Volume 3 — California Unreported Cases

<p>APPEAL from Superior Court, Alameda County; N. Hamilton, Judge.</p>

B. Campbell, Judge. Action on a promissory note by J. H. Braly against S. W. Henry. Judgment for plaintiff, and defendant appeals, after denial of his motion for new trial. For former appeal, see 11 Pac. 385. For affirmance of the decision on that appeal, on rehearing, see 12 Pac. 623.

T. McNealy, Judge. Action by Henry T. Gage and Cornelia Rains de Foley against John G. Downey and the Merchants’ Exchange Bank of San Francisco to recover certain land. There was a judgment for defendants, and plaintiffs appeal.

Cross, Judge. Ejectment by T. W. Pendergrass, administrator, of the estate of C. T. Thornton, deceased, against David Burris, to recover the possession of certain lands in Tulare county. At the trial it was shown that plaintiff’s intestate at one time owned the land, but conveyed it to defendant by deed absolute in form, but which plaintiff claimed to be in fact security for a debt.

Ejectment by the city of Eureka against Barney Croghan to recover a tract of land claimed by said city as a street. Judgment was rendered for plaintiff, and defendant appeals.

<p>APPEAL from Superior Court, Alameda County.</p> <p>Action by Mary A. Sesler against A. Montgomery for slander. Judgment for plaintiff, and defendant appeals.</p>

Gibson, Judge. Action by Charles Frankish against J. H. Smith to quiet title to a piece of land which plaintiff had contracted to sell to defendant. Plaintiff obtained judgment. Defendant appeals.

B. Campbell, Judge. Action by C. C. Harris and Pattie A. Harris, his wife, against William Sutherland, to redeem land from an absolute conveyance made by plaintiffs to defendant, which plaintiffs allege to be a mortgage. A. J. Box intervened, claiming the land as an innocent purchaser from Sutherland. The court held the instrument to be a deed, and not a mortgage. Plaintiffs appeal.

<p>Contempt—In Petition for Rehearing—Disavowal.—A petition for rehearing stated that “how or why the honorable commissioner should have so effectually and substantially ignored and disregarded the uncontradicted testimony .... we do not know.....It seems that neither the transcript nor our briefs could have fallen under” the commissioner’s observation. “There is not a scintilla of evidence to the contrary, and yet the honorable commissioner assumes,” etc., and “in very euphuistic language says,” etc. “A more disingenuous and misleading statement of the evidence could not well be made.” “It is substantially .... untrue, and unwarranted.” “The decision .... seems to us to be a travesty of the evidence.” Held, that counsel drafting the petition was guilty of contempt committed in the face of the court, notwithstanding a disavowal of disrespectful intention.1</p>

<p>In the matter of the contempt of F. H. Waterman.</p> <p>For opinion on adjudication of contempt, see ante, p. 35.</p>

Belden, Judge. Action by the people against Reed to compel the defendant to remove obstructions from an alleged public street in the city of San Jose. Judgment for plaintiff. Defendant appeals.

F. Sullivan, Acting Judge. Action for personal injuries by William F. Magee against the North Pacific Coast Railroad Company. From adjudgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

<p>Ejectment—When Action Lies—Cumulative Remedy.—Plaintiff who has obtained a valid title to land by foreclosure, and is in possession of a portion of it, can bring ejectment for the balance, and is not compelled to rely on a writ of assistance.</p> <p>Mortgage.—A Decree in Foreclosure cannot be Attacked in Ejectment brought to recover the land sold under the decree.</p> <p>A Mortgagor is Estopped by the Terms of His Deed to Deny That His Estate was Other than an estate in fee, and the terms of a mortgage, importing a conveyance of the fee, are equivalent to a general warranty running with the land'.</p> <p>Trial,—Where One Special Finding is Conclusive of the Whole Case, Findings on Other issues are unnecessary.</p>

<p>Appeal—Time for Taking.—Under Code of Civil Procedure of California, section 939, providing that an exception to the decision or verdict because not supported by the evidence cannot be reviewed unless the appeal is taken within sixty days after the rendition of the judgment, an appeal from a decree settling an administrator’s account, taken within the statutory time after the entry of the decree, but not within sixty days after the decision and the filing of the findings, is not in time to present the question of the insuflieieney of the evidence.</p>

<p>Bond—Liabilities of Sureties.—A Secretary of a Building Association Executed a Bond to well and truly perform and discharge all his official duties, and do all things required by the by-laws, and to perform faithfully all duties required of him, and obey all orders given him by the board of directors. The secretary was confided with the general superintendence of the association’s funds, received, cared for, and paid them out, and the performance of these duties by this officer had become the established usage of the association. Held, that his sureties on the bond were liable for moneys of depositors which he had received and entered in their pass-books, but not in the company’s books, and converted to his own use; also for moneys taken by him, which had been deposited in the safe for persons who had borrowed the same; and also for moneys taken from the association and converted, he forging a receipt for the same in the name of a third person.</p> <p>Bond—Duration of Liability.—The Fact That No Term of Office was Ever Fixed or put an end to by any by-law, order, or resolution, does not affect the liability of the sureties, the bond being conditioned that he should perform his duties “so long as he shall continue and be continued in said office.” No want of consideration being shown, the sureties could bind themselves for an unlimited period.</p>

<p>Replevin by Receiver—Pleadings—Findings—Judgment.—In replevin, plaintiffs alleged that they had been duly appointed and qualified as receivers of a railroad company in another state, which thereupon delivered all its property to plaintiffs, and that the property in question had been wrongfully taken from them by defendant in this state. The answer admitted the appointment and qualification o£ plaintiffs as receivers, but denied that the company had delivered to them its property, and specifically denied the delivery of the property in question, which defendant claimed to hold as sheriff under an attachment issued against the company. Held, that the issues demanded a finding that the property had been delivered to plaintiffs as receivers before it came into this state, and that a finding that plaintiffs were entitled to its possession when taken from them by defendant was insufficient, it being but a conclusion of law.</p>

<p>APPEAL from Superior Court, Sierra County; F. D. Soward, Judge.</p>

<p>APPEAL from Superior Court, San Luis Obispo County; D. S. Gregory, Judge.</p> <p>On rehearing. For former opinion see 15 Pac. 359.</p>

<p>Appeal—Review—Matters not Apparent of Record.—On appeal from a judgment on the judgment-roll alone, which shows that the judgment was entered on default of defendant to answer or demur to an amended complaint, the objection that the amended complaint was not filed within the time provided in the order allowing the amendment, and that it does not affirmatively appear that the time was extended, will not be considered, as the order allowing the amendment is no part of the judgment-roll.</p> <p>Pleading.—The Fact That the Amended Complaint was Filed After the Time prescribed is an irregularity merely, and can be reviewed only on a motion to set aside the judgment, and on an appeal from the order denying the motion.</p>

Hudson, Judge. Action for divorce by J. F. Hanson against Delia Hanson. Defendant appeals from an order setting aside an order vacating a judgment by default.

F. Rooney, Judge. Ejectment by William Symons against E. P. Bunnell and Joseph Clark. Judgment for plaintiff, and defendants appeal. They complain that the ease was set for trial on plaintiff’s motion, without any notice of such motion, and without consent; that such notice or consent was required by a rule of the trial court; and that the court should have granted a,continuance for that reason.

Freer, Judge. Action by Columbus Welsh, as road overseer, against E. H. Gould, to abate a nuisance. Defendant had built a fence across one of the public roads running through plaintiff’s district, and the latter had removed it, only to find it rebuilt by defendant, who threatened to rebuild it as often as it was removed.

<p>APPEAL from Superior Court, City and County of San Francisco; T. H. Rearden, Judge.</p>

<p>Change of Venue—Case Transferred, from Justice’s to Superior Court.—Where the defendant in an action commenced in a justice’s court asks to have the cause transferred to the superior court of the county where he is sued, for the reason that the cause involves the legality of a tax, there is no authority, upon the transfer being made, to transfer the cause to another county for trial.</p>

<p>Appeal—Record—Absence of Judgment-roll.—An appeal from a judgment, and from an order discharging a rule requiring plaintiff to show cause, etc., will be dismissed when the transcript does not contain a copy of the judgment-roll.</p>

<p>Negligence — Dangerous Premises—Pleading.—A complaint alleged that defendants were the owners of a certain lot in San Francisco; that on or about a certain day they did unlawfully, wrongfully, and negligently maintain thereon, and about ten feet from a public traveled street, a privy-vault, filled to the surface with the contents thereof, and of the depth of ten feet, without any guard or protection, and without any inclosure to separate it from the public street; that prior thereto they did unlawfully and negligently remove the fences inclosing the privy-vault, and all the covering around the same, and removed the building adjoining same, and prior thereto had commenced grading said lot and removing the earth therefrom, the premises being then open and accessible for teams and workmen; that by reason of their negligent acts in leaving the vault thus exposed and unprotected, without any fence or inclosure separating it from the street, plaintiff’s minor child, three years of age, without any fault of plaintiff, fell into the same, and was drowned; wherefore he prayed damages. Held, that it stated a cause of action.1</p>

<p>Appeal—Brief Stricken Out for Impropriety.—Respondent’s brief, after charging the commission of perjury by appellant in his answer, as to a fact alleged to be within his attorney’s knowledge, continued: “When counsel can be permitted to draft pleadings and present them to their clients for verification, and the pleadings being drawn from facts within the knowledge of counsel, and the counsel causes his client to willfully commit perjury,” etc. Held, a gross violation of professional ethics, and that the brief should be stricken out, with permission to file another within ten days, or the judgment would be reversed without an inspection of the record.</p>

F. Sullivan, Judge. Action by Hugh Mair against Charles Forbes and Mary A. Forbes, executor and executrix of the will of Alexander Forbes, deceased, upon a bill of exchange alleged to have been drawn by Robert Knox on said Alexander Forbes, for £500, and accepted by the latter.- The complaint alleged that said Knox, for value, and before maturity, indorsed and delivered the same to respondent, who was the holder and owner thereof, and that the defendants refused to pay it…

<p>APPEAL from Superior Court, Santa Clara County; F. E. Spencer, Judge.</p>

P. Gardiner, Judge. Action by Abe Haas, assignee in insolvency, against W. F. Whittier and others. Judgment was rendered for defendants, and the plaintiff obtained an order for a new trial.

<p>Appeal—Assignment of Errors.—Where an appellant fails to point out any error in the order or judgment appealed from, within the time allowed him to file briefs, the supreme court will not examine the record, but will affirm the decision of the trial court.</p>

<p>APPEAL from Superior Court, Alameda County; N. Hamilton, Judge.</p>

<p>Appeal.—A Judgment will not tie Reversed for the want of a finding on an issue with respect to which there was no evidence; and on appeal on the judgment-roll alone it will not be presumed, against the correctness of the judgment, that there was evidence on a point as to which there was no finding.</p>

F. Sullivan, Judge. C. Razzo sued N. Varni and others for trespass.

<p>New Trial—Insufficient Findings of Jury.—A new trial must be granted where the findings of the jury do not determine all the material issues made by the pleadings.</p> <p>New Trial—Motion, What Should. Set Forth.—Under Code of Civil Procedure of California, section 659, relating to motions for new trial and their contents, it is not necessary, in a motion for new trial for failure to pass on all such issues, to set out in the statement such failure as a ground for the motion.</p>

San Francisco; John F. Finn, Judge. Action by Honora McGrath and James McGrath, her husband, to cancel a deed made by Michael Hyde to Ellen Hyde, his wife, the female plaintiff being the daughter and heir of Michael Hyde, who died after the deed was made. Judgment for plaintiffs, and defendant appeals.

<p>APPEAL from Superior Court, Lassen County; M. Marsteller, Judge.</p>

<p>APPEAL from Superior Court, Santa Clara County; F. E. Spencer, Judge.</p>

<p>Building Contract.—Assumpsit will Lie to Recover a balance due on a special contract to erect a building, and it is not necessary to allege the performance of all the conditions to be performed before payment was due.</p> <p>Appeal—Conflicting Evidence.—The Verdict of the Jury will not be disturbed because the evidence is conflicting.</p> <p>Trial.—Instructions are Properly Refused when the charge of the court covers all the points in the ease, including those found in the instructions requested.</p> <p>Law of Case.—Where, After the Reversal of a Judgment in a mechanic’s lien suit, the case is remanded for a new trial, and the plaintiff amends his complaint and sues in assumpsit, the law of the decision on the appeal is no longer the law applicable to the pleadings.</p>

H. Rearden, Judge. Messrs. Moyle and Holling, stockholders in the Andes Silver Mining Company, sued Michael Landers and others, directors of said company, to obtain relief from certain frauds perpetrated by the directors. A demurrer to the complaint was sustained, and plaintiffs appeal.

<p>Habeas corpus.</p>

<p>Appeal—Failure to File Briefs.—When a case is submitted, without oral arguments, on briefs to be filed, and none are filed, the judgment will be affirmed without looking into the record.</p>

E. Greene, Judge. Action by James Smith and others against Henry P. Irving. A demurrer to the petition was sustained and plaintiffs appeal. Pending appeal, Henry B. Irving, respondent, died, and William Matthews, his executor, was substituted in his place.

Finn, Judge. Action by Pierre Priet and others against J. de la Montanya and others on the official bond of Charles Hubert, as treasurer of the city and county of San Francisco, to recover the balance due and unpaid on a warrant held by plaintiffs and drawn by the board of Dupont street commissioners on the “Dupont street fund.” Plaintiffs had judgment. Defendants moved for a new trial, which was denied, and from the judgment and order denying their motion they appeal.

M. Dillard, Judge. Action by H. P. Stone against James Hammell to recover $1,000 and interest. Judgment for plaintiff and defendant appeals. Code of Civil Procedure sections 337, 339, provide that an action founded upon a writing executed in said state must be brought within four years after the right of action accrues, and an action upon a contract, etc., not founded upon a writing, within two years thereafter.

<p>APPEAL from Superior Court, Colusa County; E. A. Bridgford, Judge.</p>

Hamilton, Judge. Action to set aside fraudulent conveyances, by Fox against Dyer and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

<p>Mechanics’ Liens.—A Claim of Lien, Filed by a Materialman, giving the names of several persons to whom different portions of the material were furnished at different times, without any designation as to what portion was furnished to each severally, does not sufficiently comply with Code of Civil Procedure of California, section 1187, requiring the claim to state “the name of the person by whom he was employed, or to whom he furnished the materials.”</p> <p>Mechanics’ Liens.—A Description of the Materials Furnished as “nails, spikes, iron, steel, picks, shovels, and other like material,” is too indefinite and uncertain to sustain the lien.1</p>

<p>APPEAL from Superior Court, Marin County.</p>

<p>APPEAL from Superior Court," City and County of San Francisco; F. W. Lawler, Judge.</p>

Action by D. H. Bibb and others against H. H. Bancroft for breach of contract. It appeared in evidence that plaintiffs, when seeking the .contract, were referred by defendant to one Cook, and were told that anything they would do with him would be all right.

H. Rearden, Judge. Action by Adelia A. TafEt against the Presidio and Ferries ' Railroad Company, a corporation, for the conversion of stock, the property of plaintiff. Judgment for plaintiff, and defendant appeals.

Keyser, Judge. This proceeding to obtain the removal of Thomas W. More as administrator of the estate of William H. Moore, deceased, was instituted in the superior court of Santa Cruz county by W. H. Moore, a son and heir at law of the decedent, but was subsequently removed to the superior court of Santa Clara county.

<p>Judicial Notice—Judgments.—Code of Civil Procedure, section 1875, subdivision 3, providing that courts may take judicial notice of “public and private official acts of the .... judicial department of this state,” does not authorize a court to dispense with formal proof of its judgment in another cause.</p> <p>Bills and Notes.-—In an Action Against the Maker of a Note for the amount paid thereon by the indorser, it is no defense that the indorser paid it without proper demand and notice; for, as these are for the benefit of the indorser, he may waive any defects therein.</p> <p>Bills and Notes.—The Execution by an Indorser of His Own Note, which is given and accepted in full payment of the note on which he is liable as indorser, constitutes a novation under Civil Code, section 1530, providing that “novation is the substitution of a new obligation for an existing one,” and is made (section 1531) “by the substitution of a new obligation between the same parties with intent to extinguish the old obligation”; and the maker of the first note becomes liable to the indorser, though the holder, instead of canceling it, indorsed it without recourse to the indorser.</p>

<p>APPEAL from Superior Court, Sacramento County; John Hunt, Judge.</p>

<p>Factors—Lien—Conversion.—Defendant Agreed to Sell plaintiff’s wine at a certain net price, the excess to be divided equally between them. After receiving a part thereof, and making advances to plaintiff thereon, and paying freight, in accordance with the agreement between them, defendant refused to receive any more; and, before any of the wine had been sold, plaintiff demanded a return of that which defendant had received, without offering to pay back the money which defendant had advanced and expended for freight. Held, that under Civil Code, sections 2026, 3051, 3053, defining a factor, and giving him a lien on the property placed in his hands for money advanced' and expended, defendant was a factor, and had a lien on the wine, and a right to retain it, so that his refusal to comply with the demand did not constitute a conversion.</p>

<p>Wrongful Attachment.—In an Action for the Alleged Wrongful Attachment and sale of plaintiff’s wagon to satisfy another’s debt, evidence of its cost price is admissible to aid in determining its value at the time of the alleged conversion.1</p> <p>Sale.—A Memorandum Given as a Bill of Sale of a “4-horse Concord” wagon, executed by the debtor to plaintiff, is competent evidence on the question of the sale, by the debtor to plaintiff, of the Concord wagon in dispute.</p> <p>Sale—Change of Possession.—Where There is Evidence That the Wagon was sold to plaintiff through her agents, it is competent to show that delivery to and possession by one agent, for plaintiff, immediately followed the sale.</p> <p>Wrongful Attachment.—A Question as to Whether the Debtor, Subsequent to the sale and up to the time of the levy of the attachment, exercised any acts bf ownership or control over the property, is not objectionable, as calling for opinion evidence.1</p> <p>Sale.—The Plaintiff’s Theory was That No Change of Possession was necessary if the property, at the time it was sold, was in the possession of a third party, who held it as plaintiff’s agent by agreement of both parties. Defendant contended that the debtor, who was the agent’s husband, had never transferred his possession as required by Civil Code, section 3440. Held, that instructions on the law applicable, if the jury should find the evidence to sustain the theory of either party, were not contradictory.</p> <p>An Appeal from a Judgment Which is not Taken Within a Tear after the entry of the final judgment, as required by Code of Civil Procedure, section 939, will be dismissed.</p>

<p>APPEAL from Superior Court, Marin County.</p>

J. McCann, Judge. Action by Isabella Labish against Jane Hardy to set aside a deed to quiet title to certain premises in the city of Santa Cruz. In 1847, plaintiff’s parents went into possession of the land in dispute, which was then public land of the United States, and continued to occupy it, together with their children, as their home, until the death of plaintiff’s mother, which occurred in June, 1856, at which time plaintiff was seven years old.

<p>Judge—Disqualification.—Under Code of Civil Procedure, section 170, disqualifying judges to act who are interested in the controversy, where three parties are adversely claiming to be the owners of a certain tract of land, one of whom is the judge, and the other two adverse litigants before him, asking him to determine which of them is the owner of the land which he claims to own, and to appoint a receiver for said land, a writ of prohibition will issue to prevent him from acting further in said cause.1</p>

B. Mahon, Judge. Action by James B. Gregory against Denis Keating and Mary Jane Keating to foreclose three mortgages executed by said Denis Keating to plaintiff. Defendant Mary Jane Keating claimed an adverse and paramount title to the buildings on the mortgaged premises. Plaintiff obtained a judgment, and defendants appealed.

<p>Ejectment—Pleading.—Where the Complaint in Ejectment simply sets forth a deraignment of title, and then alleges that “while plaintiff was the owner, and entitled to the possession, as hereinbefore mentioned and set forth, the defendant entered,” the allegation as to ownership will be disregarded, as stating a mere conclusion.</p> <p>Ejectment—Homestead.—Where the Complaint Alleges That the Land in controversy was set off as a homestead to the widow of a deceased owner, it must state whether the land was set off in fee or for life, since an assignment of a homestead to a widow in fee out of her deceased husband’s estate, though erroneous, is conclusive unless appealed from.</p>

<p>APPEAL from Superior Court, Los Angeles County; A. W. Hutton, Judge.</p>

<p>Inferior Courts—Manner of Establishing.—Constitutional article 6, section 1, provides that “the judicial power of the state shall be vested in the senate sitting as a court of impeachment, in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may establish in any incorporated city or town, or city and county.” 'Section 13 provides that the legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1, and shall fix by law the powers, duties and responsibilities of the judges thereof. Held, that an inferior court can be established only by the passage of an act of the legislature, and its approval by the governor, or its passage over his veto, in the same manner as any other law is enacted under constitutional article 4, sections 15, 16.1</p> <p>Police Courts—Manner of Establishing.—Laws of 1887, pages 88-90 (Constitutional 16th Amend., amending article 11, section 8), provides that any city of more than ten thousand, and not more than one hundred thousand inhabitants may frame a charter for its own government “consistent with and subject to the constitution and laws of the state,” and, if ratified by a majority of the qualified voters of the city, it shall be submitted to the legislature for its approval or rejection as a whole and, if approved -by a majority vote of the members elected to each house, it shall become the charter of such city, and the organic law thereof, and “shall supersede any existing charter, and any amendment thereof, and all special laws inconsistent with such charter.” Held, that this does not dispense with the requirements of constitutional article 6, section 13, and that the provisions of a charter establishing a police or inferior court in such city which depend alone for their validity on a joint resolution of approval of the charter by a majority of the members of the legislature, but in no way submitted to or passed on by the governor, are unconstitutional, and the acts of such court are void.</p> <p>Fox, X, dissenting.</p>

<p>APPEAL from Superior Court, Nevada County.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; John F. Finn, Judge.</p> <p>On application for rehearing. No opinion was rendered on previous affirmance of the judgment.</p>

<p>Appeal.—Where the Evidence is Conflicting, an order granting a new trial will not he disturbed on appeal.</p>

<p>Mortgage Foreclosure—Receiver,—Where a Mining Company operates its various mines under one system, and the proceeds of the ore extracted from each are used indiscriminately, for the common benefit of all, a receiver appointed on the foreclosure of mortgages covering a part only of the company's property, with power to take possession, of the mortgaged premises and to carry on the mines, who is permitted by the company to take possession of its entire property, and to work all its mines, rendering them more valuable and more capable of paying creditors, cannot be considered a trespasser, and is not personally liable to a general creditor of the company for sums realized by him from a mine not covered by the mortgage.</p> <p>Mortgage—Description—Mines and. Mineral Lands.—A mortgage of specifically described land, together with all the lands, mines, and minerals of every kind belonging to the mortgagor in a designated county, covers all mineral lands in that county shown by proper evidence dehors the mortgage to have belonged to the mortgagor at the time of its execution.</p>

<p>APPEAL from Superior Court, Marin County; E. B. Mahon, Judge.</p> <p>On rehearing. For former report, see ante, p. 144, 22 Pac. 407.</p>

Petition to prove bill of exceptions. Code of Civil Procedure, section 652, provides that, if a judge refuses to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same.

<p>APPEAL from Superior Court, City and County of San Francisco; T. K. Wilson, Judge.</p>

<p>Mortgages.—A Conveyance of Land to Secure the Payment of money, though the grantee is put in possession under an agreement for an accounting for the rents and profits, is only a mortgage, and does not pass the legal title.</p> <p>Mortgage — Mortgagee in Possession — Accounting. — By an agreement between a mortgagor- and mortgagees, the latter were to have the sole right to the possession of the land mortgaged, accounting for the rents and profits, and were to select a person to manage the property. At an accounting against the mortgagees, the latter testified that they were to send a man to take possession, in order to take care of the personal property security, and that everything was to be run in their name. They also spoke of the man selected, both in their testimony and in the pleadings, as their agent. Held, that for the purposes of possession and accounting, such person must be considered as the agent of the mortgagees only, although his selection was approved by the mortgagor, and his salary was paid as a part of the running expenses. In such case the mortgagees are held to the exercise of reasonable diligence in the management of the property mortgaged.</p> <p>Mortgage—Mortgagee in Possession—Accounting.—Where both the agent and the defendants kept their own cattle on the mortgaged land, along with the cattle of the mortgagor, the wrong done was satisfied by charging defendants with a proportion of the running expenses, and with the value of the use of the land.</p> <p>Mortgage — Mortgagee in Possession — Accounting.—1STothing was chargeable to defendants on account of horses which they sent to the land, and which were needed and used for farm work.</p> <p>Mortgage—Mortgagee in Possession—Accounting.—One of the notes given by the mortgagor providing for compound interest if not paid when due, the net receipts were properly applied first to the payment of the interest on such note.</p> <p>Mortgage — Mortgagee in Possession—Accounting.—Sums advanced to the wife of the mortgagor without any order from him were not chargeable against his estate.</p> <p>Pleading—Items of Account.—It not being necessary, under Code of Civil Procedure, section 454, to give an itemized account in pleading, the findings need not give the items of the account.</p> <p>Sale—Estoppel from Accepting Bill of Sale.—One who accepts a bill of sale purporting to transfer a certain number of cattle is not estopped thereby from denying that he actually received that number.</p> <p>Appeal—Presumptions.—As Against Respondents on appeal, the findings of the lower court must be presumed to be true. It will not be presumed that an error was the result of inadvertence.</p>

<p>Appeal Bond.—A Judgment Against a Surety on an appeal bond, rendered more than thirty days after the filing of a remittitur from the supreme court, is valid, though the surety had no notice of the motion therefor; since the undertaking, as prescribed by Code of Civil Procedure, section 942, is that, "if the appellant does not make such payment within thirty days after the filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may be entered, on motion of the respondent, in his favor, against the sureties, for such amount together with interest.” This is an express waiver of further notice.</p>

<p>APPEAL from Superior Court, Santa Barbara County; R. M. Millard, Judge.</p>

<p>Appeal—Statement.—A Motion on the Minutes for a New Trial having been overruled; the only statement that could then be pending is a statement on appeal, and the time for that having expired, and no transcript having been filed in the time limited, the appeal will be dismissed.</p>

<p>APPEAL from Superior Court, Los Angeles County; Walter Van Dyke, Judge.</p>

<p>APPEAL from Superior Court, El Dorado County; George E. Williams, Judge.</p>

<p>APPEAL from Superior Court, Contra Costa County.</p>

Code of Civil Procedure, section 1050, provides: “An action may be brought by one person against another for the purpose of determining an adverse claim, which the latter makes against the.former, for money or property upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other for which plaintiff is bound as a surety.”

<p>Mechanic’s Lien—Notice—Sufficiency of Description.—Where a mechanic’s lien notice describes the property as a dwelling-house, situate upon a certain lot, and it turns out to be situated partly on that lot and partly on another, the lien cannot be enforced, as there is no lien on that part of the house not situated on the lot named, and it would work great injury to the owner to allow the lien to be enforced against a part only of the house.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>Vendor and Vendee—Disaffirmance by Vendee.—Where a contract for the sale of land provides that the vendee may disaffirm the sale at the end of a year, in which event he is to be repaid his purchase money, with ten per cent interest, on giving thirty days’ notice of his intention to disaffirm, the vendor cannot complain that the vendee gave more than thirty days’ notice of his intention, as this is to the vendor’s advantage.</p> <p>Vendor and Vendee—Disaffirmance by Vendee.—A further provision in the contract of sale that on its disaffirmance the vendee should surrender the title acquired by him thereunder is sufficiently complied with by an offer, in the notice of disaffirmance, to surrender his claim to the land on the repayment to him of the purchase money; and, on the vendor’s refusal to make such repayment, the vendee may maintain an action therefor without tendering a release of his rights under the contract, Code of Civil Procedure, section 2074, providing that an offer in writing to deliver a written instrument is, if not accepted, equivalent to a tender of the instrument.</p>

<p>Special Assessments.—Where Plaintiff, in an Action to Collect a street assessment, has made prima facie proof of the regularity of the proceedings, under act of March 18, 1885 (Stats. 1885, p. 147), and thereafter introduces, without objection, certain parol proof, a refusal to strike this out, if error, is without injury, as such proof was unnecessary.</p> <p>Trial.—An Objection to an Offer to Prove Certain Negative conclusions is properly sustained where there is no offer of the evidence from which the conclusions are to be drawn.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>Mexican Grants—Validity—Possession.—A Mexican grant of eight hundred varas square, “at a place called Rincon, embraced within the limitation of Yerba Buena,” is so vague and uncertain that nothing passes by force of the grant alone, nor will it be helped out by possession taken under it by the grantee, as the Mexican law, then in force, required possession to be given “by judicial authority, with the citation of all those bounded upon him.”</p> <p>Mexican Grants—Validity—Record.—Such grant is also fatally defective, where the original application, to which is attached each successive paper or certificate up to and including the final grant, fails to show on its face that the grant was made with the approval of the pueblo, of the governor, and of the departmental assembly, and that a record of such fact was made in the public archives, as required by the laws of Mexico then in force.</p> <p>Evidence—Judicial Notice.—Under Code of Civil Procedure, section 1875, subdivision 3, which permits courts to take judicial notice of the acts of the judicial department of the state, the supreme court will judicially notice the vacation of a decree confirming a Mexican grant.</p> <p>Mexican Grants—Action for Possession.—One Wlio Alleges that he has a perfect title to land under a Mexican grant, not barred by the statute of limitations, may maintain a legal action for the possession, and there is no necessity for the interference of a court of equity to enable him to assert his rights.</p> <p>Mexican Grants—Limitation of Actions.—Since the Passage of Statutes of 1863, page 327, which gives five years “from the date of its passage” in which one claiming title to land under a Spanish or Mexican grant may commence an action for its enforcement, the want of confirmation, patent, or survey of such a grant by the United States government has not operated to interrupt the running of the statute.</p> <p>Pleading.—Where a Pleader, in His Complaint, alleges a fact, and then sets out the written evidence on which he relies for proof of the fact, the complaint will be held good for only what the evidence proves.</p>

<p>Mexican Grants—Description—Confirmation—Conflicting Patents.—In ejectment, plaintiffs claimed under a Mexican grant that had been confirmed by the federal district court in 1857, and had been patented to plaintiffs by the United States in 1858, in accordance with the decree of confirmation which described the land by specified boundaries, giving lines and monuments.. The survey made by the surveyor general in carrying out the decree of confirmation conformed to the exterior boundaries, as described in the decree, which mentioned no reservation within the limits of these exterior boundaries. There was a clause in the certificate of survey which read: “Excepting, reserving, and excluding from the tract, as thus surveyed, that portion thereof covered by the navigable waters of the inner bay of San Pedro, and which are included within the following described lines.” The land in controversy was an island lying within these lines. This island, together with other land, lying within the inner survey, was patented to defendant by the United States in 1881. Held, that the Mexican grant, as confirmed and patented by the United States to plaintiff, included the whole space lying within its exterior boundaries, and that defendant had acquired no title under his patent.</p>

Armstrong, Judge. Action by Ira P. Rankin and others against the Amazon Insurance Company on a fire insurance policy. From a judgment for plaintiffs, defendant appeals.

<p>Employer’s Liability—Contributory Negligence.—Plaintiff, an adult, had worked about defendant’s sawmill for about four years, and for nearly a year as helper to the sawyer at an “edger,” consisting of eight circular saws arranged upon a table four feet high. Under the table, six inches below the saws was a revolving shaft, with a collar upon it fastened by a projecting set-screw. Plaintiff testified that on several occasions he had run the edger himself, by direction of his employer, after telling him that he did not understand machinery; that the saws were stopped and started at will by pulling, respectively, two ropes which hung near; that the morning of the accident was quite dark, but there were no lights; that he had been directed to run the machine, and, while doing so, a sliver dropped upon the shaft which he attempted to remove, as he had seen the sawyer do, without stopping the saws, and while doing so his sleeve was caught by the set-serew, of whose existence he was ignorant, and his hand cut off. Held, that there was no evidence of negligence, and that he was guilty of contributory negligence.</p>

<p>APPEAL from Superior Court, Los Angeles County; Lucien Shaw, Judge.</p>

<p>Appeal.—Where No Transcript on Appeal is Filed within forty days as required by the rule of the court, and no showing made to take the case out of that rule, the appeal will be dismissed on motion of respondent.</p>

<p>APPEAL from Superior Court, Stanislaus County; William 0. Minor, Judge.</p>

<p>Fraudulent Conveyances.—The Transfer of a Debt by a Creditor to a third person, to whom the debtor afterward makes a part payment, and executes a note for the balance, constitutes the transferee the “successor in interest” of the creditor, within the meaning of Civil Code, section 3439, which renders all conveyances by a debtor, made with the intent of defrauding any creditor, void, as against all creditors and their “successors in interest.”1</p> <p>Fraudulent Conveyance.—A Gift of Land by a Father to His Son is not void as against creditors of the father, unless the latter had not, at the time of the gift, sufficient property subject to execution to satisfy his debts.</p> <p>Fraudulent Conveyance—Gift to Son.—The Return of an Execution nulla bona five years after the making of the gift is not sufficient to establish the father’s insolvency when the gift was made.</p>

<p>APPEAL from Superior Court, Ventura County; B. T. "Williams, Judge.</p>

B. Campbell, Judge. Code of Civil Procedure, section 631, provides that the right to trial by jury is waived (1) by failing to appear at the trial; (2) by written consent in person or by attorney, filed with the clerk; (3) by oral consent in open court entered in the minutes.

<p>Shipping.—Wharfage Charges Imposed by the Board of Harbor commissioners on the owner of a barge and lighter, which were kept within a slip constructed, repaired, and dredged by the board, are valid, and not in violation of the constitution of the United States, article 1, section 10, which prohibits a state from levying duty on tonnage without the consent of Congress.</p> <p>Shipping—Wharfage Charges.—Where a Lighter Actually Received the support of a wharf in discharging into and loading from a vessel tied to the wharf, the fact that the vessel lay between the wharf and the lighter, and that the owner of the vessel had paid regular wharfage rates, does not affect the right of the board of harbor commissioners to collect wharfage rates from the owner of the lighter.</p> <p>Shipping—Wharfage Charges—Discrimination.—While act of March 17, 1880, which amends act of March 15, 1878, so as to exempt vessels engaged solely in domestic commerce from the wharfage tax, to which vessels engaged in interstate commerce still continue subject, may be invalid, in so far as it discriminates against vessels engaged in interstate commerce, yet the board of harbor commissioners, which is the agent of the state, with only such powers as are conferred on it by the legislature, cannot disregard the amendment, and collect wharf-age taxes from vessels engaged solely in domestic commerce.</p>

<p>Fixtures.—Houses Built on Mud-sills Resting upon the Soil, which is not disturbed, are affixed to the land within the terms of Civil Code, section 660, declaring that “a thing is deemed to be affixed to the land when it is ... . permanently resting upon it, as in the case of buildings.”</p> <p>Fixtures.—Such Houses Built by a Contractor for a Vendee in possession, who has paid part of the price for the land, and who, being unable to pay for the houses, turns them over to the contractor, cannot be removed from the freehold by the latter. Distinguishing Hendy v. Dinkerhoff, 57 Cal. 3.</p> <p>Fixtures.—A Vendee Who has not Paid the Entire Purchase Price cannot claim the right to remove houses built by him on the land on the principle that, since equity regards that as done which ought to be done, he should be deemed the trustee of the purchase money for the vendor, and the equitable owner of the land, with the right to deal with it as he pleases.</p> <p>Fixtures.—A Vendee Who, While in Possession Under an Ex-ecutory contract of purchase, has built houses on the land before paying the entire purchase price, may be enjoined by the vendor from removing them.</p>

<p>Attorneys—Disbarment—Accusation of Larceny.—Under Code of Civil Procedure, section 287, providing that an attorney may be disbarred for the reason, among others, that he has been convicted of a crime involving moral turpitude, the supreme court has no authority to proceed against a member of the bar upon a mere verified accusation of larceny, preferred by another attorney.1</p>

<p>APPEAL from Superior Court, Orange County; J. W. Towner, Judge.</p>

<p>APPEAL from Superior Court, San Joaquin County; J. G. Swinnerton, Judge.</p>

<p>APPEAL from Superior Court, Tehama County; Charles P. Braynard, Judge.</p>

<p>APPEAL from Superior Court, Sonoma County; S. K. Dougherty, Judge.</p>

<p>Building Contract—Bond.—Where in an Action for a Breach of contract it appeared that defendant verbally accepted plaintiff’s written offer to furnish stone for a building defendant had undertaken to build, and that plaintiff was required, as one of the conditions, to execute a bond for the performance of the work and to commence the work as soon as possible, the failure of plaintiff to furnish or tender the bond within eight or nine days precludes his right to recover prospective profits, when nothing has been done under the bid.</p>

<p>Appeal—Weight of Evidence.—Where the Sole Question is one of fact, and the evidence is sufficient to support the findings, the judgment will be affirmed.</p>

<p>Rehearing—New Question—Death Sentence.—On appeal from a sentence of death, the supreme court will consider questions raised for the first time in a petition for rehearing.</p>

<p>Motion before Supreme Court.</p>

<p>Appeal.—Where Appellant has Filed $To Brief showing the particular ground on which he relies for reversal, and on examination of the record no error prejudicial to him is apparent, the judgment will be affirmed.</p>

Minor, Judge. Action by William J. Lord against Stephen Thomas for unlawful detainer and for rent. Judgment was rendered for plaintiff for $183, b.ut restitution of the premises was denied. Defendant appeals. Affirmed.

<p>APPLICATION for writ of mandate by the Home of the Care of the Inebriates against Reis, as treasurer of the city of San Francisco.</p>

S. G. Plielps sued J. E. Brown and others to recover money had and received for plaintiff’s use. Judgment for defendants and plaintiff appeals. Reversed.

<p>Application by Tibbetts and others for mandamus to compel John L. Campbell, judge of the superior court, to receive certain evidence in a pending suit. Writ denied.</p>

Cross, Judge. Action by Archibald Marsh against John H. Hendy to determine a contest as to the right to purchase from the state certain swamp lahds. J. R. Langley and others intervene. Judgment being entered in the court below against both plaintiff and defendant, each moved for a new trial, which being refused, they appeal from the judgment and orders denying the motions. Affirmed.

<p>APPEAL from Superior Court, Los Angeles County; Walter Yan Dyke, Judge.</p> <p>Action by the First National Bank of Santa Monica against H. I. Kowalsky. Judgment for plaintiff. Defendant appeals. Appeal dismissed.</p>

<p>Vendor and Vendee—Deed by Corporation—Marketable Title. A vendor agreed to convey a good and sufficient title or refund any payments made. Defendants refused to accept the deed offered. It appeared that one of the deeds relied upon by the vendor in the chain of title was executed by the president and secretary of an incorporated association under their private seals, and recited that they were authorized at an annual meeting of the association to make deeds. It was held that singe both the recital in the deed from the association and the absence of the corporate seal failed to show any authority from the board of directors to convey, the plaintiff did not offer a good paper title within the meaning of the contract.</p> <p>Vendor and Vendee—Title Based on Statute of Limitations.— A purchaser is not bound to accept a title resting on the statute of limitations, or to take the risk of determining from facts which he might learn dehors the record whether or not the statute of limitations can successfully be pleaded against an adverse claim.1</p> <p>Vendor and Vendee—Defects in Title.—Defendants are not called upon specifically to point out defects in a title where the contract does not require it, and especially where the flaw is in a deed from a dissolved corporation.</p> <p>Vendor and Vendee.—The Flaw in the Deed from the Corporation relates directly to the authority of the officers to act, and is not a defect which can be cured by section 1207 of the Civil Code, which provides that any instrument affecting real property recorded prior to January 30, 1873, shall be deemed to impart notice of its contents to subsequent purchasers and encumbrancers, notwithstanding any defect, omission or informality in the execution of the instrument or in the certificate of acknowledgment or in the absence of any such certificate.</p> <p>Vendor and Vendee—Marketable Title.—A vendor may be able through litigation to establish a perfect title, and yet be unable to enforce a contract for the sale of his land.1</p>

<p>Limitation of Actions.—Where a Seller of Stocks Fails to Deliver them, limitations against his implied promise to refund the purchase money begin to run from the date of his notice to the purchaser of inability to deliver.</p> <p>Limitation of Actions—New Promise.—After such notice, verbal promises to deliver the stocks when he could will not take the ease out of the statute of limitations, by reason of Code of Civil Procedure, section 360, which provides that no promise is sufficient for such, purpose unless in writing, signed by the party to be charged thereby.</p>

<p>Ex Post Facto Law—Prisoners Awaiting Execution.—Penal Code, section 1217, provides that the warrant for the execution of a prisoner sentenced to death must appoint a day for the execution, “which must not be less than thirty or more than sixty days from the time of judgment.” Section 1227 imposes on the sherifE the duty of executing criminals. Section 1229 directs that the execution must take place in the county where judgment is rendered. Laws of 1891, page 272, amended these sections by providing that the day of execution “must not be less than sixty or more than ninety days from the time of judgment,” and that the warrant must also direct the sherifE to deliver the prisoner to the warden of one of the state prisons, on which officer is imposed the duty of executing criminals, and directing that the execution take place in the prison to which the criminal is delivered. Held ex post facto as regards prisoners awaiting execution, because imposing greater punishments by the confinement in the state’s prison than the acts repealed.1</p> <p>Ex Post Facto Law—Unconstitutionality in Part.—Where it is evident that the legislature in passing such statute intended it to apply the new punishment alike in all cases of murder, past as well as future, and would not have passed it except as an entirety, and that its partial enforcement would produce effects which the legislature would never have sanctioned, the whole act must be declared unconstitutional.2</p>

<p>Injunction—Sale of Lands on Execution.—In an action to restrain the sale of land under execution against plaintiff’s grantor the court should continue the restraining order pending final determination, and it is an abuse of discretion to dissolve it upon the filing of an answer denying the allegations of the bill.</p> <p>Injunction—Denials on Information—Dissolution.—Under Code of Civil Procedure, section 437, authorising denials upon information and belief, such denials, while sufficient to raise an issue, will not justify the dissolution of a temporary injunction on the ground that the bill is fully denied by the answer.</p>

Wallace, Judge. Action by L. Kreiss against A. P. Hotaling. On submission to arbitration an award was rendered, on which judgment was entered and perpetually stayed. Defendant appeals. Affirmed.

<p>Decree of Distribution—Value of Items.—Where a decree of the probate court distributed to certain trustees the legal title to an undivided one-third of certain property, “that is to say, .... one-third of the aggregated value of all the six items hereinafter specified,” and contained a statement of such items, together with the amounts thereof, the values of the various items were thereby fixed.</p> <p>Probate of Will—Litigation Over Charity—Attorney Fees.— Where a testator leaves a portion of his estate to a charity, and the charity engages in litigation involving the construction of the will, its attorneys’ fees will not be chargeable against the whole estate, but only against the portion devised to it.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; John Hunt, Judge.</p> <p>Action by Sneath against Waterman and others. Judgment for defendants. Plaintiff appeals. On motion to dismiss the appeal. Motion denied.</p>

A. Gregg, Judge. Action by John Cross against F. C. Reed. Prom a judgment for defendant, and from an order refusing a new trial, plaintiff appeals. Affirmed.

In the matter of the estate of Taatemi Sweet, deceased. On motion to dismiss an appeal from a decree of distribution. Motion denied.

<p>APPEAL from Superior Court, Los Angeles County ; Walter Van Dyke, Judge.</p> <p>Action by Frank C. Young against D. F. Donegan. Judgment for plaintiff. Defendant appeals. Affirmed.</p>

<p>APPEAL from Superior Court, San Diego County; W. L. Pierce, Judge.</p> <p>Action by T. J. Monahan against the county of San Diego for fees as constable in criminal eases. Judgment for plaintiff. Defendant appeals. Affirmed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; J. C. Hebbard, Judge.</p> <p>Maggie Nagle was convicted of petit larceny, and appeals. Affirmed.</p>

F. Hakes, Judge. Action by James S. Cain against M. J. Cody to recover possession of certain personal property and damages for its detention. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

<p>An Appeal not Taken Within the Time Prescribed by law will be dismissed.</p>

<p>Appeal Without Merit—Damages as Costs.—Defendant in ejectment, after pleading the general issue and possession for the statutory period, filed a disclaimer of any interest, but from a judgment for plaintiff, after a trial by the court, findings of fact being waived, he appealed. The record, however, contained no bill of exceptions or other showing of error, and defendant filed no brief or points and authorities. Held, that the appeal being manifestly without merit, $100 damages would be directed for plaintiff as part of the costs on appeal.</p>

<p>Appeal Without Merit—Damages.—To a Complaint in the ordinary form of ejectment a general denial and the statute of limitations were pleaded. Findings of fact were waived, and judgment was rendered for plaintiff. Defendant, on appeal, furnished no bill of exception or other record of error, and filed neither brief nor points and authorities. Held, that the appeal being manifestly without merit, payment of $100 damages, as part of costs on appeal, would be directed for respondent.</p>

Action by Charles E. Rising against E. A. Gibbs to set aside and cancel a deed to land. Plaintiff had judgment, and defendant appeals. Affirmed.

Crouch, Judge. Action by Mrs. PI. S. Kelley against William Owens, executor, and Helen M. Owens. Prom a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals. Eeversed.

Campbell, Judge. Two actions by A. N. Naftzger against W. F. Montague and others on two promissory notes. From a judgment for defendants in both actions, plaintiff appeals. Affirmed as to one action and reversed as to the other.

T. Williams, Judge. Action by Thomas Barrows and others against Lewis C. Fox and others. From a judgment adjusting the rights of the parties, and an order refusing a new trial, plaintiffs appeal. Affirmed.

<p>Vendor and Vendee—Quantity of Land Conveyed.—Where a contract is made to sell a certain ranch, and the deed executed in pursuance thereof conveys all the land that the vendor has pointed out to the vendee as constituting the ranch, or has proposed to sell to him, and all that the vendee understood to be included in the agreement at the time it was executed, the vendee cannot afterward claim that an adjoining tract belonging to the vendor, and of which another person had possession under a contract of sale, should have been conveyed to him under the agreement as part of the ranch.</p>

<p>APPEAL from Superior Court, ^Nevada County; John Caldwell, Judge.</p> <p>Action by one Austin against one Gagan and others. From an order granting a new trial, defendants appeal. Affirmed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>Action by Sirkus against the Central Railroad Company. From a refusal to grant a new trial, plaintiff appeals. Affirmed.</p>

<p>Sale—Change of Possession—Evidence.—In an action of claim and delivery against a sheriff for seven horses taken on attachment against plaintiff’s vendor, it appeared that the sale to plaintiff was bona fide, and that there was an “immediate delivery.” The evidence showed that soon after the delivery plaintiff employed a man who had been in the service of his vendor, and put him in charge of the horses; that with six of them in a team he and said vendor, with a like team, did a large amount of plowing for a third person; that while doing the plowing one of the horses of plaintiff’s team was exchanged, for convenience in working, for one of the horses of his vendor’s team. Held, that the evidence supported the finding that there was an “actual and continued change of possession” following the sale of the property to plaintiff.</p> <p>Sale—Change of Possession—Evidence.—In such case, evidence as to whom credit was given for the plowing done by plaintiff’s team is immaterial, in the.absence of an. offer to show that the credit was given by his direction.</p> <p>Sale—Change of Possession—Evidence.—In such case, a witness having testified in chief that he never heard the vendor, during a certain time, make any statement as to the ownership of the property, it was proper to ask him, on cross-examination, if the vendor did not, in a particular conversation during that time, tell him the horses belonged to plaintiff.</p>

P. Wade, Judge. Suit by Mary A. Newman, William Newman and others against George B. Maldonado, by Mary Hentig, his guardian ad litem, to quiet title to certain lands. From a judgment for plaintiffs, defendants appeal, and plaintiffs move to dismiss appeal. Motion to dismiss denied, and judgment affirmed.

<p>APPEAL from Superior Court, Colusa County; E. A. Bridgford, Judge.</p> <p>Trespass by the Odd Fellows’ Savings Bank against IT. B. Turman. Judgment for defendant. Plaintiff appeals. Affirmed.</p>

<p>Hew Trial—Statement.—Code of Civil Procedure, section 659, subdivision 3, provides that, if a notice of motion for a new trial designates that the motion will be made upon a statement of the case, on the grounds of insufficient evidence and errors of law, the statement must specify wherein the evidence is insufficient, and the particular errors relied upon, otherwise it must be disregarded on the hearing of the motion. Held, that if the statement on which such a motion was made does not make the specification required, the motion should be denied.</p> <p>Pleading.—The Overruling of a Demurrer to a Cross-complaint, which makes the issue identical with that raised by the original pleadings, does not prejudice the party demurring.</p>

<p>Contract to Bore Well—Abandonment of Work.—In an action on a contract for boring a well on plaintiff’s land it appeared that he agreed to furnish the casing, fuel, and board for defendant and his men “at his own expense,” and pay a certain sum when the well was completed. Defendant agreed to continue boring the well, “barring bad weather or other unavoidable hindrances,” till a certain depth was reached or impenetrable rock was encountered. When about half the agreed depth was reached, defendant’s auger broke near the lower end, and became fastened in the well. Defendant claimed he could remove the broken piece, and, after striving unsuccessfully for three weeks, plaintiff refused to furnish further fuel and board, and defendant abandoned the work. Held, that plaintiff was not entitled to recover for the value of supplies furnished defendant to the date the work was abandoned, since by the contract he was not released from furnishing them while boring was prevented by “unavoidable hindrances.”</p> <p>Contract to Bore Well—Abandonment of Work.—In such action defendant is not entitled to recover on a cross-complaint for the number of feet bored, at the contract price, since he was not prevented by plaintiff, nor by encountering impenetrable rock, from performing his contract.</p>

B. Mahon, Judge. Action by Louis L. Janes against Joaquin P. De Azevedo and others for the legal title to some land. From a judgment in favor of defendants, plaintiff appeals on the judgment-roll alone. Affirmed.

<p>Negotiable Instruments—Consideration.—In an Action on a Note for $625, the evidence was undisputed that, in consideration for the note, plaintiff transferred to defendant a one-half interest in a note for $2,500, on which the maker thereof agreed to pay $1,250 as a compromise. Held, that the fact that afterward, in an action thereon, the latter note was declared to have been made without consideration, does not affect the consideration for the note in suit, and plaintiff should recover.</p>

M. Angelotti, Judge. Application by Mary E. Rogers for an increased monthly allowance from S. L. Rogers, her divorced husband, for the support of their child. From an order granting the application, defendant appeals. Affirmed.

H. Garoutte, Judge. Action by T. M. Prior against Marshall Diggs for breach of contract. Judgment for defendant. From the judgment and an order denying a motion for a new trial, plaintiff appeals. Affirmed.

H. Garoutte, Judge. Action by the Bank of Yolo against N. M. Weaver and others to recover from defendants their proportionate share of money borrowed from plaintiff by the Woodland Woolen Manufacturing Company, in which company defendants were stockholders. From a judgment for plaintiff, and an order refusing a new trial, defendants appeal. Affirmed.

F. Hasten, Judge. Action by Catherine Farley against Moran Bros, and J. W. Doyle and J. C. Wimple for violation of a bond. From a judgment for plaintiff defendants Doyle and Wimple appeal. Affirmed.

R. Garber, Judge. Application by Annie Wade against John C. Wade, her husband, for an order requiring defendant to show cause why a separate maintenance obtained by her should not be increased. Defendant asks that the maintenance be discontinued altogether, and appealed from an order refusing such discontinuance. Reversed.

<p>Findings—Refusal of Court to Adopt.—It being the duty of the court to find on all issues without any request, refusal to adopt a requested finding prepared by counsel is not error, the only thing necessary being that the findings cover all the issues and be sufficient.</p>

<p>Conversion—Agreement to Sell.—Where Suit was Brought for the conversion of goods sold to defendant, but which plaintiff claimed had previously been sold to him, and the evidence, instead of showing a sale to plaintiff, tended only to show an agreement to sell, and that the goods should remain with the seller until a certain time, and be paid for on or before delivery, an instruction giving the essentials of a contract of sale is improper, as the belief might thus be induced that, under such a contract, plaintiff would have sufficient title to maintain the suit.</p>

W. Hunter, Judge. Proceeding by the Consumers’ Lumber Company to set aside a sheriff’s sale on execution issued on a judgment in favor of Georgeson against said company, in which proceeding Buhne, Jr., intervened, and claimed the property as purchaser under the sale. From an order setting the sale aside, plaintiff, Georgeson, appeals. Affirmed.

<p>APPEAL from Superior Court, Mendocino County; R. MeGarvey, Judge.</p> <p>Ejectment by David Jones against John E. Chalfant and others. Defendants had judgment, and plaintiff appeals. Affirmed.</p>

<p>Dismissal of Action—Authority of Attorney.—Where the evidence warrants a finding that the attorney who brings a suit for a corporation against one of the stockholders was not authorized by the corporation to do so, it is proper for the court, on motion of defendant, to enter a judgment dismissing the action.</p>

Breen, Judge. Ejectment by John Daubenbiss against Amos White and others. The court found in favor of defendants for a part of the land, and in favor of plaintiff for the remainder. A motion for a new trial was overruled, and defendants appeal. Reversed.

<p>APPEAL from Superior Court, Humboldt County; G-. W. Hunter, Judge.</p> <p>Action by Isabella L. Baker against Andrew T. Baker and Mary T. Baker to set aside a deed of certain land. Judgment for defendants. Plaintiff appeals. Affirmed.</p>

Application by Ada Shirley for a writ of mandamus to compel the board of trustees of Cottonwood school district, and E. Moore and others as members, to issue an order for the balance of salary alleged to be due her as a school teacher. A judgment was entered that plaintiff was entitled to a peremptory writ, and defendants appeal. Reversed.

W. Hunter, Judge. Action by N. Bullock, assignee of D. H. McFarland, and Harvey Pinkerton, against the Consumers’ Lumber Company, to recover for saw-logs furnished defendant corporation under a contract. From a judgment for plaintiff, defendant appeals. Affirmed.

<p>APPEAL from Superior Court, Santa Clara County; F. E. Spencer, Judge.</p> <p>Action on a contract by the Electric Improvement Company against the San Jose and Santa Clara Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.</p>

<p>New Trial—Discretion.—A Motion for a New Trial on the ground that the evidence does not sustain the verdict, is addressed to the discretion of the court, and its judgment thereon will not be disturbed unless clearly abused.</p>

Application by P. H. Cahill for a writ of mandate to E. P. Colgan, as state controller, commanding him to draw his warrant on the state treasurer in favor of plaintiff for $504. Prom a judgment awarding a peremptory writ, defendant appeals. Affirmed.

Action by Henry Pilster against Henry E. Highton. Judgment for plaintiff. Defendant appeals. Affirmed.

<p>Brokers—Compensation—Acting for Both Parties.—Where the evidence shows that plaintiff in an action to recover commissions earned under a contract to find a purchaser for defendant’s land was employed by the purchaser without defendant’s knowledge to buy the land from defendant at a figure which would suit the purchaser’s views, a finding that he was the purchaser’s agent was proper, though he' had no written agreement with the purchaser for compensation, but was to get his compensation from defendant; and, being the agent of both parties without defendant’s knowledge, he cannot recover.1</p>

M. Gibson, Judge. Action by Ashley D. Cameron against G. F. Calberg to recover possession of a mare seized at suit of defendant against plaintiff’s vendor. From a judgment for plaintiff, and order denying new trial, defendant appeals. Affirmed.

McM. Shafter, Judge. Motion by E. P. Gray for an order directing the entry of satisfaction of a judgment against him held by J. W. Musser. From a judgment of the superior court of San Francisco county, affirming a judgment granting the order, Musser appeals. Affirmed.

Minor, Judge. One Curran was jointly indicted with one Fitzpatrick for grand larceny. Curran demanded a separate trial and was convicted. From the judgment, and from an order denying his motion for a new trial, he appeals. Reversed.

Action by Charles H. Pieper against Alexander Peers and Peter Grimley to recover on a bond given to stay an execution pending appeal, on which bond defendants became sureties. From a judgment for plaintiff, defendants appeal. Reversed.

<p>APPEAL from Superior Court, Santa Clara County.</p> <p>Action by M. B. Angevine against S. L. Knox-Goodrich. Plaintiff had judgment, and from an order granting a new trial he appeals. Affirmed.</p>

Action by E. R. Thomason against Harry de Greayer and the Ferries and Cliff House Railway Company, a corporation, to reform a contract. From a judgment entered on an order sustaining defendants’ separate demurrers to the complaint, plaintiff appeals. Affirmed.

<p>APPEAL from Superior Court, City and County of San Francisco; John F. Finn, Judge.</p> <p>Action by J. W. Roberts against Eugene W. Levy, administrator, for medical services. Judgment for defendant. Plaintiff appeals. Affirmed.</p>

<p>Judgment by Default—Affidavit to Set Aside.—An affidavit to set aside a judgment by default is not sufficient where it shows that defendants served notice of appearance on plaintiff’s attorneys, but does not show that they agreed to extend defendants’ time to answer, or that defendants supposed their time had been extended.</p> <p>Judgment by Default.—An Affidavit of Merits, Stating Facts on information and belief, is insufficient, as being hearsay.1</p>

<p>APPEAL from Superior Court, Alameda County; John Ellsworth, Judge.</p> <p>Action by Rudolph Franke against Wilhelmine Augusta Franke to annul marriage. From a judgment for plaintiff, defendant appeals. Reversed.</p>

McGarvey, Judge. Action in replevin by Mary Asbill against J. H. Standley, sheriff, for the recovery of certain mares. From a judgment in favor of plaintiff, and from an order denying his motion for a new trial, defendant appeals. Affirmed.

Action by William B. Tyler and another against George 0. Davis to recover for legal services performed by plaintiffs for defendant. From a judgment for plaintiffs, defendant appeals. Affirmed.

<p>APPEAL from Superior Court, Sacramento County; E. A. Bridgford, Judge.</p> <p>Action by Kirk, Geary & Co. against P. B. Roberts, assignee of Walter R. Hall. Judgment for defendant. Plaintiffs appeal. Reversed.</p>

V. Coffey, Judge. To the petition of George W. Wright for the probate of the will of M. E. Tillman, deceased, A. T. Penebsky filed a ’ contest; and from an order sustaining a demurrer to the contest, and admitting the will to probate, contestant appeals. Affirmed.

Application by Sherer for a writ of mandate commanding the superior court to proceed with the trial of a cause in which petitioner is interested. Application denied.

Y. Coffey, Judge. In the matter of the estate of Bertha Berton, deceased. Flavien Berton, executor, appeals from an order denying his petition for distribution. Affirmed.

V. Coffey, Judge. Proceeding by Manuel Eyre, guardian ad litem, against Herman Zwieg, trustee, in the settlement of the estate of Augusta Hensing, deceased. From a decree in favor of plaintiff, defendant appeals. Reversed.

<p>Probate Practice—Filing Additional Findings.—Code of Civil Procedure, section 1704, provides that all orders and decrees of the court, or the judge thereof, in probate proceedings, “must be entered at length in the minute-book of the court.” Held, that after an order was entered from which- an appeal was taken, and while it was pending, the trial court had no power to make any new or further findings or decree in regard to the matters involved.1</p> <p>Probate Practice.—Findings of Facts will not be Set Aside because they are intermixed with statements of evidence, argument, and conclusions of law.</p> <p>Probate Practice.—The Sufficiency of a Bill of Contest in a probate proceeding will not be considered by the supreme court when it is raised for the first time on appeal.</p>

W. Lawler, Judge. Action by Adolph Pottkamp against John G. Buss and others to quiet title to land. From a judgment for defendants and from an order denying his motion for a new trial, plaintiff appeals. Reversed.

R. Garber, Judge. Action by the Kennedy &,Shaw Lumber Company against Joseph. W. Taylor, W. S. Somervell and E. Lund, as co-partners, for the recovery of money. From a judgment for plaintiff, and from an order denying their motion for a new trial, defendants Taylor and Somervell appeal. Affirmed.

E. Spencer, Judge. Action by the Santa Clara Valley Mill and Lumber Company against Joseph E. Williams and Mary A. Williams, owners of a building for which plaintiff furnished materials, and O. F. Fuller and E. L. Lashbrook, the contractors, to recover the value of the materials furnished. There was a judgment in favor of the owners, and a personal judgment against the contractors in favor of plaintiff.

<p>Ejectment—Adverse Possession—Evidence.—In Ejectment for a Strip of land a few inches in width between adjoining lots, where it appeared that defendant had been for about twenty-five years in possession of the strip, which was by a survey included in his deed, when another survey was made, showing the strip to belong to plaintiff's lot, defendant’s testimony that his occupancy was under a claim of right to hold the same adversely to plaintiff and the whole world is sufficient to support a finding for defendant as by prescription, though it also appeared that after the latter survey defendant offered to surrender the strip if plaintiff would pay the expense of moving the house which extended onto it.</p>

<p>Habeas Corpus—Failure to Bring to Trial.—Though defendant is entitled to have the information filed against him dismissed under Penal Code, section 1382, which provides for such dismissal “if a defendant, whose trial has not been postponed on his application, is not brought to trial within sixty days after the finding of the indictment or filing of the information,” he is not entitled to a discharge on habeas corpus until the information is dismissed.1</p>

McGarvey, Judge. Action by David Jones, administrator, against Niles Iverson. From a judgment entered, plaintiff appealed, and defendant moves to dismiss the appeal. Motion granted.

Otis, Judge. Action by C. R. Wilkes against Luther C. Tibbets and another. From a judgment against them, and from an order denying their motion for a new trial, defendants appeal. Affirmed.

W. McKinley, Judge. Proceeding by Mary E. Haynes against Peter Backman and others and the Los Angeles Terminal Land Company to set aside a sale of property made under a mortgage foreclosure. Order setting aside the sale. The defendant land company appeals. Affirmed.

<p>APPEAL from Superior Court, Los Angeles County; Lucien Shaw, Judge.</p> <p>Proceeding by Mary E. Haynes against Peter Backman and others and the Los Angeles Terminal Railway Company. Judgment for plaintiff. The defendant railway company appeals. Affirmed.</p>

<p>APPEAL from Superior Court, San Diego County; John R. Aitken, Judge.</p> <p>Trover by Virginia A. Tower against S. A. McDowell, sheriff. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Ejectment — Alias Writ of Possession.—Plaintiff having obtained judgment in ejectment, a writ of possession was issued and executed in 1882 against defendants and one M., who was not a party to the suit, and a few months later M. re-entered, and remained thereafter in exclusive possession. In 1889, plaintiff moved for an alias writ of possession against defendants and M. Held, that M. could show on such motion that he was not a member of defendants’ family, and that his possession was open and notorious, and that he was the owner of the premises in dispute, and was not a party to the ejectment suit.</p> <p>Ejectment—Writ of Possession.—Where M.’s Possession was Adverse for more than six years from the time of his re-entry, and ripened into a new title, it could not be affected by the former judgment.</p> <p>Ejectment.—A Motion for an Alias Writ of Possession should not be entertained where the lapse of time after re-entry is sufficient to create a title in an adverse possessor, and bar an action of ejectment.</p> <p>Ejectment—Alias Writ of Possession.—Where Judgment for plaintiff in ejectment is fully executed by putting plaintiff in possession, an alias writ of possession cannot issue except upon an adjudication that the person against whom the writ is to run is guilty of a contempt. Huerstal v. Muir, 64 Cal. 450, 2 Pac. 33, followed.1</p>

<p>Mortgage—Default in Interest—Excuse.—A Mortgage Given to plaintiff by defendant association provided that there should be quarterly payments of interest, and that, on failure to so pay, the whole sum, at plaintiff's election, should become due. After the papers had passed defendant’s officers agreed that plaintiff could have the payments monthly, by calling for them, to which plaintiff assented, and for several months thereafter called and received her interest. Later, she failed to call, the interest was not paid, and plaintiff sought to have the whole debt declared due. Held, that, after plaintiff’s promise to call for the interest, defendant was excused from seeking her, to make payment, and, since the failure to pay was caused by her own act, she could not exact a penalty for such failure.</p> <p>Mortgage—Default in Interest—Claim of Forfeiture.—The fact that plaintiff called for the interest once, when defendant’s president, who always paid her, was not in, does not aid her claim of forfeiture, when it does not appear that she demanded the interest from anyone else, nor that, at the time she called, any interest was due.</p> <p>Mortgage — Default in Interest.—A Finding That Plaintiff Authorized an agent to collect the interest, and that he demanded it from defendant’s president, who refused to pay unless he brought a written order from plaintiff, is contrary to the evidence, when the only testimony on the subject is that of the agent, who stated that he called on defendant’s president, and asked him about the interest, and the president said that the money was ready for plaintiff, but that he would like to have an order before paying it, to which request the agent made no objection.</p> <p>Mortgage—Default in Interest.—A Finding That Plaintiff’s Attorney, both before and after October 1st, which was more than three months after the last payment, demanded payment of the interest, and that such payment was refused unless he had written authority, if true, would not be conclusive of a default; for the question would still be open as to whether defendant had reasonable ground to doubt the attorney’s authority.</p> <p>Mortgage—Default in Interest.—Where Plaintiff Knew that defendant’s agents were looking for her, to pay the interest, but she did not inform them where she was, or that she had authorized an agent to receive the money, failure of defendant to pay the interest within the prescribed time does not constitute a default.</p>

<p>Appeal—Matters not Apparent on Record.—A finding by the trial court that plaintiffs’ causes of action are barred by limitation is conclusive on appeal, where no exceptions were taken to such finding, and where the appeal was not taken within sixty days after judgment rendered.</p>

Wallace, Judge. Action by Charles P. Willard against H. L. Tatum and Joseph J. Bowen to recover for goods sold. Defendants interposed a counterclaim. From a judgment in defendant’s favor, and from an order denying a new trial, plaintiff appeals. Affirmed.

T. Wallace, Judge. Action for partition by one Woodward and others against one Baum and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Garber, Judge. Action by Katie E. Dixon against William J. F. W. Pluns to recover damages for personal injuries inflicted through the alleged negligence of an employee of defendant. From a judgment for plaintiff, defendant appeals. Reversed.

<p>Appeal—Rehearing—Mistake of Clerk.—A motion for rehearing made on account of the clerk’s failure to record appellant’s brief, so as to bring it to the attention of the court, will be denied, where an examination of the brief fails to disclose anything that would justify a reversal.</p>

. Ejectment by C. P. Robinson against R. S. Thornton and others. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant Thornton appeals. Affirmed.

P. Wade, Judge. Action by W. R. Light against E. -W. Richardson. Prom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Divorce—Division of Community Property.—In an action for a divorce it is not an abuse of discretion for the trial court to set off to plaintiff the homestead and a small amount of personalty from the, community property, leaving to defendant all other community property; section 146, subdivision 1, Civil Code, providing: “ . . . . The community property shall be assigned to the respective parties in such proportion as the court, from all the facts of the case and the condition of the parties, may deem just.”</p>

Action by Candelario Ybarra against Stephen Sylvany to quiet the title to a certain parcel of land. From a judgment for plaintiff and from an order denying his motion for a new trial, defendant appeals. Affirmed.

<p>APPEAL from Superior Court, San Diego County; George Puterbaugh, Judge.</p> <p>Action to quiet title by Mary A. Israel against Charles Collins. Prom a judgment nonsuiting plaintiff she appeals. Affirmed.</p>

Wade, Judge. Action by the Main Street Savings Bank and Trust Company against J. W. Hinton, city assessor of the city of Los Angeles, to recover taxes alleged to have been illegally assessed against plaintiff’s property, and collected by defendant. From a judgment for defendant on a demurrer to the complaint, plaintiff appeals. Affirmed.

Action by the First National Bank of Santa Monica against H. I. Kowalsky. There was a judgment for plaintiff, and defendant appealed. An undertaking was filed signed by E. H. Kowalsky and A. Everett Ball as sureties, and from a judgment against them, they appeal. Corrected and affirmed.

Action by J. K. Tuffree against Alvan D. Brock and others to establish a trust in certain lands to which defendants hold title. From a judgment for defendants, and from an order denying his motion for a new trial, plaintiff appeals. Affirmed.

Campbell, Judge. Petition for injunction by H. L. Drew against Henry Cole and another. Defendants filed a cross-bill for affirmative relief. Judgment for defendants. Plaintiff appeals. Affirmed.

<p>Corporation—Note Signed as “President” and “Secretary.”— Where defendants sign a note with their individual names, adding thereto “president” and “secretary,” respectively, in which note they promise to pay plaintiff bank a certain amount, and there is nothing on the face of the note to indicate a principal back of them, they are personally bound, and cannot set up a defense that they executed the note as officers of a corporation, that the loan which the note was given to secure was made to such corporation, and that the intention of both parties was that it should bind the corporation, and not defendants.1</p> <p>Corporation—Note.—The Fact That a Resolution of the Corporation, with the corporate seal thereon, authorizing defendants to make the loan and execute the note in the name of, and as the note of, the corporation, was attached to the note, was without effect, as such attachment did not make the resolution a part of the note.</p> <p>Promissory Note.—By Failing to Verify Their Answer, where a copy of the note was set out in the complaint, defendants admitted, not only the genuineness, but also the due execution, of the note.</p> <p>Promissory Note—Reformation.—A Cross-complaint Setting Up the Facts in regard to the execution of the note, and praying that the corporation be made defendant, and that the note be reformed so as to make it the note of the corporation, could not be sustained; for, if a proceeding for reformation could be maintained by plaintiff, it could not by defendants, whose only interest in reforming the contract was to relieve themselves from liability thereon, and to show it was not their contract, but that of the corporation, which they cannot be allowed to do.</p>

Action by the county of Los Angeles against Pablo Reyes and others. From a judgment opening a road through defendants’ property, and awarding damages therefor, defendant Reyes appeals. Affirmed.

Wade, Judge. Action by the Schallert-Ganahl Lumber Company against H. A. Sheldon and others to foreclose a materialman’s lien. From a judgment for defendants, and from an order denying its motion for a new trial, plaintiff appeals. Affirmed.

Mandamus at the relation of H. M. Maxwell to compel the board of supervisors of Los Angeles county to give public notice calling for proposals for county advertising. From a judgment dismissing the petition, entered upon an order sustaining a demurrer to it, relator appeals. Affirmed.

<p>APPEAL from Superior Court, Los Angeles County; Walter Van Dyke, Judge.</p> <p>Action by the Los Angeles Cemetery Association against the city of Los Angeles to quiet title. Judgment for defendant. Plaintiff appeals. Affirmed.</p>

V. Coffey, Judge. Proceeding by Thomas Magee against the executor of the estate of Thomas H. Williams to recover money paid. From an order dismissing the petition, plaintiff appeals. Affirmed.

<p>APPEAL from Superior Court, San Diego County; George Puterbaugh, Judge.</p> <p>Action by the San Diego Flume Company against Levi Chase for the reformation of a contract. From the judgment, defendant appeals. Affirmed.</p>

Action by A. Klauber and another, partners as Klauber & Levi, against George Vigneron and another, and Joanna Vigneron, to foreclose a mortgage. Judgment for plaintiffs. Joanna Vigneron appeals. Reversed.

<p>Mortgage or Conditional Sale.—Foreclosure Proceedings were Dismissed, and the mortgagor executed a deed to the mortgagee, pursuant to an agreement whereby the mortgagee was to satisfy the mortgage of record, and the mortgagor was to have the privilege of selling the land within six months thereafter, and retain all moneys which he might receive therefor over and above a specified sum, which he was to pay to the mortgagee. Held, that, in view of the facts that the mortgagor made no promise to pay any sum to the mortgagee, that the sum to be paid the mortgagee in ease of a resale was several thousand dollars less than the mortgage debt, that no interest was to be paid by the mortgagor, and that the mortgagee at once took possession of the premises, the transaction must be construed, not as a mortgage, but as a conditional sale, to become absolute on the mortgagor’s failure to sell the land within the time specified.</p>

T. Williams, Judge. Action by Charles Townsend against J. S. Briggs for personal injuries. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

H. Rearden, Judge. Action by W. N. Hooper, as administrator of Terence Burke, deceased, against James Patterson and others. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Appeal from the judgment dismissed. Order denying a new trial reversed.

Action by Thomas Wiley against the California Hosiery Company to recover damages for a wrongful discharge of plaintiff as defendant’s traveling salesman. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Reversed.

H. Clark, Judge. Action by Wilhelmine Weyers against Joseph Espittalier and Martin G. Aguirre to enjoin a sale under execution. From a judgment for plaintiff, and from an order refusing a new trial, defendants appeal. Affirmed.

L. Pierce, Judge. M. D. Hamilton was convicted of omitting and refusing to pay over to his successor in office moneys received by him as county clerk. From an order arresting the judgment, the people appeal. Reversed.

G. Clough, Judge. Proceedings in the matter of the insolvency of T. M. Harvey. Certain orders were made refusing claims presented by George Champlin, and settling the assignee’s account, from which Champlin appeals. Affirmed.

<p>Appeal Bond—When Required.—A County Officer, against whom suit has been brought, is not exempted from filing an undertaking on appeal by Code of Civil Procedure, section 1058, declaring that in any civil action wherein the state is plaintiff, or any state officer in his official capacity or on behalf of the state, or any county, city, or town, is plaintiff or defendant, no undertaking shall, as to such parties be required.1</p>

H. Grant, Judge. Action by James W. Gregory and others against John IT. Gregory and others. Judgment for defendants. Plaintiffs appeal from an order refusing to set the judgment aside. Dismissed.

<p>Change of Venue—Review.—Where the Evidence on the Hearing of a' motion for change of venue on the ground of change of residence is conflicting as to whether the residence had actually been changed when the action was commenced, the discretion of the trial court in denying the motion will not be reviewed on appeal.</p>

II. Grant, Judge. Action by the Auburn Opera House and Pavilion Association against George M. Hill on a contract of subscription to stock in such corporation. Prom a judgment for defendant, plaintiff appeals. Reversed. The complaint set out the prospectus in full, which constitutes the alleged contract signed by defendant, as follows: ‘ ‘ Object: To build an opera house and pavilion, combined, in Auburn, Placer county, California.

G. Clough, Judge. Action by J. C. Wolters against J. H. Thomas to recover a claim against defendant, alleged to have been assigned to him. Prom a judgment for plaintiff, defendant appeals. Affirmed.

<p>APPEAL from Superior Court, Fresno County; M. K. Harris, Judge.</p> <p>Action by Charles C. Lyons against F. E. Knowles and others for personal injuries. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>APPEAL from Superior Court, Placer County; J. E. Prewett, Judge.</p> <p>Al. Sherman was convicted of grand larceny and appeals. Affirmed.</p>

K. Harris, Judge. Action by the Benicia Agricultural Works, a corporation, against Lyman W. Estes and M. Estes, for the foreclosure of a mortgage. Plaintiff had judgment, from which, and an order denying a new trial, defendants appeal. Reversed.

Finn, Judge. Action by Ida Kellenberger and husband against the Market Street Cable Railway Company to recover damages for personal injuries. From an order granting a new trial, defendant appeals. Affirmed.

<p>APPEAL from Superior Court, San Benito County; N. A. Born, Judge.</p> <p>Action by Pedro German against H. Brown. Judgment for plaintiff. Defendant appeals. Affirmed.</p>

Proceedings by Abner D. Jacobs against J. B. Walker to determine their right to purchase state lands. From a judgment for defendant and order denying a new trial, plaintiff appeals. Reversed.

Action by M. J. C. Galvin against the Gualala Mill Company for damages for setting, out a fire. From an order denying his motion that judgment be entered for three times the amount named in the verdict, plaintiff appeals. Appeal dismissed.

Action by Milo Patton and James A. Foster, administrators of James H. Patton, deceased, against David Thomson, to recover the proceeds of a void foreclosure sale. From a judgment for defendant, plaintiffs appeal. Affirmed.

Action by Margaret H. Colegrove and H. H. Colegrove against Fred J. Smith and others to recover for injuries received by Margaret Colegrove through defendants’ alleged negligence. From a judgment for plaintiffs, and an order denying a new trial, defendants appeal. Affirmed.

<p>APPEAL from Superior Court, Mendocino County; Robert McGarvey, Judge.</p> <p>Action by Elizabeth A. Hibberd against Charles A. Mellville, to recover damages for an alleged trespass. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

A. Gregg, Judge. Action by Meyer Greenberg against the California Bituminous Rock Company to recover the price of, and enforce a vendor’s lien on, certain land, in which C. B. Johnson intervened, and claimed an interest. Plaintiff answered intervener’s complaint, and thereupon dismissed his action, while defendant made default. Prom the judgment entered, and from an order denying a new trial, intervener appeals. Reversed.

Action by Isaac McKenzie against John Gilmore to cause obstructions to be removed from a highway. Judgment was rendered for defendant, and plaintiff appeals. Reversed.

<p>Original application by John Broder for a writ of review to the superior court of Mono county. Application denied.</p>

Budd, Judge. Action by Howell Clark against A. S. Olsen and wife to set aside a conveyance from said Olsen to his said wife on the ground that it was made with intent to delay, hinder and defraud plaintiff, a creditor of said Olsen. Judgment for defendants. From an order denying his motion for a new trial, plaintiff appeals. Affirmed.

<p>APPEAL from Superior Court, City and County of San Francisco; John F. Finn, Judge.</p> <p>Action by P. C. Desealso against John Duane. Order denying and dismissing motion for new trial. Defendant appeals. Affirmed.</p>