departure from the ordinary method of procedure whereby jurisdiction is obtained over the defendant, and the authority to make it must be strictly followed, and the existence of the conditions upon which such service depends must be shown affirmatively by the return.</p> <p>Id.—Service upon Foreign Corporation—Leaving Copy with Secretary of State—Insufficient Beturn—Condition not Shown. —A sheriff’s return of the service of summons upon a foreign corporation doing business in this state, by leaving a copy of the summons and complaint with the secretary of state, which wholly fails to show the necessary condition that the records in the office of the secretary of state disclose that no person has been designated by the corporation for that purpose, is insufficient to show jurisdiction of the defendant and to support a judgment by default.</p> <p>Id. — Special Appearance — Motion to Quash Service and "Vacate Judgment—Want of Jurisdiction.—Upon the special appearance of the defendant corporation for that purpose its motion to quash the service of the summons and to vacate the judgment by default for want of jurisdiction of the defendant appearing upon the record was properly granted.</p> <p>Id.—Certificate of Secretary of State not Part of Beturn or Becord.—A certificate by the secretary of state attached to the returned summons that the defendant corporation had designated no person upon whom service might be made is not provided for by statute as evidence of that fact in aid of the sheriff’s return, and is not part of his return or of the record of the judgment by default, and cannot be considered for any purpose upon a motion made upon the record to quash the service and vacate the judgment.</p> <p>Id.—Appeal—Order Granting Motion—Affidavits not Part of Becord.—Where none of the affidavits, or the substance of them, offered by the plaintiff upon the defendant’s motion to quash the service of the summons and to vacate the judgment by default, and not admitted in evidence, were made part of the record upon appeal from the order granting the motion, the refusal to admit them in evidence cannot be considered.</p>

<p>Ejectment—Reporter's Per Diem—Rule oe Court—Failure oe Defendant to Obey Order—Judgment without Trial—Power of Court.—The superior court had no power, for the mere failure of the defendant in an action of ejectment to obey its order for the immediate deposit of one half’ of the per diem of the reporter, as feed and required by a rule of court, to order judgment for the plaintiff for recovery of the land of which the defendant was in possession without any trial of the cause, and without any evidence of plaintiff’s right thereto, or affording to the defendant an opportunity to reply to any evidence the plaintiff might adduce.</p> <p>Id.—Constitutional Law—Due Process oe Law.—The guarantee of the constitution that the defendant shall not be deprived of his property without due process of law gives him the right to be heard in its defense against any claim that may be made against him for its possession; and he cannot be deprived of this right of defense as a penalty for failure to comply with a rule of the court, or for failure or refusal to pay any part of the costs of the action in advance of a trial.</p> <p>Id.—Ambiguity in Complaint—“Possession” — Special Demurrer.— Where the complaint in ejectment alleged that at the time of the commencement of the action the plaintiff was the owner of “and in possession” of an entire tract of land therein described, and also alleged that for about one year prior thereto the defendant had been, and now is, unlawfully “in the possession,” without any right or title, of a described part of the premises, and unlawfully withholds the same from the plaintiff, a special demurrer to the complaint for ambiguity as to the averments of possession should have been sustained.</p>

<p>Criminal Law—Previous Conviction—Increased Punishment—Constitutional Law—Aggravated Offense.—The increased punishment on account of a previous conviction of a former offense, as provided in section 666 of the Penal Code, and the proceedings to be had upon arraignment under section 988 of that code, and upon verdict, in reference to such prior conviction, under section 1158 of that code, are not violative of any provision of the constitution, state or federal. The increased punishment is not' for the prior conviction, but solely for the aggravation of a second offense, which merits a greater punishment.</p> <p>Id.—Discrimination—Due Process of Law.—Where the defendant was arraigned and tried in the same manner as any other defendant who has suffered a previous conviction is arraigned and tried, he is not discriminated against or deprived of due process of law.</p> <p>Id.—Previous Conviction a Question of Pact—Pleading—Issue— Province of Jury.—The previous conviction is a question of fact material to the aggravated offense for which the defendant is tried, which must be pleaded, and where issue is joined thereupon, either-by plea of not guilty or by standing mute, which amounts to th& same thing under the Penal Code, it must be proven as any other material fact upon the trial of the case; and it is the province o£ the jury to pass thereupon, under section 1158 of the Penal Code.</p> <p>Id.—Confession of Previous Conviction—Eights of Defendant.—The defendant has it in his power to avoid bringing the fact of previous conviction before the jury by confessing the same by his plea at the time of arraignment before the court.</p>

<p>Divorce—Conduct of Trial by Dependant in Person—Illness—Refusal of Continuance—Order Granting New Trial—Unavoidable 'Accident.—In an action for divorce by the husband, where the wife in person conducted the trial, and upon a day to which it was adjourned was too ill to attend, and requested the court by letter to continue the case on that ground, which was refused upon objection of the plaintiff for want of a legal showing, an order granting .a now trial upon the sole ground that it was shown by affidavits that illness prevented her attendance, without specifying whether it was granted for abuse of discretion on the part of the court or on the ground of unavoidable accident preventing her attendance at the further hearing of the case upon adjournment, the order will be sustained upon the latter ground.</p> <p>Id.—Policy of Law—Reasonable Diligence of Defendant.—In divorce cases the policy of the law is to afford a full hearing on both sides, and to relieve the parties from a situation which prevented it; and the fact that the defendant was not an attorney, and hence unfamiliar with the rules of practice, may be taken into consideration with the other circumstances in the ease in determining whether reasonable diligence was employed by her in presenting to the court in the manner she did the fact of her inability to attend the trial on the day to which it was adjourned. The facts disclosed show sufficient diligence, at least in an action of divorce, to obviate objection for want of it.</p> <p>Id.—Receipt of Money under Decree of Maintenance—Defendant not Estopped.—The receipt of money under a decree obtained by the wife in an action for maintenance, which was continued in force by the decree of divorce for the period of six months, cannot estop the defendant from assailing the decree of divorce on motion for new trial.</p> <p>Id.—Notice of Intention—Signature by Attorney not Substituted— Waiver of Objection.—The fact that the notice of intention to move for a new trial was not signed by a former attorney of record for the defendant who failed to conduct the trial, and was signed by an attorney not regularly substituted, is immaterial where objection on that ground was waived by the plaintiff by recognizing and treating such attorney as representing the defendant on the motion for new trial, and serving papers upon him as such.</p>

<p>Contracts—Letters—Proposal—Qualified Assent.—In order to constitute a binding contract by letters there must be a proposal squarely assented to. A qualified acceptance is a rejection of the proposal, and is a new proposal, and if the new proposal is not accepted no contract is constituted.</p> <p>Id.—Sale of Oil—Action for Breach of Contract—Evidence—Inadmissible Letters.—In an action for breach of an alleged contract to purchase oil, letters containing merely a proposal by plaintiff to sell the oil on specified terms, and a qualified acceptance of the terms by the defendant, adding a material new term, that the proposed quality of the oil must be at a fixed temperature, were properly excluded from evidence.</p>

<p>Foreclosure of Mortgage—Statute of Limitations—Death of One Mortgagor.—The death of one of two mortgagors does not have the-effect to suspend the statute of limitations as to the other mortgagor or as to his grantee.</p> <p>Id.—Bar Appearing upon Face of Complaint—Demurrer—Answer— Objection to Evidence—Absence of Finding.—Where the bar of the statute as to the defendants other than the administrator of the deceased defendant appeared upon the face of the complaint, a demurrer to the complaint on that ground was improperly overruled; and the objection is not cured where the answer set up-the bar of the statute, and such defendants at the trial objected to evidence of the mortgage on the ground that it was barred as to them, and there is no finding of fact express or implied to the contrary.</p> <p>Id.—Construction of Findings—Conclusions of Law—Plea of Statute not Defeated.—Where there was no finding upon the plea of the statute, nor of facts from which such finding may be inferred, conclusions of law based upon specific facts found, which were the only facts put in evidence as to the effect of an unrecorded deed from the wife to the husband prior to its record, and as to the deed being subject to the mortgage, and as to the right of foreclosure against them, cannot defeat the plea of the statute.</p>

<p>CEBTIOBABI to review a judgment of the Beeorder’s Court of the City of Pomona. John H. Lee, Recorder.</p> <p>The facts are stated in the opinion of the court.</p> <p>Herbert Cutler Brown, and Garret W. McEnerney, for Petitioner.</p>

<p>Municipal Corporation—Power to Regulate Gas-Rate—Validity of Ordinance—Constitutional Law.—A municipal ordinance in a county of the fifth class fixing a maximum rate for gas, and providing a punishment for violation of the same, is valid under section 19 of article XI of the constitution, construed in connection with the Municipal Corporation Act.</p> <p>Id.—Certiorari-—Gas for Cooking, Heating, and Illuminating Purposes—Conviction—Jurisdiction of Recorder’s Court.—A writ of certiorari will not lie to review and annul a conviction under such ordinance under a complaint charging the defendant with collecting and receiving a greater rate than the maximum rate-allowed by the ordinance for gas furnished in the pipes laid in the streets for cooking, heating, and illuminating purposes. It is sufficient that the complaint charged a public offense, for collecting and receiving an excessive rate for illuminating purposes, within the jurisdiction of the recorder’s court.</p> <p>Id.—Eight of City Unaffected by Use.—The right of the city to fix the rate for gas is unaffected by the use which is made of it. It covers all gas furnished through pipes laid in the street. [Per Beatty, C. J., and Van Dyke, J.; the majority of the court expressing no opinion.]</p> <p>Id.—Construction of Constitution.—Section 19 of article XI of the constitution does not specifically include gas for heating or cooking; but under section 11 of article XI of the constitution the city has the proper public authority to make the regulations here in question. [Per Shaw, J.]</p>

<p>Action for Mining Machinery and Work—Issues—Counterclaim— Conflicting Evidence—Probabilities—Support of Findings.—JCn an action to recover a balance of account for mining machinery alleged to have been sold and delivered to the defendant, and for work in installing the same upon a mining claim owned by a corporation in which plaintiff was a stockholder, where issue was joined upon the complaint, and the defendant by answer and cross-complaint pleaded a counterclaim for money paid to plaintiff’s use, and the evidence was squarely conflicting between the parties, without other witnesses, and the probabilities were in favor of the defendant, findings against the plaintiff, and in favor of the counterclaim of the defendant, were sufficiently supported and will not be disturbed upon appeal.</p> <p>Id.—Cross-Complaint—Failure to Allege Non-Payment of Counterclaim—Cure of Defect.—The failure of the cross-complaint to allege non-payment of the counterclaim pleaded therein was cured by answer thereto denying the original indebtedness, by failure to object to evidence thereof for such failure, and by findings in support of the counterclaim.</p>

<p>APPEAL from an order of the Superior Court of the City •and County of San Francisco settling the final account of a special administratrix. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion of the court, and in 142 •Cal. 208, therein referred to. Octave De Py, Houghton & Houghton, and Frank H. Short, for Miller & Lux, Respondent and Appellant. Isaac Frohman, for J. C. Mowry, Intervener, Respondent and Appellant. W. C. Graves, and Coldwell & Borland, for Enterprise Canal and Land Company and Jefferson G. James, Appellants and Respondents.

<p>Criminal Law — Murder — Proof of Corpus Delicti — Pursuit of Escaped Convicts—Death from Bullet-Wound—Autopsy not Essential.—Upon a trial for murder an autopsy is not necessary as proof of the corpus delicti; but it is sufficient proof that death ensued from the wound that deceased, while a young man, in good health, engaged as part of a posse in pursuing escaped convicts to rearrest them, received a bullet-wound which passed through his body from the right to the left side, and that immediately on receiving it he dropped, and within a few moments was dead.</p> <p>Id.—Evidence—Deception of Wound from Pursued Convicts—Posses —Confusion from Use of Map—Presumption.—Notwithstanding uncertainty in the evidence growing out of the use of a map at the trial not fully explained by the words of the witnesses, their motions were part of the evidence before the jury, and where there is nothing in the record indicating that the pursuing posses fired at each other, and the evidence, so far as it can be understood, clearly points to the convicts as the persons who fired the fatal volley, it must be assumed that the jury understood the evidence, and properly concluded that deceased was killed by the fire of the convicts, and not by that of another pursuing party.</p> <p>Id.—Presence of Defendant—Articles Left in Camp.—The presence of the defendant with the convicts who fired the fatal volley is shown both by the circumstances of the case and by the finding of articles in a camp which they had hastily broken up after firing the fatal volley, several of which had been previously possessed by defendant. All of the articles so found were admissible as evidence.</p> <p>Id.—Proof of Conspiracy to Escape—Threats to Kill.—Evidence was admissible to show a conspiracy among the convicts, including the defendant, to escape from prison, and the declarations of the defendant and other conspirators that they would never be taken alive, and that if the militia came after them they would ambush and kill some of them and then escape.</p> <p>Id.—Separation into Parties—Common Purpose.—The fact of the separation of the conspirators into several parties does not destroy the effect of the plans and threats of the conspirators as evidence tending to show a guilty intent on the part of the defendant and a common purpose in the accomplishment of which the fatal shot was fired.</p> <p>Id.—Evidence of Tracks.—Evidence of tracks leading from the place where the convicts were last seen to the camp from which the fatal shots were fired, and of other tracks found the next day leading away from that spot, was competent to show that the convicts had been there.</p> <p>Id.—Instruction as to Conspiracy—Aiding and Abetting Common Design—Murder.—The court properly instructed the jury that “If several persons confined in the state’s prison conspire to escape therefrom, and, if necessary, to Mil any person who shall lawfully attempt to arrest or recapture them, and the death of a person so engaged in the attempt to lawfully arrest or recapture them ensue in the prosecution of said common design, it is murder in all who are present aiding and abetting in the common 'design.” Its application is limited to those present aiding and abetting at the time of the attempt to make the recapture and the death of a person engaged in the attempt, and does not make defendant liable to conviction if he was not then present.</p> <p>Id.—Conspiracy to Escape a Crime.—It was proper to instruct that under section 105 of the Penal Code it is a crime for any person confined in the state’s prison for a term less than life to escape therefrom, and that if two or more persons confined in the prison, only one of whom was sentenced to a term less than life, should conspire together and agree to a scheme to escape from the prison, all the persons engaged in the conspiracy are engaged in a conspiracy to commit a crime.</p> <p>Id.—Proof of Convictions—Request Properly Refused.—Where part of the ease of the prosecution consisted in proof that each of the escaped convicts, including defendant, had been convicted and sent to the state’s prison, and were at the time of the escape serving their sentences, it was proper for the jury to consider such evidence, and it was proper to refuse a requested instruction that the jury were not to consider any other trials or convictions of the defendant as having any bearing on the case.</p>

<p>Nuisance—Dam Causing Injury to Land—Destruction of Orange-Trees—Mandatory Injunction.—A dam erected by the defendant which caused the waters of a stream to flow out of their natural channel, and to flow over the plaintiff’s land, causing irreparable injury thereto by the excavation of deep gulches therein, and the destruction of orange-trees growing thereon, is a nuisance per se, which may be abated by a mandatory injunction compelling the defendants to remove so much of the dam as caused the injury.</p> <p>Id.—Use of Mandatory Injunction.—A trespass irreparable in its character and of a continuing nature, or a nuisance, may be restrained by a mandatory injunction, thus restoring things to their original condition. The right to a mandatory injunction does not depend upon the settlement of the rights of the parties at law, nor, if there be a legal injury caused by a nuisance, upon the extent of the damage caused thereby measured by a money standard. The principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied.</p> <p>Id.—Location of Bailroad Culverts—Mistake of Bailroad Company —Defendants not Justified.—The defendants had no right to build the obstruction to plaintiff’s injury for the purpose of correcting a mistake of a railroad company in locating its culverts. Whatever was the effect on plaintiff’s land from the defective condition of the railroad, or the location of its culverts, defendants cannot justify or defend their acts on the ground that they were endeavoring to obviate the mistakes of the railroad company and failed, it appearing that their dam was the cause of the injury to plaintiff’s land.</p>

<p>Vendor and Purchaser—Broker’s Commission—Expiration op Contract.—A real-estate broker having a right to a commission on a sale of real estate for finding a purchaser must in order to be entitled to the commission perform the duty of finding the purchaser within the time limited in the contract or an extension thereof by the owner. The fact that he made efforts to sell the property within the time limited, and first called it to the attention of the party who made the purchase, will not entitle him to a commission if he failed to procure the purchaser within the time limited, iff the delay was not caused by the negligence, fault, or fraud of the-owner.</p> <p>IP.—Construction of Contract—Time Limit.—Where the owner on Sunday gave a broker the right to sell the property on certain terms, “subject to prompt reply,” which meant that the broker had all of the following day to bring a purchaser, the owner could not withdraw the offer before the expiration of the following day; but the procuring of a purchaser on Tuesday was beyond the time limit, and where the owner sold directly to the same purchaser on that day commissions were not recoverable by the broker.</p> <p>Id.—Sale not Ratified—Compromise of Commissions—Time Limit not Waived.—The fact that the purchase money was paid on Tuesday through the broker, and, there being a dispute as to the right to a commission, the money was receipted for by the owner, less one half of the commission, by way of compromise, while the right to the other half was left in dispute, does not show a ratification of the sale or a waiver of the time limit as respects the residue of the commission.</p> <p>Id.—Action for Commission—Pleading—Count for Work and Labor —Omission in Finding—Evidence.—Where in the action for the agreed commission there was a second count in the complaint for work and labor, and all of the evidence was directed to the alleged contract and the sale under it, the failure of the court to find on the second count will not justify a reversal.</p>

<p>Action for Death—Bursting of Boiler—Repairs—Negligence of-Engineer—Failure to Apply Bursting Test.—In an action by-heirs for the death of an intestate caused hy the blowing off of" the mud-drum of defendant’s boiler, while the deceased was employed as a fireman by the defendant, owing to the negligence of defendant’s engineer in failing to employ the bursting test after-repairs, the negligence of the engineer whose duty it was to look after the engine and boiler, in failing to see that the boiler was-kept in a safe condition, was the negligence of the defendant.</p> <p>Id.—Province of Jury—Custom as to Test—Belief of Witnesses— Circumstances.—The jury were not bound to take the statement of two witnesses that the bursting test was not usual or customary,, as against that of one witness to the contrary, corroborated by the circumstances, showing that it had been treated as the usual and proper test of the boiler in question; and it cannot be held as-matter of law under the evidence that it was not necessary or customary to apply the bursting test.</p> <p>Id.—Necessity for Bursting Test.—If it was necessary to apply the bursting test after the boiler had been originally set up anti the mud-drum had been coupled to it, it was equally necessary to-apply the same test after the repairs, were made as disclosed oy the evidence.</p> <p>Id.—Bepairs by Independent Contractor—Liability of Owner—Seasonable Diligence—Question of Fact.—The owner of an engine and boiler is not absolved from liability on account of the bursting of a boiler merely because an independent contractor was procured to repair it; but the question whether he had used reasonable diligence to keep it in a safe condition, or whether the death was. the direct and proximate result of a want of ordinary care on the part of the engineer, was a question of fact for the jury.</p> <p>Id.—Evidence—Former Condition of Packing-Bings-—Offer.—It was not error to overrule an objection to evidence of the plaintiff as to the condition of the packing-rings and their efficiency for preventing the oil from getting into the boiler a year or two before the accident, coupled with a statement that it would be shown that this condition of things continued down to the time of the accident.</p>

<p>Elections—Tax-Collector — Qualifications for Office — Residence for Eive Years before Election—San Francisco Charter.—Under the charter of San Francisco the tax-collector must be an elector of' the city and county at the time of his election, and for five years; previous thereto; and if he has not those qualifications at the time of his election he is not capable of being elected to that office, and; will not be entitled to hold the office, even though he has received a majority of the votes cast at the election. It is of no avail that, he has the requisite qualifications at the time of taking office.</p> <p>Id.—Constitutional Law—Legislative Power — Qualifications for Office.—The constitution of the state is not a grant of power, and the legislative power which is vested in the senate and assembly includes all power not expressly prohibited to the legislature or elsewhere conferred. Though the legislature cannot increase; or diminish the qualifications which the constitution has prescribed for eligibility to the offices created by that instrument, nevertheless,, for all offices which the legislature may authorize or establish, it. may prescribe such qualifications as in its judgment will best accord with public policy or subserve the interests .of those affected thereby..</p> <p>Id.—Qualifications in Municipal Charter—Legislative Authority of State.—The authority to provide a municipal government is; referable to the lawmaking power of the state, and the enactment of a charter for a municipality is a legislative act, and the authority-withdrawn from the legislature and given to the city is part of the-lawmaking power of the state. The adoption of the charter by tke city, and its approval by the legislature, have the same effect, as that of a law passed by bill. The provisions of the San Francisco charter in reference to the qualifications for eligibility to-the office of tax-collector have been established by the legislative-authority of the state, and are valid.</p> <p>I'd.—Finding against Qualifications—Residence for Five Years— Sufficiency of Evidence—Probative Facts.—A finding, of the court that the appellant had not been a resident elector of the city of San Francisco for the period of five years next preceding the-date of the election is sufficiently sustained, and must be accepted as correct, in so far as the determination of the court upon the-probative facts upon which the ultimate fact depends was made-up on conflicting evidence or by reason of inferences from established facts.</p> <p>Id.—Change of Domicile—Burden of Proof—Declarations of Intention—Union of Act and Intent Required.—The burden of proof: was upon the appellant, who had acquired a domicile in another county to prove a change of domicile; and evidence of mere declarations of future intention will not affect the residence until the intention is carried into effect by the completed act. The residence can be changed only by the union of act and intent.</p>

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

<p>Deed—Life Estate—Inoperative Grant of Bemainder—Beversion in Grantor.—A deed conveying a life estate to the grantee named therein, and after the description declaring that “it is the purpose of the party of the first part by this deed, that after the death of the said party of.the second part, the said described lands shall become and be the property of the Boman Catholic Girls’ Orphan Asylum of San Francisco, state of California,” contains no operative words of grant to such asylum, and conveys to it no present interest in the property. The reversion was left in the grantor, and it required some future conveyance or some testamentary disposition to effectuate its transfer to the orphan asylum.</p> <p>Id.—Present Interest Beqttisite to a Deed.—It is fundamental that while possession or enjoyment of an estate may be deferred, a deed, to be operative, must pass a present interest.</p>

<p>Banks—Insolvency—Assessment for Unpaid Stock—Authority of-Directors—Provisions of Civil Code—Election to Sue.—The directors of a savings bank which has been adjudged insolvent at suit of the attorney-general, on notice of the bank commissioners, may, for the purpose of liquidating its indebtedness and paying its-creditors, levy an assessment upon the unpaid capital stock for a sufficient sum to pay the creditors in accordance with the provisions of the Civil Code relative to assessments; and if not paid may elect to proceed by suit to recover the amount of the same.</p> <p>Id.—By-Law not Effective against Creditors—Statute Part of Contract.—A by-law of the bank forbidding the directors to levy an assessment of a greater amount than thirty per cent of the capital stock, except by a two-thirds vote of the stockholders, may be attacked by creditors without notice, and must be construed in connection with the provisions of the statute authorizing the levy of a sufficient assessment to pay the creditors of the insolvent bank, and is ineffective so far as conflicting with the statute, which entered into and became a part of the subscriber’s contract with the corporation.</p> <p>Id.—Statute of Limitations.—If the statute of limitations may be deemed applicable to the case, it does not begin to run against the right to enforce an assessment upon the stockholders on account of unpaid stock of the insolvent bank until the levy has been made and the directors have elected to proceed by action.</p> <p>Id.—Effect of Unpaid Assessment—Running of Statute—Power of Directors—New Assessment.—Where nothing was ever paid upon a former assessment levied upon the unpaid capital stock, and it was declared rescinded and waived, though it may be conceded that the statute of limitations began to run against it, yet the assessment not being paid the power of the directors in liquidation to levy assessments under subdivision 1 of section 332 of the Civil Code was not exhausted, and the statute of limitations as to a new assessment did not commence to run prior to its levy.</p> <p>Id.—Payments to Creditors under Judgments—Capital Stock.—Payments made by the defendant to creditors of the bank under judgments against him by such creditors, upon defendant’s liability to them under section 322 of the Civil Code, cannot be considered as payments made upon the capital stock.</p> <p>Id.—Repeal of Bank Commission Act — Judgment and Power of Directors not Affected.—The repeal of the Bank Commission Act on March 2, 1903, without any saving clause as to pending litigation, could not affect a judgment theretofore given in pursuance of its provisions decreeing a bank insolvent and requiring it to proceed under the management of its directors to close up its affairs and liquidate its indebtedness. Nor could such repeal affect the power of the directors to levy and collect an assessment upon the unpaid capital stock under the Civil Code.</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.</p>

<p>CROSS APPEALS from a judgment- of the Superior Court of Ventura County. Felix W. Ewing, Judge.</p> <p>The facts are stated in the opinion.</p> <p>G. H. Gould, and W. R. Edwards, for Soledad Gutierrez et al., Appellants and Respondents.</p>

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

<p>Preliminary Examination by Police Judge—Source of Power—San Francisco Charter—Penal Code.—The charter of the city and county of San Francisco only confers upon the police court, as such, the power to conduct preliminary examinations in cases of felony, and no such power could be conferred upon the police judge by the charter, under the grant of power by the constitution to create police courts. Nevertheless, the police court having been established, a judge thereof has power to hold a preliminary examination as a committing magistrate under the general provisions of section 808 of the Penal Code.</p> <p>Id.—Power to Appoint Stenographic Beporter—Constitutional Law —Provisions of Charter—Code Provisions Superseded.-—Under section 8% of article XI of the constitution, placing police courts under charter control, and authorizing the charter to fix the compensation of attaches, the power given by the charter of the city and county o£ San Francisco to the police judges to appoint not more than two stenographic reporters, and fixing their compensation and duties, including the taking of notes of all preliminary examinations, is exclusive, and supersedes the provisions of section 869 of the Penal Code, so that a police judge acting as a committing magistrate has no power under that section to appoint another stenographic reporter, and to fix his compensation as a charge upon the municipal treasury.</p> <p>Id.—“Attaches” of Police Court—Stenographers.—The stenographers appointed by the police judges under the charter are “attaehés” of the police court within the meaning of section 8% of article XI of the constitution.</p>

<p>Wells—Contest after Probate—Continuances—Dismissal of Contest—Discretion not Abused.—Where more than one year had. elapsed after the trial of a contest of a will after probate, at which the jury had disagreed, and the case, after being reset, was continued several times on account of the withdrawal of other attorneys and the illness of an attorney, who was not present at the first trial, and there was no appearance, except to move for a further continuance, after ample time had been allowed to secure other attorneys, it was not an abuse of discretion to refuse to grant another continuance, and, where the contestant declined to proceed, to dismiss the contest.</p>

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

<p>Action by State—Dissolution of Corporation—Void Order for Receiver—Allowance of Attorneys’ Fees against State—Rejection by Board of Examiners.—Mandamus.—Where an action was brought by the state to dissolve a corporation, and the court therein made a void order appointing a receiver, and upon report of the receiver made an order allowing his attorneys compensation against the state, without notice to the state, and a claim therefor was repeatedly presented by the attorney to the state board of examiners, and repeatedly rejected by it, its action in rejecting it was discretionary and judicial, and mandamus will not lie to compel the board to allow it.</p> <p>Id.—Attorneys’ Fees not Costs.—The attorneys’ fees allowed by the court are not costs against the state within the meaning of section 1038 of the Code of Civil Procedure, which the board has no discretion to reject, when the judgment therefor is final.</p> <p>jn.—Void Order of Allowance.—The allowance of attorneys’ fees being based on the void order appointing the receiver, he cannot be regarded as a receiver, and the court had no power to allow attorneys’ fees based upon such void order, and the order allowing the same is itself void. The order should have run to the receiver, and not to the attorneys for the receiver as such, who can have no right of action to enforce them, and the allowance to them is void.</p> <p>Id.—Jurisdiction of Board of Examiners.—The board of examiners is forbidden to entertain a demand against the state once rejected by it, unless such facts are presented to the board as between individuals would be ground for a new trial.</p> <p>Id.—Void Judgment or Order—Effect of Dismissal of Appeal.—The dismissal of an appeal from a void judgment or order is an affirmance thereof only in a limited sense, and imparts no validity thereto. Id.—Constitutional Law—Void Special Appropriation.—A special appropriation act which contains several items which are not for a single purpose is void, as being in violation of section 34 of article IV of the constitution.</p>

<p>Quieting Title—Boundary — Practical Location — Agreed Fence— Findings—Common Boundary.—In an action to quiet title to a strip of land involving the location of a boundary, findings for the defendant as to the practical location thereof by an agreed fence are not inconsistent with a finding that the two tracts have a common boundary, the location of which is not found otherwise than as may be inferred from the practical location, which would control, even if the true line as originally existing were referred to as the common boundary.</p> <p>Id.—Support of Evidence—Legal Conclusions—Laches of Plaintiff —Estoppel.—Where the findings as to practical location by the agreed fence are supported by the evidence, and are sufficient to support the judgment for the defendant, findings which are mere legal conclusions from the practical location, as to the laches and estoppel of the owner under whom plaintiff claims, are immaterial, and need not be supported by the evidence.</p> <p>Id.—Evidence—Declarations of Owner in His Own Favor.—Evidence of the declarations of the lessor under whom plaintiff claims as owner, made in his own favor, was properly excluded.</p> <p>Id.—Testimony of Owner — Impeaching Evidence — Contradictory Statements.—Where the owner under whom plaintiff claims had testified in brief that the fence was put up by him on his own land for his own convenience, and not as a boundary, and that there was no agreement in reference to it, it was proper to ask him if he had not at other times made statements inconsistent with his present testimony, the proper foundation being laid therefor, and if he denies them, evidence to show the contrary is clearly competent.</p> <p>Id.—Test of Contradictory Statements.—The test of the admissibility of contradictory statements is whether the matters sought to be contradicted are material or immaterial.</p> <p>Id.—Statements after Lease.—Where the testimony sought to be impeached was material the fact that the contradictory statements were made by the owner after a lease to plaintiff’s assignor does not render them immaterial.</p> <p>Id.—Insufficient Foundation for Impeachment — Statements not Belated to Witness — Immaterial Error.—Where the contradictory statements to which the testimony of an impeaching witness referred were not related to the witness sought to be impeached the statements were inadmissible, but where the testimony was allowed “subject to the same objection, ruling, and exception” as former impeaching evidence of the same character properly admitted from another witness, and the defect was not urged by counsel, and probably escaped the notice of the court, and the denial of the admissible statements indicated that the other statements would have been denied if properly related to the witness, the error is immaterial.</p>

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

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