Volume 146 — California Reports

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

<p>Foreclosure of Mortgage—Lands in Different Counties—Marshaling of Liens—Decision upon Former Appeal.—Where the record upon the present appeal from a decree foreclosing a mortgage upon lands situated in different counties shows the same state of facts as appeared upon a former appeal as to the rights of the parties as to the marshaling of liens, and the prior sale of a parcel of land in another county before selling the land in the county of the venue, upon which such prior sale was adjudged, the trial court did not err in carrying out by its judgment the principles determined upon the former appeal.</p> <p>Id.—Effect of Order Granting New Trial—Notice of Motion to Mortgagor—Presumption of Jurisdiction.—An order granting a new trial of the action upon motion of a subsequent lienholder is to bo construed according to its terms, and has the effect to set aside the judgment rendered in the action and place the parties in the same position which they held before any trial had been held, ° including the mortgagor, whether he was or was not served with notice of the motion, the judgment being of such a character that the court could not vacate it as between the lienholder and the mortgagee, and leave it in force against the mortgagor. In support of the validity of the order, the jurisdiction of the court to make it must be assumed.</p> <p>Id.—Power of Court to Correct Error.—Even if the lienholder gave no notice of the motion to the mortgagor, and only asked for a new trial as to the mortgagee, the court was not precluded from granting a new trial of the entire action, if the means of correcting an error in the marshaling of liens could not be corrected in the absence of the mortgagor, land from thus indirectly setting aside the erroneous judgment as I to the mortgagor, merely because he had not asked for it. |</p> <p>Id.—Eecord of Instruments—Notice to Lienholder—Contract to Secure Purchase Money of Land—Deed Absolute Intended as Mortgage.—A contract providing that a note for the purchase money of a tract of land in one county is to be secured by a deed of land in another county was properly recorded in the book of “Covenants” of the former county, and operated as constructive notice of the contract and of the (unrecorded deed of lands, in which the subsequent lienholder was interested. The subsequent record of the deed in the book of “Deedá” gave constructive notice thereof, though it was intended as a mortgage. It is only a mortgage in form as such, which is required to be recorded in the book of “Mortgages.”</p> <p>Id.—Certainty of Description—Degree—Presumption.—The contract and deed were sufficiently certain in the description of the land deeded as security if one familiar with the property could identify and locate it; and whlre the court by its decree gave definite descriptions of all the ¡lands deeded, including those in which the subsequent lienholder claimed an interest, it will be presumed upon appeal by such lienholder that the court received competent evidence from which to ascertain such .descriptions.</p> <p>Id.—Jurisdiction of Foreclosure—Property in Different Counties. —The court in which the land, deeded as security was situated acquired jurisdiction to foreclose the security given for the note given as purchase money for ladd situated in another county and to order the sale of such land. ! The court in either county would have had jurisdiction of the foreclosure.</p> <p>Id.—Jurisdiction not Affected by Error.—The court having acquired jurisdiction of the action could not lose it by error committed in the course of the trial or by an erroneous judgment, which, after ascertaining the error, it caused to be vacated.</p> <p>Id.—Statute of Limitations—Amendment of Complaint.—Where the action was brought within fourj years after the maturity of the note for purchase money secured!by the deed, it was not barred by the statute of limitations, and ah amendment of the complaint so as to add an additional prayer for sale of the land purchased, the cause of action for which was set forth in the original complaint, did not introduce a new .cause of action. The court without such amendment had power, under section 580 of the Code of Civil Procedure, thereupon to grant the relief prayed for in the amended complaint. j</p> <p>Id.—Mortgagees' not Estopped—Erroneous Claim upon Appeal.— The fact that the mortgagees upon a first appeal erroneously claimed that the action was brought only to foreclose the lien upon the land deeded as security did not estop them from afterwards claiming, in accordance with the opinion of the court, the right to foreclose the lien upon both properties upon the original complaint.</p> <p>Id.—Appeal from Order Defusing to Vacate Judgment—Decord.— An order refusing to vacate a prior order or judgment is not appealable, unless there is a record which presents matter for consideration that could not be presented upon the appeal from the original order or judgment.</p> <p>Id.—Appeal from New Trial Order—Motion upon Minutes of Court —Insufficient Statement—Dismissal.—An appeal from an order denying a new trial cannot be considered where the motion was made upon the minutes of the court, and the statement is authenticated only by the attorneys and not by the court, and contains no specification of error or grounds argued before the court on the motion, and such appeal will be dismissed.</p>

The facts are stated in the opinion of the court. Stuart S. Wright, Wright & Wright, Alexander D. Keyes, and Thomas P. Boyd, for Appellants. The admissions of the pleadings which set up the will, as respects title thereunder, were of plain conclusions of law and not material. A conclusion of law is not issuable.

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

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

<p>The facts are stated in the opinion in the present case, and in the case between the same parties, ante, p. 25.</p>

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

<p>Sale op Orange Crop—Delay op Purchaser—Rejection op Overripe Oranges—Recovery op Price.—Under a contract made in November for the sale of an orange crop, to be taken, with the exception of late ones, before April first of the next year, and paid for in cash on delivery, and delivered; when wanted by the purchaser, the. purchaser had no right arbitrarily to fix the time of delivery, without regard to the maturity of the oranges on the trees or the effect of delay upon them; and where, as the result of his delay, after notice that oranges were ripe and ready for delivery, and that delay would injure them, large quantities of oranges became overripe and were rejected by the purchaser .as unmerchantable, the grower had the right to recover their price fixed by the contract.</p> <p>Id.—Construction op Contract.—Such contract of sale must be construed with reference to the character of the property which was the subject of sale, the situation of the parties, and the natural results of time and of the operation of natural forces.</p> <p>Id.—Implied Warranty—Fault op Purchaser—Estoppel.—Any implied warranty of the merchantable character of the oranges sold was, if existent; only a warranty that the fruit would be merchantable on the trees, and that, when gathered in due' season, it should be handled and delivered with proper care. If they were allowed by the purchaser to remain too long upon the trees, so as to become too ripe and unfit for market, it was the fault of the purchaser, and he should not be allowed to take advantage of that fault.</p> <p>Id.—Evidence—Fallen Fruit.—A .question as to whether some of the fruit on the trees when the contract was made fell off was properly excluded, where the fruit-grower did not claim payment therefor, and none of the fallen fruit, which was dwarfed and immature, is shown to have been delivered tb the purchaser as fruit sold under the contract.</p> <p>Id.—Improper Cross-Examination—Softening op Fruit by Rain and Weather.—Where the plaintiff as a witness upon his examination in chief had not been asked with respect to the condition of the fruit, a question asked on cross-examination as to whether or not some of the fruit had not been softened by rain followed by hot weather was properly disallowed.</p> <p>Id.—Care of Orchard—Issue not Involved.—Where no issue was involved in the case as to the care given to the orchard by the plaintiff, there was no error in refusing to allow the defendant to cross-examine the plaintiff upon that subject.</p> <p>Id.—Fruit Delivered and Paid for — Premature Delivery.—Where early fruit was delivered and paid for without objection, it was not error to ask if plaintiff had not broken the contract by a premature delivery.</p> <p>Id.—Sale of Crop on Trees—Passage of Title—Risk of Buyer.— Where the agreement in form imported a present sale of a crop of oranges on the trees of the plaintiff, and the thing sold was then in existence, and was identified and separated from other things, it seems that under section 1141 of the Civil Code the title passed at once, and that the oranges remained on the trees at the risk of the buyer.</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 Granting New Trial—Notice of Intention not Part of Record—Ground for Affidavits not Negatived.—Upon appeal from an order granting a new trial, where the notice of intention to move for a new trial, or the statement of grounds specified therein, has not been made part of the record by incorporation in the statement or any bill of exceptions; it cannot be considered, though printed in the transcript; and where the record does not negative the existence of a ground of the motion requiring affidavits, though it might be negatived if the notice were made part of the record, the order granting the new trial must be affirmed.</p>

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

<p>Appeal—Calendar—Power op Clerk—Absence op Points and Authorities—Erroneous Submission—Cause Stricken prom Calendar.—Where the appellant has not filed his points and authorities, though the time therefor has I long since elapsed, the appeal is subject to be dismissed on motion, and the clerk has no power, without an order of the court, to put the cause upon the calendar for oral argument; and where the appellant appeared for oral argument and submitted the cause without notice to respondent, the court will not pass upon the merits of the appeal, but will set aside the submission and strike the ease from the oral-argument calendar.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a motion for an injunction pendente lite in an action for a perpetual injunction. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardian and Ward—Time of Rendering Account—Jurisdiction.— Although a guardian is not required to render an account until the expiration of a year from the date of his appointment, he is not prohibited from rendering it sooner; and the court has jurisdiction to settle his account when rendered before the expiration of a year.</p> <p>Id.—Duty of Guardian to Provide for Ward—Settlement of Account—Agreement of Third Person.—It is the duty of the guardian and of the court to provide | out of the income of the estate for the comfort and support of an incompetent old lady who is helpless, regardless of an agreement of a third person to provide for her during the remainder of her life, in consideration of the conveyance of a reversion to him, if she is not eared for by such third person. The existence of such an agreement, or of the performance and the consideration of the conveyance,! were matters to be determined in other suits upon proper issue, and not on settlement of the guardian’s accounts.</p> <p>Id.—Bills Paid for Medical Attendance—Items.—Bills paid for medical attendance and services rendered to the ward are sufficiently itemized within the meaning of the statute, where they show the date of the payment, the amount, the person to whom paid, and the nature of the service. Such a bill need not contain each item going to make up the charge.</p> <p>Id.—Evidence—Submission of Cause without Argument—Discretion.—Where the court ruled out( immaterial evidence, but permitted any evidence pertaining to the guardian’s accounts, but the counsel for contestant offered none, and did not ask to argue the ease, there was no abuse of discretion in ordering the case submitted without argument.</p>

<p>Estates of Deceased Persons—Distribution under Will—Devise of Residue to Hephews and Hieces—Daughter bt Former Marriage.—Under a will devising the residue of the estate of the testatrix to her nephews and nieces, distribution was properly limited to the children of her brothers and sisters, and the daughter of the wife of a brother by a former marriage was properly excluded from such distribution.</p> <p>Id.—Evidence—Declarations of Testatrix—Intention to Be Found in Language of Will.—Where the declarations of the testatrix failed to show that she considered and treated the brother’s wife’s daughter by the former marriage as her niece, evidence of her declarations made after the will was executed, that while she was not her niece she wanted her to be remembered in the will, and considered the same as her other nieces, was inadmissible. The intention of the testatrix must be found in the language used in the will, and not in her oral declarations as to what she intended.</p>

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

<p>Exchange of Lands—Action foe Rescission—Fraud—False Representations—Support of Findings—Conflicting Evidence—Inference of Fact.—In an action to rescind an exchange of lands, and to set aside the deeds of transfer thereof for fraud of the defendant in falsely representing the character, extent, and condition of his land, whereby the exchange was induced, where the court found in favor of the plaintiff upon conflicting evidence, the findings in accordance with the testimony for the plaintiff must be accepted as correct; and any inference of fact which the court may reasonably make from the evidence is entitled to the same consideration in support of a finding as findings of fact upon conflicting evidence.</p> <p>Id.—False Representations of Agent.—Where one who had formerly been the agent of the plaintiff for the collection of rents, was defendant’s agent to secure the exchange of lands, his false representations to her respecting the character and condition of the defendant’s property have the 'same effect to bind the defendant, whether made in the presence or absence of the defendant.</p> <p>Id.—Proof of Agency—Support of Findings.—The fact of agency for the defendant was to be determined by the court upon a consideration of the entire evidence respecting the course pursued by him during the negotiations, rather than from any specific testimony by him or by the defendant as to the fact, and a reasonable inference of such fact from the evidence will support a finding of the fact.</p> <p>Id.—Oral Misrepresentations not Superseded by Written Proposal. —Oral misrepresentations of fact made by the defendant and his agent as inducement for the plaintiff to make the exchange of lands were not superseded by a written proposal for the exchange, signed by the defendant and subsequently accepted by the plaintiff, after a deed from her had been fraudulently obtained.</p> <p>Id,—Partial Ratification—Other Misrepresentations Relied upon— Rescission after Discovery. — Where the plaintiff, induced by fraud to consent to the exchange, did, for a consideration, subsequently ratify the known shortage of acreage, but was still imposed upon by other false representations as to the character and condition of the property, which were peculiarly within the knowledge of the defendant, and which would not be disclosed by a mere examination of the property, and upon which she was to rely without any investigation for the purpose of ascertaining their truth, her subsequent ascertainment of their falsity gave her a right to rescind the said ratification as well as the original transaction of exchange.</p> <p>Id.—Commission Fraudulently Demanded by Defendant’s Agent— False Representation—Payment by Defendant—Reimbursement not Required.—Where the defendant’s agent falsely represented to the plaintiff grantor that hp was acting for her benefit, and that he was entitled to a commission from her, which he stated that defendant had agreed to pay in part consideration of her ratification of the shortage, and that defendant would also reduce the mortgage on the property, which was done to induce the ratification, upon rescission of the ratification, as well as the original transaction, the plaintiff grantor was not required to refund the commission paid by the defendant to his agent.</p>

<p>Criminal Law—Murder—Instructions—Self-Defense.—Upon a trial for murder, where there was ho evidence tending to show self-defense, and the defendant claimed an accidental killing, it was proper to refuse instructions upon the subject of self-defense.</p> <p>Id.—Applicability of Instructions—Duty of Trial Court.—The trial court should only give such instructions as are applicable to tho evidence in the ease, and is ni>t required and ought not to give instructions applicable to some possible theory which is entirely outside of thfe case as shown by the evidence.</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>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>Henry C. Dibble & Dibble, and Edgar D. Peixotto, for Appellant.</p> <p>U. S. Webb, Attorney-General, C. N. Post, Assistant Attorney-General, and George D. Collins, for Respondent.</p>

<p>Criminal Law—Robbery—Support op Verdict.—Upon the trial of a defendant charged with robbery, where the prosecuting witness, who was robbed, testified explicitly to all the circumstances of the crime, and clearly identified the defendant as one of its perpetrators, the credibility of his testimony was matter for the jury, and the evidence is sufficient to support their verdict of guilty.</p> <p>Id.—Immaterial Testimony—'Harmless Ruling.—Where the testimony of a witness for the prosecution was immaterial, the refusal of the court to strike it out could not have injured the defendant.</p> <p>Id.—Condition op Street Lights.—It was competent for the prosecution to show the ordinary course of business of the city with regard to its electric lights and their general or usual condition at the place of the robbery. Testimony as to the condition of the lights at a place not shown by the evidence to be the place of the robbery was improperly admitted, but was harmless, where it could not have injured the defendant, under the circumstances in proof.</p> <p>Id.—Measurements by Witness.—Where the prosecuting witness testified that he pointed out to another witness the place of the crime, such other witness may testify to measurements made by him from that place.</p> <p>Id.—Impeachment op Witness—Conviction op Several Felonies.— A witness for the defendant may be asked as to several different felonies of which he has been convicted, and which he admitted.</p> <p>Id.—Misconduct op District Attorney—Prior Convictions—Credibility op Witnesses.'—It was not misconduct for the district attorney to allude in his argument to prior convictions of felony which were admitted by witnesses on the part of the defendant, including the defendant, as affecting their credibility.</p> <p>Id.—Objection to Question—Harmless Answer.—Where a harmless answer was given to a question objected to by the defendant, he was not prejudiced by the ruling upon the question.</p> <p>Id.—Registration under False Names.—Evidence was admissible for the prosecution to show that prior to the commission of the robbery the defendant and one of his confederates registered at a boardinghouse under false names; but evidence was not admissible for the defendant to show that after hib arrest he was booked at the police station under a false name.</p> <p>Id.—Admission of Defendant—Preliminary Proof not Required.— Evidence of an admission of the. defendant in a conversation that on the night of the robbery he slept in a box-car was material and admissible, without preliminary proof that it was voluntary, it not being a confession of guilt.</p> <p>Id.—Instruction as to Distrust oí False Witness—Credibility Left to Jury.—An instruction as to the distrust of a witness whose testimony in one respect is willfully false, the effect of which is that the jury must reject his testimony, unless they shall be convinced of its truth in other respects, leaves the credibility of the witness to the jury.</p> <p>Id.—Hypothetical Instruction—Ownership of Property Omitted— Undisputed Fact.—An instruction to find the defendant guilty if they should believe certain facts hypothetically stated, which included all the facts constituting the crime of robbery except that what was taken from the person robbed was his property, was not misleading, where there was no dispute as to his ownership, and it was distinctly proved without conflict.</p>

APPEAL front a judgment of the Superior Court of San Bernardino County and from an order denying a new trial. Benjamin F. Bledsoe, Judge. The facts are stated in the opinion of the court.

APPLICATION by E. H. Hoar, District Attorney of Merced County, to the Chief Justice of the Supreme Court for discharge upon writ of habeas corpus from custody of the sheriff under an order of the Superior Court of Merced County adjudging him guiltjt of contempt. E. N. Rector, Judge. The facts are stated in the opinion of the chief justice.

<p>Resulting Trust—Parol Evidenoe—Recital of Consideration.—Parol evidence is admissible to establish a resulting trust in real property arising under section 853 of the Civil Code, notwithstanding the recital of a money consideration in apparent opposition thereto, which was not in fact paid by trustees, who had received the title to the property without consideration and had agreed orally to hold it in trust in definite proportions for those who had furnished tho consideration.</p> <p>Id.—Action by Divorced Wipe and Former Husband—Title under Judgment and Sheriff’s Sale—Joint Ownership—Parol Evidence.—In an action by a divorced wife remarried and her former husband to enforce a resulting and constructive trust, where the former husband had obtained a judgment which he had assigned to his wife, under which the title was obtained at sheriff’s sale, the testimony of the divorced wife is admissible to show that the judgment and sheriff’s sale thereunder belonged to herself and former husband in equal shares.</p> <p>Rules of Supreme Court — Jurisdiction under Amendment op Constitution.—Under the provisions of section 4 of article VI of the constitution, as amended in 1904, this court has power to make rules having the force of positive law so far as the rights of the parties are concerned, if they do not conflict with any act of the legislature. t</p> <p>Id.—Rule Requiring Service of Petition for Rehearing.—Rule XXX of this court, requiring a petition for rehearing to be served upon the adverse party within twenty days after the judgment is pronounced, and allowing time for an answer to be filed thereto, is valid; and a petition filed without such service must be disregarded if no showing is made of unavoidable accident or excusable mistake and substantial injury to be inflicted by its enforcement.</p>

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

<p>Criminal Law—Robbery—Instructions—Applicability to Evidence.—Upon a trial for robbery, where the evidence shows that it was committed by means of force, without any element of fear, it was not necessary or proper to instruct the jury upon the subject of fear as defined by section 212 of the Penal Code.</p> <p>Id.—Instruction as to Lesser Crime—Duty of Defendant.—If the defendant wishes an instruction as to the right of the jury to find him guilty, if the evidence warrants, of any lesser crime included within the greater one of which he is charged, it is his duty to ask it; and if he fails to do so, he cannot complain that it was not given.</p> <p>Id.—Misconduct—Abrupt Remark of Trial Judge—Courtesy.—It was not misconduct for the trial judge abruptly to make remarks calling the attention of counsel for the defendant solely to the fact disclosed by the record that many unnecessary repetitions of questions and irrelevant inquiries had been made on the cross-examination of the prosecuting witness, if it does not appear that the cause of the defendant was prejudiced by such remarks. In such case the proper courtesy which shall be exercised between court and counsel must be left to the judge’s own sense of propriety.</p> <p>Id.—Points not Urged in Brief—Oral Argument.—The practice of making points in oral arguments of criminal cases not urged in the appellants’ briefs, is not to be approved, especially where no reason appears or is given why they were not made there; and, in such case, the neglect to make the point originally would be sufficient reason for declining to consider it.</p>

<p>Criminal Law—Bribery—Acquittal—Advice to Jury — Jeopardy— Appeal by People—Affirmance.—Upon a charge of bribery where a trial was had, and at the close of the evidence the court advised and directed the jury to acquit for want of sufficient evidence to warrant a conviction, whereupon the jury rendered a verdict of not guilty, jeopardy has attached, and there cannot be another trial for the same offense; and upon appeal by the people from the order of the court advising and directing the jury to acquit, the order will be affirmed, without reference to the merits of the questions discussed by the appellant.</p>

<p>Mines—Location of Quartz Claim Prior to May 10, 1872—End-Lines not Parallel—Extralateral Bights.—Although in cases of location of quartz claims made after May 10, 1872, the end-lines of the location must be parallel in order to secure extralateral rights, yet, by the terms of the act of May 10, 1872, in preserving rights previously acquired, in cases of location made prior to that act, extralateral rights are preserved though the end-lines of the location are not parallel.</p> <p>Id.—Prior Application for Patent—Payment and Issuance under Act of 1872 — Recital — Extralateral Eights not Waived.— Where a patent was applied for under the act of July 26, 1866, as amended July 9, 1870, for quartz claims located prior to those acts, the fact that payment was made and the patent obtained under the act of May 10, 1872, does not show a waiver of extralateral rights on the original vein located because the end-lines were not parallel, where the patent recites that it was made in pursuance of each of said acts, and upon an application pending when the act of 1872 was passed.</p> <p>Id.—Quitclaim Deed to Agricultural Patentees—Prior Mining Patent—Dip of Quartz Vein not Conveyed.—A quitclaim deed by the owner of a patented quartz mine to the owner under subsequent agricultural patents, of a portion of certain sections of agricultural land described as lying east of the “patented mining ground known as the Summit Quartz Mine,” etc., conveyed no interest in the dip of the patented quartz vein beneath the agricultural surface, which had been severed therefrom by the prior mining patent, and the severance of which had been recognized by corresponding limitations in the agricultural patents. The dip of the vein was as much a part of the patented quartz mine as the land within the surface lines of the location.</p> <p>Id.—Action to Quiet Title—Evidence—Quitclaim Deed Excluded. —In an action by the mine owners to quiet title to the quartz mine as against the owners of the agricultural land who were mining on the dip of the vein, beneath the surface of their lands, the quitclaim deed to them from the plaintiff was properly excluded from evidence, where it appeared from the surrounding circumstances accompanying its execution that there was no intention to convey any part of the quartz mine, and it did not purport to convey any part of the vein having its apex within the surface lines of the claim.</p>

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

<p>Railroads—Use of Street—SpeciXl Damage to Abutting Owner.— Although an abutting owner cannot recover from a railroad company entitled to use a public street, upon which its rails run upon a level with the street, for any damages which he may sustain in common with the public; yet hti may recover for any special damage peculiar to himself by reason of the construction of the track so near the line of his lots as to cause him inconvenience and to hinder access of teams to his lo|ts.</p> <p>Id.—Necessity of Railroad no Defense.—It is not a sufficient answer to the claim for such special damage that it was necessary for the railroad to build its track gradually across the street and to put part of it close to the plaintiff's line.</p>

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

<p>Benefit Societies—Laws Part of Contract—Assessment—Suspension of Certificate—Death before Renewal—Payment Insufficient.—The laws of a benefit society are part of the contract; and where the laws of a fraternal order provided for the payment of assessments for death losses and for a suspension of the benefit certificate by the fact of non-payment of an assessment and for renewal thereof upon conditions including payment of all assessments reported to the lodge, and a majority vote declaring the certificate renewed, no action can be maintained by the beneficiary upon a certificate suspended ipso facto for non-payment of assessments, and not renewed as provided by the laws of the order, . notwithstanding payment of all assessments as required and the death of the member before the renewal could be completed.</p>

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

<p>The facts are stated in the opinion.</p> <p>Goodrich & McCutchen, and Oscar A. Trippet, for Appellant.</p> <p>George P. Adams, J. W. McKinley, and Cochran & Williams, for Respondents.</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 prom Judgment—Beview—[Judgment-Boll—Waiver op Findings—Failure to Appear at Trial.—Upon appeal from a judgment where there is no statement or bill of exceptions in the record, and where findings were waived^ by the failure of the defendant to appear at the trial, the ease must be determined upon the judgment-roll alone, consisting in such case of the pleadings and judgment.</p> <p>Id.—(Notice op Trial—Bule op Court not Part op Becord—Becital in Judgment.—A rule of couri requiring reasonable notice to the adverse party of the time fixed for trial) which is no part of the record, cannot be considered; and where the judgment recites that it appeared by competent and satisfactory evidence that more than five days’ notice was given of the time when the cause was set for trial, a compliance with the provisions of the code is thereby shown.</p>

<p>Estates or Deceased Persons—Void Will—Recovery or Assets by Administrator.—An instrument reciting that a sum of money has been placed in the hands of two persons to keep, care for, and invest the same for him in ease of the death of the party executing it, and providing for the disposition thereof by them in certain sums to persons named, or the survivors of them, after his death, vested no present interest in such persons, but is testamentary in its character, and is void where not executed according to the statute of wills. In the event of his death his administrator may recover such sums of money as assets of his estate.</p> <p>Id.—Statute op Limitations Inapplicable.—Where the action by the administrator was brought within two months after the death of the party executing the instrument the statute of limitations is inapplicable thereto, and the lapse of time from the date of the instrument is immaterial.</p>

<p>The facts are stated in the opinion.</p> <p>J. B. Curtin, J. P. O’Brien, and C. E. Dedrick, for Appellants.</p>

<p>Estates of Deceased Persons—Gift Causa Mortis—Assigned Certificate of Stock—Control of Donor—Delivery after Death —Property of Estate.—Where the deceased during her lifetime maintained dominion and control of certificates of stock in a building and loan association, and drew all dividends thereon after the delivery of assigned certificates "to her agent, to whom she delivered other shares, with a pass-book, which was essential to a transfer of shares, the fact that she gave such agent oral directions to . deliver the assigned shares aftér her death, and that he complied with such directions, does not establish a gift causa mortis, and such assigned shares remained the property of her estate.</p> <p>Id.—Change of Possession before Death Essential—Testamentary Disposition.—In order to constitute a gift causa mortis, there must be an actual or symbolical delivery and change of possession of the thing given, or of the means of obtaining possession and control thereof, so as to constitute an executed transfer legal or equitable, during the lifetime of the donor; otherwise it is a testamentary disposition, good only if made and proved as a will.</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>Divorce—Void Final Decree—Modification—Power of Court—Prohibition.—A final decree of divorce entered without a previous interlocutory decree, since the enactment of the law requiring the entry of interlocutory decrees, is void upon its face so far as it is final; and the court has power after the lapse of more than one year thereafter to modify it by vacating so much thereof as awards an absolute decree, without affecting the decree in so far as it may determine that the plaintiff is entitled to a divorce. Prohibition will not lie to prevent such order or further proceedings thereunder.</p> <p>Id.—Public Policy—Interest of State—Law not to Be Waived— Collateral Attack upon Jurisdiction.—In view of the public policy and interest of the state in the matter of marriage and divorce, and the fact that a divorce depends upon legislative grant and is subject to the legislative will, it is not competent for the parties to a divorce proceeding to waive the law restricting the power of the court to enter a final decree of divorce; and the question being one of law purely, and not of fact, the jurisdiction of the court over the subject-matter of such final decree is always open to collateral attack.</p> <p>Id.—Power of Legislature—Jurisdiction of Divorce—Regulation of Procedure.—The legislature has not assumed to destroy the constitutional grant of jurisdiction in eases of divorce, but it has power to make reasonable regulations as to the proceedings by which such jurisdiction is exercised and to prescribe the terms and conditions on which a divorce may be granted, and the provisions upon the subject of interlocutory and final decrees are not unconstitutional.</p>

<p>Divorce—Absolute Decree Deemed Interlocutory—Excess op Power —Void Part Rejected.—An absolute decree of divorce, entered without a previous interlocutory decree, since the amendments to the Civil Code requiring the entry of interlocutory decrees, must be deemed interlocutory in so far as it adjudges the right to a divorce, if sufficient in form for that purpose, and the remainder of the final decree, being in excess of the power of the court, must be rejected as null and void.</p> <p>Id.—Void Order Vacating Interlocutory Part op Decree—Entry Ntjnc Pro Tunc.—After the lapse of the time for appeal or motion, without any attack upon the interlocutory part of the final decree, the court lost all power to vacate it, and an order thereafter made assuming to vacate the whole decree, and to order a new interlocutory decree to be entered mine pro tune, was void and ineffective.</p> <p>Id.—Time por Final Decree—Mandamus.—The time for a final decree began to run from the date of entry of the interlocutory part of the former final decree, and where the court, after the lapse of a year therefrom, refused a request to enter a final decree, because the interlocutory decree ordered, to he entered pro tame was not actually entered until a much later date, and a year therefrom had not expired, mandamus will lie to compel the entry of the final decree, without regard to the nunc pro tunc date of entry.</p>

<p>Street Railroads—Assignable Franchise—Transfers to Intersecting Lines Operated by Same Holder—Severance of Grant—Mandamus.—A provision in the grant of an assignable franchise, requiring the holder and assignor to give and receive transfers to and from such other intersecting lines of street-ears as he may operate, does not require such transfers to be given or received where a company holder previously operating intersecting lines has made a separate transfer of such assignable franchise to an independent company which operates no intersecting lines, and mandamus will not lie in such ease to compel an interchange of transfers between the independent companies.</p> <p>Id.—Burdens not Remaining upon Grantor of Franchise.—Though it is a well-settled rule that a transfer of an assignable franchise carries with it and imposes upon the grantee or assignee all the duties or obligations which rested upon the original holder, yet no burdens thereof remain upon an intermediate assignee or grantee while all the privileges and benefits of the franchise have been passed on to others.</p>

<p>Mechanics’ Liens—Foreclosure—Consolidated Actions — Appeal — Service of Notice—Stipulation—Appearance—Motion to Dismiss.—Where two actions to foreclose mechanics’ liens were consolidated, and judgment was rendered in favor of each plaintiff, a stipulation appearing in the transcript on appeal in the present ease between the plaintiff and defendants in the other case, that the pleadings are the same and may be omitted from the transcript, and that the final judgment therein shall depend upon and be determined by the judgment in the present case, and that if the judgment in favor of the respondent in this case shall be reversed or affirmed such reversal or affirmance shall apply to and fully cover the other case, etc., is an appearance by the plaintiff in the other case to the appeal, and the respondent herein is not entitled to move to dismiss the appeal because the notice of appeal was not served upon the other plaintiff.</p> <p>Id.—Appeal from Order Denting Motion to Set Aside Judgment— Insufficient Transcript—Dismissal.—An appeal from an order denying the motion of appellants to set aside the judgment and render another judgment will be dismissed where the transcript does not show any such motion or order.</p> <p>Id.—Time of Payment to Contractor—Completion and Acceptance by Architect—Payment before Acceptance—Validity.—Where the time of the third payment to the contractor stipulated in the building contract was, when the building and improvements shall be “completed and accepted by the architect,” the fact that the owner made such payment after the completion of the building and before the acceptance by the architect does not render the payment invalid as to lienholders under section 1184 of the Code of Civil Procedure who had not given previous notice of their claims as provided in that section.</p> <p>Id.—Provision for Benefit of Owner—Evidence of Completion— Waiver of Acceptance by Architect.—The provision in the contract for acceptance by the architect was solely for the benefit of the owner of the building. The payment was due at the completion of the building, and the certificate of the architect was mere evidence of completion, which the owner might either require or waive, and if satisfied otherwise of the completion he could safely make payment, at least as against third parties who had given no notice under section 1184 of the Code of Civil Procedure.</p> <p>Id.—Power of Owner to Waive Certificate—Construction of Code-Payment not Affecting Liens.—Section 1201 of the Code of Civil Procedure, which provides that “It shall not be competent for the owner or contractor, or either of them, by any terms of their contract, or otherwise, to waive, affect, or impair the claims or liens of other persons,” does not apply to an installment payable at the completion of the building, or to the waiver of the certificate as evidence of such completion. The payment of such installment did not affect or impair any claim or lien of the plaintiff, whose right would not be different if the payment had not been made until two days later, when the certificate was given.</p> <p>Id.—Power of Waiver Limited—Premature Payment Invalid under Notice—Case Questioned.—The owner had no power to waive the certificate, which was one of the conditions of maturity of the payment, as against claimants of liens who had garnished the payment by notice as required in section 1184 of the Code of Civil Procedure; but the premature payment was not invalid as against lienholders who had given no such notice. Sweeney v. Meyer, 124 Cal. 512, to the contrary, should be overruled. [Per Shaw, J., Beatty, C. J., and Angellotti, J., specially concurring.]</p>

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

<p>The facts are stated in the opinion.</p> <p>Page, McCutchen, Harding & Knight, and Page, McCutchen & Eells, for Appellant.</p>

<p>APPEAL from a' judgment of the Superior Court of Los Angeles County and from an order refusing to annul conclusions of law and to modify ¡judgment. [Waldo M. York, Judge.</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 of the court.</p> <p>E. E. Capps, George H. P. Shaw, and Kirby & Shaw, for Appellant.</p> <p>IT. S. Webb, Attorney-General, Cassius Carter, District Attorney, and W. B. Andrews, Deputy District Attorney, for Bespondent.</p>

PETITION for Writ of Prohibition against the Superior Court of the City and County of San Francisco. W. P. Lawlor, Judge. The facts are stated in the opinion of the court.

<p>Injury to Land—Natural Flow of Water—Rule of Gira. Law— Change of Surface Flow—Accumulation and Precipitation.— The rule of the civil law as to the natural flow of water has become the settled rule of property in this state. The owner of higher land has no right for his own relief, to the injury of the owner of lower land, either to divert surface or storm water upon such lower land over which it would not naturally have flowed, nor has he the right, by accumulating the surface waters upon his own lands in ditches or other artificial channels, to precipitate them upon his neighbor’s land in larger quantities or in different form from that which they would have had or taken in the course of nature.</p> <p>Id.—Action for Damages—Conflicting Instructions for Appellants not Injurious.—In an action for damages for injury to plaintiff’s land by the wrongful turning of surface water thereupon by the defendants, where the verdict was for the plaintiff, and the court had properly instructed the jury upon one hypothesis favorable to the defendants appealing, another conflicting instruction more favorable to the appellants than the law justifies is not injurious to them, and such conflict is not ground for reversal.</p> <p>Id.—View of Premises by Jury—Irregularities not Prejudicial— Absence of Complaint before Verdict.—Irregularities upon a view of the premises by the jury, which were not prejudicial to the appellants, or of which they had knowledge and made no complaint before verdict to the trial court, having ample opportunity to do so, are not ground of complaint by them after verdict against them.</p> <p>Id.—Newly Discovered Evidence.-—Newly discovered evidence which is merely cumulative or designed to contradict witnesses does not warrant a new trial.</p> <p>Id.—Refusal of Requested Instruction—Source of Damage—Ditch —Matter not within Issue.—Where there was no issue presented by the answer as to whether any part of the damage caused by the precipitation of accumulated surface water from defendants’ land across a ditch was caused in part by the flow of waters from the ditch, a requested instruction that the jury should, in considering the question of damage, determine whether any part of it was caused by waters flowing on to plaintiff’s land over which they had no control, was properly refused.</p> <p>Id.—Injury Caused by Acts of Defendants—Owners of Ditch not Joint Tort-Feasors.—Where it clearly appeared that the ditch would have carried away all the natural storm water from plaintiff’s land, if it had not been obstructed and damaged by the sand and gravel washed into it by defendants’ acts, it cannot be reasonably contended that tho owners of the ditch were joint tort-feasors with the defendants.</p>

<p>Election Contest—Appeal after Sixty Days—Review of Errors in Admission and Rejection of Ballots.—Although the rule that the sufficiency of the evidence to sustain the decision of the court cannot'be reviewed upon an appeal taken more than sixty days after the rendition of the judgment is applicable to election contests, yet errors in the admission and rejection of ballots excepted to at the trial are not within that rule, and may be reviewed upon an appeal from the judgment taken after the lapse of that period.</p> <p>Id.—Ballots Improperly Admitted—Distinguishing Marks.—Ballots stamped after the words “No nomination,” or stamped after a written name, or stamped with two crosses after the same name, or containing pencil-marks in an improper place, bear distinguishing marks, and were improperly admitted in evidence.</p> <p>Id.—Ballots Improperly Excluded—'Marks not Distinguishing.— Ballots containing marks not sufficiently distinguishing to invalidate them were improperly excluded from evidence.</p> <p>Id. — Officers of Election — Ineligibility—Officers De Facto — "Voters not Disfranchised.—The ineligibility of officers of election, who were in fact appointed and served as officers de facto, cannot, in the absence of a showing of fraud, disfranchise the voters of the precinct.</p> <p>Id.—Neglect of Election Officers without Injury.—The neglect of the election officers to comply with the law by failing to write their names across the seal oj¡ the envelope containing the ballots cannot operate to disfranchise, the voters of the precincts at which such neglect occurred, where ¡the ballots were properly preserved and it is manifest that no injury resulted from such neglect.</p> <p>Id.—Findings —Immaterial Omissions — Eligibility — Pleading. — Where the findings of the court were against the appellant,' the omissions to find as to his eligibility, or as to the eligibility of respondent, not stated as a ground of contest, or as to facts admitted by the answer, were immaterial.</p>

<p>The facts are stated in the opinion.</p> <p>Congdon & Congdon, E. B. Young, and Aylett R. Cotton, for Appellant.</p>

<p>Judgment—Estoppel as to Matter in Issue.—A judgment operates as an estoppel to preclude the parties or their privies from contending to the contrary as to a matter of fact, which, having been distinctly put in issue, has been found against them.</p> <p>Id.—Order to Pat Monet in Installments—Bevocation—Former " Finding and Judgment—'Pleading and Proof.—Where, in a former action to recover several installments under an order for the payment of money in monthly installments, it was adjudicated that the order had been revoked and annulled, such adjudication, though not technically a bar to an' action for subsequent installments upon the same order, may be pleaded and proved as an estoppel against the liability by reason of the revocation formerly adjudged.</p> <p>Id.—Judgment in Justice’s Court and upon Appeal—Pleading— Effect op Judgment as to Bevocation.—The effect of the estoppel of the former judgment upon the question of revocation of the order is not affected by the fact that the former action was in justice’s court, and- that the revocation was not formally pleaded in that court or upon appeal therefrom. The liberal rules of pleading in justices’ courts apply equally upon appeal; and it is sufficient that the revocation was proved under a denial of indebtedness upon the instrument sued on, and was found as a fact by the superior court upon appeal.</p> <p>Id.—Conclusions op Law—Jurisdiction—Construction of Pleadings —Collateral Attack.—In construing the pleadings in justices’ court upon collateral attack upon the judgment, or upon the judgment upon appeal therefrom, the rule excluding conclusions of law as no part of a pleading do not apply; and the court having jurisdiction of the action had power to construe the pleadings and determine what facts were put! in issue, and its findings and adjudication therein, even if erroneous, cannot he questioned collaterally.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Earl Rogers, J. W. McKinley, John T. Jones, and Luther G. Brown, for Appellant.</p>

<p>Street Improvements — Construction op Bond Act — Evidence op Regularity op Proceedings.—Section 4 of the Street Bond Act of 1893, making the bonds issued thereunder for assessments for street improvements conclusive evidence of the regularity of the proceedings therein described, is not intended to cure defects and irregularities which may be cured by appeal to the council, but is designed to be conclusive evidence of all proceedings not jurisdictional in their nature, which the legislature might have dispensed with or made immaterial or directory, and is intended to cure all defects and irregularities which the legislature has power to cure by a subsequent validating act, though the statute may be mandatory in its terms, and would make omitted steps illegal and void, if it were not for the curative act. [Henshaw, J., MeParland, J., and Lorigan, J., dissenting.]</p> <p>Id.—Nature op Jurisdictional Steps—Legislative Power.—Not every act required by law to be done in street proceedings is “jurisdictional” in the sense that the legislature cannot validate irregularities or omissions therein, though made a material and essential part of the statutory procedure, and sometimes for that, reason described ambiguously as “jurisdictional.” Where the court has acquired jurisdiction to order the work done, the entire subject of letting the work, executing the contract, and completing the work, and the minor details in the mode and manner of making the assessment are within the legislative discretion, and any irregularities or omissions therein are within -the curative clause of the Street Bond Act, notwithstanding they might be material or fatal if offered in a proceeding in which ¡they could be objected to. [Henshaw, J., MeParland, J., and Lorigan, J., dissenting.]</p> <p>Id.—Limits op Curative Power op : Legislature.—The power of the legislature to pass a curative act is the same with respect to local assessments as to general taxes, and is without any limits other than those imposed by the constitution. The legislature may devise any scheme for assessments for local improvements, provided it includes such notice and opportunity for hearing as to constitute due process of law, and does not violate the constitution. It may also provide therein by a curative clause that a bond issued or deed executed thereunder shall be conclusive evidence of the regularity of all required steps other than those necessary to constitute due process of law, or to comply with any requirement of the constitution.</p> <p>Id.—Irregularity.—The term “irregularity” is not limited to those things which are performed, but defectively or imperfectly done. It includes omissions to do the act at all. The imperfect performance of an act, the doing of it at any improper time, and the failure to do it at any time, each i included in the term “irregularities.”</p> <p>Id.—Defects and Omissions Cured—Invalid Extension of Time— Other Irregularities.—Under the curative clause of the Street Bond Act the objections that the time for the completion of the work was extended after the time first fixed had expired, or that the notice of time for receiving bids was insufficiently posted or published, or that the contract did not provide that the materials used should comply with the specifications, or that the superintendent did not properly certify to the record of the assessment, or that the time for beginning work was not precisely fixed in the contract, or that the certificate of the engineer did not show that he measured the work, must, after the bonds are issued, be conclusively presumed to have no foundation in fact. [Henshaw, J., McFarland, J., and Lorigan, J., dissenting as to extension of time.]</p> <p>Id.—Delegation of Powers to Superintendent.—The delegation to the superintendent of powers vested by law in the council as to the number and location of culverts, which might lawfully have been given to the superintendent in the first instance, though it might otherwise invalidate the assessments, is subject to the curative power of the Bond Act. [Henshaw, J., McFarland, J., and Lorigan, J., dissenting.]</p> <p>Id.—Assessment Lien Paramount to Prior Mortgage.—The lien of a valid assessment for street improvements covers the entire estate, and is paramount to all private liens upon the property, including the lien of a prior mortgage thereon.</p> <p>Id.—Bight of Mortgagee to Appeal—Construction of Vrooman Act. —A prior mortgagee affected by a street assessment has the right of appeal to the city council under section 11 of the Vrooman Act, which is to be liberally construed in favor of the person interested as respects the right of appeal.</p> <p>Id.—Resolution of Intention—Description of Work—Reference to Plans and Specifications—Maxim.—A resolution of intention describing the general character of the street improvements to be constructed “in accordance with the plans and profiles on file in the office of the city engineer, and specifications on file in the office of the city clerk,” is not void because these plans and specifications were not incorporated into the resolution and published. They are not an integral part of the resolution, and the maxim applies that “That is certain which can be made certain.”</p> <p>Id.—Declaration as to Bonds—Implied Finding as to Cost.—Where the resolution of intention declared that bonds were to be issued under the Street Bond Act, it is not required by the terms of the Bond Act that it should specifically declare that the cost of the proposed work will be greater than fifty cents per front foot, but the termi of the resolution sufficiently indicate that the council had found the necessary fact to exist, and such finding is implied.</p> <p>Id.—Limitation of Bight of Election under Bond Act—Reasonable Time—Notice.—The period of thirty days allowed after the date of the warrant within which the: statute permits the owner to prevent the issuance of any bond by filing an affidavit and requesting that no bond be issued, gives a reasonable time to the owner within which to make his election. Proper notices having been given, the owner is conclusively presumed to have knowledge of his right so to elect, and to preserve his rights to defeat the assessment for irregularity in the proceedings; and if he fails to do so he loses such rights under the conclusive-evidence clause of the Bond Act.</p> <p>Id.—Recorded Certificate of Engineer—Contents Immaterial.—It is not material what were the contents of the recorded certificate of the engineer. The law does not require such certificate, nor prescribe its contents, but merely requires it to be recorded if the superintendent for any purpose has procured a certificate to aid him.</p> <p>Id.—Description of Bonds in Resolution.—The resolution need not copy the proposed bonds in fqll; but it is sufficient to specify that the bonds shall be issued to represent the cost of the improvement, and shall be serial, specifying terms, time of payment, and interest, which description is to be construed in connection with the positive requirements of the statute concerning the form and contents of the bonds.</p> <p>Id.—Award of Contract—Adjournment of Council—Premature Sessions—Presumption.—Where ¡the council adjourned its session until ten o’clock of the following day, but resumed business at nine o’clock on that day, the fact that the contract was awarded on that day does not render it invalid, where it does not appear that it was awarded before ten o’clock. An award before that hour will not be presumed.</p> <p>Id.—Certificate to Record of Assessment.—Where it appears that the warrant, assessment, diagram, and engineer’s certificate were copied in the proper book by the street superintendent, a certificate to the record, showing its date and signed by the superintendent, is sufficient to entitle the record to admission in evidence; and it cannot be inferred that all of the documents were not recorded at the time stated.</p> <p>Id.—Change of Grade of Street—Sufficiency of Petition—Effect of Resolution of Intention.—It is immaterial whether a previous petition for a change of grade of the street was or was not signed by the owners of a majority of the frontage. The resolution of intention is conclusive evidence that the owners of a majority of the frontage had petitioned for its passage; and if there had been no legal change of grade the improvement contemplated would have reference to the legal grade, where there was nothing in the resolution specifying any particular grade or level; and no defect in the original petition to change the grade can impair the validity of the bonds provided for in the resolution.</p> <p>Id.—Contractor’s Return upon Assessment—Irregularities Cured. —The contractor’s return upon the assessment need not state with whom the superintendent contracted. Where the warrant was in favor of two persons and the return was made by one of them, and shows that the demand was made by virtue of the warrant, it does not show an untrue statement; and any irregularities therein are cured by the conclusive-evidence clause of the Bond Act.</p> <p>Appeal — Reversal op Default Judgment — Dismissal of Appeal from Order Refusing to Vacate.—Where a judgment by default is reversed for insufficiency of the complaint to state a cause of action, an appeal from an order refusing to vacate the default and judgment will be dismissed as unnecessary to be passed upon.</p>

APPLICATION of Samuel T. Mock to be admitted to practice as an attorney in the courts of this state. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion.</p> <p>D. J. Hall, T. B. Dozier, Milton J. Green, and Gavin McNab, for Appellants.</p> <p>The law only requires a conditional offer to restore everything of value received by the party rescinding, upon condition that the other party shall do likewise. (Civ. Code, sec. 1691; Loaiza v. Superior Court, 85 Cal. 31, 32;1 Rohrbacher v. Kleebauer, 119 Cal. 260; Maddock v. Russell, 109 Cal. 426.) A certificate of deposit merely represents an amount of money in bank. (Bouvier’s Law Dictionary.) A substantial restoration is all that is required. (Hill v. Wilson, 88 Cal. 97.)</p> <p>James W. Bartlett, Reid & Bartlett, C. W. Cross, and H. R. Given, for Respondents.</p> <p>A rescission was waived by taking the consideration and using it as the property of the grantor. (21 Am. & Eng. Ency. of Law, pp. 77, 84, 87.) A rescission cannot be adjudged when the identical property received has been disposed of and cannot be restored. (Civ. Code, sec. 1503; Kelley v. Owens, 120 Cal. 502, 511; Bailey v. Fox, 78 Cal. 389, 397; Sinclair v. Neill, 1 Hun, 81; Ross v. Titterton, 6 Hun, 284; Curtiss v. Howell, 39 N. Y. 211; Cobb v. Hatfield, 46 N. Y. 536; Durrett v. Simpson, 3 T. B. Mon. 517;2 Schiffer v. Dictz, 83 N. Y. 307-308; Masson v. Bovet, 1 Denio, 69;3 Thurston v. Blanchard, 22 Pick. 18;4 Cook v. Gilman, 34 N. H. 561; Lyon v. Bertram, 20 How. (U. S.) 154, 155; Garland v. Spencer, 46 Me. 530, 531; Grymes v. Sanders, 93 U. S. 55-63.</p>

<p>Municipal Charter—Wharf Interfering with Ferry—Injunction. —The right of the city of Vallejo, under its charter, to establish a wharf on its water-front at the foot of a street, and to determine the necessity therefor by the ordinance authorizing its construction, cannot be exercised in such a manner as to injure or destroy ferry-rights at the foot of a parallel street vested in others by the city, without pretense of eompensatibn, and the city may be enjoined from interfering with the operation of the ferry in the modo of construction of such wharf. .</p> <p>Id.—Limited Power of City to Build Wharf—Ownership of WaterFront—Power of General Government Inapplicable.—The city of Vallejo does not own its water-front, and in building a wharf it has no general, municipal, or governmental powers, but only such powers as are given by its charter, which does not clothe it with an absolute right to construct a. wharf irrespective of the vested rights’ of others. The power vested in the general government, which is sovereign over navigable watérs such as Mare Island Straits, to improve the same, without compensation for injury, cannot apply to the city of .Vallejo, which has no such power.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Lindley & Eicbhoff, and Charles W. Slack, for Appellants.</p>

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

<p>The facts are stated in the opinion.</p> <p>C. H. Lindley, H. R. Raynes, and John H. Magoffey, for Appellant.</p>

<p>Jurors—Challenge por Bias—Mixed Question op Law and Fact— Beview upon Appeal.—Upon the challenge of a prospective juror for bias, the question whether the juror is fair and impartial and should be allowed to sit in the case is a mixed question of law and fact to be determined in the first instance by the trial judge, who is in a better position to judge of his fairness than this court, which will interfere with the determination of that question only when the evidence upon the voir dire is such that it can be said from it as matter of law that the juror is so prejudiced or biased in the case that he will not be a fair juror.</p> <p>Id.—Action por Libel—Challenge to Newspaper Man.—In an action for libel, where a juror challenged for bias stated that he was in the newspaper business, as editor and proprietor of a paper, that he associated actions for libel in somewhat the same character as speculations, in many instances unwarranted by the facts, and that he thought that the fact of his being a newspaper man and his adverse opinion of damage suits might create a prejudice in his mind, and make him unfit to act as a juror; but also stated, in response to questions, that he [ would try the case only upon the evidence adduced in court, and upon the law given by the court, it cannot be said as matter of law that the court erred in overruling the challenge. [Shaw, J., and Beatty, O. J., dissenting.]</p>

<p>Homestead—Rural District—Contiguous Land—Area not Limited Except as to Value—Exemption.—The area of property which may be covered by a declaration of homestead in a rural district is not limited, except to confine its value to the sum of five thousand dollars. A declaration of homestead upon community property covering five hundred and twenty-three and ninety-four one hundredths acres of contiguous land of the value of three thousand dollars, including a pre-emption claim and a desert-land claim, and water-rights in which the claimant had a part interest appurtenant to the desert claim, is valid, and exempts the whole property claimed from execution.</p> <p>Id.—Injunction to Restrain Execution Sale—Proof as to Desert-Land Claim.—In an action for an injunction to restrain an execution sale of the desert-land claim and water-rights included in the declaration of homestead, it was not necessary to prove that the desert-land claim was devoted to any special or profitable use, or to any use other than as part of the homestead resided upon and declared upon. It 'is sufficient that it was not devoted to any use inconsistent, with its use as a homestead.</p> <p>Id.—Part Interest in Water-Rights—Appurtenance to Homestead. —The interest of the claimant in the water-rights, ditches, etc., though it was only a partial interest in an entire water system held jointly or in common with others, yet, as it was obtained specially for use upon the land claimed as a homesteacjj and was necessary and appurtenant thereto, became part and parcel of the homestead.</p> <p>Id.—Death of Wife—Subsequent Conveyance by Husband—Exemption not Affected.—Upon the death of the wife the homestead declared upon the community property vested absolutely in the husband, and continued exempt from all previous debts. The hus- ' band has the absolute power of disposition of such property after the wife’s death, and his exemption is ■ not abandoned or affected by the conveyance of a moiety of the desert-land claim and water-rights by the husband to third parties.</p> <p>Id.—Exemption of Interest Conveyed.—The interest conveyed having been at all times exempt from execution for previous debts, is still exempt therefrom in the hands of his grantee.</p> <p>Id.—Judgment against Husband after Wife’s Death—Prior Debt— Injunction against Sale.—An injunction- will lie to restrain the sale under execution of any part of the premises covered by a homestead claim for any unsecured debt contracted by the husband prior to his wife’s death, although judgment was recovered against the husband subsequent to her death.</p>

<p>Negligence—Obstruction oe Sidewalk—Injury to Business Man— Contributory Negligence—Erroneous Instruction.—In an action to recover damages for injuries sustained by plaintiff while moving furniture from falling over iron doors standing erect on the sidewalk, and kept open by protecting rods as a means of access to the cellar of the defendant, it was material error to instruct the jury that “if a man is engaged in using the sidewalk in front of another’s premises for business purposes or for purposes other than ordinary pedestrianism, it is incumbent on him to use a higher degree of care than is required of him if he is a mere pedestrian, and is simply passing over the sidewalk as such.”</p> <p>Id.—Ordinary Use ot Sidewalk—Communication with Street.—The use of a sidewalk by the owner of a lot for the purpose of communication with the street is equally as legitimate and equally an ordinary use as that of passing longitudinally along it.</p>

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

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

<p>MOTION to Dismiss an Appeal from an order of the Superior Court of Kings County denying a new trial. M. L. Short, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Street Assessment—Non-Performance of Work—Protest—Appeal. —Under the Vrooman Act it is one ground for appeal to the council “that the work has not been performed according to the contract in a good and substantial manner.” A written protest filed with the clerk of the council against the acceptance of the work, “for the reason that said work has not been performed according to the specifications and terms of said contract,” would be readily .understood as an appeal from the aption of the street superintendent in accepting the work and issuing an assessment, warrant, and diagram therefor; and where it was so understood and acted upon by the council and all parties concerned, and no one was misled to his prejudice by the form of the appeal, the protest must be deemed effective to constitute such appeal.</p> <p>Id.-—Sustained Appeal not Res,cindable—Pendency oe Appeal.— Where the appeal was sustained, and the action of the street superintendent in accepting the work and in issuing the assessment, warrant, and diagram was set aside and reversed, the council has no power to rescind or vacate its former action, and where it assumed to do so its order is void, and the appeal remains pending before it.</p> <p>Id.—Power oe Council as to Assessment after Appeal Sustained.— The city council, after the sustaining of an appeal from the acceptance, has power, upon ascertaining that the work has been completed to its satisfaction, either to order a new assessment or to readopt and order to be issued the former assessment, which can be redated and made effective as the assessment for the completed work; but it has no power to give any retroactive effect to a premature assessment made before the completion of the work, so as to make it effective from its date.</p> <p>Id.—Invalid Bonds upon Vacated Assessment — Rights of Bondholders.—Bonds issued upon the original assessment thirty days after its original date, where the original assessment has been vacated upon appeal, are invalid and void; but the bondholder, as assignee of the contractor, may receive payments of new assessments when issued or receive new bonds, if payment thereof is delayed for thirty days.</p> <p>Id.—Irregularities not Cured—Amendment of Bond Act — Prima Facie Evidence.—By the amendment of 1899 to section 4 of the Street Bond Act, making the bond prima faoie evidence only of thé regularity of the proceedings, the burden of proof merely is affected; and where the record is produced showing what was actually done, the amended Bond Act has no curative effect on any irregularities appearing thereon.</p>

<p>Wills—Improper Execution—Indorsement upon Folded Instrument. —A document purporting to be a last will and testament, written upon a printed form or blank of four pages, having an unfilled and unsigned attestation clause on the third page, and of which the fourth page had merely a place for blank indorsements when folded, and which was merely signed beneath the scrivener’s title and blank form for date and filing, with the testator’s name, and names of two witnesses, was not a will “subscribed at the end thereof” by the testator and attesting witnesses as required by law, and probate thereof was properly denied. j</p> <p>Id.—End op Will.—The will at whose end the name is to be subscribed is not the sheet of paper or. other material upon which the testamentary dispositions are written, and the end thereof is not the foot or physical end of the sheet of paper, but .is the physical termination of the testamentary dispositions which constitute the will.</p> <p>Id.—Place op Signatures—Substantial Compliance with Statute Essential.—While the signature at the end of the will may not necessarily be in immediate juxtaposition with the concluding words of the will, yet it must be so near thereto as to reasonably indicate an authentication of the instrument as a will, and to constitute a substantial compliance with the requirement of the statute.</p> <p>Id.—Object op Statute to Prevent Fraud—Construction op Statute —Absence op Fraud Immaterial.—The purpose of the statute requiring the subscription to be at the end of the will is not only to indicate a testamentary disposition, but also to prevent the opportunity for fraudulent additions'or interpolations between the testamentary. matter and the signature, and the statute should be so construed as to accomplish this purpose. The failure to comply with the statute intended for that purpose cannot be excused by showing that in the particular lease there was no fraud.</p> <p>Id.—Intention op Testator not Material—Parol Evidence Inadmissible.—For the purpose of determining whether the will has been properly executed as required by law, the intention of the testator in so executing it is entitled to no consideration; whether the deceased intended to execute his will in conformity with the statute cannot be shown by parol or extrinsic evidence, nor can parol evidence be admitted to show that the testator intended the space signed by him to be the end of the will, if upon an inspection of the instrument it appears that it is not in fact at the end.</p> <p>Id.—Test op Signature. — [Per Beatty, C. J., Angellotti, J., and Shaw, J.] The true test to 'determine whether a decedent has subscribed his name at the end of a will is to take the document as it left Ms hand and then, disregarding the signatures of the witnesses and all evidence aliunde, to see whether it is apparent that Ms name was placed where it appears for the purpose of execution. !</p> <p>The object of the legislature in requiring the subscription at the end of the will is to prevent fraud. (Baker v. Baker, 51 Ohio St. 217; Glancy v. Glancy, 17 Ohio St. 134; Soward v. Soward, 1 Duval (Ky.) 133; In re Conway’s Will, 124 N. Y. 455, 457; In re Whitney’s Will, 153 N. Y. 259;1 In re Fult’s Will, 42 App. Div. 593, 59 N. Y. Supp. 756; Younger v. Duffle, 94 N. Y. 535;2 Sisters of Charity v. Kelly, 67 N. Y. 409-416; In re Cohen’s Will, 1 Tuck. Sur. (N. Y.) 286; McGuire v. Kerr, 2 Bradf. 244, 255; Smee v. Bryer, 1 Rob. Ecc. Rep. 618; In re Walker, 110 Cal. 389, 390;3 22 Am. & Eng. Ency. of Law, 161.)</p>

<p>Mandamus to County Auditor—Salary of Justices of the Peace— Population of Township—Census — Burden of Proof. — Upon application by a justice of the peace for mandamus to the county auditor of Merced County to compel a warrant for a greater salary than the auditor had allowed, where the right of the applicant depends upon a population of the township in excess of that shown by the last census, the burden of proof is upon him to show a sufficient population to warrant the writ.</p> <p>Id.—Evidence—Invalid Ordinance by Supervisors — Hearsay.—The board of supervisors have no power to declare the population of a township in excess of that shown by the last census, without a special census properly taken as a basis thereof; and an ordinance declaring an increased population without such census is ineffective and inadmissible in evidence. It is of no higher rank as evidence than hearsay.</p>

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

<p>Benefit Societies—Certificate—False Statement in Application— Construction against Strict Warranty—By-Laws Part of Contract.—Notwithstanding the application for a certificate of life insurance in a benefit society purports to contain a warranty of the truthfulness of the statements as to health therein contained, and to agree that their falsity shall avoid the certificate, where the certificate does not expressly mention the application, but expressly provides that it “is issued subject to, and to be construed and controlled by, the laws of the order," the laws are part of the contract, and where they make the application also part of the contract, but expressly provide that any willfully erroneous statements or intentional concealments of material [facts therein shall avoid the certificate, the contract is to be construed against a strict warranty or forfeiture of the insurance for mere untruthfulness of the statements.</p> <p>Id.—Warranties and Forfeitures not Favored in Law.—The use of the term “warranty” in the application, which forms a part only of the contract, is not conclusive, and where other parts of the contract show clearly that a strict warranty was not intended, such parts must govern. Warranties, on account of their stringent character, are not favored in law, and no construction will be indulged which has the effect of a strict.warranty of the literal truthfulness of statements, where the term^ of the contract are conflicting or inconsistent, or render the intention to make such warranty doubtful. The courts are strongly inclined against forfeitures, and all the provisions of the contract will be liberally construed in favor of the assured and against the insurer.</p> <p>Id.—Sufficiency of Evidence—Verdict against Evidence—Willfully False Statement as to Personal Health.—While the verdict may be supported as to an unintentional misrepresentation as to the health of a brother who was afflicted with consumption, the verdict for the plaintiff is against the evidence where it clearly shows without conflict that his representation that he had not been afflicted with rheumatism must have been knowingly and willfully false.</p> <p>Id.—Burden of Proof — Direct Evidence not Required—'Circumstances Showing Willful Falsehood—Knowledge. — Although the burden of, proof is upon the benefit society to show not only that the statement was erroneously made, but also that it was willfully so; yet, in making such proof, it is not essential to offer direct and positive evidence upon the subject. Whether a misstatement is willfully made is to be determined from the facts and circumstances surrounding or accompanying the declaration,—the directness and clearness of the question, and the knowledge of the declarant upon the subject of the inquiry.</p> <p>Id.—Province of Jury—Materiality of Willfully False Statement. —The jury has nothing to do with the materiality of a willfully false statement by the assured, where the parties to the contract have made it material.</p>

<p>Action to Determine Water-Bights—Boling on Demurrer—Failure to Amend—Motion to Bring in Parties—Jurisdiction—Showing not Bequired.—In an action to determine water-rights, where the court sustained a demurrer to the complaint as to certain defendants, •with leave to amend, which plaintiff failed to do, and overruled demurrer as to other defendants, who have answered, the court has jurisdiction to hear and determine a subsequent motion of plaintiff to vacate the order sustaining the demurrer, and to bring in the defendants thereto as necessary ¡parties to a complete determination of the action; and no showing as to mistake, inadvertence, surprise, or excusable neglect, under section 473 of the Code of Civil Procedure, is required to give such jurisdiction. ■</p> <p>Id.—Buling on Demurrer not Law of Case.—The ruling sustaining the demurrer did not become in any sense the law of the ease in the superior court, or preclude the court from afterward changing its ruling; and the mere fact [that plaintiff had failed to amend within the time allowed did not necessitate a denial of the application to bring in the defendants as necessary parties.</p> <p>Id.—Effect of Order Sustaining Demurrer—Dismissal—Power of Court.—'Though an order sustaining a demurrer where no amendment is made has the effect of relieving the demurring party from further defending in the absence of subsequent action,by the court, and, in such absence, may form the basis of a judgment of dismissal, it is not a judgment, anct does not have the effect of finally and irrevocably dismissing the > demurring party from the action, nor affect the power of the court to order him brought before the court as a necessary party and to reconsider the order sustaining the demurrer.</p> <p>Id.—Mandamus—Compelling Exercise of Jurisdiction—Question of Benefit.—Though this court will,, not grant a writ of mandate where it clearly will result injno substantial benefit; yet where the superior court has denied a motion to bring in parties for want of power, and it cannot be said that the court would not be justified in bringing in the 'parties named, nor that the petitioner is not seeking a substantial benefit, he has the right to a writ of mandate to compel the trial court to exercise its jursidiction by hearing and disposing of the motion.</p>

<p>Criminal Law—Murder—Conspiracy of Escaped Convicts—Bias of Jurors—Opinion Based on Public Rumor.—Upon the trial of a charge of murder against-one of several convicts who escaped from the state prison, where the homicide was committed by another convict in taking the life of one of the guards, and the conviction of the defendant must rest upon an unlawful conspiracy of the convicts, in which the defendant was engaged, to escape from the state prison, in the attempt to carry out which the murder was committed, jurors who testified that they had an opinion that there must have been a conspiracy to escape, and that the killing .was done in pursuance of it, which opinion was based on common rumor and published statements, but did not include an opinion as to defendant’s guilt or participation in the conspiracy, and that they could act fairly and -impartially in the case, are not disqualified by reason of such opinion.</p> <p>Id._Distrust of Testimony of Convict—-Juror not Disqualified.— The statement of a. juror that he would take the testimony of a convict with distrust, that he did not believe that convicts are as apt to tell the truth as free men, but that he had no prejudice toward a convict, and would believe some of them under oath, and would judge of the value of a convict’s testimony by his manner of giving his evidence and the surrounding circumstances, and would weigh it as he would that of a free man, would not disqualify the juror.</p> <p>Id.—Evidence—Res Gestíe—Possession of Dynamite by Conspirators —Question for Jury.—Evidence was admissible to prove as part of the res gestes that while the conspiracy of the escaping convicts was in progress one of them had dynamite in his possession. The question whether there was a conspiracy, and whether the person having the dynamite was one of the conspirators, was for the jury, under the evidence and instructions of the court.</p> <p>Id.—Inadmissible Evidence—Conduct of Defendant in Prison.— Evidence was properly excluded to show what the conduct of the defendant was while he was in prison, prior to the attempted escape.</p> <p>Id.—Improper Cross-Examination.—A question asked by defendant’s counsel on cross-examination of' a witness, whether, if he- was a “stool-pigeon,” he would be in the good graces of the officers, was properly rejected as irrelevant and calling for the conclusion or opinion of the witness.</p> <p>Id.—Impeachment of Verdict—Affidavits as to Declarations of Jurors.—The court did not err in refusing to consider affidavits as to the declarations of jurors to defeat the verdict in a case where their own affidavits are not permissible by statute for that purpose.</p> <p>Id.—Instructions—Reasonable Doubt.—Where the court has elsewhere clearly and fully instructed the jury upon the question of reasonable doubt, and the degree of evidence necessary to a conviction, they could not be misled by an instruction that it was their duty to convict, if the testimony is sufficient to convince them “as reasonable men beyond a reasonable doubt, that the defendant did commit the act charged, although the fact may be surrounded in a degree by a doubt.” The doubt last referred to is not a reasonable doubt.</p>

PETITION for Writ of Mandate to the City of Los Angeles, and to the City Council, City Auditor, and City Treasurer. The facts are stated in the opinion of the court.

<p>Building Contract—Bond op Contractor—Release op Sureties— Premature Payment — Excess op Propits — Abandonment op Contract.—The sureties on thp bond of a contractor to secure the performance of a building c’ontract are entirely released by the premature payment, without their consent, of the first installment . before all materials were furnished, as required by the contract, where the contractor, upon receiving such payment, abandoned the contract, leaving materials unpaid for, which were lost in attachment suits, and where the payment exceeded the profits he would make by performance 'of thé contract;</p> <p>Id.—Rights op Sureties—Execution—Change op Obligation op Principal.—The sureties had the right to stand upon the terms of their contract, and were exonerated by a change in the obligation of the principal without their consent. By such premature payment the sureties were deprived of the inducement which the principal would have to perform the contract in due time; and the obligation of the principal was changed in a material respect - without their consent.</p>

<p>Claim and Delivery — Estoppel — Pleading and Evidence — Order Denying a New Trial—Beview upon Appeal.—Upon appeal from an order denying a new trial in an action of claim and delivery, where an estoppel was pleaded by the defendant, in whose favor judgment was rendered, technical objections to the answer cannot be considered; and reference may be made to the answer only to learn whether the estoppel was sufficiently pleaded to justify the taking of evidence thereunder.</p> <p>Id.—Claim by Husband of Community Property—Defense by Execution Creditor of Wife—Estoppel In Pais Sufficiently Pleaded. —Where the action for claim and delivery was by a husband for alleged community property, and was defended by an execution creditor of the wife, who pleaded an estoppel in pais, held that facts were pleaded with sufficient particularity to show such estoppel by the acts, representations, and conduct of both husband and wife, upon which the creditor was entitled to rely, and did rely, in making advances to the wife when she was doing business in her own name and on her own account, as reputed owner of the property.</p> <p>Id—Improper Evidence of Estoppel.—Though the pleading of an estoppel in pais was sufficient, the court erred in admitting the testimony of witnesses as to business transactions of other parties with the wife and her son by a former marriage covering a period of twenty years prior to the transactions in dispute, and in admitting testimony of their declarations not at all concerning the property involved in the action, and not proved to have been brought to the knowledge of the husband plaintiff, nor to have been communicated to the defendant creditor of the wife. The declarations of the wife’s son, a stranger to the plaintiff, were wholly inadmissible against him; and the declarations of the wife, made in his absence, cannot raise an estoppel as to his title to the community property.</p> <p>Id.—Married Woman Engaging in Trade—Presumption of Community Property—Burden of Proof.—Where a married woman engages in trade it is presumed to be with the funds of the community, and the burden of proof is on the person asserting the property to be her separate property.</p> <p>Id.—Improper Instruction as to Estoppel.—An instruction that “if a husband permits his wife to use his money or property, real or „ personal, as her own, for a considerable period of time, she incurring obligations and obtaining credit upon the faith and belief on the part of those from whom she obtained credit that the property is her own, the husband will be estopped from claiming such property as Ms own against those extending credit to the wife,” is erroneous, both as being contrary to the presumption of community property, find as eliminating from consideration the necessary elements of an estoppel ‘laid down in subdivision 3 of section 1962 of the Code of Civil Procedure.</p> <p>Id.—Improper Instruction for Defendants—Separate Property of Wife.—An instruction that if the jury believed from the evidence that any of the property involved in the action grew out of or was bought by the rents, issues, or profits of any real property owned by the wife it was th¿r duty to find for the defendants, is erroneous, in not limiting their duty to find only as to the particular property so acquired, and not generally.</p>

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

<p>State Lands—Bight of Purchase—Beference of Contest—Special Jurisdiction of Court—Effect of Judgment.—Upon the reference hy the state surveyor-general of a contest of the right of purchase of state land, the jurisdiction of the court is special and limited, and derived wholly from the provisions of the Political Code relating to such contests. The sole matter to be determined is the question of the rights of the two parties between whom the contest arose in relation to the land; and the state officers are bound by the judgment of the court, and the patent must issue to the party to the contest adjudged to have the right to the land in controversy. ,</p> <p>Id.—Power of Surveyor-General Pending Contest.—After the reference of a contest of the right to purchase state land to the courts, and after the action is begun, and before the final determination thereof, the surveyor-general has no power or right to receive the application of another party to, purchase the land involved in the contest.</p> <p>Id.—Contest as to Character of Land by Settler—Improper Intervention of Another Settler—Collusion of Parties.—Where the contest referred to the court was instituted by a settler applying for the purchase of a half-section of land as fit for cultivation, against the holder of a certificate of purchase by a prior claimant of the whole section as unfit for cultivation, another settler upon the same half-section, who has applied to purchase the same pending the contest, but whose application has been rejected by the surveyor-general, is not in privily with the state, and cannot intervene, not even to show that plaintiff and defendant have colluded to divide such half-section between themselves, contrary to the constitution.</p> <p>Id.—Dismissal of Intervener’s Appeal.—Where the court improperly allowed such intervention, and 'issues were joined by the defendant upon the original complaint and upon the complaint in intervention, and judgment was rendered in favor of the defendant to the original contest, which was silent as to the rights of the intervener, the intervener is not a party prejudiced by such judgment, and an appeal taken by him from the judgment and from an order denying his motion for a new trial will be dismissed.</p>

<p>Promissory Note—Subsequent Indorsement by Third Party—Want op Consideration.—The indorsement of a demand note by a third party long subsequent to its execution, and after.the death of the maker, without any new consideration or the relinquishment of any right by the payee, imposes no obligation upon the indorser.</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>Criminal Law—Chinese Murder Case—Identity of Defendant in Doubt—Conflicting Evidence — Misconduct of Jury — Reading Newspaper Articles.—Upon the trial of one of five Chinamen jointly accused of murder, where the identity of the defendant was in doubt, and the testimony of rival Chinese tongs was such that deliberate perjury must have existed on one side or the other, it was prejudicial misconduct for jurors to have read newspaper articles stating that the district attorney had arrested for perjury a witness for the defense who testified that an identifying witness was elsewhere when the murder was committed, and that a policeman, who testified to the same effect, would have to battle to keep out of the penitentiary if information said to be in possession of the district attorney was correct.</p> <p>Id.—Proof of Misconduct—Affidavits of Jurors—Action of District Attorney—Admission.—Though the defendant cannot prove misconduct of the jury, either by affidavits upon information and belief, or by positive affidavits of jurors, to impeach the verdict against him, the reason of thé rule as to affidavits of jurors does not apply where such affidavits! showing misconduct of the jury were produced by the district attorney to show the facts, and to excuse them, as far as he could. The misconduct being thus in effect admitted by the district attorney, requires the granting of a new trial.</p>

<p>PETITION for Writ of Habeas Corpus to the Warden of the State Prison at San Quentin.</p> <p>The facts are stated in the opinion of the court.</p>

<p>MOTION to Dismiss Appeals from a judgment of the Superior Court of San Mateo County and from an order denying a new trial. George H. Buck, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Corbet & Goodwin, and Lawrence T. Wagner, for Appellant.</p>

<p>Action by Heirs—Cancellation of Deed for Fraud and Undue Influence—Recovery of Realty—Absence of Administration.— An heir of a deceased person may, in the absence of administration, sue to cancel a deed obtained from him in his lifetime by fraud and undue influence, and to recover an interest in the real property so fraudulently obtained.</p> <p>Id.—Statute of Limitations.—The statute of limitations applicable to such action is the limitation of five years prescribed by section 318 of the Code of Civil Procedure, and not the limitation of six months after death, prescribed by section 353 of the Code of Civil Procedure.</p>

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

<p>Banks—Pledge of Bonds—Assignment to Agent of Creditor—Purchase by President—Trust—Constructive Fraud — Action by Depositor.—Where railway bonds belonging to an insolvent bank, which had been pledged by it for a debt, were, upon settlement of the debt by the bank, assigned by it to the agent of the creditors for a specified sum, but the assignment was secretly taken for the benefit of the president of the bank,—who paid such sum out of his own money,—a depositor may, on behalf of himself and other depositors, maintain an action to enforce a trust in the bonds so purchased for constructive fraud.</p> <p>Id.—Proper Judgment — Support of Findings—Appeal. — Judgment upon the findings in favor of the plaintiff was properly rendered, directing a sale of the bonds, and the payment to the president defendant merely of the amount of his disbursement, with interest, less dividends received, and payment of the residue to the bank, less the costs and counsel fees of the plaintiff; and where the findings are supported by the evidence, the judgment for the plaintiff and an order denying a new trial to the president, defendant, will be affirmed upon appeal.</p> <p>Id.—Ratification of Assignment—Subsequent Knowledge of Purchase by President.—The fact that the directors of the bank expressly ratified the assignment of the bonds to the agent of its creditor for a specified sum, upon the settlement of its debt, does not tend to show a ratification of the purchase by its president, where the fact that its president was interested in the assignment, and paid the amount specified, was then unknown to them. Their subsequent knowledge of the fact could not affect the prior ratification, and is only material as tending to show a subsequent ratification, or to justify a finding that a request to the directors to sue would be unavailing.</p> <p>Id.—Demand to Sue — Cross-Complaint by Bank — Waiver.—Aside from the question of the effect of the allegations and findings, the objection that a demand was not made upon the directors of the bank' to bring the suit is obviated by the filing of a cross-complaint by the bank.</p> <p>Id.—Evidence—Market Value of Bonds Purchased—Harmless Ruling.—It was error to exclude evidence as to the market value of the bonds purchased by the president, but the only consequence of its exclusion is that it must be assumed, as claimed by him, on the question upon ratification or actual fraud; but that fact alone could not prove ratification, and where the judgment was not passed upon actual fraud, but only upon constructive fraud, the ruling was harmless.</p>

<p>Estates of Deceased Persons—Letters to Public Administrator— County Officer.—A public administrator is a county officer; and, though he must obtain letters of administration of any particular estate upon which he is entitled to administer, as the source of his authority to act therein, he obtains the letters not as an individual, but by virtue of his office, and must comply with the statutory provisions regulating his administration of estates as such officer.</p> <p>Id.—Salary-—Payment of Commissions into Treasury—Action after Expiration of Term.—Where the public administrator is a salaried officer, and is required by statute to pay all commissions allowed by the superior court into the county treasury, if he continues voluntarily to act after the expiration of his term, instead of resigning and settling up partially administered estates, he can receive no private compensation therefor, and must pay all commissions thereafter received into the county treasury.</p>

<p>Insolvent Foreign Corporation—Preference op Domestic Creditors —Levy upon Funds in this State—Foreign Deceiver.—Domestic creditors of an insolvent foreign corporation who have levied upon funds of such corporation in this state will be preferred over foreign creditors, and will not be compelled to surrender their claims to a foreign receiver of its assets, appointed by a court of another state, at the home office of suck corporation.</p> <p>Id.—Action by Foreign Deceiver—Ancillary Deceiver.—An action will not lie by the foreign receiver of the assets of such foreign corporation to have an ancillary receiver appointed in this state to take charge of its funds in this state, attached by domestic creditors, in order to turn them over to the foreign receiver.</p> <p>Id.—Pleading—Books and Papers—Prayer op Complaint.—In the complaint by such foreign receiver, in the absence of any allegation that any of the defendants have in their possession any books and papers of the foreign corporation other than the money attached, a prayer of the complaint regarding books and papers is of no consequence.</p>

<p>"Attorneys at Law—Proceedings eor Disbarment — Accusation by Private Party—Dismissal.—This court has "both original and appellate jurisdiction of a proceeding for the disbarment of an attorney at law; but it will only entertain an original accusation when instituted by a bar association or other public body in the public interest. Where the accusation is by a private party, alleging misconduct prejudicial to himsélf, the proceeding should be instituted in the superior court, and if brought in this court will be dismissed without prejudice.</p>

<p>"Attorneys at Law—Proceedings eor Disbarment — Accusation by Private Party—Dismissal.—This court has "both original and appellate jurisdiction of a proceeding for the disbarment of an attorney at law; but it will only entertain an original accusation when instituted by a bar association or other public body in the public interest. Where the accusation is by a private party, alleging misconduct prejudicial to himsélf, the proceeding should be instituted in the superior court, and if brought in this court will be dismissed without prejudice.</p>

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

<p>Mandamus—Expulsion from State Senate—Charge of Bribery— Demurrer to Petition—Jurisdiction.—A petition by former members of the state senate, who were expelled therefrom on a charge of bribery, for a writ of mandate to compel the senate to reinstate them, for alleged expulsion without a hearing, or trial, or opportunity for defense, and without conviction of crime, states no case within the jurisdiction of this court, and a general demurrer thereto was properly sustained and the writ denied.</p> <p>Id.—Exclusive Power of Senate—Absence of Judicial Power.—The power conferred upon the senate by the constitution, to determine the rule of its proceeding and, with the concurrence of two thirds of all the members elected, to expel a member, is exclusive; and the judicial department has no power to revise even the most arbitrary and unfair action.of the legislative department, taken in pursuance of the power committed exclusively thereto by the constitution.</p> <p>Id.—Mandamus Ineffective—Adjournment of Senate—New Body.— This court has no power or means to carry into effect a writ of mandate to compel the restoration of the petitioners to the senate from which they were expelled, which has adjourned sine die. The next senate will be a different .body from that now supposed to be before the court, and this court has no power over it.</p> <p>Id.—Pacts Judicially Noticed—Contrary Allegations not Admitted by Demurrer.—Allegations of the petition, made contrary to facts judicially noticed by the court, are not admitted by the demurrer.</p> <p>Id.—Judicial Notice of Proceedings—Investigation — Presumption of Notice and Hearing.—The [court takes judicial notice of the proceedings' had in the senate, and entered upon its journal, by ■ which petitioners were expelled, showing that charges were -preferred against them and referred to a committee for investigation, which, after investigation, reported to the senate, finding that the charges were true, and recommending expulsion, which report was acted upon by the senate. In the absence of a contrary allegation, it must be presumed that petitioners had notice of these-proceedings, and were allowed to participate therein.</p> <p>Id.—Power of Senate to Control Procedure.—The senate has power to adopt any procedure, and to change it at any time without notice. There is no constitutional provision giving petitioners the right to have a trial and opportunity to |be heard in the senate other than that which they have received. ></p> <p>Id.—Deprivation of Office — Due Process of Law — Fourteenth Amendment.—The senate having expelled the petitioners in the mode prescribed by the constitution, their action is not a deprivation of office without due process of law, within the meaning of the fourteenth amendment to the federal constitution, which does not affect the case. The sovereign power which created the office can prescribe the terms upon which it is to be held and delegate the power of removal.</p> <p>Id.—Construction of Constitution—Disfranchisement upon Conviction—Power of Expulsion—Bill of Attainder.—The provision for the disfranchisement of a member upon conviction for crime, in section 35 of article IV of the constitution, has no effect upon the power to expel members conferred by section 9 of the same article; nor does expulsion thereunder operate as a bill of attainder in violation of the state or federal constitution.</p>

<p>Order Granting New Trial—Review upon Appeal—Notice op Motion not Made Part op Record—Presumptions.—Upon appeal from an order granting a new trial all presumptions are in favor of the order, and where the notice of motion is not made part of the record by a statement or bill of exceptions it cannot be considered, and the ' order will be affirmed on any presumed ground of the motion upon which it could be based.</p> <p>Id.—Recitals and Reasons por Order.—Recitals in the order granting a new trial as to the showing made constitute no part of the order, and the reasons given by the court for its action are immaterial.</p> <p>Id.—Action for Trespass—Order Granting New Trial, op Limited Issues—Other Lands—Finding Outside Issues.—In an- action of trespass in the cutting down and removal of timber upon specified lands, where damages were given for the cutting of timber upon part of such lands, a new trial could not properly be granted upon limited issues involving the right of possession, trespass upon, and injury to land as to which no relief was granted, or as to which the complaint and answer presented po issues. A finding outside the issues is not ground for new trial.</p> <p>Id.—Cross-Complaint—Issues—Finding—Failure to Find—Grounds for New Trial.—Where issues ¡were joined upon a cross-complaint in such action to quiet the title of the defendant against the claims of the plaintiff, although there may be a question as to the propriety of it, especially in regard to property not described in the complaint, yet, the subject-matter thereof being within the jurisdiction of the superior court, the court could grant a new trial upon any statutory ground, both of an issue joined upon the cross-complaint as to lands upon which the court made a finding, and also for failure to find upon a material issue joined upon the cross-complaint as to other lands not described in the complaint.</p>

<p>Libel—Sufficiency of Complaint—Publication of Plaintiff’s Letter —Comments — Averments of Falsity. — A complaint for libel which alleges the publication by defendants of a letter, purporting to be written by the plaintiff and his partner, as proprietors of a hotel, to the wife of one of the; defendants, charging her with boycotting the hotel, and threatening a boycott upon her business, and of newspaper comments upon the letter, and alleges that the whole article set forth, which included the letter, was published falsely and maliciously, and with the intent to expose plaintiff to obloquy, and to cause him to be shunned and avoided, and injured in his business, makes the sweeping statement that both the letter and the comments were false, and states a libel per se.</p> <p>Id.—Erroneous Puling upon • Demurrer.—It was error to sustain a demurrer to such complaint on ¡the ground that the publication included a letter written by the plaintiff himself, and that the pleader must select that portion of the publication upon which he bases his action.</p>

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

<p>Street Improvement—Validity of Besolution of Intention—Description of Work—Exceptions—Other Streets.—A resolution of intention to improve a street is not invalid because it orders a street that had been once macadamized to be paved with bituminous rock, where there is no claim that the block to be improved has been accepted by the city as a completed and fully constructed street; nor because it excepts that portion of work of the same class, already done, at the expense of owners, and affects only a minority of the frontage; nor because it excepts a portion required by law to be kept in order by a railroad company having tracks thereon; nor because it. includes work of various kinds on other streets.</p> <p>Id.—Certificate of Engineer.—The law does not require a certificate of the city engineer under the circumstances of this case; and a certificate which shows that the engineer had examined the work described in the resolution of intention, and had found the same “practically to official line and grade,” and which showed the area of the pavement, and the length of curb constructed, and that the certificate was recorded, is not objectionable.</p> <p>Id.—Foreclosure of Assessment—Pleading—Findings — Objections to Bid and Contract Untenable.—In an action to foreclose a street assessment, where the making of a valid bid and a valid contract were alleged and found, and there is no specification of insufficiency of the evidence to sustain the findings in these respects, objections thereto are not available upon appeal.</p> <p>Id.—Beturn of Warrant—Signatures.—The return of the warrant, signed on behalf of the contractor, by the person who had made the demand, verified by his oath, is a compliance with the law. It need not be signed by the superintendent of streets. The return is sufficient if it clearly shows that the demand ,for payment was publicly made upon the premises assessed, in accordance with section 10 of the Street Act.</p> <p>Id.—Prima Facie Case not Overcome—Appeal—Affirmed.—Where there was nothing in the evidence of the defendant to overcome the prima facie case, made by evidence of the assessment, diagram, warrant, return, and engineer’s certificate, an order denying a new trial to the defendant will be affirmed upon appeal.</p>

<p>Easement—Prescriptive Bight op Wat-—Support op Findings—Law op Case—Previous Affirmance op Order Granting New Trial.— In an action to enjoin the defendant from obstructing a private way, in which plaintiff relies upon a prescriptive title to the easement, the principles announced! upon a former appeal, granting a new trial, which necessarily determined that the evidence was of such a nature as would sustain a finding of adverse user, must be deemed the law of the case upon a second appeal; and where, as the result of the new trial, the court found that the plaintiff had acquired a prescriptive title to the easement, upon substantially the same evidence, it cannot be held, upon the second appeal, that the finding is unsupported. i</p> <p>Id.—Evidence — Original Gift op Wat — Continuous User under Claim op Bight.—Evidence given by the plaintiff, that more than forty years ago defendant’s predecessor gave the title to the private way to the plaintiff, is consistent with the theory that plaintiff based a claim of right upon the gift, and has been using the way under such claim of right ever ¡since.</p> <p>Id.—Loss bt Disuse—Support op Findings—Interference with User .—Legal Proceedings.—A finding of continuous user by the plaintiff and his tenants for thirty-seven years, when defendant prevented further use, negatives loss by disuse during that period, and is sustained by evidence of user to some extent each year by plaintiff and his tenants, and that upon interference therewith legal proceedings were promptly begun> to enforce plaintiff’s right.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. Lilienthal, and Daugh'erty & Lacy, for Anglo-Californian Bank, Limited, Respondent and Appellant, and for Thomas W. Cowan, Appellant and Respondent.</p> <p>The incorporation of plaintiff was proved by competent evidence under the statute (act of April 18, 1872), and also by the estoppel of the mortgagor; and those claiming under him to deny its corporate existence (Camp v. Land, 122 Cal. 169; Clark v. Baker, 14 Cal. 612;1 Bay City Assn. v. Broad, 136 Cal. 526; Schwallback v. Chicago etc. Ry. Co., 69 Wis. 2922) and by the recital in the subsequent mortgage that it is subject to the prior claim of the plaintiff by its corporate name. (Pratt’s Exr. v. Nixon, 91 Ala. 192; Williams v. Kokomo etc. Assn., 89 Ind. 389; People’s Savings Bank v. Collins, 27 Conn. 142; Hasenritter v. Kirchhoffer, 79 Mo. 239; Morawetz on Private Corporations, sec. 144, note.) The act of 1872 in relation to foreign corporations and the amendatory act of 1899 are constitutional and valid. The titles are sufficient. (Ex parte Liddell, 93 Cal. 636; People v. Superior Court, 100 Cal. 118.) The classification is proper. (San Francisco v. Liverpool etc. Ins. Co., 74 Cal. 114.3) The acts are uniform in their operation (Hellman v. Shoulters, 114 Cal. 136; Wigmore v. Buell, 122 Cal. 144; Vail v. San Diego County, 126 Cal. 35; Murphy v. Pacific Bank, 119 Cal. 334), and grant no special privileges to foreign corporations. Section 299 of the Civil Code is inapplicable to a mortgagor, or to a foreign corporation. (Savings and Loan Soc. v. McKoon, 120 Cal. 179; South Yuba Co. v. Rosa, 80 Cal. 336.) There was no merger of the prior mortgage under the circumstances of the case, showing an intention to keep the mortgage alive, which equity will also presume, there being no evidence of a contrary intention. (Davis v. Randall, 117 Cal. 16-17; Scrivner v. Dietz, 84 Cal. 295; Hines v. Ward. 121 Cal. 115.) There was no issue as to merger, and the finding was outside of the issues and cannot prevail. (Yosemite Commrs. v. Barnard, 98 Cal. 199.)</p> <p>S. F. Geil, J. H. Andresen, and Dorn & Dorn & Savage, for Bank of Monterey, Respondent, and J. K. Alexander, for T. J. Field, Administrator of Estate of George Brandt, Deceased, Respondent.</p> <p>The acts of 1872 and 1899 are unconstitutional. (Const., art. IV, sec. 4; art. I, sec. 2; art. IV, sec. 25, subds. 3, 19, 33; Lewis v. Dunne, 134 Cal. 293, 295;4 Cullen v. Glendora, Water Co., 113 Cal. 513.) The Bank of Monterey is not estopped to deny the existence of the plaintiff corporation. (Bigelow on Estoppel, p. 460; Carpentier v. Brenham, 40 Cal. 236; Fresno Canal etc. Co. v. Warner, 72 Cal. 384.) There was prima facie evidence as to a merger of the prior mortgage in the fee, and the question of intention is one of fact to be tried and found. (Shaffer v. McCloskey, 101 Cal. 576; Rumpp v. Gerkens, 59 Cal. 501; Story’s Equity Jurisprudence, secs. 788, 790, 792; 1 Jones on Mortgages, sec. 848.) Cowan should have pleaded his intention at the time of the conveyance. (Pomeroy’s Equity Jurisprudence, sec. 792; Scrivner v. Dietz, 84 Cal. 295; Rumpp v. Gerkens, 59 Cal. 501; Brooks v. Rice, 56 Cal. 428; Hines v. Ward, 121 Cal. 115.) Cowan, having been made a party, should have set up all his rights as assignee. (Campbell v. West, 93 Cal. 656; Ford v. Bushard, 116 Cal. 276.)</p>

<p>Void Contract with Brokers—Speculation in Stocks—Purchase and Sale on Margin—Recovery op Money Paid.—A contract made by the plaintiff with stockbrokers, for the purpose of speculating in the rise and fall of the shares of stock of a corporation, to purchase a number of shares thereof on margin, without knowing of whom or where they were to be bought, or were bought, and which were to be delivered only at a future day, if at all, with the understanding that in case of a decline in value the margin was to be kept good, and that the brokers were to retain the shares as security for the balance due, with commission and interest, and sell the same when the security should be endangered, is void, under the terms of section 26 of article IV of the constitution, and the money paid thereunder may be recovered.</p> <p>Id.—Executed and Executory Sales on Margin—Question Undecided —Support op Findings.—Where the findings supported by the evidence clearly show that the contract made was void under the express terms of the constitution, it is unnecessary to decide the question whether the constitution only inhibits executory contracts for the sale of stock on margin, and does not inhibit executed contracts of sale on margin.</p> <p>Id.—Agency op Brokers — Place op Vendor.—'Admitting that the brokers were the agents of the customer, and made the purchase at his request, and on his account, through third parties, yet, where the brokers, in the accomplishment of the forbidden purpose, took the place of the vendor, and carried the stock on margin, as the vendor might have done, the customer knowing no other parties in the transaction, the agency of the brokers cannot preclude the recovery from them by the customer of the money paid to them for the sale of the stock on margin.</p> <p>Id.—Money Due Brokers on Grain Contracts—Counterclaim not Pleaded.—A sum of money due the brokers on grain contracts, having nothing to do with the transaction in question, and which was not pleaded as a counterclaim, cannot be considered as a payment or credit on the money recovered.</p>

<p>Estates of Deceased Persons—Settlement of Account — Appeal from Order—Service of Notice.—Upon appeal from an order settling the account of an executor, the notice of appeal need not be served upon a creditor whose claim was allowed, and who is not shown by the record to have appeared at the settlement of the account, nor upon attorneys who had rendered legal services to the executor, to whom he was directed to pay certain sums as compensation therefor.</p> <p>Id.—Allowance to Attorney for Absent Minors—Jurisdiction—Presumption of Notice.—The court had jurisdiction, under section 1718 of the Code of Civil Procedure, prior to its repeal, to appoint an attorney to represent absent minors who have no general guardian, and to make an allowance to such attorney, payable from the portion of the heirs, legatees, or devisees represented. Where it is found that the order fixing the fee was duly given, made, and entered, it must be presumed that it was not ecu parte, but upon proper notice, in the absence of any showing to the contrary in the record.</p> <p>Id.—Allowance of Interest to .Executor upon Advances—Findings ■—Absence of Evidence.—An executor who has, without his fault, necessarily advanced money to an estate for its benefit may be allowed such advances, with interest thereon, and findings that the advances were proper and beneficial, and were made at a time when there were no funds of the estate in his hands, and resulted in the preservation of the estate, are sufficient to sustain the allowance of interest, and cannot be assailed in the absence of a bill of exceptions showing the evidence taken at the hearing.</p> <p>Id.—Payment of Executor to Exclusion of Attorney for Minor Heirs.—The court did not err in allowing the payments to the executor for. advances and interest before paying the claim of the attorney for the minors, whose allowance is subject to the payment of all expenses of administration and debts, and is payable out of a distribution fund which can have no existence until such expenses and debts are paid.</p> <p>Id.—Objection to Annual Account—Condition of Estate—Order of Settlement.—An objection to the annual account of the executor, that it does not show what property or estate* is in the possession of the executor, does not preclude the court from settling the account; nor is it essential that the order settling such account shall set forth tho present condition of the estate, or show the property and estate on hand, together with its value.</p> <p>Id.—Review upon Appeal — Subsequent Refusal to Amend Findings.—Upon appeal from the order settling the account, this court cannot consider a refusal made more than a month after the taking of the appeal, to amend the findings of fact made upon the settlement of the account.</p>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Frank H. Kerrigan, Judge. The facts are stated in the opinion of the court. W. C. Cavitt, C. A. Elliott, and D. E. Alexander, for Appellant.

<p>Taxation — Assessment to Savings and Loan Society — Solvent Credits.—The amount of the loans made by a savings and loan society, which are secured by stocks and bonds, were properly assessable to it as solvent credits.</p> <p>Id.—Action to Recover Taxes Paid—Change in Assessment—Issue as to Authority—Presumption—Burden of Proof—Findings.— In an action by the savings and loan society to recover taxes paid under an assessment for solvent credits alleged to have been made by an unauthorized change by the assessor, where issue was joined as to whether it was made without any authorization from the board of equalization, the presumption is in favor of the assessment, and the burden of proof is upon the plaintiff to show that it was not so authorized; and if the findings show such authority, the plaintiff’s case must fail.</p> <p>Id.—Power of Board of Equalization.—Under section 3681 of the Political Code, the board of equalization may authorize changes in the assessment-roll, not only to add a new assessment, but also to correct the description of property already assessed with an insufficient and incomplete description, and may empower the assessor to change the designation of the kind or quality of part of the personal property from “bonds” to “solvent credits.”</p> <p>Id.—Acquiescence in Unauthorized Change.—Where, pending the session of the board of equalization, the assessor had, without previous authority, made a change in the assessment, which was brought to the notice of the board and of the taxpayer, who merely objected to the want of authority, and such change was acquiesced in by the board, which allowed the assessment to stand as changed,— it thereby in effect directed and required such change and so imparted authority and validity to what was previously unauthorized. It was not necessary to go through the manual work of restoring the original entry, and again making the same change.</p> <p>Id.—Notice to Taxpayer—Voluntary Appearance—Waiver of Time —Jurisdiction of Board.—Where the taxpayer was before the board of equalization, in response to a citation to show cause why its assessment should not be increased, such citation included notice of an increase by the addition of other .property, and where the taxpayer appeared before the board, and was informed of the change made by the assessor, and did not urge that it did not own solvent credits in the amount stated, but merely objected that the change in the assessment was unauthorized, its voluntary appearance was a waiver of objection that notice was not given of such change, and the board had jurisdiction to proceed and sanction the same.</p> <p>Id.—Consistency op Pleadings and Findings—Answer. — The fact that the defendant had denied that any addition was made to the assessment by the change, and alleged that the plaintiff had originally been assessed for its solvent credits, did not preclude it from denying that the change had not been authorized; and findings on the latter issue are not inconsistent with any admissions made by the pleadings.</p>

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

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

<p>Mechanics’ Liens—Building Destroyed by Pire—Lien not Allowed upon Land.—Under the Mechanics’ Lien Law, a claim of lien has nothing upon which it can attach, where the building, while uncompleted, was destroyed by fire without the fault of the owner, and the claim was subsequently filed only upon the vacant land. The completed building is made the principal thing upon which the right of lien is given, and the land upon which it is situated is an incident of its completion; anil if there is no building, the court cannot determine that any land; “may be required for its convenient ' use.”</p> <p>Id.—Theory of Statute — Equitable Bights of Lien Claimant — Consideration—Benefit to Owner—Loss of Building and Lien. —The Mechanics’ Lien Law proceeds upon the theory that the laborer or materialman has an equitable right to follow his labor or material into the building of which it is a component part, and that the benefit conferred up (in the oyvner thereby is the consideration for conferring the right of lien. This consideration does not exist where the building is destroyed before completion and delivery thereof to the owner; and the lien in such case must share the fate of the building.</p>

<p>Commission fob Sale of Landj—Substituted Contract — Parol Evidence.—Where a written contract sued upon, giving a definite commission upon the sale of ¡land, was evidently intended as a substitute for a prior contract, giving different terms relating-to a particular proposed sale, which was omitted in the contract sued upon, the two contracts are not to be taken together as one contract, and there can be no parol evidence of any different terms or intention of the parties than that expressed in the contract sued upon. It is only an ambiguous description in the contract sued upon that parol evidence may be admitted to explain.</p> <p>Id,—Pleading—Admission of Execution.—Where the complaint contained a copy of the contract sued upon, its genuineness and due execution were admitted by the failure of the defendant to deny the same in a verified answer.:</p> <p>Id.—Nonsuit Properly Denied.—Where there was evidence tending to sustain the allegations of the complaint that the plaintiff duly performed the conditions of the contract to be performed by him, that the proposed sale was consummated, and that no part of the agreed sum was paid, a motion for a nonsuit was properly denied. -</p> <p>Id.—Evidence—Proof of Sale.—Evidence was admissible for the plain- . tiff to prove a sale to other parties than those mentioned in the former contract.</p> <p>Id.—Question for Jury—Ambiguity of. Description—Conflicting Evidence—Instructions.—Where the evidence was conflicting as to what was intended by an ambiguous descriptive phrase in the ' contract, and whether or not it was intended to refer to the prior proposed sale or to any sale t.o be consummated, it was a question for the jury what was the real intention of the parties; and where the court substantially loft that question to the jury, in instructions that were subject to criticism, they could not be prejudicial, if not misleading to the jury. [Per Shaw, J., and Angellotti, J.]</p> <p>Id.—Question for Court—Matter Left to Jury—Error not Preju- . dicial.—It was proper for the court to determine the meaning of the contract sued upon; but where an instruction leaving its meaning to the jury was not prejudicial to the appellant, it is not ground for reversal. [Per Van Dyke, J.]</p> <p>Id.—Instructions Substantially Given.—It was not error to refuse instructions substantially covered by instructions given by the court.</p> <p>Id.—Order Denying New Trial—Conflicting Evidence.—An order denying a new trial to the defendant will be affirmed where the evidence was substantially conflicting, and there was sufficient evidence to sustain the verdict for the plaintiff upon his theory of the case.</p>

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

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

<p>Action for Injury — Contributory Negligence — Riding on Foot board of Street-Car — Evidence — Support of Verdict.—In an action to recover damages for an injury sustained by the plaintiff from collision with a vehicle standing a foot distant from the hody of a ear upon the footboard of which he was riding, where the verdict was for the defendant, and the evidence showed that the plaintiff might have taken a more secure position, and might have escaped injury by holding hi^ body well within the lines of the car, and keeping a lookout to avoid the collision, it cannot be said as matter of law that the jury were not warranted in finding from the evidence that plaintiff’s injury was the proximate result of his own negligence.</p> <p>Id.—Avoidance of Injury by Employees—Rule Inapplicable—Rights of Employees—Where there was no evidence to show that the employees of the street-ear company had any notice that plaintiff was in a dangerous position, or was conducting himself in a dangerous manner, the rule that they must use the last clear opportunity to avoid the injury is inapplicable; and they had the right to assume that persons riding where the plaintiff rode would use reasonable care, and not allow themselves to come in collision with objects no nearer than a foot from the body of the car.</p> <p>Id.—Harmless Exclusion ot Evidence as to Injury.—The verdict having been rendered for the defendant, based on the ground of the contributory negligence of the plaintiff, the exclusion of evidence of an X-ray photograph bearing upon the injury, and of evidence bearing upon the permanence of the injury, is harmless to the plaintiff.</p>

<p>Taxation—.Taxes Paid under Protest — Action against Tax-Collector—Duty of Collector.—It is the duty o£ the tax-collector to pay all taxes collected by Mm into the county treasury; and an action will not lie against him,to recover taxes paid to him under protest, though the assessment ¡was void.</p> <p>Id.—Pleading—Presumption of Payment into Treasury.—Where the complaint in the action against the tax-collector does not allege the contrary, it must be presumed that the money has been paid into the treasury.</p> <p>Id.—Money Had and Received by Agent—Payment to Principal.— The suit against the tax-collector is in the nature of an action for money had and received by an agent, which will not lie after he has paid over the money to Ms principal.</p>

<p>Street Assessment—Foreclosure—Pleading—Admission op Prima Facie Case—Error in Granting Nonsuit.—In an action to foreclose the lien of a street assessment, where the answer admitted the averments of the complaint as to the warrant, assessment, diagram, affidavit of demand, and non-payment, which are prima facie evidence of the right to recover, and of the regularity of all prior proceedings, the regularity of which was alleged in the complaint, and was denied by the answer, it was error to grant a nonsuit because plaintiff rested his ease on the admissions of the answer, without producing those documents in evidence or proving the other allegations specifically denied by the answer.</p> <p>Id.—Burden op Proop.—In such case the burden of proof was upon the defendant to overcome the prima facie case admitted by showing the irregularity of prior proceeding, upon the regularity of which issue was taken by the answer.</p>

<p>Estates of Deceased Persons—Action on Bond of Administrator— Liability Undetermined by Order.—An action will not lie, pending the administration of the festate of a deceased person, upon the bond of the administrator for an alleged breach thereof prior to any order of the probate court determining his liability therefor, and ascertaining the amount of his indebtedness.</p> <p>Id. — Action against Estate—IParties. — In an action against the administrator of the estate, ab such, the sureties on his bond are not proper parties defendant. |</p> <p>Id.—Action for Insurance Money Payable to Widow—Application to Debts of Estate.—Neither the administrator in his official capacity nor the sureties on his bond are liable in an action by the widow of the decedent for the appropriation of the proceeds of an insurance policy payable to her, which were collected by the administrator and applied to the payment of funeral expenses and other debts of the estate.</p> <p>Id.—Conversion by Administrator—Estate not Liable at Law.— The administrator, in his individual capacity alone, is liable to the widow for a wrongful conversion of insurance money belonging to her, and held by him in trust for her. The estate cannot be held liable for his tort, in an action at' law therefor, although persons interested in the estate may have profited thereby, whatever might be the liability of the estate in equity upon proper averments.</p>

<p>Franklin K. Lane, former City Attorney, Percy V. Long, City Attorney, and John P. Coghlan, Assistant City Attorney, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. Ruef, for Appellant.</p> <p>U. S. Webb, Attorney-General, R. C. Van Fleet, and Lewis F. Byington, District Attorney, for Respondent.</p>

<p>APPEAL from an order of ‘ the Superior Court of Santa Clara County directing a sale of lands claimed as a homestead after levy upon execution. A. L. Rhodes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trusts—Void Trust to Convey—Separate Trust to Lease and Apply Income.—A deed, in so far as it creates a trust to convey lands to certain beneficiaries, is void; but the invalidity of such trust does not affect a valid severable trust to lease the real property and to pay the net rentals to a named son of the grantor, so long as he shall live.</p> <p>Id.—Bemaining Estate op Trustor Subject to Execution. — The ' estate remaining in the trustor, subject to the valid trust for the life of his son, is subject to levy and sale under execution against him.</p> <p>Id.—Validity op Judgment against Trustor—Collateral Attack— Judgment Boll.-—The judgment against the trustor, under which his interest was sold upon execution, cannot be held void upon collateral attack unless the judgment roll shows that it is void upon its face.</p> <p>Id.—Publication op Summons—Delay in Filing Affidavit—Becitals in Judgment—-Default Duly Entered.—Where the record shows affirmatively that summons in the action in which such judgment was rendered was regularly served by publication, within three years, and an affidavit of publication was sworn to within that period, though filed thereafter, and one day before the judgment, the recitals of the judgment, which are inconsistent with such filing after the lapse of three years, and which show that the defendant was regularly served with process, and that his default was duly entered according to law, musí be taken as true, and to be based upon other proof, and the judgment cannot be held void upon its face upon collateral attack.</p>

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

The facts are stated in the opinion. . Cochran, Williams & Phillips, and Hunsaker & Britt, for Appellant. The defendant performed his duty by furnishing proper pike-poles, such as were customarily used. (Brymer v. Southern Pacific Co., 90 Cal. 496, 498; Dolan v. Sierra Ry.

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