Volume 149 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>W. H. Carlin, Hiram Johnson, and Charles W. Slack, for Defendants, Appellants and Respondents.</p> <p>Albert M. Johnson, and Devlin & Devlin, for Plaintiffs, Respondents and Appellants.</p>

<p>Collision with Street-Car—Contributory Negligence—Erroneous Instruction—Avoidance op Peril by Motorman—Ignorance op Peril.—In an action by a young girl, through her guardian ad litem, for injuries received from collision with a street-car, where there is uncontradicted evidence that the motorman did not see the plaintiff until after the accident, and did not know of her peril, it was error to instruct the jury that even though she or her parents were guilty of contributory negligence, still she was entitled to recover, “if, by reason of negligence on his part, the' motorman failed to avoid the accident.”</p> <p>Id.—Negligence op Motorman not Appeoting Contributory Negligence.—It is only the power to avoid the accident after actual discovery of the peril of the plaintiff that will render the defendant liable, notwithstanding the contributory negligence of the plaintiff; and neither the mere remissness of the motorman in failing to discover the peril because he was looking hack and not in front of him, nor his failure to ring the bell or to give other notice, if required to do so, constituted such negligence as would take the case out of the rule that one guilty of contributory negligence cannot recover.</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>■ Negligence — Master and Servant — Lowering Unlashed Poles in Mine—Sufficiency of Complaint—General Demurrer.—In determining whether the complaint of a servant for alleged negligence of his employer, in failing to provide ropes with which to lash mining-poles longer than the skip, which were lowered in a mining shaft in which plaintiff was working, and that a pole longer than the skip fell down the shaft to his injury, states a cause of action as against a general demurrer, the complaint is to be liberally construed with a view to substantial justice, and any mere ground of special demurrer for uncertainty of the pleading, in failing distinctly to allege that the' pole by which he was injured was being lowered down the shaft unlashed, must be resolved in support of the complaint.</p> <p>Id.—Question of Fact for Jury—Conflicting Evidence of Negligence—Erroneous Instruction.—Where the evidence was conflicting as to whether the defendant had- furnished lash-ropes for use by the skip-tender in lashing the poles, the question of negligence was one of fact for the jury; and it was an erroneous instruction as to a matter of fact to tell the jury that poles sent down unlashed constituted negligence per se on the part of the defendant, and assumed a determination of the very question at issue.</p> <p>Id.—Furnishing of Appliances by Master—Adjustment by Servant. •—If the master furnished to the skip-tender the necessary appliances of sufficient lash-ropes with which to fasten the mining poles before they were sent down into the mine, the matter of adjustment pertaining to the duties of the skip-tender was a mere detail in the discharge of his work, and the master is not responsible for the negligence of the skip-tender in failing to properly adjust the appliances and materials after they had been furnished to him.</p> <p>Id.—Construction of Statute.—Section 4 of the act of 1893, for the protection of miners, requiring that "All timbers, tools, etc., ‘longer than the depth of the bucket, ’ to be hoisted or lowered, must be securely lashed at the upper end of the cable, ’ ’ cannot be reasonably construed as imposing a personal liability upon an employer to do the lashing, if he furnishes the necessary lashing material to servants whose duty it is to adjust the material furnished.</p>

<p>Mining Claim—Validity of Location—Mining Rule—Failure to Do Annual Work—Resumption—Law of Case.—Where the validity of the original location of plaintiffs’ mining claim, though it failed to comply with a local mining rule, and the invalidity of an adverse location thereof for plaintiffs’ failure to do the requisite amount of annual work, made after plaintiffs had in good faith resumed work, were determined by this court upon a former appeal, such determination is the law of the case.</p> <p>Id.—Support of Finding—Conflicting Evidence.—Where the court found, upon conflicting evidence, that the plaintiffs had resumed work before the adverse location, its determination is conclusive upon this appeal.</p> <p>Id.—Claims of Forfeiture by Co-Owners—Defense of Prior Transfer—Improper Rebuttal—Record not Res Adjudicata.—Where plaintiffs claimed a forfeiture by co-owners for failure to contribute to annual work, and defendant relied upon a transfer from such co-owners prior to the notice to them to contribute, plaintiffs were improperly allowed in rebuttal to introduce, as an estoppel of record against the defendant, the judgment-roll in an action to which defendant was a party, brought by plaintiffs as alleged successors in interest of the judgment debtors, including such co-owners, to redeem from a sale under the foreclosure of a mortgage, the judgment showing that redemption was permitted to plaintiffs as such successors, where there is nothing in the record to indicate that the precise question of the forfeiture by such co-owners was directly involved and adjudicated.</p> <p>Id.—Matter Adjudged—Right of Redemption—Part Ownership.— The matter adjudged was merely the plaintiffs’ right to redeem the whole of the property from the foreclosure sale, and all that it was necessary for them to prove to sustain such right was that they were successors in interest of one or more of the judgment debtors in some part of the property; and the judgment is conclusive only of that which was essential to support such right.</p>

<p>Construction op Tunnel — Entire Contract — Caving-in — Fault op Owner—Mistake op Engineers — Becovery por Extra Work.— Notwithstanding a contract to construct 'a tunnel to artesian wells is entire and indivisible, yet, where the work was done as agreed, according to the specifications of engineers employed by the owner, and to their satisfaction, and through the fault of the owner in furnishing defective timber, of which the contractor complained, and the mistake of the engineers as to the strength of timber required, the tunnel caved in, the contractor was not responsible for such fault and mistake, and was not required to make good the loss, but may recover the reasonable value of the extra work required to repair the tunnel.</p> <p>Id.—Excessive Allowance—Modification op Judgment.—Where an excessive allowance was made for extra work and labor done by the contractor, according to the testimony offered by him as plaintiff, a new trial will not be ordered on that account, but the judgment will be modified to conform to plaintiff’s proof.</p> <p>Id.—Breach op Contract by Owner—Election op Bemedy by Contractor—Becovery for Loss of Profits.—Where the owner of the tunnel refused to comply with the contract to furnish material for timbering, and thus made it impossible for the contractor to complete the contract, the latter may elect, among alternative remedies, to treat the owner’s repudiation of it as putting an end to the contract for all purposes of performance, and to recover the profits he would have realized if performance of the contract had not been prevented; and in such case the contract would be continued in force for that purpose.</p> <p>Id.—Damages—Prospective Profits—Special Pleading not Bequired. —Prospective profits which are not too speculative and remote, and which arise directly and naturally out of an injury .or breach of contract, and are not collateral thereto, are always allowed as an element of damage without the necessity of special pleading thereof.</p> <p>Id.—Difficulty of Proof—Justifiable Action of Court.—It is not an objection to the recovery of prospective profits directly arising from a breach of contract that they cannot be directly and absolutely proved. The court is justified in accepting evidence thereof, which, under the circumstances, is the best and most convincing that could be offered, even if by possibility the profits might have been less than the amount allowed, owing to matters which could not be determined except by a completion of the contract, which defendant’s conduct had prohibited.</p>

<p>Estates of Deceased Persons—Order Vacating Probate of Will— Lapse of Time for Motion.—A motion cannot be entertained to vacate an order admitting a will to probate which is not void upon its face, after the lapse of the time prescribed, by section 473 of the Code of Civil Procedure, and an order granting such motion is erroneous and void and will be reversed upon appeal.</p>

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

<p>Constitutional Law—Invalid Exercise of Police Power—Sale of Theater Tickets.—The act of March 18, 1905, prohibiting any person from selling tickets to any theater or other public place of amusement for a price higher than that originally charged by the management thereof, and making it a misdemeanor not to comply therewith, "is not a valid exercise of police power, and is void as infringing on the rights of property guaranteed by the constitution and existing in the individual.</p> <p>Id.—Surrender of Personal Bights.—These rights are in fact inherent in every natural person, and do not depend on constitutional grant or guaranty. Under our form of government by constitution the individual, in becoming a member of organized society, unless the constitution states otherwise, surrenders only so much of these personal rights as may be considered essential to the furtherance of the objects for which it exists.</p>

<p>Taxation — Assessment op Railroad Property — Improvements — State and Local Assessments.—Under section 10 of article XIII of the constitution, it is only "the franchise, roadway, roadbed, and rolling-stock” of railroads that are to be assessed by the state board of equalization, and any attempted assessment of railroad property beyond the power of such board is void and cannot preclude an assessment by the local authorities. All improvements, whether situated on or off the right of way, are to be assessed by the local authorities.</p> <p>Id.—Exclusive Right op Assessment by City.—Railroad property within city limits, consisting of blocks of land adjoining the right of way, acquired and used for station purposes, fon a passenger depot, for a freighthouse, with spur tracks and sidings, for a roundhouse, for machine-shops, for a storehouse, with materials for construction purposes, with tracks for switching and repairing purposes, for a water-tank, and for a cattle yard, and also a right of way and roadbed never used or operated for railroad purposes, are to be assessed exclusively by the city assessor.</p>

<p>PETITION for Writ of Mandate to the Superior Court of San Joaquin County. Frank H. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Thomas S. Louttit, and Buck & Middlecoff, for Petitioner.</p>

<p>Estates of Deceased Persons—Death of Non-Resident—Property in Several Counties—Jurisdiction—Prior Application.—There cannot be two valid administrations at the same time in this state. Where the deceased was a non-resident of the state and left property in several counties of this state, the superior court of a county in which part of the estate is situated, in which application for letters is first made, has exclusive jurisdiction to settle all the estate situated in this state.</p> <p>Id.—Filing of Petition for Letters, an “Application.”—The first filing of a petition for letters constitutes the first “application” therefor, within the meaning of section 1295 of the Code of Civil Procedure.</p> <p>Id.—Prohibition—Prior Grant of Letters to Subsequent Applicant. —Where letters of administration were subsequently applied for and granted in another county in which part of the estate is situated, the public administrator of the county in which letters were first applied for by him, and the next of ltin of the deceased, have a sufficient beneficial interest to entitle them to a writ of prohibition to prevent further proceedings under the subsequent application, notwithstanding the prior grant of letters to the subsequent applicant.</p> <p>Id.—Situation of Estate in County of First Application—Jurisdictional Fact—Exclusive Power of Court.—The superior court of the county in which letters were first applied for under a petition alleging the situation of estate of the decedent in that county, has exclusive power to determine that jurisdictional fact, subject only to review upon appeal, and its existence cannot be inquired! into collaterally by the respondent to a petition for prohibition against proceedings under a subsequent application in another county.</p> <p>Id.—Application for ¡Revocation of Subsequent Letters—Bemedy by Appeal not Adequate.—Begardless of the question whether the petitioner for the writ of prohibition could maintain an application for the revocation of the letters issued upon a subsequent application in another county, an appeal by him from an order refusing to vacate the letters cannot stay proceedings in that court, and is not such a plain, speedy, and adequate remedy in the ordinary course of law as to bar prohibition against the exercise of jurisdiction by that court.</p>

<p>WRIT OF HABEAS CORPUS to the Sheriff of the City and County of San Francisco.</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>T. C. Kierulff, E. C. Chapman, and R. M. F. Soto, for Appellants.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Sheriff of the City and County of San Francisco.</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>Specific Performance—Contract for Exchange of Land—Amended Complaint — Reformation and Enforcement — Compensation— Cause of Action not Changed.—Where the original complaint sought specific performance of a contract for the exchange of land, an amended complaint seeking to reform the contract, and praying specific performance of the reformed contract, or compensation by way of damages, should specific performance be impossible, did not incorporate a new or different cause of action.</p> <p>Id.—Different Kinds of Relief.—The seeking of different kinds of relief does not establish different causes of action. A contract may be reformed and specifically enforced as reformed in the same action; and a demand for alternative monetary relief is not subject to the objection that the complaint states two causes of action.</p> <p>Id.—Title to Strip Conveyed—Adverse Possession—Boundaries of Deed—Tacking not Permitted.—Where the plaintiff established a clear record title to the strip of land conveyed to the defendant, which was not included in the record title of defendant, defendant cannot tack its own possession thereof to that of any previous holder where the land is not included in the boundaries of the deed from such holder, in order to prove title thereto by adverse possession.</p> <p>Id.—Monetary Compensation—Market Value of Strip—Admission of Pleadings—Bad Faith.—Where the pleadings admitted the market value of the strip agreed to be conveyed by defendant, which had in bad faith conveyed it away, and without restoring the property conveyed, refused to convey as agreed, or to,pay any compensation for the title received, such market value was properly allowed as the measure of damages, under section 3306 of the Civil Code.</p> <p>Id.—Jurisdiction of Equity.-—Where, through no fault of the plaintiff in equity, specific performance cannot he decreed, the court having obtained jurisdiction of the subject-matter, properly within its cognizance, will grant, as an alternative, monetary relief, which in an action strictly at law would be by way of damages.</p> <p>Id.—Overlapping Improvements—Exchange of Strips—Mistake in Contract — Proof — Construction.—Where the improvements on defendant’s lot overlapped part of the lot of plaintiff’s assignor, which conveyed a strip to defendant in consideration of defendant’s agreement to convey a strip of the same area to plaintiff’s assignor to complete title to its frontage of forty feet, but the original contract called for a conveyance to plaintiff’s assignor of the whole forty feet, which was reformed for mistake therein, and defendant claimed that the mistake was not sufficiently proved, equity, independent of the question of mistake, will not permit defendant wholly to omit performance, because it has promised to perform more than it can or more than is -necessary, and the court will interpret the contract so as to be just, reasonable, and effective, and to express the true intent of the parties, and will disregard the erroneous parts of the writing.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to set aside a probate homestead. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Parent and Child—Support of Parent.—At common law there was no legal obligation on the part oí a child to support a parent; such obligation depends entirely upon statute, and the procedure provided by statute for the enforcement of the obligation must be pursued.</p> <p>Id.—Parent Supported by One Child.—Under section 206 of the Civil Code, a mother who is unable to maintain herself by work, and who is being supported by one of her children, cannot maintain an action against another child for other support.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County refusing to admit a will to probate and from an order refusing a new trial. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Action for Negligence — Statement — Death of 'Plaintiff after Judgment for Him—Common-Law Bule.—Though the common-law rule that a personal action dies with the person applies to an action for a personal injury caused by negligence of a defendant, pending suit, that rule not having been changed in this state, yet that rule is inapplicable where the death of the plaintiff occurs after a judgment in his favor which has not been vacated.</p> <p>Id.—Suspension of Judgment.—The mere suspension of the judgment for the plaintiff pending proceeding on motion for a new trial by a defendant, which is denied, or pending an appeal from the judgment and order denying a new trial, does not annul the judgment or effect an abatement thereof if the judgment is not reversed.</p> <p>Id.—Joint Verdict and Judgment—New Trial as to One Defendant— Judgment not Wholly Vacated.—The fact that the verdict and judgment for negligence were jointly entered against two defendants, and that a new trial was granted as to one of them, cannot operate to vacate the verdict and judgment in toto as to both of them. Such rule is not the law of this state, under which verdict and judgment may be given for one of two defendants sued jointly, and against another, if the proof justify it; and if the joint verdict and judgment are erroneous as to one they may be vacated as to that one only and remain in full force as to the other.</p> <p>Id.—Support of Verdict as to Negligence of Steamship Company— Breaking of Hawser Used for Docking—Burden of Proof—Question for Jury.—A verdict as to the negligence of a steamship company is sufficiently supported by the breaking of a hawser used for docking a vessel, to the injury of the plaintiff, which is prima facie proof of negligence, throwing the burden upon the carrier to show the absence of negligence and that it arose from circumstances not under its control. Whether such a showing was made was a question for the jury.</p> <p>Id.—Contributory Negligence—Question for Jury-—Support of Verdict.—Where the evidence was such as to warrant the jury in finding that the plaintiff was not guilty of contributory negligence in simply standing near a rail where he was injured by the broken hawser, if he was not warned of the possible danger, the question whether he was leaning over the rail with his head projected, and sustained this position despite warning to stand back, was for the jury. By their verdict for the plaintiff they answered that question in the negative; and their verdict must be sustained upon the credible evidence of the plaintiff notwithstanding the greater number of witnesses for the defendant to the contrary.</p> <p>Id.—Province of Trial Court—Duty of Appellate Court—Substantial Conflict of Evidence.—It is the province of the trial court to grant a new trial when the verdict is against the preponderance of the evidence; but it is the duty of the appellate court to sustain the verdict where there is a substantial conflict of the evidence, no-matter how much it may preponderate upon the other side.</p>

<p>Obder Granting New Trial — Specification of Ground — Appeal-Argument of Respondent—Presumption.—Where the respondent in Ms brief advances no other ground for a new trial than that specified in the order granting it, it will be assumed upon appeal that no other valid ground for a new trial exists.</p> <p>Id.—Irbegulabity Preventing Pair Trial.—Any misconduct of a party to an action by which a full presentation to the court or jury of evidence material to the other party’s cause is prevented is an irregularity for which a new trial may be granted, if thereby a fair trial has been prevented.</p> <p>Id.—Determination of Misconduct — Conflicting Evidence.—Where there is sufficient evidence to sustain a finding of misconduct on the part of the defendant preventing a fair trial on the part of the plaintiff, the determination thereof upon conflicting evidence by the trial court on motion for a new trial cannot be interfered with by this court.</p> <p>Id.—Irregularity Affecting Substantial Eights—Discretion.—The question whether the irregularity materially "affected the substantial rights of the plaintiff and. prevented her from having a fair trial was peculiarly one which was addressed to the discretion of the trial court, which, having heard and seen the witnesses on the trial and having knowledge of the circumstances of the case which cannot be reproduced in the printed record, is in a better position than the appellate court to determine as to the effect of the shown irregularity upon the result bf the trial.</p> <p>Id.—Ground of Affirmance of Order Granting New Trial.—It is enough to justify the affirmance of the order granting a new trial upon such ground, that the irregularity found upon sufficient evidence by the trial court to have existed was of such a nature that it may, under the circumstances of the case as shown by the record, have affected the substantial rights of the aggrieved party and prevented a’ fair trial</p>

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

<p>Estates or Deceased Persons—Obdeb Refusing Partial Distribution —Service of Bill of Exceptions—"Adverse Parties. ”—A bill of exceptions to an order refusing and dismissing petitions for partial distribution by children not provided for in the will of the decedent must be served upon all "adverse parties” who appear to be such by the record, ineluding the devisees named in the will who appeared and opposed the petition and who may be affected by a reversal or modification of the order; and in the absence of such service within the time required by law the bill of exceptions cannot be considered upon appeal from the order.</p> <p>Id.—Record upon Appeal from Order—Proceedings upon Petition by Children Omitted fr'om Will—Former Judgment.—Where in the absence of a bill of exceptions the record upon appeal from the order denying and dismissing the petition by children omitted from the will for partial distribution consisted of the proceedings held upon the petition, by devisees under the will in opposition thereto, and an order, after a finding in support of an assertion by the devisees that a former similar proceeding by petitioners had terminated in a final judgment on the ground that the omission to provide for them in the will was intentional, denying and dismissing the petition,—■ such record discloses no error.</p> <p>Id.—Support op Finding as to Former Judgment—Presumption— Conclusion Justified.-—In the absence of a'bin of exceptions it must be presumed upon appeal that the finding of the court as to the former judgment was sustained by the evidence and that the former adjudication against the petitioners concluded them on this hearing. Whether issues were formally raised therein or not, the facts recited and found in the order fully justified the conclusion reached by the court.</p>

APPEALS from interlocutory judgments of the Superior Court of the City and County of San Francisco in actions for partition. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

<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>Escheat—Pleading—-Insufficient Complaint—Premature Action— Negation of Heir.—A complaint in an action brought prematurely less than five years after the death of the deceased, upon an allegation that deceased left no kindred and that there are no heirs to take the estate, is insufficient, and a general demurrer thereto was properly sustained.</p> <p>Id. — Averment of Fact Impossible in Law not Admitted. — The averment of the fact impossible in law before the expiration of five years, that there were no heirs to take the estate, was not admitted by the demurrer.</p> <p>Id—Title Vesting in Heirs.—The title to the estate of a person dying intestate vests in the heirs, whether known or unknown, immediately upon his death.</p> <p>Id.—Forfeiture of Right of Non-Resident Alien Heirs.—The title of non-resident alien heirs is forfeited or barred at the end of five years from the death' of the deceased, unless within that time such heirs appear and claim the property.</p> <p>Id.—Rights of Resident Heirs, — Resident heirs are not barred ipso facto by any statutory forfeiture, and can only be barred by the lapse of twenty years from a judgment upon information for an escheat.</p> <p>Id.—Proper Averments for Escheat.—If this information for escheat had been brought after the lapse of five years, the averments of the complaint would be sufficient to put all unknown heirs upon proof of their rights.</p> <p>Id.—Proof of Averments.—The proof of the averments of the information is regulated by section 1271 of the Code of Civil Procedure, and as to unknown heirs there need be no other proof than the constructive proof that no heir or person entitled to the estate has appeared. The rights of "unknown resident heirs are preserved by the terms of section 1272 of that code, within the period fixed after judgment of escheat.</p>

<p>Trust under Will — Power of Sale by Executor — Trust as to Proceeds—Termination—Improper Order Pilling Vacancy.—It is essential to an order appointing a trustee under a will to fill a vacancy under section 2289 of the Civil Code, that there should be an existing trust to be executed; and where the will creating the trust devised no land to the trustee, but merely empowered the executor to sell the land without an order of court, and made him trustee only to invest the proceeds for the benefit of two grandnieces until they attained majority, which they had both attained, an order appointing a new trustee, after the death of the former trustee, to complete the contract of sale at the instance of the purchaser, was improper.</p> <p>Id.—Estoppel of Beneficiaries—Confirmation of Sale—Remedy in Probate Proceeding.—The estoppel of the beneficiaries to dispute the contract of sale, by acceptance and retention of the proceeds thereof, cannot be inquired into on a proceeding to fill a vacancy in the appointment of a trustee; but the proper remedy for the enforcement of the contract of sale is by a confirmation thereof ia the probate proceeding, which is necessary to perfect the title of the purchaser upon fulfillment of the contract, and if the only persons interested in the proceeds of such sale have so ratified the contract that they are estopped to dispute it, the court may upon that ground confirm the sale and direct a conveyance on compliance by the purchaser with the terms of the contract.</p>

<p>Will—Undue Influence—Eevooation of Probate—Pleading—Judgment Dismissing Proceedings.—A petition seeking the revocation of the probate of a will which contains nothing more than a general statement that undue influence was exercised over the testator, and fails to aver any facts showing that the testator was compelled to do that which was not his will to do, and which procured an instrument which did not express his free intention, does not state facts sufficient to constitute a cause of action for the revocation. In such a case, the trial court properly rendered judgment on the pleadings, dismissing the proceedings for the revocation of the probate.</p> <p>Id. — Amendment of Petition for Eevooation — Discretion. — The allowance of amendments to pleadings is mostly within the discretion of the trial court, and where the amendments to a petition for the revocation of a will are not offered until after the expiration of a year from the probate, their denial would not be a ground for reversing a judgment dismissing the proceeding for revocation unless the circumstances showed very extreme abuse of discretion.</p>

<p>Action fob Services — Receiver for Bank — Defense—Special Contract—Support of Bindings.—In an action for services rendered as receiver for a bank in an action by it against a fruit and land company, where the defense was that plaintiff• importuned defendant bank for his appointment, and agreed that, if appointed, he would look solely to crops of fruit which the land would produce for his compensation, and would make no claim against defendant bank, findings upon substantial evidence in favor of such a defense, notwithstanding conflicting evidence for the plaintiff, are sufficiently supported, and will not be disturbed upon appeal.</p> <p>Id.—Contract with Attorney — Ratification by Bank — Executed Contract—Code Provision Inapplicable.—Where it appears that the special contract pleaded was made with the attorney for the bank before the suit in which the services were rendered was commenced, and the bank ratified the contract by procuring plaintiff's appointment as receiver, such contract was thereby executed on the part of the bank; and the provision of section 283 of the Code of Civil Procedure, requiring contracts by an attorney to be in writing or entered in the minutes of the court is inapplicable to the facts. That provision applies only to the “steps of an action'' after its commencement and pertaining to its conduct.</p>

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

<p>Wills—Contest of Probate—Insanity of Testatrix—Judgment for Proponent—Review upon Appeal.—Where upon the contest of the probate of a will for alleged insanity of the testatrix the verdict and judgment were for the proponents, if the evidence would support no other verdict the judgment for the proponents will not be disturbed for errors which have not prevented the contestant from making out Ms ease, or for rulings which had they all been in Ms favor would not have entitled Mm to a judgment.</p> <p>Id.—Burden upon Contestant.—The burden was upon the contestant to show affirmatively and by a preponderance of the evidence the insanity of the testatrix, and the evidence is to he considered upon appeal in view of the burden which the law casts upon him.</p> <p>Id. — Naturalness of Will — Residuary Bequest to Best-Loved Friend.—Where it appears that the property of the testatrix was derived from her deceased father, and her deceased mother’s relatives were comparative strangers, except a maternal aunt named in the will; and that the contestant was a maternal uncle whom she had never seen, it was not unnatural that she should bestow the bulk of the property upon one who had been her bést-loved friend and companion from her girlhood, and whom her deceased father had remembered in Ms will ás a member of the family, and who had been her sole companion since her father’s death.</p> <p>Id.—Soundness of MInd. Sufficiently Evidenced.—Where the contents of the will, and the acts and conduct of the testatrix in connection with its execution, indicated her soundness of mind, which was confirmed by the testimony of a large number of witnesses who knew her at the time of the execution and prior and subsequent thereto, her soundness of mind and capacity to execute the will were sufficiently evidenced.</p> <p>Id.—Presumption of Sanity—Proof of Subsequent Insanity.—The presumption is always that a person is sane; and proof of subsequent insanity carries back no presumption of its past existence. It exists only from the time when it is proved to exist.</p> <p>Id.—Insufficient Proof of Incompetenoy—Absence of Conflict.— Where all the direct testimony for the contestant was insufficient to overcome the presumption of the sanity of the testatrix at the time of the execution of the will, and, taken as it must be, in connection with all of the evidence of the sanity of the testatrix at that time, was insufficient to raise any conflict thereupon, it was insufficient to justify the submission to the jury of the question as to her incompetenoy to make the will.</p> <p>Id.—Testimony of Medical Experts—Melancholia.—Where the testimony of medical experts introduced for the contestant was based on hypothetical questions which excluded the testimony for the proponent, it would be of the weakest character; and where it was addressed to a form of insanity called melancholia, which led to her death by suicide long after the execution of the will, at the time of which it clearly appears that she was clinging to life, such testimony cannot be said to raise a conflict of evidence upon the question of her sound and disposing mind at that time.</p> <p>Id.—Evidence—Declarations of Proponent as Devisee.—The court properly excluded testimony offered by the contestant to prove the declarations of one of the proponents of the will as one of , the devisees, which it was asserted would have been favorable to the contestant on the issue as to the incompetency of the testatrix.</p> <p>Id. — Exclusion of Coroners ’ Inquisitions. — The verdicts of the coroners ’ inquisitions held in the states of New York and California upon the body of the deceased testatrix were properly excluded from evidence; but even if the ruling had been erroneous, it could not in the state of the evidence have affected the result.</p> <p>Id. — Hearsay — Facts Learned by Witness for Contestant. — A question asked of a witness for the contestant which included a statement of facts "learned by the witness’’ in respect to the testatrix was properly excluded, as involving hearsay evidence.</p> <p>Id.—Evidence of Sanity of Father of Testatrix.—Evidence was admissible to show the sanity of the father of the testatrix during his lifetime, and that he was a man of exceptional mental vigor and business capacity, who by his own efforts had amassed a large fortune. ' It will not be presumed that a child inherits the insane and not the sane tendencies of her family.</p> <p>Id.—Testimony of Medical Practitioners—Soundness of Mind of Testatrix.—A medical practitioner, whose experience covered all classes of diseases, mental and physical, requiring medical aid, was qualified to testify as to the soundness of mind of the testatrix, whom he inet in Paris subsequent to the execution of the will.</p> <p>Id.—Non-Expert Witnesses — Hypothetical Questions. — The court properly excluded hypothetical questions put for the contestant to non-expert witnesses who were familiar friends of the deceased, involving facts not testified to by the witnesses. Such a line of inquiry is not admissible even upon cross-examination.</p> <p>Id.—Cross-Examination—Limitation of Latitude.—Where it affirmatively appears that all reasonable latitude was allowed to the contestant in the cross-examination of witnesses, he was not injured in his right by a further limitation thereof.</p> <p>Id.—Harmless Exclusion of Deposition.—The exclusion of the deposition of a New York banker, who testified that on the day of the death of the testatrix she drew some money on a letter of credit and handed it to the proponent of the will, and who testified that she was rational, could not have injured the contestant.</p> <p>Id.—Admissibility of Deposition — Absence of Witness — Proof.— A deposition taken for proponent during the trial, of a witness about to leave the country, which was subsequently offered in evidence on proof that the witness had left the state two days previously, was properly admitted; and a deposition for proponent taken out of the state under section 2024 of the Code of Civil Procedure was properly admitted without any preliminary proof of continued absence, or of non-residence of the witness, the burden being upon contestant to overcome the presumption of continued absence.</p> <p>Id.—Deposition of • Proponent — Subpcena — Surprise — Rebuttal.— Where before the trial the deposition of a proponent had been taken by contestant, and she was under subpoena for the contestant throughout the trial, and she was not called to the stand on either side, the court properly refused to allow the ease to be opened by contestant to take her testimony on the ground of surprise that she was not called on the side of proponents; and the deposition offered in rebuttal was properly excluded as not being in any sense rebuttal evidence.</p> <p>Id.—Harmless Refusal of Instructions.—The refusal of proper instructions offered for the contestant was harmless in view of the evidence and other instructions given by the court rendering such refusal unimportant.</p> <p>Id.—Instruction as to Medical Testimony — Hypothetical Questions.—An instruction as to medical testimony based on hypothetical questions, which defined a hypothetical question as based upon facts assumed to be true, and which charges that “the opinion of the witness must therefore be brought to the test of the facts in order that you may judge what weight the opinion is entitled to,” was properly given.</p> <p>Id.—Instructions Properly Refused—Theory of Case—Special Argument.—Instructions for the contestant embodying his theory of the case, which did not embody the evidence, and which were in their nature a special argument to the jury under the guise of instructions, were properly refused.</p> <p>Id.—Death of Appellant after Submission—Huno Pro Tunc Judgment of Affirmance.—Where the appellant died after the submission of the appeal, and the judgment and order appealed from are affirmed, the affirmance win be entered mine pro tunc as of the date of the submission.</p>

<p>Criminal Law—Murder—Self-Defense—Bight to Stand Ground— Erroneous Instruction—Confusion of Jury.—Where the testimony of a defendant charged with murder showed a clear ease of self-defense against an attack upon him by deceased with a knife with threat to cut his throat, defendant was entitled to correct instructions as to his right to stand his ground against such an attack; and it was reversible error to instruct the jury that “before a person can be justified in killing a human being on the ground of self-defense, he must, when attacked, employ all reasonable means within his power consistent with safety to avoid the danger and avert the necessity for the killing.” The fact that the jury were elsewher'e correctly instructed on the subject does not answer the objection, as the result served but to confuse the jury, and to render it impossible to determine whether they followed the law as eoreetly or as incorrectly given.</p> <p>Id.—Misleading Instructions—Pursuit to Kill—Combat—Retreat —Absence of Pertinent Evidence.—Where there was no evidence of any pursuit by the defendant to kill the deceased, or of any struggle or combat in which either party sought to retreat, it was misleading to give abstractly correct instructions relating to those subjects.</p> <p>Id.—Presumption of Innocence—Improper Instruction.—An instruction to the jury on the subject of the presumption of the innocence of the defendant, which is open to the construction that if the jury were disposed to presume the defendant innocent they could do so, and if they were not they need not, is improper.</p> <p>Id.—Erroneous Instruction as to Credibility of Defendant.—It was reversible error to instruct the jury that “where the defendant offers himself as a witness in determining his credibility, it is proper to take into consideration the consequences, inducements', and temptations which would ordfharily influence a person in his situation.” Such instruction is prejudicial to the rights secured to the defendant by the constitution and laws.</p> <p>Id.—Murder in First Degree—Instruction not Properly Qualified. —An instruction that “it is only necessary that the act of killing be preceded by a concurrence of the will, deliberation and premeditation on the part of the slayer, and if such is the ease the killing is murder in the first degree,” is erroneous in not being qualified by stating that the act of killing must be “the result of” such concurrence as well as preceded by it.</p> <p>Id.—Definition of Murder in Second Degree and Manslaughter— Language of Code.—Instructions defining murder in the second degree and manslaughter ought strictly to follow the language of the Penal Code defining them.</p> <p>Id.—Reading of Information to the Jury.—It was not error for the court to read the information to the jury in the opening of its instructions.</p> <p>Id.—Model of Poroh—Evidence.-—It was not prejudicial error for the court to permit a model of the porch where the deceased was standing when shot by the defendant to be erected in the courtroom, and-to be introduced in evidence.</p> <p>Id.-—Erroneous Evidence of Wood Cut.—It was error to admit as an exhibit a wood-cut taken from a photograph of the porch, with a man lying in the assumed position in which the body of the deceased was found, which was not a photograph of the deceased or of one who saw the dead man on the porch.</p> <p>Id.—Erroneous Separation of Jury.—It was error prejudicial to the defendant for the court to permit certain members of the jury to go to their homes after the jury had- been impanelled and sworn and placed in the charge of the sheriff, who had been sworn to take charge of them under section 1121 of the Penal Code, and who retained the custody of the remainder of the jurors.</p> <p>Id.—Statutory Admonition to be Shown by Record.—That the statutory admonition was given to the jury upon its recesses and adjournments should be shown by the record upon appeal.</p>

<p>APPLICATION for Writ of Certiorari to the Superior Court of the City and County of San Francisco. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Morrison & Cope, W. I. Brobeck, and George C. Ross, for Appellants.</p>

<p>Criminal Law—Mubdee—Evidence—Corpus Delicti—Admission op Killing.—Where defendant was charged with the murder of his wife, evidence that she had sued him for divorce and was living apart from him, that he entered her room with her two days thereafter, that pistol-shots were heard therein, that he came out with a smoking pistol in his hand which was found to contain four exploded cartridge shells, that his wife was immediately thereafter found with four bullet-wounds in her body, from the effects of which she immediately died, is sufficient proof of the corpus delicti to warrant evidence of the admission of defendant that he killed her.</p> <p>Id.—Instructions—“Malice Aforethought.’'■—Where the court properly instructed the jury upon the different degrees of murder and upon the subject of “malice aforethought,’’ express or implied, as defined by the code, the court properly added: “Malice aforethought of' either kind is manifested by the doing of an unlawful or felonious act intentionally and without legal cause or excuse. It does not imply a pre-existing hatred or enmity towards the individual injured. ’ ’</p> <p>Id. — Instructions'as to Insanity — Disregard of Declarations— Refusal of Request not Prejudicial.—Where the defense was the insanity of the defendant, and the court at instance of the defendant and of its own motion had fully instructed the jury upon the subject of insanity, and that if they found him unable at the time of the homicide to distinguish between right and wrong as to the act charged they should acquit him, he was not prejudiced by the refusal of a requested instruction that if' the jury found him then insane they should disregard his declaration and statements then made.</p> <p>Id.—Right of Jury to Consider Declarations on Question of Sanity —Misleading Request.—Such request was properly rejected as misleading. It was the province of the jury to consider the declarations of the defendant in determining the question of his sanity or insanity at the time of the homicide. An instruction which even inferentially limits or restrains the right of the jury in that respect is improper.</p>

<p>Negligence—Latent Danger—Unexplodbd Blasts—Pleading—Ignorance oe Servant—Knowledge op Master Admitted—Conflicting Evidence.—Where a complaint for injuries from unexploded blasts in a mine was framed under the rule that it is the master’s duty to inform the servant of latent or extraordinary dangers, of which the master has knowledge and the servant has not, and the answer took no issue upon the averment of defendants’ knowledge, and rested the defense upon the averment that plaintiff was informed of the unexploded blasts before he went to work, the admission of such' knowledge eliminates all question as to the negligence of fellow-servants, and the evidence being conflicting as to whether or not plaintiff was informed of the danger, the verdict of the jury for the plaintiff cannot be disturbed upon appeal.</p>

<p>Complaint to Enforce Water-Eights — Judgment upon General Demurrer—Ground of Special Demurrer not Considered.—Upon appeal from a judgment rendered upon general demurrer to a complaint for an injunction to restrain the corporation defendant from shutting off the waters of a stream to which plaintiff by fair intendment alleged title by grant from an association under which defendant claimed title, any ground of special demurrer for uncertainty or indefiniteness, as to whether plaintiff took title from the association or from a corporation of the same name which succeeded to the rights of the association, and from which defendant immediately derived title, cannot be considered.</p> <p>Ib.—Personal Covenant as to Water-Eight Affecting Land—Agreed Eate of Payment—Purchasers with Notice—Enforcement in Equity.—It is immaterial whether a covenant by a water company to charge plaintiff no higher rate than ten cents per inch for every twenty-four hours’ use upon his land of water purchased from the water company by plaintiff for a large price, sufficient to irrigate twenty acres of plaintiff’s land, was a covenant running with the land or was a personal covenant in relation to the water-right affecting his land, since in either ease equity will enforce the covenant against purchasers from the water company with notice of the facts, who will be compelled to furnish water on the same terms and will be restrained from shutting off the water for non-payment of a higher rate.</p>

<p>Estates of Deceased Persons—Claim on Contract—Presentation before Suit Essential.—A claim founded upon a contract made with a deceased person must be presented as a claim against the estate of the decedent as a condition precedent to a suit against the executor or administrator, and a complaint in an action against an executrix upon such a claim, which does not allege presentation of the claim to the executrix before suit, does not state a cause of action.</p> <p>Id. — Action against Executrix — Loss of Live-Stock — Breach of Contract—Tort—Insufficient Complaint.—A complaint against an executrix, as such, for damages payable out of the estate, alleging a contract with decedent made about six years before suit, under which plaintiff delivered live-stock to decedent, to be cared for as carefully as his own stock upon decedent’s ranch, and to be bred for four years, when the contract was to terminate, and colts were to be sold for their mutual benefit, and the original live-stock was to remain the property of plaintiff, and alleging that decedent, who died two years after date of the contract, and the executrix neglected to care for the animals of plaintiff, by reason of which they were lost and destroyed and never returned to plaintiff, to plaintiff’s damage in the sum of eight thousand dollars, is based upon breach of contract alleged, and not upon tort; and is demurrable for failure to allege a presentation of the claim to the executrix before suit.</p>

<p>Criminal Law — Murder — Instruction—Voluntary Intoxication— Omission of Qualification not Prejudicial.—Upon a prosecution for murder an instruction upon the subject of voluntary intoxication of the defendant before the homicide should not have omitted the qualifying words, "when safe and responsible,” but such omission was not prejudicial when it was covered by other qualifying instructions.</p> <p>Id.—"Emotional Insanity”—Proper Instruction.—It was proper to instruct the jury that "uncontrollable or irresistible impulse” or ‘ ‘ emotional insanity, ’ ’ beginning on the eve of the criminal act and ending with its consummation, has no legal standing in this state as a defense to crime.</p> <p>Id.—Requests Properly Refused.—The court properly refused to give requested instructions which were wholly inapplicable to the evidence or which were argumentative in their character.</p> <p>Ib.—Murder of Wife—Interposition—Intent to Murder Another.— A requested instruction that if his wife intervened between the defendant and another person whom he intended to kill the killing of his wife would only be manslaughter was properly refused, both on the ground that there was no evidence that the homicide occurred under those circumstances and that the killing of his wife under those circumstances would be murder in the first degree and not manslaughter.</p>

<p>Collision with Railroad Train—Jury Trial—Actual Bias of Juror— Evidence to Remove Prejudice—Error.—In an action to recover' damages for injuries sustained by collision of plaintiff’s wagon with a railroad train at a street crossing, a challenge to a juror for actual bias, who stated that he had an abiding prejudice against that class of cases, and that the evidence in the particular case must be sufficient to overcome such prejudice, was erroneously overruled.</p> <p>Id:—Constitutional Right upon Jury Trial—The constitutional right to the trial of a ease before an unbiased and unprejudiced jury is not afforded to a party when, over his protest, a juror is retained who confessedly enters upon the trial thereof with such” prejudice against actions of that kind that the evidence must not merely preponderate, but must be strong and positive enough to overcome his antecedent prejudice.</p>

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

The facts are stated in the opinion of the court. Grove L. Johnson, Ben P. Tabor, F. P. Tuttle, and Samuel J. Pullen, for Appellant. The evidence was circumstantial and insufficient for conviction. The court erred in instructions on reasonable doubt, which were more open to criticism than those held incorrect by this court.

<p>Mining Claims—Location op Vein.—The validity of the location of quartz mining claims under the Mining Law of May 10, 1879, depends upon a substantial compliance by the locator with the requirements of that act, including the discovery of a vein, the marking of the location so that the surface boundaries can be readily traced, and, if the locator is to acquire any extralateral rights on the dip of the vein, that the end-lines of his location should he parallel.</p> <p>• Notices op Location—Act op Congress—Local Law.—The act of Congress does not require any posting or recording of notice of location; but it merely permits the enactment of local laws regulating that matter, with the proviso that every notice of location, in order to have any legal effect, must contain required particulars. In the absence of local law, there is nothing to give any definite legal effect to the posting and recording of notices of location.</p> <p>Id.—Notices as Acts in Pais ■—Customs op Miners — Item op Evidence.—Notices of location not required by local law are- of no value except as acts in pais, to be considered in connection with the well-known customs and practices of mining prospectors, as an item of evidence upon the question of compliance with the Mining Law in respect to the marking of the surface location so that its boundaries can be readily traced.</p> <p>Id.—Certified Copies op Notices—Proop op Marking op Boundaries.— Certified copies from the record of the notices of location, if there is no .law behind them to give them effect, are not competent evidence to prove even that they had been posted, on the ground, and are much less competent to prove the actual erection of the monuments therein called for. The only competent evidence of the marking of boundaries is that of witnesses who saw the monuments placed, or who saw them standing after being placed.</p> <p>Id.—Map Showing Swinging Location — Departure prom Known Data.—A map showing a swinging location to include the ground in dispute, which departs from the notices of location and the existing monuments and the croppings of the vein at every point except the point of beginning, and instead of a square location of about fifteen hundred feet in length and six hundred feet in width, as originally intended, makes a lozenge-shaped location, with end-lines seven hundred and twenty feet long instead of six hundred • feet, and side-lines one thousand one hundred and eighty-eight feet long, and thus departs widely from the certain data established by the best evidence plaintiffs have to offer to prove the orginal location of their claims, cannot be accepted as any evidence oi such location.</p> <p>Id.—Readjustment of End-Lines to Course and Dip of "Vein—Intervening Bights Fixed by Line of Monuments.—Although before a patent and before an adverse right has accrued end-lines may be readjusted to conform to the true course and dip of a vein, yet this can only be done by re-marking the surface location, so that its boundaries may be readily traced. It is the line fixed by the monuments, and not the line indicated by the dip of the vein, that controls in favor of intervening rights.</p> <p>Id.—Old Claims—Presumption—Policy of Law—Preservation and Restoration of Monuments.—No presumption can be indulged that old claims which have been worked for years,- and upon which no sufficient boundary-marks can be found, must have been properly defined by visible monuments, which have been removed and destroyed, either by fraud or by the action of the elements. Such presumption is contrary to the policy of the Mining Law, which requires boundaries to be clearly defined by monuments, to enable subsequent claimants to locate with safety upon the residue by preventing the swinging and floating of earlier locations. To subserve this policy, and as matter of simple justice, the locators are required not only to mark their location when made, but also to use reasonable diligence in preserving and restoring their boundary monuments, as occasion may require.</p> <p>Id.—Old Monuments Partially Found—"Waiver of Objection to Certified Copies of Notices—Effect as Evidence.—Where portions of the old monuments are found upon the ground, and objection to the admission of certified copies of the notices of location was waived, they must be treated as evidence in the case, so far as they tend to prove, together with the remaining monuments on the ground, that the boundaries were properly marked at the time of location. In this view they are to be considered as determining at most what they state; and where they establish parallel end-lines which do not include the ground in dispute, they must be given that effect.</p> <p>Id.—Verdict Unsustained by Evidence—End-Lines not. Shown to Be Parallel.—Where there was no evidence to show that the location of the end-lines included the disputed ground, or that the end-lines including it were located as parallel, the verdict in favor of the plaintiff for nominal damages was entirely unsupported by the evidence, and cannot be permitted to stand.</p> <p>Id.—Evidence of Trespass—Pleading.—Though the evidence of the trespass was not precluded by the fact that the complaint did not aver a trespass on the dip of the vein, where the defendant was not misled by a general averment of trespass upon plaintiffs’ premises, yet where the complaint alleged a trespass upon premises described which did not include the disputed ground, objection thereto should have been sustained on that ground, if urged, but not having been urged, it might have been obviated by amendment.</p> <p>Id.—Specific Averments in Trespass—Though it is not strictly necessary in an action of trespass on plaintiffs’ mining claim to allege that the mining was done on the dip of a vein having its apex in such claim, and that the end-lines were parallel, it is better to allege the facts specifically, to present the issues more definitely and prevent surprise.</p> <p>Id.—Evidence of Identity of Vein — Burden of Proof—Support of Finding.—The burden was upon plaintiffs to establish the identity of the vein trespassed upon with that having its apex in plaintiffs’ claim, but in establishing it they were not required to trace or open the workings. Held, that the burden of proof was sufficiently supported to sustain a finding as to the identity of the vein.</p>

<p>Ejectment by Administratrix — Property of Decedent.— Advancement— Defense—Trust for Father—Support of Findings.—In an action of ejectment by the administratrix of a deceased brother of the defendant, who had ousted the plaintiff, where the evidence was sufficient to show that the property had been deeded to the plaintiff by the owner for a consideration advanced by their father to the decedent upon Ms marriage, in consideration of an agreement that the father, who was separated from his wife, should make á home with him, which was done for three years, after which the father shot his wife and son, and while in jail made a deed to the defendant, who claimed in defense a trust of the decedent for Ms father, findings for the plaintiff were held sufficiently supported by the plaintiff’s evidence, corroborated by respectable and disinterested witnesses.</p> <p>Id.—Adverse Possession—Residence of Father with Son—Ouster by Subsequent Grantee—Prescription not Shown.—There was no adverse possession of the father while he remained an inmate of the family of the deceased son under the agreement for an advancement of the consideration to the son and for support in the son’s family upon the land; and the only adverse possession was that of the defendant, who ousted plaintiff under the subsequent deed from the father, which was of too short duration to constitute a prescriptive title.</p> <p>Id.—Evidence—Admissions of Wife after Grant to Husband—Harmless Ruling.—The estate of the deceased husband could not be bound by admissions made by the plaintiff administratrix as his wife in his lifetime, after the grant made to the husband, and they were properly excluded; nor could the defendant have been prejudiced by the action of the court in excluding such admissions when plaintiff testified fully in the case, and might have been impeached by proof of contrary declarations contained in depositions on file.</p> <p>Id.—Motion to Call in Another Judge—Affidavit Charging Bias-Relief—Counter Affidavit of Judge.—Upon a motion of defendant to call in another judge for alleged bias, in so far as his affidavit avers his belief of such bias, it amounted to nothing, and can only be considered in connection with the facts which it states, and where it does not state all the facts, or states them incorrectly, it was competent for the judge in connection with another counter affidavit to present Ms own counter affidavit stating the true facts known to him.</p> <p>Id.—Insufficient Showing of Bias—Action of Judge while Prosecuting Attorney.-—Where, upon all the facts stated in the affidavit and counter affidavits, nothing appeared to support defendant’s motion, except the bare fact that sixteen years previously the judge, while acting as district attorney, prosecuted and convicted the defendant, his father, and a confederate for an aggravated case of ■battery, and had then, in his official capacity, laid the facts before the governor for his information when passing upon a petition for pardon, no just inference can be drawn from said facts that the judge could not try tMs case with perfect impartiality.</p>

<p>Attorney Convicted of Felony—Appearance on Criminal Charge— Mandamus.—An attorney convicted of a felony, who is in custody pending appeal, cannot lawfully appear in behalf of another person accused of crime; and mandamus will not lie to compel the superior court to allow such appearance for the purpose of defending the petitioner.</p> <p>Id.—Duty oe Sheriee—Escape.—It is the duty of the sheriff to hold an attorney who is convicted of felony and not admitted to bail pending appeal from the judgment of conviction in custody, and to permit him to go at large for any purpose is to permit an escape.</p> <p>Id.—Power oe Superior Court.—The superior court has inherent power under such circumstances to refuse to allow the admitted attorney in custody to appear on behalf of another person charged with crime, or to appear for any purpose that would involve subsequent appearance in the same matter for the orderly disposition of the case.</p>

<p>APPLICATION for Writ of Habeas Corpus to J. F. Dinan, .Chief of Police of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Dismissal—Time eor Filing Points—Holidays.—An appeal will be dismissed for failure of the appellant to file his points and authorities within the time required, where no legal excuse appears; and where the time expired long before April 18, 1906, and no points were on file when respondent filed his motion to dismiss the appeal, on the 7th of May last, the act of the governor in proclaiming legal holidays, beginning with the 19th of April last, can have no effect upon the rights of the appellant.</p>

<p>APPLICATION for Writ of Habeas Corpus to J. F. Dinan, Chief of Police of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion of the court. William G. Snyder, A. Caminetti, and William J. McGee, for Appellant. The court erred in not allowing the plea to be withdrawn and a motion made to set aside the indictment upon the statutory grounds. (Pen.

<p>Injunction—Boycott—Intimidation op Employees and Customers.—A court of equity will enjoin a combination and conspiracy of a local union to boycott plaintiff's business, which has had the purpose and effect, by means of pickets and placards maintained in front of plaintiff's place of business, to intimidate other employees and the patrons and customers of plaintiff who may desire or attempt to do business with plaintiff.</p> <p>Id.—Inadequate Bemedy at Law.—It is clear that the remedy at law in such case is inadequate, both in respect to the recovery of damages and in respect to the continuing and irreparable nature of the injury which is not capable of admeasurement according to legal principles.</p> <p>Id.—Injunction too Bboad—Expression op Opinion—Slander—Disconnected Acts.—An injunction is too broad which restrains the defendant from the mere expression of opinion at any time and place as to plaintiff and its business, and which would at the worst only consist of slander, which could not be reached in this form of action, and which restrains acts not connected with or incidental to the main acts properly enjoined; and the injunction will be modified in those respects.</p>

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

<p>Criminal Law—Appeal—Order Beeusing Arrest op Judgment.—An order refusing a motion in arrest of judgment is not appealable, and can only be reviewed upon appeal from the judgment.</p> <p>Id.—Murder—Support op Verdict—Conflicting Evidence—Presumption.—Where there was evidence tending to support a verdict of guilty of murder in the first degree against the defendant, it must be assumed in support of the verdict that the evidence given for the prosecution was true, notwithstanding conflicting evidence to the contrary on behalf of the defendant, and this court is powerless to interfere with the verdict of the jury under such circumstances.</p> <p>Id.—Murder in First Degree—Sufficient Showing.—Where the evidence for the prosecution tended to show that defendant had been sued for a divorce by his wife, and had been ordered to pay ali- . mony and counsel fees, that she was living with her father, that defendant went to her father’s house harboring bitter feelings against his wife and her relatives, and with a deliberate intent to obtain entry by force and violence, if necessary, and that when her father impeded his entrance he deliberately shot him fatally with intent to kill him, he was properly found guilty of murder in the first degree.</p> <p>Id.—Evidence—Alarm of Inmates—Knife for Defense—Harmless Buling.—Where the son of deceased had testified without objection to the apparent alarm of the inmates of the house upon learning that defendant was seeking to gain admission, there was no prejudicial error in refusal of the court to strike out further evidence by him that when his father started from the kitchen to the door he handed witness a bread-knife, telling him to “take it to protect himself, ’ ’ if it be conceded tobe incompetent.</p> <p>Id.—Misconduct of District Attorney—Bejected Offer of Evidence.—It was not misconduct of the district attorney to offer evidence to show the intention of defendant in going to the house of deceased, that he had previously brutally mistreated his wife, and did so after the shooting; and it was not prejudicial misconduct, after the disallowing of the evidence, to repeat such offer before closing his ease, where the court specially charged the jury to consider only the admitted evidence, and to disregard any impression or idea otherwise suggested by questions or statements of counsel.</p> <p>Id.—Misconduct in Argument.—Held, upon review of affidavits charging the district attorney with misconduct in his closing argument, and of the counter affidavit of the district attorney, there was no such showing of misconduct as would warrant a reversal.</p> <p>Id.—Misconduct in Proof—Threat of Defendant—Motive.—It was not misconduct for the district attorney to prove in rebuttal, with permission of the court, a conversation between defendant and his wife in presence of a witness, in which he made threats against the wife, about two months before the homicide, as to what he would do before he would give her any money. Such evidence was admissible, as tending to show the motive of the defendant in visiting the house at the time of the homicide.</p> <p>Id.—Bequest Covered by Charge.—The court did not err in refusing a request covered by another instruction on the same subject given by the court.</p> <p>Id.—Misleading Bequest—Bight to Visit Child.—A request for an instruction as to the right of the defendant to visit his minor child wherever it might be, which under the evidence might imply his right to enter the house of another by force for that purpose, was properly refused, as tending to mislead the jury. It is sufficient that his right peaceably to visit his. child was recognized in the charge of the court.</p> <p>Id.—Argumentative Bequest—Public Sentiment.—It was not error to refuse a long argumentative request warning the jury against being influenced by public sentiment, where no necessity appears in the record for such special admonition, and the jury was elsewhere instructed that the verdict must be the unbiased, independent verdict of each juror, uninfluenced by any consideration except the evidence received, the law declared, and the arguments thereon.</p> <p>Id.—New Trial—Newly Discovered Evidence—Discretion.—A motion for a new trial upon the ground of newly discovered evidence is addressed to the sound legal discretion of the trial court, whose discretion in determining whether the evidence produced on the motion is sueh as to render a different result probable will not be disturbed where the record shows no abuse of discretion or error of the court in its conclusion.</p> <p>Ib.—Discovery of Knife.—Where a bread-knife, claimed to have been in the hands of the deceased, had been described at the trial sufficiently for all purposes of the defense, its discovery after the trial beneath the house of deceased is not ground for a new trial merely for the purpose of enabling it to be introduced in evidence.</p> <p>Id.—Misconduct of Jury—Beading Newspaper Articles—Presumption — Insufficient Affidavit — Information and Belief. — A charge of misconduct of the jurors in reading newspaper articles making general comments is not made out where there is no proof that they were read by the jurors during the trial. There is no presumption from their publication in a particular newspaper that they were so read. An affidavit upon information and belief that they were read by jurors is utterly valueless, and constitutes no evidence of that fact.</p> <p>Id.—Impeachment of Jurors—Failure to Deny Insufficient Affidavit.—The jurors cannot be impeached by their mere failure to deny the insufficient affidavit based upon information and belief as to their misconduct.</p> <p>Id.—Harmless Article as to Qualification of Juror.—A harmless article commending the qualification of a particular juror, which if read could not prejudice the jury, and which was not partisan in its nature, is not ground for new trial.</p>

<p>Foreign Corporation-—Failure to Designate Agent—Service of Summons upon Secretary of State—Constitutional Law.—The act of March 17, 1899, providing that when a foreign corporation doing business in this state fails to comply with the law requiring it to file with the secretary of state a writing designating some person as its agent upon whom process can be served, summons in civil actions may be served upon the secretary of state, is constitutional and valid. Such foreign corporation is bound to know the existing law as to its right to do business, and that if it refuses to appoint an agent, service could be made upon the secretary of state.</p> <p>Id.—Substitute for Publioation of Summons.—The act of March 17, 1899, substitutes service upon the secretary of state for service by publication prescribed by section 412 of the Code of Civil Procedure, where the foreign corporation has no designated agent.</p> <p>Id.—Judgment by Default — Motion to Vacate — Meritorious Defense not Shown.—A motion to vacate a judgment by default against such corporation cannot be granted where there is no showing of a meritorious defense to the action and the defendant does not ask to be allowed to come in and make such defense.</p> <p>Id,—Sufficiency of Complaint.—The averments of the complaint against the foreign corporation, that at all times therein mentioned the defendant was a foreign corporation, doing business in the county of its venue, and state of California, were sufficient to bring the case within the provisions of said act of March 17, 1899, without further -showing of the continuance of such business.</p>

<p>Estates of Deceased Persons — Non-Resident Decedent — Contest between Public Administrators ■—• Priority of Petition. — The county in which a petition is first filed, where property of a nonresident decedent in this state is to be administered upon, has exclusive jurisdiction over all property of such decedent in this state, wherever situated; and where a public administrator of one county first filed his petition for administration in this state, a public administrator of another county, though first appointed upon a subsequent petition, has no standing to contest the granting of letters under the petition first filed in the county of such petitioner.</p>

<p>Dissmissal of Action—Failure of Plaintiffs to Appear at Trial— Appeal—Notice or Waiver not Shown—Prejudicial Error.—A court should not dismiss an action in which an issue of fact is joined for failure of the plaintiffs to appear at the trial, under subdivision 3 of section 581 of the Code of Civil Procedure, except upon proof under section 594 of that code that the plaintiffs have had five days’ notice of such trial; and where upon appeal from the judgment of dismissal it affirmatively appears that such dismissal was had without any showing made to the court of notice to the plaintiffs of the time of trial, or of the waiver of such notice, the error . appearing in the absence of such showing must be deemed prejudicial and the judgment of dismissal must be reversed.</p> <p>Id.—Proceedings to Revoke Probate of Will — Non-Residents — Plaintiffs-—Continued Trial—-Intermediate Stay—Bond for Costs—Vacation of Trial.—Although an order continuing the trial of proceedings to revoke the probate of a will on plaintiffs’ motion, in the absence of an intermediate stay of proceedings, would dispense with further notice of the continued time designated, yet where, upon defendants’ motion, made about two weeks before such time, an additional bond for costs was required of the non-resident plaintiffs, and proceedings were stayed until it should be filed, an order requiring it to be filed within ten days was nugatory, under the provisions of sections 1036 and 1037 of the Code of Civil Procedure, which granted thirty days from the making of the order in which to give the bond; and all proceedings, including the trial, were stayed for that period, thus vacating the time fixed for trial, and requiring further notice of trial after the bond should be filed.</p> <p>Id.—Bond Piled by Resident Plaintiff—Abandonment of Contest— Erroneous Dismissal.—Where, one day before the continued time of trial, a resident co-plaintiff, then represented by a different attorney, filed the required bond, and then abandoned the contest without evidence, no notice appearing to have been given to the attorney for the non-residents of such filing, or of the fact of trial, the dismissal of the cause upon motion of defendants for non-appearance of the plaintiffs was erroneous.</p> <p>Id.—Affidavit, Piled on Motion to Set Aside Judgment—Record upon Appeal from Judgment.—An affidavit for defendants filed on a motion of plaintiffs to set aside the judgment of dismissal and for a new trial, not contained in any bill of exceptions, is no part of the record upon appeal from the judgment, and cannot be considered upon that appeal, even if properly authenticated, as used on such motion.</p> <p>Id.—Immaterial Statement in Bill of Exceptions — Notice by Judge after Submission of Motion — Reply of Attorney.— Whether or not the dismissal should be granted, after the motion therefor was submitted, depended upon the' showing at the time of the making and submission of the motion; and plaintiffs were not required upon notice from the judge after such submission, to take any proceedings to save their legal rights. A- statement in the bill of exceptions that the judge before passing upon the motion asked one of the attorneys for one group of contestants whether he had notice of the motion to dismiss, and desired to take steps therein before the ruling, and that he replied that he would not at present do anything in the matter, but would let it stand as it was, was immaterial. Such reply of the attorney to the judge was nothing more, in effect, than a statement that the contestants would stand upon their legal rights.</p> <p>Id.—Motion for New Trial Improper.—Where there has been no trial by reason of the non-appearance of the plaintiffs at trial, a motion for a new trial is not a proper procedure, and a motion therefor was properly denied.</p> <p>Id.—Motion to Vacate Judgment — Affidavits — Authentication—■ Bill of Exceptions—Presumption.—On a motion to vacate the judgment, all of the affidavits and evidence used upon the hearing must be authenticated by bill of exceptions, purporting to contain them all, to rebut the presumption in favor of the order denying the motion, that other affidavits or evidence were used upon the hearing of the order, than those merely authenticated by certificate of the judge as having been used upon the hearing.</p> <p>Id.—Burden upon Appellants.—The burden was upon the plaintiffs - appealing from the order denying their motion to set aside the judgment to have settled a bill of exceptions showing the evidence taken upon the hearing of such motion.</p>

<p>Water-Rights — Appropriation — Means op Conducting Water.—A person making an appropriation of water from a stream need not carry it through an artificial conduit to the place of use, nor construct a ditch or canal especially for that purpose. He may make use of any natural channel or depression, or any artificial channel which he may find available and convenient for that purpose, so long as other presons interested in such conduit do not object; and his appropriation, so made, will be as effectual, so far as the means of conducting the water is concerned, as if he had carried it through a ditch or pipe-line expressly constructed for that purpose only.</p> <p>Id.—Means op Diversion—Out in Levee.—It is not necessary that there should be any headgate of boards or masonry at the place of diversion. If a simple cut in a levee confining the waters of the' river will accomplish the purpose of diverting the waters from the stream, it is, if accompanied with a beneficial use, a good appropriation as against others making a subsequent diversion and use.</p> <p>Id.—Double Purpose op Diversion—Drainage and Irrigation.—The fact that the appropriation of the water had the double purpose of draining the water from other land under cultivation, and to use it for the purpose of irrigation, the purpose to drain one tract of land did not vitiate or destroy the right to take the water for irrigation of other tracts, nor impair the right acquired by appropriation and use, to take and use it for the latter purpose, which is not inconsistent with the former.</p> <p>Id.—Priority of Appropriation—Code Method not Exclusive.—The method of acquiring ¡¿he right to the use of water by posting and recording a notice of appropriation as provided in sections 1415 and 1421 of the Civil Code, is not exclusive. One may by a prior actual and complete appropriation and use, without 'proceeding under the code, acquire a right to the water beneficially used, which will be superior and paramount to the title of one making a subsequent appropriation from the same stream in the manner provided by the code.</p>

<p>Irrigation District—Bights of Assessed Owner—Use of Water for Outside Lands.—An assessed owner of land entitled to the use of water in an irrigation district, and as assignee of the water-right of another owner, is not entitled to receive from the irrigation district any portion of his share of water for use on lands owned by him outside of the boundaries of the district; and he cannot maintain an action for damages for refusal of the directors of the irrigation district to distribute water for such use.</p> <p>Id. — Object of Law for Organization of Irrigation Districts—• Declamation of Lands by Public Corporation.—The whole object of the legislation authorizing the organization of irrigation districts is to enable owners of lands susceptible of irrigation from a common source and by the same system of works to form a district composed of such lands, which district when formed is a public corporation for the sole purpose of obtaining and distributing such water as may be necessary for the irrigation thereof, thus enabling each one to have for his land in the district the benefit of a common system of irrigation, and bringing about the reclamation of the land of the district from aridity to a condition of suitability for cultivation.</p> <p>Id.—Action for Damages for Befusal to Apportion Water for Outside Lands — User for Five Years — Pleading — Evidence.—An allegation in the complaint in an action for damages for refusal of an irrigation district to apportion part of plaintiff’s share of water due from the irrigation district to the irrigation of his land outside the district, that he had claimed the right to use and had used under such claim upon such land more than three fourths of the water allotted to him, and that such use had been adverse to the irrigation district, and with its full knowledge, was properly stricken from the complaint as irrelevant, and evidence offered in support thereof was properly excluded. If it be assumed that the statute of limitations can run against an irrigation district, plaintiff could, not establish a right by prescription in such action to such use of the allotted water, and the allegation made cannot afford him any ground upon which to insist upon the continuance of the unwarranted use.</p>

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

<p>Accretions to Land—Island—Ownership.—Accretions from private land on the bank of a river by which it is bounded belong to the owner of the land; but land formed by accretions from an island in the center of the river toward such bank, and yet leaving a depression or slough which divides the island from the mainland, is the property of the state.</p> <p>Id.—Decision upon Former Appeal—New Trial—Error in Evidence. —Where issues were joined as to whether the land in controversy was formed by accretions from the mainland or from the island, and upon a former appeal the law was properly declared, but the judgment and order denying a new trial were reversed in general terms, the issues were to be wholly tried anew; and it was error for the court to refuse to allow the plaintiff to introduce evidence to the effect that the accretions "were formed from the mainland toward the island, on fhe ground that that question had become the law of the ease.</p>

<p>APPLICATION for Writ of Mandate to the Governor of the State.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Collateral Inheritances and Bequests—Vested Bight of State—Constitutional Law.—The tax imposed by the act of March 23, 1893, and the acts amendatory thereof, upon collateral inheritances and bequests, gave to the state a right which vested immediately upon the death of the decedent, which cannot be surrendered by subsequent legislative act, or by a repeal of the law under which the right became vested. Such surrender would be a gift or donation from the state in violation of section 31 of article IV of the constitution.</p> <p>Id.—Case Affirmed.—The decision of this court in Estate of Stanford, 126 Cal. 112, [54 Pac. 259, 58 Pac. 462], is affirmed.</p> <p>Id.—Due Process of Law.—The act of 1893 is not unconstitutional as depriving the heirs of property "without due process of law" contrary to the fourteenth amendment of the constitution of the United States. The statute provides for an appraisement after notice to all persons known to have a claim or interest in the property. The mere fact that the state has a vested right to its proportion of the gift or inheritance, prior to the appraisement, does not deprive the beneficiary or heir of any substantial right, where the law affords him a right to be heard as to the amount of the tax before it is collected or paid.</p> <p>Id.—Bepeal of Means of Enforcement—Action by Heirs to Quiet Title.—The question whether the act of 1905 has repealed all means of enforcing the tax vested under the act of 1893, can only be decided when the state seeks to enforce the same. An heir, upon whose interest the tax was imposed, cannot maintain against the state an action affirmatively to quiet his title against the state, whether- or not there remains a legal method for its enforcement, without paying the claim.</p>

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

<p>Action to Quiet Title—Evidence—Misdescription in School Tax Deed—Relevancy not Shown.—In an action to quiet title to land in San Joaquin County, described as “lots numbered nine and ten in block C, in McCloud’s addition to the city of Stockton according to the official map or plat” of said addition, “on file in the office of the county recorder,” etc., where it was admitted that such described land was outside the city limits, but was part of a school district containing the city, which was assessed by the city for school purposes for 1900, and defendant claimed under a school tax-deed for .the year 1900, which misdescribed the lands assessed as “lying and being within the said city of Stockton,” and assessed simply as “lots nine (9) and ten (10) block C in McCloud’s Addition,” without further reference,—such deed was properly excluded from evidence as not purporting on its face to convey any part of the land in controversy, in the absence of other evidence or offer of evidence to show its relevancy to the issues, or to show an estoppel upon plaintiff, if it be assumed that such evidence would be admissible.</p> <p>Id.—Construction oe Tax-Deed — Possibilities — Judicial Notice.— The tax-deed describing lands within the city cannot be construed as intended to describe lands without the city, it being entirely possible that there may be a McCloud’s addition within the city as well as one without it, and this court cannot take judicial notice that this is not the case.</p>

<p>Water-Rights—Common Ditch—Branch Ditches—Improvements by Corporation—Liability op Branch Owner.—Where private persons owning lands in severalty, in order to irrigate them, diverted water from a stream by means of a dam and common ditch, and by extensions thereof admitted other adjacent owners, and by means of side ditches constructed to non-adjacent' lands also admitted side owners to share with them, it being agreed that all owners should share in the water in proportion to acreage, and share proportionately in the expense, it being agreed that each side owner should share in the expense of maintenance of the common ditch to the line of his side ditch and no further, an owner of land supplied from the first side ditch who had suffered little loss of water from the ditch, though benefited by the improvement of the ditch above his side ditch, cannot be compelled by a corporation formed by all adjacent owners for their convenience to contribute to improvements made by the corporation to prevent loss by seepage to other adjacent and branch owners to the extent of three miles below his side ditch, from which he had received no benefit.</p> <p>Id.—Action for Share of Whole Expense—EArams of Proof as to Benefit Received.—Where the action by the corporation was for defendant’s share of the whole expense of constructing a flume and cement ditch for the benefit of all adjacent owners of the common ditch and all branch ditches, and there was no evidence ' from which defendant’s proper share of the improvements to the line of his first side ditch from which he had received a benefit could be estimated, there could be no partial recovery, and judgment was properly rendered for the defendant.</p> <p>Id.—Tenancy in Common in Ditch—Implied Promise.—Defendant’s tenancy in common in the ditch cannot be construed as conferring any beneficial ownership in defendant to any part of the ditch o below the line of his side ditch; and any barren title which he may have therein, as a tenant in common, would raise no implied promise to pay for improvements made thereto without his consent.</p>

<p>Estates op Deceased Persons—Legacy Payable Generally—Sale op Beal Property Devised to Besiduary Legatees. — Where it appears that all of the personal property of a deceased testator has been exhausted by the expenses of administration, and there is no property undisposed of by the will, a legacy which is unconditional and payable generally must be paid out of real property devised generally to residuary legatees, under section 1360 of the Civil Code, rather than that which is specifically devised, and the legatee is entitled to a sale of so much of such real property as will pay the legacy.</p> <p>Id.—Construction op Will—General Devise—Clause as to Payment ■of Legacies.—A devise and bequest to five sons named, share and share alike, of “the remaining one half of all the real property acquired and possessed by me after my marriage, and all the rest, residue and remainder of the personal property of which I may die possessed after payment of the legacies provided for in clause marked ‘secondly’ of this will,’’ contains a general and not a specific devise of real estate; and the clause "after payment of the legacies” is to be construed not only with the second clause of the will, which contains no specific mode of payment, but also in connection with both of the preceding clauses of the residuary devise and bequest, including such real estate.</p> <p>Id.—Homestead—Stipulation.—The fact that some of the real property was set apart to the widow and minor children as a homestead, incidentally appearing, need not be considered when the transcript contains an express stipulation "that the only question involved in this proceeding is the question as to whether or not, under the terms of the will of decedent, any of the real property in this estate is chargeable with the payment of the legacy herein involved.”</p>

<p>Appeal from Judgment—Order Sustaining Demurrer to Complaint-Amended Demurrer.—An amended demurrer to the complaint supersedes the original, and being the only demurrer is properly designated as "the demurrer" in an order sustaining "the demurrer," and the entry of the judgment cannot be deemed irregular on the ground that the amended demurrer was not passed upon. •</p> <p>Id.—Action to Set Aside Foreclosure Decree and Sale—Fraud in Procurement—Accounting—Sufficiency of Complaint—A complaint in an action in equity to set aside a decree foreclosing a mortgage for fraud in its procurement, and to vacate the sale, and cancel the certificate and deed, and for au accounting, which alleges a fraudulent collusion between the attorney for the plaintiffs, who were mortgagors defendant in foreclosure, and who had instructed him to defend against the mortgage debt, and the attorney for the mortgagee, who jointly stipulated for a default judgment for the full amount claimed by fraud, knowing that the mortgagee had received moneys to the use of the mortgagors in the sum of $9,600, for which it had failed to account or to credit upon the mortgage debt, and that the property was agreed to be sold by a commissioner who was clerk for the attorney of the mortgagee, and who was caused to disregard the rights of the mortgagors in the sale with intent to deprive plaintiffs of their lands, shows a fraud extrinsic to the merits, and states sufficient ground in equity for the relief sought.</p> <p>Id.—Discovery of Fraud within Six Months—Denial of Motion to Vacate Decree—Belief in Equity not Barred.—Although the facts constituting the alleged fraud were known by plaintiffs within six months after the decree, and although a motion to vacate the decree on the ground of surprise and excusable neglect was made under section 473 of the Code of Oivil Procedure and denied, the alleged fraudulent collusion did not thereby, become res adjudiaata, and relief in equity against it was not barred, the remedy therefor not being adequate under that section. [McFarland, J., dissenting.]</p> <p>Id.—Correct Practice.—The correct practice is to move to vacate the judgment under section 473 of the Code of Civil Procedure, which, if granted, would afford the most expeditious mode of securing a defense of the action; but if it is unsuccessful, the injured party is entitled to a regular trial in equity upon the issue of fraud in its procurement.</p> <p>Id. — Limitation of Action in Equity fob Fraud — Laches. — The limitation of an action in equity for relief on the ground of fraud is three years after the discovery of the fraud; and where that period has not expired from the date of the fraud, the right to maintain the action is governed not by the doctrine of laches, but by the statute of limitations.</p> <p>Id.—Accounting Prevented by Fraud — Rescission Inapplicable.—• Where the right to an accounting in the foreclosure suit was prevented by the fraud alleged, the right to maintain the action does not depend upon the readiness and ability of the plaintiffs to pay the amount found due upon the accounting. They are entitled to a correct determination of the amount of their indebtedness and to have the mortgaged premises sold under a proper decree. The doctrine of restoration under rescission of a contract has no application to cases of this kind.</p>

<p>Action fob Death of Street Bailway Passenger—Joint Negligence —Contributory Negligence.—In an action for the death of a street' railway passenger alleged to have been caused by the joint negligence of the street railway company, in collision of its car with the team, and wagon of a storage company, although the storage company would be chargeable with contributory negligence in an action for loss of its team, yet, where the deceased was not chargeable with contributory negligence, the street railway company, whose negligence proximately caused the death of its passenger, cannot defend the action on the ground that the storage company contributed to the injury which resulted in the death.</p> <p>Id.—Contribution between Joint Tort-Peasors—Construction of Code—Party Aggrieved.—The rule that there is no contribution between joint tort-feasors, is not changed by section 709 of the Code of Civil Procedure; and the street railway company is not a party aggrieved that can complain upon appeal from the judgment against it that no judgment was rendered against the storage company.</p> <p>Id.—Obligation of Street Bailway Company to Passengers—Burden of Proof.—The street railway company was bound to use the highest degree of care for the safety of its passengers, and in case of .an injury to a passenger from the result of a collision, the burden is upon it to show that it was not guilty of any negligence which in whole or in part caused the injury.</p> <p>Id.—Negligence of Motorman.—The motorman of the street-car did not exercise the highest degree of care to protect his passengers when, seeing the team of the storage company closely approaching the crossing with no evidence of the driver’s intention to stop, and knowing that if he continued on his course a collision would be inevitable, he made no reasonable effort to avoid the collision, which he might have easily prevented.</p> <p>Id.—Appeal from Judgment in Favor of Storage Company—Findings —Ultimate and Probative Facts—Affirmance.—Upon appeal by plaintiff from the judgment in favor of the storage company, where there was no motion for new trial, or statement of the evidence, but merely a motion to change the conclusions of law, and render judgment against it, and the ultimate fact is found that the collision and injuries to the deceased were not caused by its negligence, and there is no finding of probative facts necessarily inconsistent with the ultimate fact, or appearing to dispose of all the facts involved in the pleadings and all the facts in the case, the judgment must be affirmed.</p>

<p>Taxation—Shares op Stock in National Banks—Statutes op United States—Political Code — State Discrimination.—The assessment for taxation by the state of shares of stock in national banks, authorized by section 5219 of the Bevised Statutes of the United States, under the restriction "that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state," and also authorized in pursuance of that section by sections 3608, 3609, and 3G10 of the Political Code, as changed and enacted in 1899, which embody the same restriction, is not subject to the objection that the method of assessment and taxation of national bank shares under the Political Code does in its practical execution discriminate in favor of state banks and state moneyed corporations and against national banks.</p> <p>Id.—Different Mode of Assessment-—Inclusion of Same Elements —Federal Decisions.—Under the decisions of the federal courts, the mere fact that the shares of stock in state banks and state moneyed corporations are not permitted to be assessed in this state, is not sufficient to show a discrimination in the assessment and taxation of shares of stock in national banks, provided a different method adopted by the state for the assessment and taxation of such state corporations, accomplishes the inclusion in the assessment of the property of said state corporations of all the elements which are embraced in the assessment of shares of stock in national banks to the holders thereof.</p> <p>Id.—Construction of State Constitution and Laws — Exclusive Province of This Court.—The interpretation of the constitution and laws of this state by this court is recognized by the decisions of the federal courts as conclusive and binding upon the supreme court of the United States and all federal courts; and there is nothing in the decisions of the supreme court of the United States to preclude this court from holding that, under the constitution and laws of this state, the assessing officers are compelled, in their valuation of the property of state banks and other state moneyed corporations, to include all those elements of value which would be embraced in an assessment of the shares of stock therein.</p> <p>Id.—Constitutionality of Exemption of State Shares — Double Taxation.—Under the constitution of 1879, specifically requiring the assessment and taxation of shares of stock, an assessment thereof according to the market value as required by law, would include every element entering into and giving value to the shares; and the decision of this court in Bwhe v. Badlam, 57 Cal. 594, sustaining the constitutionality of section 3608 of the Political Code, exempting such shares from taxation, rests solely upon the consideration that by the taxation of the entire property of the corporation, including its franchise, every element giving value to its shares was included, and that to tax the shares besides would be double taxation, not contemplated by the constitution or laws. This construction of the constitution and laws has been for more than twenty-five years the only warrant for the enforcement of the statute exempting the assessment of shares of stock in state corporations.</p> <p>Id.—System op State Taxation—Assessment op Corporate Franchise.—Under our system of state taxation, as construed by the decisions of this court, all of the intangible property of a corporation, including its good-will, or dividend- or profit-earning power, may be properly included in the assessment of its franchise, the value of which is to be ascertained by deducting from the aggregate market value of the shares the value of the tangible property of the corporation.</p> <p>Id.—Remedy by Injunction — Enforcement op Iblegal Tax.—The equitable remedy by injunction will not be granted to restrain proceedings of officers to enforce a tax under the laws of the state merely on the ground that the tax sought to be enforced is illegal, unless it appears necessary to protect. the rights of the property-owner and that he has no adequate remedy at law. Acts not creating a cloud upon the title of the taxpayer will not be enjoined; and no. cloud upon real property can be created by mere sale of the property to the state before the time comes for the execution of a deed to the state. ^</p>

<p>Mortgage by Guardian—Statute oe Limitations.—An action to enforce a mortgage executed by a guardian as an equitable lien upon the property of the minor wards, which is brought seven years after the cause of action accrued upon the note attempted to be secured thereby, is barred by the statute of limitations.</p> <p>Id.—Monet Borrowed to Redeem Propertt of Wards—Mutual Mistake as to Validitt of Mortgage—Disoovert.—The facts alleged that the money was borrowed by the guardian from the plaintiff to redeem the property of the minor wards from sale under foreclosure of a prior mortgage executed by their father in his lifetime, and that there was a mutual mistake of the plaintiff and the guardian as to the validity of the mortgage which was discovered within three years, cannot save the bar of the statute against the enforcement of any lien, where the action was not commenced within the time it .would have had to be brought if the mortgage were valid.</p> <p>Id.— Loss of Incidental Equitable Rights. — Whatever equitable rights of subrogation to the rights of the original mortgagee, the plaintiff may have had by reason of the facts alleged, those rights were available only in aid of the enforcement of the claim evidenced by the note and mortgage of the guardian, and where the -bar of the statute attached to that claim, such ineidenthl equitable rights were lost.</p>

<p>Mining Claims—Location of Quartz Claim—Insufficient Becord of Notice.—The record of a notice of location of a quartz-mining claim, which is required to be recorded, is invalid under section 2324 of the Bevised Statutes of the United States, where it contains no description of the claim by reference to any natural object or permanent monument by which it might be identified.</p> <p>Id.—Action to Quiet Title—Evidence—Effect of Becord of Notice. —In an action to quiet title to a quartz claim, as against the owners of a placer patent, under a prior location, the record of the notice of location of the quartz claim, if it be assumed to be valid, can prove nothing beyond the fact of its record, and is not evidence that it was posted on the ground, or that the Bevised Statutes of the United States were complied with by the plaintiff in making the location or in work on the claim.</p> <p>Id.—Insufficient Evidence of Compliance with Law by Locator— Support of Findings and Judgment.—In such action, where there was no satisfactory evidence of compliance with the law by the locator, and the evidence tended to show 'that the seam of quartz was small, and carried a very small percentage of gold, and there was no evidence that in any year one hundred dollars’ worth of work was done upon it by the locator, or that any work was done thereupon for eight years prior to the commencement of the action, or that plaintiff was in actual possession of the claim when the suit was brought, the evidence is insufficient to sustain the action, and findings and judgment for the defendant will not be disturbed upon appeal.</p> <p>Id.—Placer Patent—Known Veins—Meaning of Law.—Although a placer patent can carry no veins of value known to exist, yet a quartz claim which contains so small a percentage of mineral as to be of no value for mining purposes is not a known vein within the meaning of the law, and the placer patent carries it.</p> <p>Id.—Question of Pact.—The question whether a known vein within the limits of the placer patent is of any practical value is always a question of fact for the jury, or for the court in the absence of a jury.</p> <p>Id.—Location after Application for Placer Patent—Support of Adverse Pending.—Where plaintiff claimed under location of veins made after the application for the placer patent, and failed to prove that any of the veins claimed by him could ever be expected to pay the cost of extracting the same, and there was a preponderance of evidence that at the date of such application they were generally regarded as valueless, and have since proven to be so, the finding against plaintiff's claim and in favor of the defendant is supported by the evidence.</p> <p>Id. — Cross-Examination of Defendant — Discretion — Immaterial Knowledge of Veens.—It was discretionary for the court to exclude questions asked by plaintiff of the defendant on cross-examination which were not proper cross-examination, but which practically .sought to make defendant plaintiff’s own witness to prove defendant’s previous knowledge of veins, which was immaterial, where it appears that defendant was merely a grantee, and the only proper question of knowledge was that of his grantor or of miners generally, and where it had already been shown that the veins were of no value, and not within the meaning of the law.</p>

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

<p>CROSS-APPEALS from a judgment of the Superior Court of Tolo County. A. J. Buckles, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Redeem Property Mortgaged by Deed—Demurrer to Amended Complaint — Laches — Additional Debt. — Although a general demurrer to an amended complaint in an action to redeem property mortgaged by deed may raise the question of laches, upon the ground that a cause of action is not stated, yet, where there is nothing in the facts or circumstances alleged tending to show any inexcusable delay of plaintiffs in bringing the action, the mere fact that the amended complaint sets up additional indebtedness secured by the deed to that pleaded in the original complaint does not tend to support the demurrer on the ground of laches, where a cause of action is otherwise stated.</p> <p>Id.—Parties—Joinder op Plaintiffs—Separate Deeds for Same Debt —Single Cause op Action.—Parties who made separate deeds to secure the same debt were properly joined as co-plaintiffs in an action to redeem the property from the indebtedness, and the complaint by such co-plaintiffs states a single cause of action; the effect of the various deeds to secure the same debt was to combine all the property conveyed as a single security therefor, as completely as if there was but one conveyance and one mortgagor; and no redemption could be made as to part of the mortgaged premises without paying the whole debt.</p> <p>Id.—Presumption in Favor of Deed—Convincing Evidence of Mortgage — Question of Fact — Support of Findings — Conflict.— Though the presumption of law should always be applied, independent of proof, that an absolute deed is what it purports to be, and must prevail, unless the evidence is entirely plain and convincing that it was intended as a mortgage, yet the question is one of fact for the trial court, and its finding upon conflicting evidence that the deed was a mortgage will not be disturbed upon appeal if there is substantial evidence warranting a clear and satisfactory conviction to that effect.</p> <p>Id.—Parol Evidence—Written Memorandum.—The rule that parol evidence is admissible to show that a deed absolute on its face was intended as a mortgage is not affected by a written memorandum made by the grantee, indicating the conditions on which the deed was held, where there is no evidence that such memorandum was ever agreed to by the parties as a written contract.</p> <p>Id. — Evidence of Plaintiff against Decedent — Construction of Code.—The evidence of a plaintiff against the deceased mortgagor as to matters of fact occurring before his death, in the action to redeem the mortgaged property, was not incompetent under section 1880 of the Code of Civil Procedure, which only applies to actions upon claims or demands against the decedent which might have been enforced against Mm in Ms lifetime by personal action for the recovery of money, and upon which a money judgment could have been rendered.</p> <p>Id.—Daches not Pleaded or' Shown.—Where no laches was pleaded in the answer, if it be considered that the court ever could find it from the evidence, without such pleading, the evidence in this case would not warrant such unusual action.</p> <p>Id.—Statute of Limitations — Support of Finding — Mortgagee in Possession—Holding not Adverse.—The finding against a plea of the statute of limitations cannot be disturbed where the evidence shows that the defendant was a mortgagee in possession, and that his holding was not adverse to the mortgagors at any time prior to Ms death.</p> <p>Id.—Tender—Stopping Interest on Debt.—Under section 1504 of the Civil Code, a tender or offer of payment stops interest on th.e . obligation, although there is no subsequent deposit of the money to keep the tender good.</p> <p>Id.—Conditional Offer—Reconveyance of Property.—Under section 1498 of the Civil Code a mortgagor who is entitled to have a reconveyance of the mortgaged property, upon " payment of the mortgage debt, is entitled to make his offer of payment thereof depend upon the execution of such reconveyance.</p> <p>Id.—Remedy in Probate Court—Construction of Code.—There being no written contract to convey the mortgaged property, the action to redeem from the mortgage debt was properly brought; and the plaintiffs had no remedy in the probate court under section 1597 of the Code of Civil Procedure, which only applies where deceased, was bound by written contract to convey.</p> <p>Id.—Evidence—Correspondence between Mortgagor and Mortgagee. —Letters by mail between the mortgagor and mortgagee relative to their respective rights in the property, and their admissions in regard thereto, throwing light upon the question whether the deeds were given as security for debt, and whether there was any adverse holding by the mortgagee, were admissible in evidence.</p> <p>Id.—Broad Motion to Strike Out Letters.—A motion which was too broad, to strike out certain letters, some of which were, properly admitted, was correctly denied, regardless of the question whether some of them were irrelevant to the issue.</p> <p>Id.—Compensation of Mortgagee in Possession.—A mortgagee in possession is not entitled to any compensation for personal services in the care and management of the property; and evidence of the value of his services was properly excluded.</p> <p>Id.—Findings—Costs—Effect of Written Opinion.—A written opinion stating that each party was to pay his own costs cannot preclude findings that plaintiffs are entitled to recover costs against the defendant. Such opinion is no part of the decision and is without legal effect, being merely an informal statement of the views of the court which is subject to modification. The legal expression of the views of the court is found only in the formal findings of fact and conclusions of law.</p> <p>Id.—Interest of Judgment Allowing Redemption.—The defendant is entitled to legal interest on the final judgment allowing redemption, less plaintiffs costs, until tender of the amount found due, as provided for therein, or if such tender is not made, until sale under foreclosure.</p>

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

<p>Appeal—Order Vacating Judgment—Service by Publication—Presumptions.—Upon an appeal from an order vacating a judgment by default as against a defendant served only by publication of summons, made within one year after the rendition of the judgment, under section 473 of the Code of Civil Procedure, where the record consists only of the original judgment-roll and the order setting the judgment aside, without any bill of exceptions, and does not disclose the ground on which the motion was based, every presumption is in favor of the action of the lower court, and it must be assumed that a sufficient showing was made to warrant the order setting aside the judgment as to such defendant.</p> <p>Id.—Ground of Order Urged in Brief—Insufficiency of Affidavit for Publication. — A statement in appellant’s brief that the ground of the order setting aside the judgment was that the affidavit for publication was insufficient in its allegations as to his residence out of the state constitutes no part of the record; and though the court is inclined to the opinion that the affidavit was insufficient to confer jurisdiction as to the respondent, the question is not necessary to be determined.</p> <p>Id.—Power and Discretion of Court—Regularity of Proceedings.— The respondent not having been personally served with summons, the superior court had the power, under section 473 of the Code of Civil Procedure, upon a proper showing and in the exercise of a sound discretion, to set aside the judgment as to him, and to allow him to answer to the merits at any time within one year after the rendition of the judgment, even though the proceedings by publication were entirely regular and the judgment was valid upon its face.</p>

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

<p>Action to Set Aside Conveyance—Issue as to Mental Competency —Support of Finding—Conflicting Evidence—Interested Witnesses.—In an action to set aside a conveyance, where the mental competency or incompetency of the grantor was the controlling issue, and the evidence was conflicting thereupon, the finding of the court in favor of his competency to make the deed was sufficiently sustained by the circumstances proved, together with the testimony of witnesses for the defendant intimately acquainted with him who testified to such competency, though several of them were financially interested in the result. The credibility of all the witnesses for the defense was for the trial judge to determine, under the circumstances, notwithstanding such interest.</p> <p>Id.—Sufficiency of Finding.—A finding that at the time of the execution of the deed the grantor “was entirely competent, mentally and physically, to transact the business of executing and delivering to . . . defendants the conveyance and bill of sale . . .; that at the time . . . the said Isaac Ripperdan [grantor] was in full possession of his mental faculties and fully understood the transaction,” sufficiently covers the issue as to his mental competency at that time.</p> <p>Id.—Construction of Findings—Inferences of Fact.—Findings are to be construed to support the judgment rather than to defeat it, and when from the facts found by the court other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court. The finding that the grantor “fully understood the transaction,” when the deed was executed and delivered, involves necessarily the inference that he was not then “entirely without understanding,” and is a finding of the ultimate fact in issue.</p> <p>Id.—Use of Property and Support for Life—Reservation.—If the deed were construed as giving to the grantor the use of the property and a support for life therefrom, and to grantees a conveyance to take effect at the grantor’s death, reserving to the grantor the use and enjoyment of the property during his life, it would not affect the validity of the deed as a conveyance. Estates may be granted under section 707 of the Civil Code to commence in futuro.</p> <p>Id.—Validity—Trust for Maintenance not Put in Issue.—Where the complaint raised only the issues whether the grantor was incompetent and whether the deed was obtained by fraud and undue influence, and nowhere charged that there was a conveyance upon any express trust, a determination that the conveyance was void because made in trust for purposes not permitted by the code, or that it conveyed no beneficial interest beyond the life of the grantor, and any finding on that question, would be outside of the issues, and would, if made, be entitled to no consideration.</p> <p>Id.—Void Provision against Alienation—Consideration—Rescission not Involved.—A provision that the grantee should not alien the estate granted during the lifetime of the grantor is void as being in restraint of alienation; and the mere fact that part of the consideration for the transfer consisted of a covenant which could not be legally enforced would not make the deed void. A deed by one who is competent, made freely and without fraud, conveys title, though the consideration may fail in whole or in part. Whether such failure affords a basis for rescission is a question not involved in the issue raised.</p> <p>Id.—Unlawfulness of Consideration—Construction of Code—Acquired Rights not Disturbed.—Whatever effect section 1608 of the Civil Code may have upon executory contracts where part of the consideration is unlawful, it cannot be construed to permit a grantor of property who has received and retained the consideration for his conveyance to recover the property conveyed upon the sole ground that the consideration was unlawful in part. Where a contract based on an illegal consideration has been fully and voluntarily executed, if the parties are in pari delicto, the court will not interfere to disturb the acquired rights of either at the instance of the other.</p>

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

<p>Estates of Deceased Persons—Letters of Administration—-Order Refusing Probate of Will—Opposition.—Where the petition of a grandson of the deceased for letters of administration alleged the intestacy of the deceased, and the proponent of a copy of a will filed a petition in opposition, alleging that the grandson had concealed the original will, which disinherited Mm, and throughout the proceedings the parties treated the two petitions as raising an issue upon the matter, and the court made an order refusing the probate of the alleged will, and granting letters to the grandson, it cannot be urged upon appeal from the order that there was no written opposition by the administrator to the petition for probate of the will.</p> <p>Id.—Burden upon Proponent—Duty of Court.—Even if the administrator was not to be heard upon the question of probate of the proposed will, the burden was upon the proponent to make satisfactory proof of the will, and if he failed to do this to the satisfaction of the court, it was its duty, even without opposition, to refuse probate to the purported will.</p> <p>Id.—Conflicting Evidence.—Where the evidence was conflicting as to whether the deceased made a will, tMs court will not disturb the decision of the trial court as to the weight and credibility of the testimony on that question.</p> <p>Id.—Sufficiency of Findings—Possession of Will.—A verbal inaccuracy in the findings as to possession or concealment of the will does not invalidate them, where the context makes it clear what the court meant to declare; and a finding that the allegations of the opposition of the proponent of the will "with respect to Sarah 0. Hayden leaving any will, or any person having in their possession any will of Sarah C. Hayden, deceased, are untrue, ’ ’ is sufficient as a finding to justify the court’s refusal to admit the will to probate.</p>

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

<p>Foreclosure of Mortgage—Parties—Wife Having Homestead Claim —Question of Validity.—If the wife of the mortgagor has a valid homestead claim subject to the mortgage, she is a necessary party to a suit for the foreclosure of the mortgage, else she is not bound by the decree; but if her homestead claim is itself invalid, the omission to make her a party is without significance.</p> <p>Id.—Invalid Homestead Claim—Insufficient Description of Lands Claimed—Estimate of Cash Value.—A homestead claim of a wife which describes certain land, and claims also "other lands,” and "all lands owned by her husband in said township” referred to in the description given, without any other description, is insufficient in the description of other lands, and an estimate of the actual cash value "of said property” includes the other lands not properly described; and there being no separate estimate of the cash value of the lands specifically described, the other lands cannot be rejected as surplusage, but the claim must be declared invalid for non-compliance with the Homestead Law.</p> <p>Id.—Action by Husband and Wife to Quiet Title—Evidence— Judgment-Roll in Foreclosure Suit—Proof of Service—Amendment of Return.—In an action by the husband and wife to quiet title against the purchaser under a foreclosure decree, where the judgment-roll in the foreclosure suit contained an unsigned return of service of summons upon the husband, the court properly admitted proof of the actual service of summons upon the husband, by the oath of the former deputy sheriff who made the service, and might. then have admitted the judgment-roll in evidence with correction of the defective return; and the plaintiffs’ rights could not be prejudiced by an order of the court allowing the. former deputy sheriff to amend his return mino pro tuno, by filling out the certificate in the name of the then sheriff by himself, though his principal was dead.</p> <p>Id.—Right to Dismissal under Code for Want of Return of Service —Construction of Code.—Subdivision 7 of section 581 of the Code of Civil Procedure requiring dismissal of an action for failure to make return of service within three years must be construed to apply to pending actions which are untried and not to actions which have gone to judgment; and it cannot apply to an action where service was actually made, trial had, and a judgment entered, which has become final, and which was rendered within a year after the commencement of the action.</p>

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

MOTION to dismiss an appeal from a decree of the Superior Court of Alameda County making partial distribution of the estate of a deceased person. P. B. Ogden, Judge. The facts are stated in the opinion of the court. Samuel M. Shortridge, and Walter H. Linforth, for Appellants.

<p>The facts are stated in the opinion of the court.</p> <p>Garret W. McEnerney, William B. Bosley, Forbes & Dinsmore, and F. P. Deering, for Appellant.</p>

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

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

<p>Commitment of Insane Person—Construction—Showing of Jurisdiction.—A commitment to the Mendocino state hospital of "Dennis G. Clary” as an insane person, upon petition of "Paul Clary,” and upon a certificate of lunacy by two qualified medical examiners, annexed thereto, "and upon such other facts and information as were produced” before the judge signing the commitment, "at a hearing in open court in the presence of said Clary duly had, and being satisfied that the above alleged insane person is insane and a proper subject for custody and treatment in an institution for the insane within the meaning of the statute,” and ordering "that the said Dennis G. Clary be and hereby is adjudged insane,” etc., is to be construed as showing that the hearing was had in the presence of "Dennis G. Clary,” the alleged insane person, and its recitals affirmatively show jurisdiction to make the commitment.</p> <p>Id.—Presumption as to Language Employed.—The language of judgments and orders is not chosen by the adverse party, but is official and presumably fair and impartial. It is not subject to the common-law rules of pleading to secure to the opposite party precise information of the facts alleged against him.</p> <p>Id.—Recitals of Jurisdiction—General Eaots and Conclusions.— When it is considered necessary or proper to recite the facts conferring jurisdiction to make a judgment or order it has been the immemorial custom briefly to state the general facts or general conclusions of fact conferring jurisdiction of the subject-matter and over the person affected; and from the nature and purpose of such recitals, they must be given the utmost effect that the language employed will warrant.</p> <p>3b.—Recital of Hearing "Duly Had”—Implications.-—The recital that the hearing was "duly had” in open court in the presence of the person alleged to be insane, implies that everything was done which the law requires as essential to give jurisdiction to hear and determine the matter; and implies that due and lawful notice was given thereof to the alleged insane person, and. that such giving of notice was proved to the satisfaction of the court, and is equivalent to a finding to that effect.</p> <p>Id.—Insanity “Within Meaning of Statute”—Political Code.— The finding that Clary was “insane and a proper subject for custody and treatment in an institution for the insane within the meaning of the statute,” was sufficient without expressly stating the particular statute referred to, and is sufficient to include the findings required by section 2217 of the Political Code as amended in 1881, that he was “so far disordered in his mind as to endanger health, person, or property.”</p> <p>Id.—Bepeal by Unconstitutional Act Ineffective.—The act of 1897, held in part unconstitutional in In re Lambert, 134 Cal. 626, could not have the effect to repeal all prior inconsistent statutes for the commitment of insane persons, though assuming to do so, and the former law is left in force, including sections 2210 to 2218, inclusive, of the Political Code, and the act of 1876 referring to the Napa Asylum.</p> <p>Id.—Habeas Corpus—Becovery from Insanity.—A patient committed to a state hospital for the insane is entitled to be discharged from further custody after examination on habeas corpus proceedings, and a determination of his sanity. Upon a petition positively alleging that he has recovered or is not insane, he is entitled to a preliminary writ, in order to inquire into the truth of the allegation and discharge him if he is found to be sane. Under section 1475 of the Penal Code, as amended in 1905, the supreme court has power to make such writ returnable before any superior judge.</p>

<p>Action by County—Money Illegally Paid—Expenses or Bo ad Commissioner.—An action will lie under sections 8 and 53 of the County Government Act of 1897 in favor of a county to recover hack money illegally paid to a supervisor, as eco officio road commissioner, for traveling and personal expenses as such road commissioner, in violation of section 215 of the County Government Act, which provided that the salaries and fees therein provided for should be in full compensation for all services rendered the county as such officer and ex officio officer, there being then no other provision of law authorizing reimbursement to the road commissioner of the money so expended.</p> <p>Id.—Construction of County Government Act—“Contingent Expenses.”—Subdivision 8 of section 228 of the County Government Act, making “contingent expenses necessarily incurred for the use and benefit of the county” a county charge, must be construed as applying only to such traveling and other expenses of certain officers as are elsewhere expressly provided for, and does not apply to the case of traveling and other expense of a supervisor as ex officio road commissioner, for which no such provision is made, and any allowance for which is repugnant and hostile to section 215 of that act fixing his compensation.</p> <p>Id.—Effect of Later Statute Allowing Compensation for Expenses —Compensation not to be Increased.—Although a later act, adopted March 23, 1901, provides for repayment to road commissioners of itemized expenses actually incurred, and applies to all terms arising after its passage; yet the inequality and individual hardship which results to certain members of the board to which such relief is denied cannot be permitted to overthrow or modify the rule that the compensation of a public officer is not to be increased during the term for which he is elected.</p> <p>Td.—Sufficiency of Complaint by County—Erroneous Order Striking Out.—Where the complaint by the county was properly framed under sections 8 and 53 of the County Government Act of 1897, and stated a cause of action within the jurisdiction of the superior court, the court erroneously struck out items therefrom, which the county was entitled to recover as having been illegally paid.</p> <p>Id.—Change of Jurisdictional Sum—Exceptions—Admissions—Dismissal— Judgment not by Consent — Review upon Appeal.— Where the erroneous order striking items from the complaint left a demand not exceeding twenty dollars, to which exception was reserved by the county, the fact that thereafter both parties admitted that the court had no jurisdiction of such residue, and that thereupon the court ordered the action dismissed, did not render the judgment of dismissal a consent judgment; and the county was entitled to appeal therefrom, to have the erroneous order reviewed, upon a bill of exceptions, and to have the judgment reversed, with directions to deny the motion to strike out.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Brown & Wells, R. B. Carpenter, and Beverly L. Hodghead, for Appellant.</p>

<p>Mechanics’ Liens—Lien of Contractor—Substantial Compliance— Trivial Imperfection—Question of Fact—Recoupment.—In an action by a contractor to foreclose a lien upon the structure, where there is a substantial completion of the work contracted for in good faith, a trivial imperfection cannot prevent the enforcement of the lien. What constitutes a trivial imperfection is a question of fact in each instance; and if the omission or imperfection is so slight that it cannot be regarded as an integral or substantive part of the original contract, and the other party can be compensated by a recoupment for damages, the contractor does not lose his right of action.</p> <p>Id. — Contract without Specifications — Building Rooms under Raised House—Windows out of Alignment—Compensation— Findings Conclusive.—Where the contract was without plans or specifications, to do the carpenter-work in raising a house and putting two basement-rooms beneath it, and the findings and judgment were for the plaintiff, a special finding that the two windows placed by plaintiff were out of alignment with those in the upper story, and that such placing of them was not workmanlike, but was a trivial imperfection, which was remedied by the owner at a cost of seven and one half dollars, which sum was deducted from plaintiff’s claim, and judgment rendered for the residue, the finding that the imperfection was trivial implies a finding that the work was substantially completed by the contractor in good faith, and such findings, based upon evidence to sustain them, are conclusive.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and L. N. Peter, District Attorney, for Appellant.</p> <p>Cheney & Massey, Campbell, Metson & Campbell, and W. H. Metson, for Respondents.</p>

<p>License Fee—Action bt County—Ordinance Begulating Sheep Business—Sufficiency of Complaint—Default Judgment.—In an action by a county to recover a license fee for conducting the business of grazing, herding, and pasturing sheep and lambs, under a county ordinance regulating the business under the police power granted by the constitution and by section 3366 of the Political Code, where the judgment was by default, after a demurrer to the complaint was overruled and the complaint stated a sufficient cause of action under the rules of law applicable thereto, as laid down in County of Plumas v. Wheeler, ante, p. 758, the court properly overruled the demurrer to the complaint, and the judgment must be affirmed.</p>

<p>APPEAL from a judgment of the Superior Court of Sierra County. Stanley A. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, W. I. Redding, District Attorney, and Frank R. Wehe, for Appellant. The tax imposed in this instance was for regulation under the police power, and was sanctioned by the constitution (art. XI, sec. 11), as well as by the County Government Act of 1897 and section 3366 of the Political Code, and is in harmony with the decisions of this court.

<p>Negligence — Fall of Railroad Trestle — Defective Conditions — Support of Verdict—Conflicting Evidence.—In an action by plaintiff, who was an engineer in the employment of defendant, to recover damages from the fall of defendant’s railroad trestle, owing to the alleged negligence of the defendant, where the verdict was for the plaintiff, and the evidence for the plaintiff was sufficient to warrant the jury in finding both that the trestle was originally defectively constructed and that at the time it fell, some twelve years after its construction, its timbers had become rotten and insecure to such an extent as to render the trestle unfit for the purpose for which it was constructed and being used, the finding of the jury, under conflicting evidence for the defendant, is conclusive, and not subject to review upon appeal.</p> <p>Id.—Expert Evidence of Civil Engineer—Defects in Construction of Trestle.—An experienced surveyor and civil engineer, shown to be skilled in bridge and trestle building, was properly qualified as an expert, and was properly allowed both to testify to his own observation and knowledge of the trestle in question and as an expert to the manner in which it was originally constructed and the particular defects in its construction, and as to how the trestle in its entirety should have been properly constructed to render it reasonably safe for the purposes for which it was intended to be used, and to 'state that the manner in which the stringers were placed upon the trestle, and the absence of bents, caps, and bolted timbers, and the use of nails or spikes instead of bolts in all parts of the trestle, rendered it unsafe in use.</p> <p>Id.—General Objection to Expert Evidence—Unsafety of Trestle— Special Objections not Allowed upon Appeal.—A general objection to an inquiry of such expert witness as to “whether that was the safe way for the construction of a trestle or bridge of that kind, considering the purpose for which it was used,” to which the witness responded in the negative, that the inquiry was “immaterial, incompetent, and irrelevant,” was properly overruled. Such objection did not include the objections that the matter was not a proper subject for expert testimony, or that the witness had not qualified as an expert, and those special objections cannot be urged upon appeal for the first time.</p> <p>Id.—Improper Cross-Examination of Expert—“Absolute Safety.” —It was proper to disallow inquiries made on cross-examination of such expert witness as to whether the trestle as he testified it should have been constructed would ‘ ‘ bring absolute safety to the employees of the road,” and whether “it would be sufficiently safe for a passenger-train to run over,” where the only proper question was as to whether it was a reasonably safe trestle for the uses to which it was subjected,—viz. for logging purposes,—and where the witness had already stated on cross-examination that “it is necessary to have a trestle constructed in the way I have described in order with reasonable safety to carry such loads as they were accustomed to carry over those trestles.”</p> <p>Id.—Evidence of Defendant’s Knowledge of Defects—Conversations with Agent—Res (Jest.®.—The testimony of a brakeman as to a conversation before the accident with an agent of the defendant, whose duty it was to examine the condition of the trestle, and to report any need of repairs to the trestle, in which conversation such agent requested him to ask the trestleman to go to work on the trestle in question, and said, “That trestle is going down and will kill the whole outfit of you; it is in bad shape,” and that he delivered the message as requested, was admissible as part of the res gestee, to show defendant’s knowledge of the defective condition of the trestle; and it was also proper to allow the civil engineer to testify that he had prior to the accident called the attention of the manager of the road to the defective system of stringers used on the trestles and bridges on defendant’s road, to show defendant’s knowledge of such defects in the construction of the trestle in question.</p> <p>Id.—Instruction—Degree of Care Required—Modification.—Where an instruction, as modified, correctly stated the rule of law as to the degree of care necessary to be exercised toward its employee by the defendant in constructing and maintaining the trestle in question, for the purpose for which it was actually intended and used, it was not error to modify it by omitting a preliminary statement distinguishing the degree of care so required from that which would be required of a railroad company in the performance of its duty toward passengers upon its trains,” there being nothing in the case involving any such question.</p>

<p>License Tax fob Bevenue—Bepeal of County Ordinance—Illegal Arrest—Payment under Duress and Protest—Becovery Back.— Where a county ordinance passed under the County Government Act. of 1897, imposing license taxes for revenue, was repealed by section 3366 of the Political Code, adopted March 23, 1901, no license tax for revenue thereunder could be thereafter enforced; and where the appellants were thereafter illegally arrested for misdemeanor for non-compliance with such ordinance, a payment under duress and protest ro prevent criminal proceedings thereunder -"as involuntary, and may be recovered back from the county alter its rejection of a claim therefor.</p> <p>Id.—Bight to Acquittal Immaterial.—The fact that the appellants were entitled to an acquittal upon any criminal ■ trial under the ordinance, cannot affect the duress by reason of the arrest and threatened criminal proceedings. They were not required to incur the hazard of a magistrate’s decision upon the validity of the ordinance.</p> <p>Id.—Deposit with Third Person under Duress—Pinal Payment to Effect Belease.—The fact that the money sought to be recovered back was deposited with a third person under duress and protest, and was finally paid by such third person into the county treasury upon demand of the county, and under protest, to prevent further criminal proceedings, did not render the final payment less involuntary or compulsory than the original.</p>

<p>APPLICATION for Writ of Mandate to the Superior Court of the City and County of San Francisco. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Swamp Land — Equitable Claims of Settlers — Preferred Purchasers.—Under the Swamp Land Act of April 4, 1870, all settlers upon swamp and overflowed lands belonging to the state, whose settlement is evidenced as in that act prescribed, have an equitable claim thereto, and are preferred purchasers thereof to the extent of their inelosure or occupancy.</p> <p>Id.—Affidavit fob Purchase—Statement of Requisites—Truthfulness.—An affidavit for the purchase of swamp land must state, among the requisites of the statute, that the affiant has not known of any legal or equitable claim to said lands other than his own, and all of the requisites of the statute must not only be- stated therein, but must be shown to he true, or no right to his land can he awarded by the court.</p> <p>Id.—Construction of Affidavit and Certificate—Actual Settlement—Untruthfulness not Intended.—Where prior to the segregation of the land by the United States government, the predecessor in interest of defendants, who had been the occupant of land lying on the left bank of the Sacramento River, in his affidavit of purchase and certificate described the land applied for as so situated, and also as being the fractional northwest quarter of section 19, which latter description included an island in the river known to be in the possession of plaintiff, and stated that he did not know of any legal or equitable claim to the land other than his own, the subsidiary description is not controlling, and it must be presumed after the lapse of thirty-six years without interference with plaintiff's possession, that the applicant only intended to apply for and take the land on the left bank of the river, and that he actually stated the truth as to his ignorance of any other claim thereto.</p> <p>Id.—New Survey and Certificate on Old Affidavit.—Where all rights were lost by plaintiff and defendants' predecessor by failure to comply with the statute, and the surveyor-general could approve any new survey and issue evidence of title thereto to any person applying to purchase the same, the old affidavit attached to the new survey and certificate, approved by the surveyor-general, limited to land lying on the left bank of the river, should be construed and measured by the same standard as if it be an entirely new affidavit bearing date as of the time of the approval of such survey.</p> <p>ID.—CONFLIOITING APPLICATION BY PLAINTIFF-EQUITABLE RIGHTS.-A conflicting application by plaintiff covering not only his island possession, but also all the land previously possessed by the grantor of defendants, and included in his original certificate, ought not to be allowed to prevail as against the rights of the defendants’ predecessor, and an equitable construction of the certificate which leaves to plaintiff and defendants their possessory rights to the lands which they were originally occupying should be adopted, and it was error to award the whole land to plaintiff on his conflicting application by reason of the falsity of the affidavit of defendants’ predecessor.</p>