Volume 4 — California Appellate Reports

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

<p>Water Ditch—Distinct Prescriptive Eights in User.—One party-may acquire a distinct prescriptive right to maintain and use a ditch across the land of another for the purpose of conveying a limited quantity of water therein for the irrigation of his land, while at the same time the owners of the land on which the ditch is situated may acquire a separate and distinct prescriptive right to use the same ditch for the purpose of conveying another limited quantity of water for the irrigation of their own land from a point thereon where cheeks and a side ditch have been maintained by them for the prescriptive period.</p> <p>Id.—Eight op Way for Passage of Water—Exclusiveness of Use.— A ditch is no more than a right of way for the passage of water, and it is not essential that the use of the ditch should be wholly exclusive for the purpose of acquisition of separate and distinct prescriptive rights to the use thereof. The prescriptive right of each party, as against the other, is limited merely to his own use, measured by the quantity of his water passed through the ditch, and if there was no hostile interference with that use, a permanent prescriptive right would accrue.</p> <p>Id.—Prescriptive Eights of Owners of Land.—While the owners of the land on which the ditch was situated could not acquire a prescriptive right to a right of way over their own land, they could destroy the claim of exclusive right therein in the owner of the easement by open, peaceable, notorious and continuous adverse use, and thus establish their right, as against his asserted claim, to use the ditch themselves for a limited purpose, and commingle their water with his in so doing.</p> <p>Id.—Findings—Harmony—Support by Evidence—Conflict.—Where the findings in favor of the several parties are not conflicting, but the evidence in support of the finding of a prescriptive right in the owners of the land is conflicting, and there is some evidence to support it, it cannot be disturbed, though the preponderance of evidence may be against it.</p> <p>Id.—Construction of Evidence.—In support of the decision of the court below, the appellate court must construe the testimony as favorably as possible for the respondents.</p>

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

<p>Action to Quiet Title—Water Ditch—Evidence—Deed—Grounds op Objection—Review upon Appeal__In an action to quiet title to a water ditch in which defendants claimed the right to run water across plaintiff's lands to their own lands, under a deed from plaintiff’s predecessor to the predecessor of defendants, which deed was offered in evidence, and could not be inadmissible for every purpose, an objection thereto should state the grounds thereof; and where the record upon appeal from a judgment for the defendants fails to show any grounds of objection to the deed, a specification of error in its admission raises no question for review.</p> <p>Id.—Construction op Deed—Easement not in Gross—Appurtenance to Land—Circumstance Shown.—A grant to a person of the use of a ditch for the conveying of water to land described, for use thereon, and for no other use without the consent of the grantor, and for the use of no other person than the grantee without the grantor's consent—the circumstances proved, without objection, being such as to show that the deed was taken by a husband as agent for the ■benefit of his wife’s land, and that the ditch was constructed at her expense and was used continuously for the benefit of such land by the husband and wife, and by her successors in interest, the defendants—is to be construed not as granting a personal easement to the husband in gross, but as creating an easement which the evidence shows became appurtenant to defendants’ land.</p> <p>Id.—Construction op Easements bt Courts.—Whether an easement in a given case is appurtenant or in gross is determined mainly by the nature of the right and the intention of the parties creating it, but the courts favor the construction of grants of these rights as appurtenant rather than in gross, and if the right in question is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the grantee as to its, use, and there being nothing to show that the parties intended it to be a mere personal right, it would be held to be an easement appurtenant to the land, and not an easement in gross.</p> <p>Id.—Reservation in Deed to Plaintipp.—Where it appears that in the deed to plaintiff there was reserved by her grantor “all water ditches and ponds theretofore conveyed,” it is to be inferred that the grantor regarded the water ditches as subject to the easement created for the benefit of defendant's land.</p> <p>Id.:—Intention of Parties to Grant of Basement—Permission to Construct and Use Ditch.—The permission given to the husband and wife, contemporaneously with the grant in the name of the husband, to enter upon the land of the grantor, and construct the ditch, and its use by them and their successors in interest, without objection, for so long a time to convey water, where it was necessary for the proper enjoyment of the land benefited, would give rise to a strong inference that the original intention of the parties was that the ditch should become a servitude upon the land of the grantor, of which the land benefited was the dominant tenement.</p>

PETITION for writ of habeas corpus to the Sheriff of Santa Clara County. The facts are stated in the opinion of the court.

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

<p>Criminad Law—Murder—Dispute About Water Ditch—Shot Fired into Ditch—Statement op Dependant—Hearsay.—Upon a trial for murder, where the killing arose from a dispute about the use of a water ditch, and defendant had testified that he fired the first shot into the water ditch, and there was no pretense on the part of the prosecution that such evidence was fabricated, or foundation laid to impeach it, and another witness had testified that after being informed by defendant of such shot, he found the bullet in the ditch, it was not error to refuse to allow him to be questioned as to a statement made by defendant to him at the time he told him of such shot. It was not part of the res gestae, and was purely hearsay, and a self-serving declaration, which was not admissible under any exceptional rule in support of credibility assailed.</p> <p>Id.—Instructions—Self-defense—Aggression op Dependant.—The court properly instructed the jury that if they believed, from the evidence, beyond a reasonable doubt, that defendant wrongfully and unnecessarily brought on the struggle, and became and was the aggressor, and did not attempt to abandon or withdraw from the altercation, and during the altercation killed the deceased, the defendant could not avail himself of the plea of self-defense, in case he so created a real or apparent necessity for the killing by his own unlawful acts; and that the jury are the judges of the facts in the case.</p> <p>Id.—Apparent Danger-—Imminence at Time op Killing.—Where the court fully instructed the jury as to the law of apparent danger, as favorably to the defendant as the law would justify, it was not error to state that such danger, "if any, must have existed at the very time the defendant fired the fatal shot.” A defendant cannot justify the taking of human life upon the belief that danger is about to become imminent, or that it will in the future become imminent.</p> <p>Id.—Nationality op Deceased and op Defendant.—Where counsel for defendant, in argument to the jury, spoke of the deceased as "this Armenian,” and of the defendant as having a father and mother in the "good old state of Missouri,” it was proper to instruct the jury that they had nothing to do with the place of birth or the nationality of the deceased, or the situation of the defendant or the deceased with reference to their families.</p> <p>Id.—Verdict for Manslaughter—Inclusion op Penalty—Instruction—Correction Before Record.—Where the verdict was for manslaughter, and at first improperly fixed the term of imprisonment of the defendant, the court properly instructed them to eliminate the portion fixing the punishment, that the punishment was entirely for the court, but it was not a matter so arbitrary as to preclude a recommendation. The jury then properly retired and complied with the instruction, and the verdict was properly rendered after it was returned in due form, with a recommendation of defendant to the mercy of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jones & Weller, and Davis, Rush & Willis, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. D. K. Trask, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. D. K. Trask, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Improvement—Construction op Resolution op Intention— Curbs, Sidewalks and Gutters—Single Improvement of Roadway.'—An ordinance declaring the intention of the city council of Los Angeles “to improve a portion of Flower street” specified, and to order “that a cement curb be constructed along each line of the roadway of said Flower street,” etc., and “that a cement sidewalk six feet in width be constructed along each side of said Flower street, ’ ’ etc., and 1 ‘ that a cement gutter be constructed along each side of Flower street,” etc., is to be construed as contemplating a single improvement of part of the roadway of said street, and not two distinct lines of work.</p> <p>Id.—Construction op Street Improvement Act—Posting op Notices—Distances Measured Longitudinally.—Section 3 of the street improvement act, providing that notices shall be “ posted along the line of said work or improvement at not more than one hundred feet in distance apart, ” is to be construed as requiring the distances between the notices to be measured longitudinally along the line of the improvement, wherever placed thereon, and where they are alternated on each side of the roadway, the diagonal measurements, more than one hundred feet apart, are not to be considered.</p>

<p>Written Contract—Sale or Orange Crop—Price—Amount Delivered—Support or Finding.—Where an orange crop was sold under a written contract for delivery at the packing-house of defendants at the ruling f. o. b. price at time of shipment, and fixing cost of services for handling and selling, held, that the evidence sustains the finding of the court as to the price and amount of oranges delivered under its terms.</p> <p>to.—Executed Oral Modification—Shipment East for Auction Sales—Substitution for Original Contract.—Where, by an executed oral modification of the written contract, the residue of the orange crop was, at the seller’s request, shipped east and sold at auction in New York and Boston, such modification took the place of the original contract as to price, and the oranges so sold were not required to be accounted for at the f. o. b. price at time of shipment, but only at the prices received at the auction sales.</p> <p>Id.—Construction of Code—Written Contract—Subsequent Oral Modification.—Under section 1698 of the Civil Code, an executed oral modification of a written contract is not required to be made at the time of the inception of the written contract, but the code provisions are complied with by a subsequent executed oral modification of the written contract.</p>

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

<p>Criminal Law—Perjury—Instruction as to Province op Jury.— Upon a trial for perjury, an instruction that it was for the jury to determine whether defendant gave the testimony which the indictment charges he did give, or any portion of it; that such testimony was false—that is, whatever testimony he gave in that action, if he gave any of such testimony; that the testimony he did give, or some portion of it, was false, that the defendant, at the time he swore to such testimony, knew it to be false; and that the testimony so alleged to be false was material to the issue— taken as a whole, could not give the jury to understand that they could convict the defendant for any false testimony other than that charged in the indictment.</p> <p>Id.—Materiality op Testimony—Mixed Question op Law and Pact— Harmony op Instructions.—Whether testimony given upon the trial of a cause is material to the issues then before the court is a question of law to be determined by the court; but, as is sometimes the case, especially upon a trial for perjury, the materiality of the testimony will depend upon the existence of other facts; and if these facts are controverted, their existence must be determined by the jury; and an instruction to them that the existence of these facts would, as matter of law, render the testimony material, and that they must so find, is in harmony with the instruction that for the purpose of reaching a verdict, they must determine whether it is material.</p> <p>Id.—Province op Court and Jury.—A jury is at all times required, in rendering their verdict, to apply the facts shown in evidence in accordance with the rules of law given by the court; but, in so doing, the verdict is none the less rendered by the jury.</p> <p>Id.—Direct Evidence op Perjury.—Upon a trial for perjury, direct evidence thereof by two witnesses, or by one witness with corroborating circumstances, is not limited to a denial in the. very words of the testimony given by the defendant, but includes any positive testimony to a contrary state of facts from that sworn to by him on the former trial, or which is absolutely incompatible with his evidence or physically inconsistent with the facts so testified to by him.</p> <p>Id.—Instructions—Validity op Former Information por Forgery.— Where the, perjury is charged to have been committed upon a former-trial of the defendant under an information for forgery of a telegraphic message, an instruction requested by the defendant as to the insufficiency of the information for forgery was properly refused. Whether that information was defective or not was a question to be determined by the court in which that trial was had.</p> <p>Id.—Instruction as to Materiality op Evidence.—Where the defendant was charged with perjury, in falsely testifying upon the former trial for forgery concerning the time and place of the execution and delivery of two telegrams offered in evidence upon that trial, the court properly refused a requested instruction to the effect that inasmuch as it was showu at that trial that the defendant did not send the telegraphic message charged to have been forged, but merely furnished it to the operator to be sent by telegraph, it was not material to know when and where the telegrams herein considered were written.</p> <p>Id.—Objection to Indictment for Two Charges op Perjury— Waiver—Failure to Demur.—Without determining whether the indictment for perjury committed in swearing falsely to the place where such two telegrams were written, and also for perjury committed in swearing falsely that they were delivered to a person named at the same place, is or is not objectionable as charging two offenses, an objection on that ground appearing upon the face of the indictment is waived by failure to make it by demurrer.</p> <p>Id.—Testimony op Wipe Given upon Former Trial—Absence op Objection—Evidence op Reporter—Where the testimony of the wife of defendant was given upon the former trial for forgery without objection, and was proved by the evidence of the reporter on such former trial, given upon the trial of the charge of perjury, also without objection, no error was committed in such proof. Furthermore, the testimony so given upon the forgery trial by the wife of the defendant, not objected to by him, was admissible against him upon the trial of the charge of perjury, committed in the forgery case, so far as it would tend to show the materiality of the testimony given upon the trial for forgery, and made the basis of the charge of perjury. (Opinion of supreme court, on petition for transfer of cause.)</p> <p>Id.—Previous Conviction of Felony—Insufficient Showing—Judgment-koll—Admission upon Former Trial.—A charge of a previous conviction of a felony, with the charge of perjury, does not appear to be supported by a sufficient showing, where a judgment-roll offered in evidence is not set forth in the bill of exceptions, and it contains no recital of its character; nor can it be sustained by the testimony of the reporter of a mere admission of the defendant, made upon the former trial of the forgery charge, that he had been convicted upon a prior charge of felony at a different date from that of such judgment-roll. His former naked admission of the fact, being extrajudicial, in relation to the present case, notwithstanding it was under oath, cannot establish that element of the present indictment.</p> <p>Id.—Verdict of Former Conviction Severable.—The unsupported verdict of a prior conviction of felony is severable from that portion of the verdict finding the defendant guilty of perjury. The verdict for a prior conviction may be disregarded, and judgment entered against the defendant upon that portion of the verdict which was sustained by the evidence.</p> <p>Id.—Effect of Sentence—Presumption—Judgment not Sustainable.—Although the sentence for the shortest term for which the defendant could be imprisoned, if the charge of prior conviction had been established, might have been for the same term upon a verdict merely finding him guilty of perjury, yet it cannot be assumed that the court disregarded any portion of the verdict in fixing the term of imprisonment, and its judgment in that respect cannot be sustained.</p>

<p>Conditional ’Contract of Sale—Railroad Indemnity Lands—Foreclosure—Undecided Right to Patent—Finding Supported.—. Where a contract to sell railroad indemnity lands of the Southern Pacific Railroad Company, under an approved selection, required payment of purchase money, and provided for a deed, when patent was obtained, and that if patent was not obtainable, all moneys paid should be returned without interest, in an action to foreclose the rights of the purchaser for nonpayment of purchase money, where the defense was that it had been finally decided that the railroad company was not entitled to a patent, and return of purchase money paid was demanded, held, that a finding that it has not been so decided is supported, and the judgment of foreclosure should be affirmed.</p> <p>Id.—Railroad Grants—Decisions as to Place Limits Inapplicable to Indemnity Selections.—The decisions of the federal and state supreme courts to the effect that the grant to the Southern Pacific Railroad Company of March 3, 1871, did not include land within the limits of the grant made by the act of 1866 to the Atlantic and Pacific Railroad Company, refer only to lands within the twenty-mile limit of the former company falling within the like limits of the latter, and have no application to indemnity lands granted to the Southern Pacific Railroad Company, to which the title accrues only upon selection, and which may be selected from any public lands of the United States within the indemnity limits, though falling also within the former place limits of the Atlantic and Pacific Railroad Company’s grant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. A. Blanchard, for Yosemite Gold Mining and Milling-Company, Appellant.</p> <p>J. P. O ’Brien and Crittenden Hampton, for P. P. Britton, Appellant.</p>

<p>PETITION for a writ of prohibition to the Superior Court of Sacramento County. P. J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Divorce—Decree for Alimony—Construction—Power of Modification—Failure to Appeal.—The power to modify any provision for alimony in a decree for divorce in favor of the wife for an offense of the husband, conferred upon the court by section 139 of the Civil Code, enters into every decree granting such alimony, as fully as if incorporated in its terms, and does not depend upon any reservation of such power in the decree. The power being conferred by the legislature, the court cannot devest itself thereof; and it has jurisdiction to grant an application of the defendant to modify the decree, notwithstanding his failure to appeal therefrom.</p> <p>Id.—Power to Suspend Payment until Further Order.—Under the power of the court to modify its decree for alimony, the court is authorized to grant to the defendant, when justice requires it, a temporary exemption or release from the payment of any alimony until the further order of the court.</p> <p>Id.—Decree for Permanent Alimony—Agreement for Life—Burden of Proof.—Where the parties agreed upon a monthly sum to be inserted in the decree for permanent alimony, the burden is upon the plaintiff to show an agreement that the provision was to be for life, and that such agreement was made known to the court before the decree was signed. The decree is the act of the court, and any agreement between the parties that was not known to the court will have no weight in construing its intention.</p> <p>Id.—Construction and Effect of Decree.—Where no other agreement except as to monthly amount of “permanent alimony” was brought to the attention of the court, the decree is to be construed as not based upon any agreement, but upon its own consideration of the relative situation of the parties, and its effect is to be determined in accordance with the legal signification of its language.</p> <p>Id.—Extent of Power of Modification—“Alimony for Life.”—In determining the extent of the statutory power of modification, it is to be borne in mind that even if the terms of the decree had provided alimony for life, its modification by the court is expressly authorized by section 139 of the Civil Code.</p> <p>Id.-—“Permanent Alimony.”—The term “permanent” in a decree for alimony is not the equivalent of “perpetual,” “unending” or “lifelong” or “unchangeable”; and in using the term “permanent alimony” in its decree, the court simply disignates the character of the alimony finally awarded, as distinguished from “temporary” alimony awarded during the pendency of the action, and not as precluding the statutory power of the court to modify the “permanent alimony” decreed.</p> <p>Id.—Legal Effect of Findings—Agreement of Parties.—The failure of the court to find in accordance with the averments of the plaintiff that certain transfers of property by her were in consideration of an agreement on the part of defendant that the payment by him to her of $75 per month as alimony should continue for all time during her life was in legal effect a finding that they were not made upon that consideration, and its finding that a part of the consideration was that the decree for permanent alimony should contain the clause of $75 per month is supported by testimony that that was the only agreement between the parties.</p> <p>Id.—Improper Annulment of Decree for Alimony—Limit of Authority.—The court had no power to annul the decree allowing alimony so as to leave the decree as if the court had omitted any provision for the support of the wife. The only authority of the court is to modify that portion of the decree “from time to time,” as the court may deem just in view of any changed circumstances of the parties.</p>

<p>New Trial—Statement—Excusable Omission of Specification—Refusal of Leave to Amend—Appealable Order.—An order denying a motion under section 473 of the Code of Civil Procedure for leave to amend a statement on motion for new trial by inserting specifications excusably omitted therefrom is appealable, and a motion to dismiss the appeal therefrom must be denied.</p>

<p>The facts are stated in the opinion of the court in the present case, and upon the former appeal (129 Cal. 146).</p>

<p>Estates of Deceased Persons—Rights of Administrator—Payments to Heirs Before Distribution.—Where an administrator in . anticipation of distribution, makes payments to the widow or other heirs on account of their distributive shares, such payments are not a proper subject of final account, and his only rights are, when distribution is ordered, to have the payments retired therefrom, and to receive a credit on account thereof from the distributive share to be charged.</p> <p>Id.—Rights of Subrogation of Sureties on Bond.—Whatever rights of subrogation the sureties on the bond of a deceased administrator may have to his rights against distributees, the same can only be worked out upon the final decree of distribution.</p> <p>Id.—Matters of Account.—The allowance of attorney’s fees, expenses, and for extraordinary services of the administrator can only be adjudicated in the probate court in the settlement of the accounts of the administrator, and if the sureties on his bond may be subrogated to the rights of a deceased principal in respect to such matters, they must be restricted in their enforcement to the mode prescribed for their enforcement by the principal in the probate court, which has exclusive jurisdiction of all matters of account.</p> <p>Id.—Action on Bond of Deceased Administrator—Charges—Credits. In an action on the bond of a deceased administrator he can only be charged with money in his hands belonging to the estate, or money which he has negligently failed to collect, and he is not entitled to be credited with payments to the widow as part of her distributive share, or for any matters of account.</p> <p>Id.—Note not Collectible—Insolvency op Maker—Failure to Sue not Negligence.—An administrator is not chargeable with negligence in failing to sue upon a promissory note, the maker of which was at all times insolvent, and which had been placed in the hands of a collector, and upon which nothing has been or can be realized. It is only the failure to proceed when a reasonable prospect of collection is apparent, which should be said to be negligence.</p> <p>Id.—Measure op Duty op Administrator.—The measure of the duty of an administrator is to act with fidelity and with the degree of prudence and diligence which a man of ordinary judgment would be expected to bestow on his own affairs of like nature.</p>

<p>Criminal Law—Embezzlement—Continuance of Trust—Sufficiency of Information.—An information for embezzlement which charges that defendant on a certain day received the money as agent and servant of another, and that he thereafter, on the same day, willfully, unlawfully, feloniously and fraudulently did embezzle, convert and appropriate the same to his own use, and not in the due and lawful execution of his trust, sufficiently charges the continuance of the trust up to and including the time of the alleged conversion, and is sufficient.</p> <p>Id.—Proof Esquired of Each Essential Element of Offense.—There are four essential elements of the offense of embezzlement by an agent which must concur, and each of which must be proved beyond a reasonable doubt, viz.: 1. That defendant was such agent; 2. That the embezzled property was received by Mm as that of Ms employer; 3. .That he received it in the course of his employment; and 4. That he appropriated it to his own use with intent to steal it.</p> <p>Id.—Agents Employed in Theater—Sale of Tickets—Evidence Destroyed by Coagent—Inadmissible Memorandum.—Where defendant and a eoagent of the same employer were engaged in selling tickets in a theater, and defendant testified that he put in the money drawer all receipts from tickets sold by him, and appropriated none to his own use, and it was there when the agent took charge of sales, and such eoagent did not testify that he put all money received by him into the drawer, and testified that after looking over the accounts and finding a shortage, and after paying the theatrical manager his percentage, he destroyed all stubs and tickets, and could only testify to the accounts from a memorandum made by Mm at the time, he being equally liable with defendant for the same money, such memorandum was, under the circumstances, a mere self-serving declaration, and the court erred in admitting it in evidence.</p> <p>Id.—Contents of Keceipt—Hearsay Evidence—Eights of Defendant.—The testimony of the coagent to the contents of a receipt claimed to have been signed in a book not placed in evidence, and to show payment of an agreed percentage of all tickets sold to the manager of the theatrical company, is inadmissible hearsay against the defendant who is entitled to be confronted personally with such manager as a witness against Mm for purpose of cross-examination.</p> <p>Id.—Insufficiency of Competent Evidence—New Trial.—Where, aside from the inadmissible memorandum and the inadmissible contents of the receipt testified to, there was no other evidence tending to show that defendant received more money than he left in the hands of the coagent, a new trial must be granted on account of the error in admitting such evidence.</p> <p>Id.—Custom as to Destruction of Stubs and Tickets—Knowledge of Shortage.—The fact that on redirect examination the eoagent testified that it was a custom to destroy stubs and unsold tickets after a performance cannot affect the question. If there was a shortage of money he knew it, and claimed to have suspected the defendant of stealing it, and having the same opportumty of taking the money that defendant had, he would most naturally have saved the evidence by wMch the crime might have been fastened upon the defendant.</p> <p>Id.—Evidence of Flight—Province of Jury.—Where there was evidence for and against the theory that the defendant fled, and there seems to have been no concealment or attempt to keep out of the way of the officers, but there was some evidence tending to show flight, it is for the jury to determine its weight.</p> <p>Id.—Instructions—Duty of Appellant’s Counsel.—It is the duty of counsel for appellant to point out the specific instruction embodied in the charge of the court, wMch he believes does not state the law, so that the appellate court may properly test the same.</p> <p>Id.—Harmless Modification of Requested Instructions.—The court should give instructions requested by the defendant which clearly express the law in the language asked, but it is not reversible error to modify instruction^ where the modification amounts but to a change of words in expressing the same thing.</p> <p>Id.—Improper Refusal of Instruction—Reasonable Doubt as to Guilty Party.—It was prejudicial error to refuse to give an instruction as requested by the defendant that “if the jury find from a consideration of all the evidence that it points as clearly to some other person as the person who committed the crime in question, as it does to the defendant, or if after a fair and full consideration of the evidence the jury entertained a reasonable doubt as to whether defendant or some other person is the guilty party, it is their duty to acquit the defendant,” where there is evidence making such instruction applicable.</p> <p>Id.—Rights of Defendant as to Instructions.—A defendant is entitled to have an instruction given when it announces the law, responsive to every element of Ms defense shown by the evidence.</p>

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

<p>Criminal Law—Burglary—Evidence—Time of Sale of Ferry Ticket —Reference to Record Stricken Out.—Where the ferry ticket clerk testified that a ticket shown him, used by the defendant in going from San Francisco to Alameda county, where the burglary was committed, was sold by him after 7 o’clock in the evening, the burglary being discovered at half-past 5 o’clock the following morning, and evidence given .by him upon cross-examination that he knew it from the record of the tickets, was stricken out on the ground that the record was not kept by him, such ruling left bis evidence in other respects competent, there being nothing to show that he had testified from a record not made by himself, and the court properly overruled a motion to strike out the remainder of his evidence.</p> <p>Id.—Motion to Strike Out Testimony—Discretion of Court.—In all eases where a motion is made to strike out testimony which was not objected to at the time, much discretion is necessarily vested in the trial court, and for a denial of such motion, a reversal cannot be justified, unless there is a plain abuse of discretion in a material matter.</p> <p>Id.—Record of Tickets—Press Copies of Reports—Refreshing Memory of Witness.—Where the record of tickets sold was proved by the person in charge thereof, and consisted of letter-press copies of the original reports of the numbers given by the seller of the tickets at the close of each day, the witness to the sale of the tickets may refresh his memory by the duplicate entries so proved, in testifying to tickets sold.</p> <p>Id.—Larceny—Possession of Stolen Property—Where the defendant was charged with burglary with intent to commit larceny, the possession by the defendant of property stolen from the building entered, unexplained, is a potent circumstance tending to show guilt, and where there was evidence tending to show that the works of two watches found in a suit case in defendant’s room were part of the property stolen by the party who committed the burglary, and the defendant made no attempt to explain the circumstances, testimony as to the finding of such works was admissible.</p> <p>Id.—Rejection of Evidence—Failure to Find Burglar’s Implements in Room.—It was not error to sustain an objection to a question asked by defendant as to whether or not a witness examined the defendant’s room, and whether or not the witness saw any burglar’s tools or implements, files or keys" around the room. The fact that such tools were not found, if true, would not be competent to prove the defendant innocent.</p> <p>Ib.—Rejection op Letter—Review upon Appeal—Presumption.— Where an objection to a letter as hearsay and a self-serving declaration was sustained, error assigned on its rejection is not reviewable upon appeal, where the record does not show its contents nor its substance, nor by whom it was written, and it must be presumed that the ruling of the court was correct.</p> <p>Id.—Instruction—Burglary in First Degree—Entry in Night-time —Support op Verdict—Question op Fact—Inference prom Circumstances.—It was not error to instruct the jury that, if the evidence warranted it, they might find the defendant guilty of burglary in the first degree, where there was sufficient evidence to sustain an implied finding by the jury that the entry by defendant was in the night-time. As to when the entry was made and the property stolen was a question of fact for the jury, and might be arrived at from all the facts and circumstances.</p>

<p>Criminal Law—Forgery of Check—Sufficiency of Information— Circumstances of Offense.—An information for forgery which charges defendant with having willfully and feloniously uttered and passed to a person named a certain false, forged and counterfeit check as the true and genuine cheek of the purported maker thereof, knowing the same to be false, forged and counterfeit, with the intent to defraud the said person, and setting forth the counterfeit check, is not demurrable for not stating the particular circumstances of the offense charged.</p> <p>Id.—Word “(Signed)” Used in Information.—The fact that the word “ (signed) ” is prefixed in parentheses before the forged name of the maker of the check in the information does not show, as matter of law, that the instrument forged was a mere copy of the check, and could damage no one, but it must be assumed that the information charges that the prefix was written by defendant before delivery of the cheek, and its presence does not render the information demurrable.</p> <p>Id.—Immaterial Variance—Omission of Word “ (Signed) ” in Check Proved.—The fact that the forged check introduced in evidence omits the word ‘ ‘ (signed) ’ ’ before the signature of the maker thereof does not show such a material variance from the information as to preclude its admission in evidence. That word, if inserted in the instrument passed by defendant, would not have changed the character of the instrument, or have varied its legal import, or the apparent obligation of the maker.</p> <p>Id.—Substantial Identity of Instrument—Bar to Further Prosecution.—The requirement that the forged instrument offered in evidence shall conform to that laid in the information or indictment has reference to its identity and to the manner in which it is described. If its identity is so apparent that a conviction or acquittal of the defendant would be a bar to any further prosecution for the same offense, a variance in description by the presence or absence of unimportant words which do not affect the sense of the instrument, or change its identity in any material respect, will not constitute a material variance.</p> <p>Id.—Testimony of Person Whose Name was Forged—Bank Account —Immaterial Evidence of Previous Payments—Admission of Defendant.—It was competent for the person whose name was forged to testify that he had money in the bank on which the check was drawn at its date. His testimony that at different times he had paid defendant’s salary in checks, though objectionable as being immaterial, would not prejudice the defendant, especially where it appears that after his-arrest defendant admitted that the cheek offered in evidence was forged by him.</p> <p>Id.—Instructions—Duty of Jury—Definition of Forgery—Uttering of Forged Instrument.—The court properly instructed the jury that it was their duty to accept the law from the court, and to read, as part of its charge, the definition of forgery embodied in section 470 of the Penal Code and to instruct them that the uttering of a forged instrument by the defendant as true and genuine, with the knowledge that it was a forgery and with the intent to defraud, would constitute the crime of forgery as fully as would a forgery itself of the instrument.</p>

<p>Action to Quiet Title—Pleading—General Denial—Issue as to Title—Conclusion from Proof.—In an action to quiet title, a general denial to an unverified complaint merely puts in issue the plaintiff’s title, and not the averment that any claim of the defendant is without right. If plaintiff proves his title, and no affirmative defense is shown, it necessarily follows from such proof that any claim of the defendant is without right, whether adverse or not.</p> <p>Id.—Burden of Proof upon Bach Party—Bindings in Absence of Proof.—The burden is upon plaintiff to prove his title, if put in issue, and is upon the defendant to prove any adverse claim pleaded by him, and if plaintiff’s title is shown, and no proof is offered of the adverse claim pleaded, the findings must be for the plaintiff, and against the defendant.</p> <p>Id.—Defense—Conveyance in Braud of Creditors—Bindings.—-Where defendants, who were creditors of plaintiff’s grantor, pleaded that the conveyance from him was in fraud of creditors, and pleaded actions pending by them as creditors, and asked to have the action stayed until judgments should be recovered, upon which the conveyance might be set aside for such alleged fraud, where no-proof was offered by them of such fraud upon creditors, the court was free to find that their claim was adverse to the plaintiffs, and was without right, and where plaintiffs unnecessarily proved the entire good faith of the transactions culminating in their title, free from any taint of fraud, the court was authorized so specially to find.</p> <p>Id.—General and Special Findings—Consistency—Support by Evidence—Technical Rules of Law Inapplicable.—A general finding of title in the plaintiffs, and special findings in relation to the deraignment of title in plaintiffs, assailed by the defendants for fraud, and that such title is untainted by fraud, are consistent, and it is sufficient that all of the findings, general and special, for the plaintiffs are fully supported by the evidence, and that technical-rules of law relied upon by the defendants, though entitled to recognition, are without merit under the facts and circumstances proved.</p>

<p>Action bt Reau Estate Broker—Commission—Evidence—Insufficient Contract—Proposition—Inadequate Offer of ProofNonsuit.—In an action by a real estate broker to recover commissions upon a sale of real estate, where the instrument offered in evidence did not purport on its face to be a contract to employ plaintiff as a broker or agent to purchase real property, but was a proposition to ascertain whether it could be purchased at a designated price, and such offer was unaccompanied by any adequate offer to prove that plaintiff had procured a binding contract from the owners at the price designated, which defendant could enforce, or had brought the owners and defendant together so that the latter would have an opportunity to secure a contract at that price, and the facts which the plaintiff offered to prove were insuf&eient to render the instrument admissible, it was properly excluded from evidence, and a nonsuit was properly granted.</p> <p>Id.—Offer of Evidence—Cause of Action.—An offer of evidence, which, taken in its entirety, fails to show a cause of action, is properly rejected by the court. The offer must be complete in itself, and must not omit facts without which the facts offered are not relevant.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. T. Hatfield, for H. A. Mayhew, Petitioner, Appellant.</p> <p>W. P. George, and L. J. Hardy, for Florence Hardy, Contestant, Appellant.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Shasta County. C. M. Head, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mutual Benefit Societies—Endowment Fund—Contract fob One-half at Age of Seventy not Ultra Vires.—Where the articles of association of a mutual benefit corporation provided for a benefit fund for each of its members payable to beneficiaries at death, and in case of total and permanent disability, such as may be designated in its endowment laws, which provided that “a total and permanent disability to perform any kind of labor or business, or upon reaching the age of seventy years shall entitle a member holding a certificate of endowment, so disabled or aged, to the payment of one-half of the endowment to which he would be entitled at death,” the contract to pay such half to a member so aged is not void as being ultra vires.</p> <p>Id.—Reasonable Construction of Contract—By-laws.—“Old-age Disability”—Conclusive Presumption.—The contract is to be reasonably construed, in connection with the by-laws of the corporation, in which are found provisions as to “ old-age disability, ’ ’ with reference to the intent that seventy years should be a conclusive evidential fact of “permanent disability,” that “total and permanent disability” was the event which matures the claim to one-half the fund, and that the seventy years was but a term employed as establishing by agreement an age at which such condition was conclusively presumed to exist.</p> <p>Id.—General Power to Contract fob Payment upon Disability—Manner of Exercise—Estoppel.—The general power having been conferred upon the corporation by its charter to contract for a sum to be paid in case of ‘ ‘ total and permanent disability, ’ ’ the corporation is estopped to claim ultra vires, when only the manner of the exercise of such power is involved.</p> <p>Id.—Subsequent Changes in Endowment Laws—Prospective Effect. Where nothing appears in the contract or record to show an intention to reserve to the association the power to alter or modify the contract of endowment, subsequent changes in the endowment laws, providing for a low payment, are deemed prospective, where no executed parol agreement for modification thereof is shown or implied.</p> <p>Id.—Absence op Presumption op Consent—Ignorance op Change— Constructive Notice under Statute.—There can be no presumption of consent to the modification of the contract by failure to act after notice of the change, where it appears that the plaintiff had no knowledge of such change, or of defendant’s intention to dispute his claim by contract for one-half payment at seventy years of age; and so far as constructive notice is concerned, the notice by statute that no by-law could be changed affecting plaintiff’s rights operated as an assurance that no changes in by-laws were intended to affect his vested rights to benefits due him from membership.</p>

<p>Lease of Farming Land—Effect of Cancellation upon Rent—Overflow Preventing Cultivation-—Stipulation.—Though it is the ordinary effect of the agreed cancellation of a lease that rent past due is collectible, yet where, in a lease of farming land, it is expressly stipulated that no rent shall be paid if the land is so injured by overflow or want of reclamation that it cannot be cultivated before June 1st, and the right to cancel the lease also depended upon such contingency, where the land had ceased to be a farm and had become a lake, and it became wholly uncultivable, the agreed cancellation of the lease for that reason was subject to the stipulation against rent, and none can be recovered.</p>

<p>The ease of Moss v. Jacks, to which reference is made in the opinion herein for the controlling facts, was ordered transferred to the supreme court on October 3, 1906, and the judgment was affirmed in that court, on May 9, 1907, and is reported in 151 Cal. 000 [90 Pac. 552], where the controlling facts are fully stated. Further facts are stated in the opinion in the present ease.</p>

<p>Life Insurance—Assignment of Policy as Security—Nonpayment of Premiums—Paid-up Policy—Discharge of Debt.—Where a policy of life insurance provided'for a paid-up policy in a less amount, in case of nonpayment of premiums, and it being payable to the wife, the husband and wife assigned to a bank, to secure the husband’s debt thereto, “said policy, and all our, and each of our, rights thereunder, and all benefits accrued or to accrue under and by virtue of the terms, or conditions thereof,” such assignment carried with it the benefits to accrue under a paid-up policy, and gave the bank power to apply for and receive the same, in case of nonpayment of premiums; and the assignors were not injured by the credit by the bank of such policy upon the debt, leaving a residue which was charged to profit and loss, thus closing the account, without selling the pledged property.</p> <p>Id.—Statutory Lien op Bank upon Policy.—Under section 3054 of the Civil Code, the bank, in addition to its assignment of the policy as security, had a statutory lien thereon, dependent upon possession of it as property belonging to a customer, for the balance due to it from such customer, in the course of the business.</p> <p>Id.—Rights op Wipe After Death op Husband—Redemption.—The wife having assigned all her rights in the policy to the bank, as security for an existing debt and future advances to her husband, she would have no right to the policy or its proceeds, after his death, until she had first tendered the debt due for which the policy was assigned..</p> <p>Id.—Action for Proceeds op Policy—Claim That Debt is Barred by Statute.—In an action by the widow to recover from the bank the proceeds of the policy, under the claim that her husband's indebtedness to the bank was barred by the statute of limitations, even if it could be said that the two-year limitation in which to collect the debt was the proper period, the credit of the policy on the debt, which the bank was justified in making, appears to have been made before the lapse of two years from the accrual of the debt.</p> <p>Id.—Promises Implied in Checks.—Everything implied in a writing is as much a part of it as though it were expressed therein; and in every check there are two implied promises: 1. That the money is in the bank with which to pay it; and 2. That if the money is not there, the drawer of the check will repay the money to the bank.</p>

PETITION for writ of review to annul a judgment of the Superior Court of Shasta County rendered upon appeal from a justice’s court. C. M. Head, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Burglary—Plea to Former Conviction—Error in Action op Court not Shown.—Where the only objection of the defendant to being called on by the court, before trial for burglary, out of the hearing of the jury panel to plead to a former conviction, was urged “upon the grounds alleged in the demurrer herein.’’ which demurrer is not part of the record upon appeal, there is nothing in the record to show that defendant was compelled over his protest “to either confess or deny the prior conviction.” So far as appears from the record, he voluntarily pleaded guilty to the prior conviction when called upon to plead thereto.</p> <p>Id.—Authority of Court—Repeal op Code Provision—Action op Court not Prejudicial__Notwithstanding the repeal in 1880 of section 1025 of the Penal Code, which required the court to ask a defendant charged with a prior conviction whether or not he has suffered it, it seems that it was still within the power of the court before trial, under sections 1093 and 1058 of the Penal Code, to ascertain whether he wished to plead guilty to such charge, in order that the prior conviction may be withheld from the jury upon trial of the main charge; but whether the court is authorized by statute or not to “call upon” the defendant to plead to the charge of prior conviction, its action in so doing was not in excess of jurisdiction, but was, at most, a mere irregularity in procedure, which plainly worked no prejudice, but was a positive benefit to the defendant.</p> <p>Id.—Sufficiency op Evidence op Burglary.—Where it appeared that defendant entered a dwelling-house, and there had an opportunity to steal a trunk belonging to an inmate thereof, and had it in his possession a few hours later, under circumstances indicating the theft thereof by him, there was sufficient evidence to justify the jury in inferring that the house was entered by defendant with felonious intent.</p> <p>Id.—Instructions Properly Refused.—Rquested instructions covered by other instructions given, or which there is no evidence to support, or which would have been charging the jury as to a matter of fact, were properly refused.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County, and from an order denying a new trial. J. W. Taggart, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>George W. Waldorf, Charles P. Hanlon, Edwin Coolidge and William A. Bowden, for Appellant.</p>

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

<p>Police Pension Fund of San Francisco—Mandamus by Widow of Police Officer—Charter the Measure of Bight.—The right of a widow of a police officer to compel the board of trustees of the police relief and pension fund of the city and county of SanFrancisco, by writ of mandate, to make payment to her out of that fund is measured solely by the provisions of its charter, which went into effect January 1, 1900, and created that fund; and no rights under a preceding general pension law, in respect to which no provision is made in the charter, and under which there can be no presumption that the respondent board has any funds in its control, can be available under the petition for such writ.</p> <p>Id.—City Charter not Controlled by General Laws.—When the freeholders’ charter of San Francisco was approved by the legislature, it became the organic law of the city and county, and superseded the previously existing charter, and all laws inconsistent therewith, and thereafter the city and county was no longer subject to or controlled by previous general laws.</p> <p>Id.—Total Amount Payable—Allowance by Board not Claimed— Petition for Mandate Properly Denied.—Where the total payments of petitioner’s husband, under the charter, amounted to $78, and the respondent board had allowed a larger sum, which was not claimed, a petition for a writ of mandate for the sum of $596, for payments made by her husband as a police officer at the rate of $2 .per month from April, 1878, to January, 1903, was properly denied.</p> <p>Id.—Averment op Legal Conclusion.—The averment in the petition that there is in the official custody and subject to the official control of the respondent board "more than sufficient money applicable to," and with which to pay, her claim of $596, is but a legal conclusion, and is limited by the facts on which she bases her claim, and the provisions of law applicable to those facts.</p>

<p>APPEAL from orders of the Superior Court of the City and County of San Francisco, granting a new trial and refusing to dismiss the motion for new trial. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sales—Budded French Prune Trees—Implied Warranty of Kind— Finding—Presumption.—'Upon, a request for the sale of French prune trees, properly budded on Myrobolan roots, the only warranty implied is that they are of that kind or character. Where the court found that the trees sold were French prune trees budded on such roots, without finding whether or not they were properly budded, it must be presumed that they were properly budded.</p> <p>Id.—Merchantability not Warranted—Purchase of Smallest Trees—Expression of Opinion—Finding Against Evidence.— Where the evidence showed that plaintiff purchased cheap trees of the smallest, lowest grade in the nursery, without agreement as to the length of time they would continue to grow, and that defendant merely expressed the opinion that the trees were good trees, if taken care of, a finding that defendant warranted them to be merchantable is against the evidence.</p> <p>Id.—Date of Merchantability—Death of Trees After Three Tears’ Growth—Presumption,—It is not a presumption of law or of fact that a fruit tree sold in February, 1896, was not then merchantable, because, after growing during four summers, on plaintiff's soil, under which lay a deep stratum of blue clay, it died thereon in the fall of 1899.</p> <p>Id.—Warranty of Life' and Growth.-—Even if the defendant had expressly warranted in writing to plaintiff that the trees sold would live and grow, that would not mean a warranty to the plaintiff that they would always live and grow on his land.</p> <p>Id.—-Action upon Parol Warranty of Merchantability—Statute of Limitations—Time of Operation—Breach—Discovery.—In an action upon an alleged parol warranty of merchantability of the trees sold, the two years' statute of limitations under subdivision 1 of section 339 of the Code of Civil Procedure applies, and began to run from the date of the breach, when nonmerchantable trees were sold and delivered, and not from the time of the death of the trees after three years’ growth on plaintiff’s land, when plaintiff claimed that the nonmerchantability was first discovered by him.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, annulling action of the civil service commissioners upon writ of review. M. C. Sloss, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>P. V. Long, City Attorney, and John T. Morris, Assistant City Attorney, for Appellants.</p>

<p>Divorce—Division of Property—Custody of Children—Omission to Provide for Care and Education—Jurisdiction to Modify Decree.—Where a decree of divorce granted to the wife one-half of the community property, and the custody of the minor children, the omission to provide therein for payment by the husband for their care and education had the legal effect of an adjudication between them that he should not be required to make any further payment therefor to the plaintiff; and the court had no jurisdiction to modify the decree under section 138 of the Code of Civil Procedure, so as to compel the divorced husband to pay to the divorced wife a further monthly sum for their care and education.</p> <p>Id.—Improvident Order—Abuse of Discretion.—When it appeared at the hearing that the minors were in plaintiff’s custody, attending the public schools, and there was no showing that the plaintiff, to whom $30,000 worth of property had been awarded by the decree, did not have ample means to provide for their support and future education, an order directing further monthly payments by defendant to plaintiff therefor, without any provision as to their education, and leaving the whole matter discretionary with her, was improvident, and showed an abuse of discretion, under the circumstances of the case.</p> <p>Id.—Change of Conditions.—If the conditions of the parties had changed materially after the decree, or if the means allowed to plaintiff had been exhausted, or if the circumstances had been such as to call for aid from defendant to assist in the education of the minors, the question would have been different.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. J. C. B. Hebbard, Judge.</p> <p>The’ facts are stated in the opinion of the court.</p>

<p>Unlawful Detainer—Increase of Bent—Monthly Tenancy—Premature Demand and Suit.—The increase of rent under a tenancy from month to month provided for in section 827 of the Civil Code cannot take effect until the expiration of the month. Where notice was given on December 22, 1904, that on and after January 15, 1905, the rent would be an increased monthly sum, payable in advance, and after refusal of tender of the previous rent for the month of January, demand was made for one-half thereof to January 15th, and for the increased rent for the remaining half of that month, or for possession of the premises, such demand, and an action for unlawful detainer begun after three days, on January 9th, were premature, and the plaintiff cannot recover.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. H. Z. Austin, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sales—Business at Invoice Prices—Notice of Rescission for Misrepresentations—Acquiescence—Resale at Increased Price— Action upon Draft. Deposited.—Upon the sale of a business at invoice prices, upon which a deposit was made by the vendees of cash and a draft, under a’ contract providing for forfeiture thereof, if the full purchase price was not paid, where the vendees gave notice of rescission of the sale for fraudulent misrepresentations, and demanded return of the deposit, which was refused, the vendor, by subsequently reselling the stock at prices greater than that agreed to be paid, acquiesced in the rescission, and cannot thereafter maintain an action upon the draft against the first vendees.</p> <p>Id.—Void Provision for Forfeiture—Liquidated Damages.—A provision in a contract for the sale of personal property for the forfeiture of a deposit, if the purchase money is not paid, is void as being an attempt to liquidate damages in an unauthorized case.</p> <p>Id.—Remedies of Vendor of Personal Property.—The remedies of the vendor of personal property are clearly defined in section 3311 of the Civil Code, and in recognized authorities, and do not include the right to resell the goods at an advanced price, and to retain the purchase money paid on the contract, either as liquidated damages under section 1670 of that code, or on any other ground.</p>

<p>Corporations—Liability op Stockholders—Insufficient Complaint —Subscribed Capital Stock not Shown.—A complaint in an action against stockholders of a corporation to recover their proportionate share of its indebtedness, which does not aver the whole number of shares of the “subscribed capital stock,’’ is fatally defective.</p> <p>Id.—Averment op Issued Shares—Common Knowledge.—The averment that a certain number of shares were issued is not the equivalent of stating that only that number of shares were subscribed, and amounts to no more than a statement of stock certificates issued; and it is a matter of common knowledge that stock is invariably subscribed for before it is issued. Such averment might be true, and yet the remaining shares might have been subscribed for by persons not parties to the action.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County, and from an order denying a new trial. Emmett Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Lake County, an order denying a motion to set aside the judgment, and an order denying a new trial. M. S. Sayre, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>High School Building—Levy of Taxes.—The authority given to levy taxes for the maintenance of high schools flows from the same source as the authority to levy taxes for the construction of buildings in which the schools are to be held, and the latter power is coextensive with the former.</p> <p>Id.—Power of Legislature—Special Methods for Support of High Schools.—It is within the power of the legislature to constitute high schools, and to provide for their support by special methods different from those adopted for other schools; and the provisions of the high school acts are not to be controlled by the provisions relating to the common schools.</p> <p>Id.—Vote of People not Required.—No vote of the people of the high school district is necessary to authorize the supervisors to levy a tax for a high school building in a union high school district, upon a proper estimate made as provided for by law.</p> <p>Id.—Sufficiency of Estimate—Time—Form—Authentication—Jurisdiction of Supervisors.—An estimate filed in August, under which a levy of taxes was made September 21st, is a sufficient compliance with the law as to time. No particular form is required for the estimate, and no particular details are required. Where it sufficiently shows the source from which it emanated, it does not require the signature of all the trustees of the high school district, and is sufficiently authenticated by their secretary, as a basis for the exercise of the jurisdiction- of the board of supervisors, who act in a quasi-judicial capacity in the matter.</p> <p>Id.—Prior Purchase of Lot- not Required—Vote for Purchase Unnecessary.—It is not essential that there shall be a prior purchase of a lot before the levy of taxes for a high school building, before a lot is provided for; nor need the purchase of a lot on which to locate the high school building be authorized by a vote of the people.</p> <p>Id.—Insufficient Levy for Building—Second Levy.—Where the first levy of taxes was insufficient to meet the estimate for the building, a second levy is authorized to raise the amount necessary.</p>

<p>Criminal Law—Rape—Evidence—Fact of Complaint—Hearsay—Details of Offense—Name of Accused.—While, as a rule, the mere fact of complaint by the prosecutrix is admissible as original evidence, upon a prosecution for rape, the reason for admitting such proof is lacking where the one to whom the statement was made witnessed the offense. In no ease is hearsay evidence admissible from statements of the prosecutrix as to the details of the offense or the name of the accused, and it is error to allow such evidence over specific objections to its ineompeteney, as hearsay.</p> <p>Id.—Force or Consent not Involved.—Where the prosecutrix was a child of tender years, no question of force or consent arises as essential to the crime; and no fact to which the child could testify could be corroborated by her hearsay statements beyond the fact of the complaint, if any complaint can be said to have been made.</p> <p>Id.—Misconduct op District Attorney—Opening Statement.—The district attorney overstepped the bounds of propriety in his opening statement in stating that he would prove facts, in their nature calculated to prejudice the defendant, which facts he must have known were not admissible as evidence, unless he could connect them with the knowledge and approval of the defendant, which could not be done upon any substantial basis.</p> <p>Id.—Improper Order—Limiting Argument.—Where the showing of the defendant was uncontradicted that the order of the court limiting the argument in a felony case, in view of the condition of the record, rendered it impossible for the counsel for the defendant to submit a full and fair argument of the cause to the jury in that time, and that the rights of the defendant were prejudiced thereby, the order deprived the defendant of his constitutional right to a full defense, and entitles him to a new trial.</p> <p>Id.—Instruction as to Assault with Intent to Commit Rape.— Although force is not an element of an assault with intent to commit rape upon a female under the age of consent, an instruction on that subject should be sufficiently specific to show contact of some sort with the child by taking hold of her in such manner as to indicate the intent to have carnal knowledge of her, though this intent may be judged by the facts and circumstances.</p> <p>Id.—Conviction upon Uncorroborated Testimony—Instructions.— Though the rule is well settled that the defendant may be convicted upon the uncorroborated testimony of the female upon whom the assault was committed, yet the rule should be so stated in an instruction as not to charge with respect to matters of fact.</p> <p>Id.—Competency op Child as Witness—Discretion op Court.—The determination of the judge of the trial court, upon an objection to the competency of the child upon whom the assault was committed as a witness, in favor of her competency, is not a matter for review, unless the abuse of discretion is very clear. Although permitted to testify, the jury would doubtless take into consideration the immaturity of the child’s mind in passing upon the weight of its testimony.</p>

<p>Equity Case—Special Verdict Advisory—Findings.—In an equity-case, the special verdict of the jury is merely advisory, and the court has a right to disregard it, which it does by saying: “And the court, being fully advised in the premises, does not approve of said verdict, but now makes and files its findings of fact and conclusions of law.”</p> <p>Id.—Immaterial Finding—Delivery of Deeds—Title of Widow— Community Property — Distribution Under Will.—A finding against evidence that deeds from a husband to Ms wife were delivered before Ms death, and passed title to her, is immaterial where the widow was entitled to one-half of the community property after the husband's death, and obtained title to the other half as residuary devisee and distributee under the will of her deceased husband.</p> <p>Id.—Action to Enforce Trust Against Heirs of Former Wife— Alleged Agreement with Husband to Make Will—Support of Findings.-—In an action to enforce a trust against heirs of the former wife, based on her alleged verbal contract to make a will in favor of certain heirs of her former husband, in consideration of Ms will in her favor, it is held that the findings of the court against the plaintiffs and in favor of the defendants that the will of the deceased husband was not made pursuant to any agreement, and that he did not rely upon any such agreement or promise when he made his will, and that plaintiffs have no interest or claim on the property described in the complaint, but that it belongs to the defendants, are fully sustained by the evidence.</p>

<p>Water Bights—Biparian Owners—Use by Lower Owner not Adverse to Upper Owner.—A lower riparian owner cannot acquire a right either by prior appropriation or by prescription or by adverse user as against an upper riparian owner, whose rights antedate the appropriation and user, and the mere nonuser of the water by the upper owner cannot make the use of the lower owner adverse, or strengthen his claim of appropriation or prescription.</p> <p>Id.—Suit by Lower Owners to Enjoin Diversion by Upper Owner.— The lower owners are entitled to maintain a suit to obtain a judgment restraining the upper owner from diverting all of the waters of the stream for irrigating his land riparian to the stream.</p> <p>Id.—Failure to Find upon Defense.—Where the complaint of the lower owners alleged- no priority of user of the waters for domestic purposes over the defendant, the failure of the court to find upon allegations of the upper owner in his answer “that it is necessary for defendant to use said waters on said land in order to keep the alfalfa growing on said irrigated tract alive, and if said water is not used to a reasonable extent on said lands great and irreparable injury will result to the defendant thereby,” was not error.</p> <p>3d.—Equality of Bight—Determination of Bights.—The plaintiffs having an equal right to take the water, and it being admitted that at times there is abundance of water flowing in the creek to supply their wants and those of the defendant for irrigating his alfalfa, it becomes necessary to know just how much water must flow down the creek to plaintiffs’ lands, for they are entitled to just so much and the defendant to so much.</p> <p>3d.—Uncertain Judgment not Determining Bights.—A judgment which enjoins the defendant from diverting such waters “for the purpose of irrigation at such times or in such quantity or amount or in such manner as will prevent the waters of said Conn creek from flowing to and upon the riparian lands of plaintiffs ... in a sufficient quantity to supply plaintiffs with fresh water for their natural wants and usual domestic purposes, including the watering of livestock,” etc., is not a judgment that informs either plaintiff or defendant just what to do, and is fatally uncertain, in not adjudicating the rights of the parties or determining what amount is due to the plaintiffs.</p>

<p>Order Granting New Trial—Verdict Against Law—Disregard of Instructions-—Presumption upon Appeal.—In an action to recover an attorney's fee for $20,000, where the verdict was for $500, and a new trial was granted, one of the grounds of which was that the verdict was against law, which means that it was in disregard of the instructions of the court, upon appeal from the order granting a new trial, every presumption is in favor of the order, and where no instructions appear in the record, it must be presumed that the jury disregarded the instructions. For aught that appears, the court may have instructed the jury, if finding for plaintiff, to find a much larger sum.</p> <p>Id.—Duty of Appellant to Make Error Affirmattvbly Appear.—It is the duty of the appellant to make error affirmatively appear in the record; and if no ground is shown by the record for reversal of the new trial order, it must be affirmed.</p>

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

<p>Contract for Personal Services Nonassignable—Trust not Enforceable by Master Against Servant.—A contract for personal services, founded on personal qualities, is not assignable without the consent of all parties; and the court cannot direct an assignment of it, or decree the same to be held in trust by a servant who has taken such contract in his own name, after a similar contract in favor of his master had terminated, although the employment had not terminated, and the master had requested the servant to renew the contract for the master’s benefit.</p> <p>Id.—Termination of Contract—Duty of Servant to Account.— Where the contract of employment called for an equal division of all commissions on the sale of real estate secured by the servant while the employment continued, and provided for fifteen days' notice of discontinuance^ and the servant inconsistently took employment from another, while he was obligated under his contract to devote all his time to his employer, the employer is entitled to enforce an accounting of one-half of all sales made by the servant under the new employment until the expiration of the fifteen days' notice given by the servant to terminate the employment.</p> <p>Id.—Property Belonging to Employer.—Whatever the servant received from any source during the employment belonged to the employer; and any property acquired by him during the employment ought to have been taken for his employer; yet as to the latter, it can only apply to such property received by the employer which is assignable or transferable in character.</p> <p>Id.—Accounting in Equity—Jurisdiction of Superior Court.—The subject of an accounting between master and servant, as to commissions received by the servant during the contract of employment for which he refused to account, is cognizable in equity in the superior court, though the amount recoverable may be less than $300.</p>

<p>Pledges—Collateral Note—Second Pledge—Consideration—Subsequent Assignee op Pledged Note not Protected.—Where the owner of a note pledged it to a bank, with power to collect and pay the note secured to a third party, and the residue to the pledgor, who subsequently bought personal property from respondent, and gave him a note therefor, under an agreement with the bank that the collateral note should also stand as a further pledge for its payment, and the pledgor afterward assigned the pledged note to appellant, appellant’s rights as assignee are subject to the second pledge. He cannot, by avoiding inquiry as to the extent of the pledge, occupy the position of an innocent purchaser without notice as against the second pledgee.</p> <p>Id.—Support op Findings—Correction op Clerical Error not Prejudicial—Support op Judgment.—Held, that the findings are sufficiently supported by the evidence, and that the .correction by the court of a clerical error in the findings could not be prejudicial, since it does not affirmatively appear that findings were not waived, and the judgment would be supported even in the absence of findings.</p>

<p>Vendor and Purchaser—Contract of Sale—Agency—Ratification— Estoppel.—Although an agent signing in his own name a contract for the sale of real estate was not authorized in writing by the owner of the equitable title to sign it, yet where such owner was consulted and stated that such agent was authorized to sell the lot, such statement was a ratification of the agency by such equitable owner of such a character as to estop him from denying it.</p> <p>Id.—Specific Performance—Offer of Deed not Complying with Contract—Damages—Amount of Deposit—Tender.—Where the agent and equitable owner tendered a deed from the holder of the legal title, which accorded with the contract of sale to the equitable owner, but not with the contract of sale to plaintiff, who refused the deed, it appearing that full specific performance cannot be enforced against the agent and equitable and legal owner, the plaintiff is entitled to damages in the amount of the deposit made on the contract, as against the agent and equitable owner, and where such deposit was tendered before suit, the recovery will be limited, as against them to the sum deposited, without interest.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Charles Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Venue op Action—Foreign Corporations.—Assuming that foreign corporations may be sued in any county that plaintiff may designate, such right can exist only in a case where they are the only defendants.</p> <p>Id.—Questions Disregarded—Personal Dependants—Bight op One to Change Venue.—Disregarding the question whether foreign corporations defendants joining in an application to change the venue to the county of their place of business, with a nonresident personal defendant residing in that county, are entitled to such change; and disregarding all fictitious defendants as parties not interested, where two nonresident personal defendants are residents of the same county, and one of them has not joined in the application, the personal defendant applying is entitled to have the venue changed to the county of their residence.</p>

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

<p>Mandamus—Water Certificate—Terms of Contract—Cumulation of Water—Improper Judgment.—The writ of mandamus will only lie to compel the performance of an act which the law es- ■ peeially enjoins; and where the terms of a water certificate entitled the holder to a continuous flow of one-fifth of an inch of water to each of fifty acres,, and permitted the holder to “elect to cumulate the use of water thereunder at any one month or more” of seven summer months, “the aggregate in any month not to exceed one-fourth of the whole for that season,” subject “to the usual rules and regulations of the company for the distribution of water,” a judgment in mandamus directing an accumulated flow of water “twice a month in a head of flow, not exceeding sixty inches of constant flow for such period,” is improper.</p> <p>Id.—Relief in Equity—Mandamus Limited to Terms of Contract.— It may be that, in a proper proceeding a court of equity would have the power, under appropriate circumstances, to deliver the water in such cumulated quantities as justice and equity might require, but in a mandamus proceeding the court has no such power, and can only enforce the literal terms of the contract as to cumulation, at periods of not less than one month.</p>

<p>Contracts—Building Hotel for Lessee—Provision Excusing Performance—Prevention bt Ordinance.—Where, by the terms of a contract the promisor agreed to build a hotel for a lessee according t« specification unless prevented by 1 ‘ causes beyond his control, ” he is excused from performance both by the terms of the contract, and “by operation of law” under section 1511 of the Civil Code, when he is prevented by lawful city ordinances from erecting the building specified, or any hotel building which would be adequate for the purposes of the contract.</p> <p>Id.—Action by Lessee—Validity of Ordinance—Unreasonableness—Pleading.—In an action on the contract by the proposed lessee, the validity of the ordinance as a legislative act cannot be questioned, where nothing is averred in the complaint, dehors the ordinance, to show that it is unreasonable, oppressive or void, as applied to the property involved in the contract, as distinguished from other property in the city to which it is applicable.</p>

<p>“Forcible Entry” into Plaintiff’s Dwelling—Wrongful Unlocking of Looked Doors.—The unjustifiable entry by the defendant into the plaintiff’s dwelling, of which she was in the actual possession, by means of the wrongful unlocking of locked doors, during the temporary absence of plaintiff, constitutes a “forcible entry” by “breaking open doors” within the meaning of section 1150 of the Code of Civil Procedure.</p> <p>Id.—Treble Damages—Improper Judgment—Finding Against Evidence.—Where there is no evidence in the record to sustain a finding of the court that plaintiff suffered damages, by reason of the forcible taking and retention of the premises by defendant, in the sum of $150, or to show any amount in excess of $45, the trebling of damages in the sum of $450 cannot be permitted to stand; and plaintiff is entitled to recover only the sum of $135, and must consent to modify the judgment to that extent, or suffer a new trial.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>W. A. Purington, Purington & Adair, and C. L. McFarland, for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Grand Larceny—Charge of Stealing Horse—Proof of Stealing Mare—Construction of Penal Code.—The tact that the information charged the defendant with stealing a horse, and that the proof showed that a mare was stolen, does not indicate a material variance. The word “horse” used in section 487, subdivision 3, of the Penal Code, is used in its generic sense, as including all animals of the horse species, male or female, and the word “mare,” also used in the same section, is not intended to modify or change the common-law rule, but is inserted possibly for more definiteness.</p> <p>Id.—Sufficiency of Evidence.—Where the evidence showed without conflict that defendant exercised actual control and ownership in the county of the venue over the mare stolen in another county, and sold the mare therein for almost nothing, and his declarations, conversations and conduct proving his connection with the disposition of it, indicates guilty knowledge and consciousness that he had obtained it by criminal means, the verdict of guilty is sufficiently supported.</p> <p>Id.—Corroboration op Accomplice.—Where the defendant admitted that a witness had betrayed him, conceding such witness to be an accomplice, Ms testimony was sufficiently corroborated by the declarations of the defendant himself made in the presence of the officers.</p> <p>Id.—Argument op District Attorney—Absence op Exception.— Where no exception was taken to the ruling of the court on any matter in connection with the argument of the district attorney, no error or alleged error in that matter can be received upon appeal. Id.—Evidence—Deposition on Preliminary Examination—Preliminary Proof—Question por Court.—The question as to the sufficiency of the preliminary proof as to the whereabouts of a witness whose deposition was taken on the preliminary examination, and the efforts made to secure Ms attendance, was in the first instance for the trial court; and where it cannot be said, as matter of law, that it was insufficient to satisfy the trial court that the witness could not be found in the state, it was not error to admit the deposition in evidence.</p> <p>Id.—Accusatory Statements Replied to—Admission op Guilt.— Where accusatory statements were made by a witness in the presence of the defendant, such statements, together with the response of the defendant, admitting Ms guilt, though in contradiction of Ms previous declarations of innocence, were admissible against Mm.</p>

<p>Action on Note—Pleading—Ownership—Nonpayment—General Denial.—In a suit on a promissory note set out at length in the complaint, executed by defendant to plaintiff, an allegation that plaintiff was the owner or holder of the note at the time of the commencement of the suit was unnecessary; and a general denial in the answer to the unverified complaint puts in issue only the allegation as to nonpayment of the note.</p> <p>Id.—Note Assigned as Collateral—Interest op Pledgor—Bight op Holder op Collateral Parties.—Where it appears that the note sued upon had before suit been assigned as collateral security, the holder of it in pledge might have maintained an action to collect the same without making the pledgor a party; but the pledgor retained interest in the note, and may sue to protect his rights therein, but not without making the pledgee a necessary party to his suit.</p> <p>Id.—Beassignment by Pledgee to Pledgor Before Trial—Judgment for Pledgor.—Where there was a reassignment by the pledgee to the pledgor pending suit before trial, it was proper to render a judgment in favor of the pledgor upon the note, without the necessity of an order bringing in the pledgee as a party to the action, before rendering such judgment.</p> <p>Id.—Attorneys ' Pees not Allowable.—Where, at the time of bringing the suit, it was improperly brought in the absence of the pledgee as a necessary party, and without apparent necessity for bringing the suit by the plaintiff, the court erred in allowing any attorney’s fee upon the note in favor of the plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. W. P. James, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. A. L. Rhodes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Unlawful Detainer—Expiration op Lease—New Lease to Third Person—Action by Landlord—Estoppel op "Former Lessees and Subtenants.—Upon the expiration of the term fixed by a lease, it is the duty of the lessees and their subtenants, who are estopped to deny the title of the landlord, to surrender the possession of the premises to him, and if they unlawfully hold over after the term, the landlord may maintain an action of unlawful detainer against them, notwithstanding he has executed a new lease to a third person, to take effect immediately after the expiration of the former lease, where they have not connected themselves in any manner with the title of the new lessee.</p> <p>Id.—Notices Construed Together—New Tenancy not Created.—Notices (1) that after termination of the lease, the monthly rent will be $300 in advance for each and every month the lessees continue to hold possession, (2) that the lease will terminate on the day fixed therein, and they would be required to deliver possession on that day, and (3) repeating the second notice, and stating that “this is intended as a monthly notice to quit for the purpose of terminating your tenancy as aforesaid,” are to be construed together, and no new tenancy from month to month was thereby created at the rate of $300 per month.</p> <p>Id.—Construction op Code—Tenancies prom Month to Month.—Section 827 of the Civil Code applies only to tenancies from month to month, and not to a lease having a fixed expiration of time.</p> <p>Id.—Dependants not Misled—Knowledge op New Lease—Terms of Old Lease—Forms op Notice.—The defendants, having knowledge of the new lease and of the terms of their own lease, could not be misled by the forms of the notices. Their lease of itself was sufficient notice to them that they would be required to surrender possession at the expiration of the time therein named.</p> <p>Id.—Possession Under New Lessee—Burden of Proof.—If any of the defendants had permission of the new lessee to remain in possession, it was incumbent on them to prove it as a matter of defense.</p> <p>Id.—Treble Damages.—"Where the evidence supports the finding of the court as to the extent of the damage caused by the unlawful holding over by the defendants, the court properly gave judgment for three times the amount of damages proved.</p>

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

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

<p>Criminal Law—Assault with Intent to Commit Bobbery—Inapplicable Instruction as to Assault.—Under an indictment for an assault with intent to commit robbery, where the evidence was such as to justify only a verdict of guilty as charged, or a verdict of acquittal, the court properly refused to instruct the jury that they might find a verdict for a simple assault under the indictment, on the ground that there was no evidence before the jury to which it could refer.</p> <p>Id.—Instruction to Distrust Willfully False Witnesses—Matters-of General Knowledge—Unconstitutional Statutes—Matters of Fact.—An instruction to the jury that “if any of the witnesses examined before you have willfully sworn falsely in a material matter, it is your duty to distrust their entire testimony, ” is not reversible error, since it relates to mere commonplace matters within their general knowledge, notwithstanding the statute requiring such an instruction (Code Civ. Proe., see. 2061, subd. 3) is unconstitutional, as requiring an instruction as to matters of fact.</p> <p>Id.-—Misconduct of District Attorney—Allusion to Defendant’s Failure to Testify—Distinguishing Testimony of Codefendant—Instruction.—It was not misconduct requiring a new trial for the district attorney, in his argument, to allude to defendant as the one who did not take the stand, to distinguish him from a codefendant who took the stand, as a witness in his behalf, where it is manifest that he did not intend to use that fact against the defendant, and he expressly disavowed any right to comment thereupon, and the court properly instructed the jury as to the legal right of defendant to remain silent, and that no presumption can be indulged against him on that ground.</p> <p>Id.-—Construction or Penal Code.—The language of section 323 of the Penal Code merely declares that the defendant’s "neglect or refusal to be a witness cannot in any manner prejudice him, nor be used against him on the trial or proceeding,” and cannot be construed to forbid any unprejudieial allusion to the fact that he did not testify, where it is not "used against” him.</p> <p>Id.—Allusion or District Attorney to Immaterial Pact not Proved. Where the codefendant had testified that he and defendant met in Santa Rosa "a fellow named Gilluly,” the statement of the district attorney that "the Gillulys are well known in Santa Rosa,” though being of a fact not in evidence, yet being a fact immaterial to the offense tried, evidently could not have affected the verdict of the jury.</p>

<p>Joint Business Enterprise—Equal Shares—Purchase of Patents— Unfair Advantage by Associate—Recovery of Benefit.—Where defendant entered into a joint business enterprise with plaintiff, who put in his business at its true valuation, and it was agreed jointly to purchase the exclusive right to use in the county certain valuable letters patent for purposes of the business, under an agreement that each was to be the owner of and pay the undivided one-half of the whole enterprise, under a representation of defendant to plaintiff that the letters patent could be purchased for $8,000, which was relied upon and agreed to by plaintiff, in ignorance of the fact conceded by defendant that he already had a contract to buy such exclusive right for $5,000, or to sell it on commission for $3,000 more, and he in fact paid only $5,000 therefor, and turned it into the enterprise as $8,000, the plaintiff, upon discovery of the facts, is entitled to recover from defendant the benefit of the contract in the sum of $1,500.</p> <p>Id.—Mutual Agency—Fiduciary Relations—Obligation of Parties. When plaintiff and defendant agreed to enter into the common enterprise together, each one became the agent of the other in regard to the purchase of the property and the management of the business. They occupied fiduciary relations to each other, and neither could take advantage of the other for his own benefit by dealings in the name of both, and in furtherance of the common enterprise. Defendant was bound to act in the highest good faith to plaintiff, and will not be allowed to obtain any advantage over him by misrepresentation or concealment.</p> <p>Id.—Injury to Plaintiff Immaterial—Right to Share in Benefit of Bargain.—Though the plaintiff was in fact injured by reason of his payment of $1,500 more than he would have been required to pay if defendant had paid his just part of the purchase price, yet a person in a relation of trust and confidence will not be upheld in violating his trust to his own benefit, because the entire trust transaction did not injure the party whose trust has been betrayed in the particular transaction. Each party, in such case, has the right to enjoy his proportion of the benefit of a bargain made by either.</p> <p>’ Id.—Findings—Support of Judgment—Immaterial Issue as to Partnership.—Where the findings support the judgment and sufficiently show the fiduciary position occupied by the parties toward each other, it is immaterial whether they were or were not copartners in the technical sense; and it was not necessary for the court to find in express terms upon the issue made by the pleadings that plaintiff and defendant entered into an agreement to become partners.</p> <p>Id.—Finding Negativing Answer—Character of Contract.—The finding that plaintiff and defendant jointly agreed to purchase the exclusive right to use the patents in the county is inconsistent with and negatives an averment in the answer that the contract was for the purchase by plaintiff of a half interest in defendant’s option for $4,000.</p> <p>Id.—Plea of Corporation Formed by Parties—Immaterial Issue.— The fact pleaded in the answer, if true, that plaintiff and defendant formed a corporation to conduct the business after the purchase, and that plaintiff sold his shares at a profit, would not justify the defendant in keeping the $1,500, which in justice he owes to the plaintiff, and is wholly immaterial.</p> <p>Id.—Evidence—Effect of Supposed Knowledge—Materiality.—The question whether, if plaintiff had known that defendant had a credit of $3,000 at the time, and was to pay $2,500 only, he would have gone into the arrangement, could not be objected to as immaterial. It was material to know whether or not plaintiff would have gone into the arrangement if he had known that defendant was taking advantage of him to the extent of $1,500.</p>

<p>Vendor and Purchaser—Contract of Sale—Guaranty of Title—Implied Terms—Good, Sufficient, Clear and Unencumbered Title. A contract to convey lots described for a price received, ‘1 title guaranteed,” contains the implied representation and agreement that the vendors have a good and sufficient title to the lots, and that they will execute a proper deed of conveyance of the whole title thereto, free from litigation, palpable defects and grave doubts, fairly dedueible of record and unencumbered.</p> <p>Id.—Reservations in Deed — Private Easements—Encumbrance— Noncompliance with Contract.—A reservation in the deed executed by the vendors of important rights and easements for private purposes shows a title encumbered thereby, and does not comply with the contract.</p> <p>Id.—Request to Make and Record Deed—Implied Agreement for Good Title—Nonacceptance—Action for Breach.—A request by the purchaser to the vendors to make out a deed and place it of record, if made, was upon the implied understanding and agreement that such deed would convey a good and valid title to the property-described in the contract, and the purchaser cannot be held to have accepted a deed, recorded without his knowledge, which did not convey the title bargained for, which he never saw, was never sent to him nor placed in his possession, and of which he had no information until after a suit was brought by him for damages for breach of the contract.</p> <p>Id.—Findings Unsupported.—Held, that the findings for the defendants are unsupported by the evidence.</p>

<p>New Trial—Default in Serving Notice of Intention—Refusal of Belief—Discretion.-—The action of the superior court in refusing an application of the party moving for a new trial to be relieved from a default in failing to serve the notice of intention to move for a new trial within ten days after service of written notice of the decision, is within the discretion of the court, and will not be disturbed upon appeal where no abuse of discretion appears.</p> <p>Id.—Notice of Decision—Interlineation in Memorandum of Costs— Presumption upon Appeal.—Where relief from the default was sought on the ground that the notice of decision was interlined in a blank form used as a “memorandum of costs,’’ which was served with it, and that he was thereby misled, it may be assumed upon appeal in support of the order refusing relief that the court was satisfied from an inspection of the interlineation before it that it was not made in such a manner as to be readily overlooked, and that there was no reasonable ground for the failure of the attorney to observe the written notice of decision.</p> <p>Id.—Lapse of Six Months After Default—Absence of Jurisdiction to Believe.—Where more than six months had elapsed after the default in failing to serve the notice of intention in time, and at every stage of the proceedings, objection was urged on the ground of such default, the court had no jurisdiction at the time of settling the statement to relieve from such default, under section 473 of the Code of Civil Procedure.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco setting aside a default of plaintiff, and allowing him to file an amended complaint. Frank «1. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Humboltdt County and from an order denying a new trial. E. W. Wilson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. W. P; James, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sales—Construction of Contract—Terms of Instrument.—Where it appears from the terms' of an instrument connected with the transfer of personal property that it is intended as a purchase and sale thereof, and the vendor merely seeks to retain title, until the purchase money is paid, the courts will construe the instrument as one of purchase and sale, irrespective of any name by which the parties have designated it; but in the absence of any evidence of the subsequent conduct of the parties under the instrument, their intention is to be inferred solely from the terms of the instrument itself.</p> <p>Id.—Lease with Option to Purchase—Recovery of Rent.—Where no question of ownership or right of possession is involved, and the terms of the instrument are those peculiar to a lease of machinery as personal property, with an express agreement by the lessee to pay a specified rental for its use during the term of the lease, which confers an option upon the lessee to purchase the property at the end of the term, if the rent has been paid, and the terms of the agreement are undisputed, the instrument must be deemed a lease, and the lessor may recover the unpaid rent, if no valid defense or counterclaim is shown thereto.</p> <p>Id.—Admission of Instrument—Absence of Counter-averment— Lease Unaffected.—Where the defendant corporation sued for rent admitted that it executed the instrument described m the complaint, without alleging that the instrument did not correctly represent the nature of the transaction or the terms of the agreement between it and the plaintiff, it can receive no different construction from that of the lease which the language imports.</p> <p>Id.—Pleading—Defense of Warranty—Averments by Way of Recital—Absence of Direct Averments.—Averments in the answer by way of recital that defendant’s agreement “to take and pay for” the machinery was in consideration of a warranty by the plaintiff that the machinery had a certain capacity which it did not in fact have, and that the machinery was not fit or proper ‘ ‘ for the purposes for which he purchased it, ’ ’ without directly averring that defendant “agreed to take and pay for” the machinery, or that it “purchased” it, or that it informed plaintiff of “the purposes” for which it desired to obtain the machinery, cannot supply the absence of such direct averments.</p> <p>Id.—Defective Averment—Offer to Return Machinery—tDemurrer for Uncertainty.—An indefinite averment that “upon ascertaining these facts” it offered to return the machinery without stating when the facts were ascertained, and the offer made, makes the answer uncertain, and a demurrer for uncertainty in that respect was properly sustained. The plaintiff had the right to be informed upon the record whether such offer was before or after the date at which, by the terms of the instrument, the payments for its use matured or whether it was before or after the defendant had had the use of the machinery during the period for which it was leased.</p> <p>Id.—¿Breach of Warranty, When not a Defense to Rent—Loss not Averred.—A breach of the alleged warranty would be no defense to the plaintiff’s claim for rent, if the defendant had had the continual use of the machinery until the end of the term for which it hired it, in the absence of an averment that it had suffered any pecuniary loss by reason of the breach.</p> <p>Id.—Insufficient Separate Defense—Breach of Warranty upon Sale of Machinery—Identity of Transactions not Averred—Absence of Presumption.—A separate defense, setting up a breach of warranty upon the sale of specified machinery, constitutes no defense to the cause of action for rent under .the lease of machinery alleged in the complaint and not denied in the answer, in the absence of an averment that the two transactions were connected or related to each other. The fact that the description of the machinery sold in the separate defense is the same as that of the machinery admitted to have been leased can raise no presumption that it is the same, in the absence of an averment of the identity of the two transactions.</p> <p>Id.—Counterclaim for Damages—Connection with Subject of Action not Alleged—Independent Cause of Action—Demurrer.— A counterclaim for damages for breach of warranty of machinery purchased, which does not allege that it is the same as that covered by the lease, or is connected with the subject of the action or with the transaction upon which the action is based, is not available under subdivision 1 of section 438 of the Code of Civil Procedure; and if it is set up under subdivision 2 of that section it must state a separate and independent cause of action upon contract, which is subject to the same grounds of demurrer as an original complaint.</p> <p>Id.—Pleading—Special Damages.—Only damages necessarily resulting from a breach of contract can be recovered without special pleading, and if no other than nominal damages necessarily result, all other damages are special damages and must be specially pleaded.</p> <p>Id.—Damages tor Breach op Warranty—Special Averments Required.—To recover other than nominal damages for a breach of warranty upon the purchase of personal property, the complaint, under section 1314 of the Civil Code, must aver the ‘ ‘ excess of value," prescribed in that section, or the "loss incurred" by an effort in good faith to use it for the particular purpose for which its fitness was warranted.</p> <p>Id.—Presumption op Value—Retention op Property—Loss not Shown.—There is no presumption that machinery is of less value than the amount paid for it, nor does it follow, because it is useless to defendant, and is not suitable for its purpose, that its value has been diminished. When he retains the property, and no loss is shown by reason of any effort to use it, nothing paid for it is required to be refunded.</p> <p>Id.—Detective Allegations op Damages—Special Demurrer.—When the counterclaim set up alleged damages for breach of warranty upon the purchase of machinery in the sum of $1,265.72, without averring any facts to sustain the damages alleged, or to support evidence of substantial damage, a special demurrer thereto for not setting forth in what manner or by what facts the defendant had been damaged in the amount claimed was properly sustained by the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. D. K. Trask, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. W. Wallace, Judge. The facts are stated in the opinion of the .court.

The commitment to the Napa State Hospital referred to in the opinion was made in the case of People v. John Welsh, on the thirteenth day of February, 1885, then pending in the superior court of Solano county, by R. Crouch, of Napa county, judge presiding in that ease. Further facts are stated in the opinion of the court.

<p>Nonsuit—Review op Grounds upon Appeal.—Where a nonsuit has been granted by the trial court, the nonsuit must be sustained upon appeal if it might have been properly granted upon any ground, regardless of the particular ground assigned by the trial judge.</p> <p>Id.—Variance—Nonsuit in Action tor Breach op Promise to Marry —Departure op Proof prom Pleading.—In an action for breach of promise of marriage, where the complaint alleged that defendant agreed to marry the plaintiff upon her request at any time, and the proof showed that he agreed to marry her after and not before the death of her mother, who is still living, there is an essential difference between allegation and proof, which entitles the defendant to a nonsuit on the ground of variance, and failure to prove the contract alleged, though a particular ground was stated by the trial judge which is not here passed upon.</p> <p>ID.—Recovery Limited to Cause op Action Alleged.—The plaintiff must recover, if at all, upon the cause of action alleged, and not upon some other cause of action which may be developed in the proofs; and where there is a failure to prove the cause of action alleged, and another is proved, if the plaintiff does not obtain leave so to amend his complaint as to make it conform to the proofs, the defendant may have his nonsuit, though the testimony to a different cause of action was admitted without objection.</p> <p>Id.—Ground Stated by Trial Judge—Invalidity op Contract Proved —Restraint op Marriage—Question Reserved.—The special ground of nonsuit stated by the trial judge that the contract proved is void as against public policy, and as being in restraint of marriage, is reserved and left open as being res integra in this state. [McLaughlin, J., concurring specially with trial judge.]</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Habeas Corpus—Jurisdiction op Becorder’s Court—Begularity op Proceedings—Limits op Territory not Determinable.—Where a complaint filed in the recorder’s court of one city charges an offense committed within its limits, in violation of its ordinance, and jurisdiction of the defendant’s person has been acquired by that court, under a warrant of arrest which is regular on its face, it appears that the defendant is legally held; and it is not competent, upon his application for a writ of habeas corpus, to decide the question of fact whether the territory in which the offense was committed belongs to that city or to another city.</p>

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

<p>APPEAL from a judgment of the Superior Court of Monterey County. B. V. Sargent, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. M. C. Sloss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Mining Claims—Forfeiture—Failure to Do Annual Work—Burden of Proof.-—The right of the locator of a mining claim whó has made a valid location thereof continues, independently of actual possession thereof, until he has abandoned the same or forfeited it by failure to do the requisite annual work thereupon; and the burden of proof is upon a subsequent locator to show either an abandonment or a forfeiture of the claim, by clear and convincing proof.</p> <p>Id.—Questions of Fact—Forfeiture—Purpose and Adaptation of Work.—Whether a prior location was forfeited as against an adverse location, and whether work was done for the purpose of working the claim in controversy, or was adapted to that purpose, are questions of fact.</p> <p>Id.—Services of a Watchman not Allowable upon Annual Work— Amount of 'Annual Work Disproved.—Held, that, under the facts of this case, as disclosed by the evidence, the services of a watchman were not allowable upon the annual development work required by the statute; and that, apart from such services, the required amount of annual work was disproved, and the evidence is sufficient to sustain the findings for the plaintiff, as subsequent locator.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Judgments—Conglusiveness—Unassailability foe Eerob.—Where the times within which a direct attack upon a judgment by motions for a new trial or appeal, on the ground of error, have fully elapsed, without such proceedings having been taken, the judgment is conclusive, and not subject to attack either directly or collaterally on the ground of error.</p> <p>Id.—Infants Concluded.—A minor has no further time than an adult within which to take the necessary steps for the correction of errors in the proceedings or judgment; and after the lapse of time for the correction of errors all parties, including infants, are as absolutely bound by the judgment as if no errors had been committed.</p> <p>Id.—Conclusiveness of Facts Found'and Adjudged.—The facts found and adjudged, after the lapse of the time in which to assail them for insufficiency of the evidence upon motion for new trial or upon appeal, are not subject to attack in any form, on the ground that the facts stated in the findings, and upon which the judgment is based, are not true.</p> <p>Id.—Appointment of Guardian ad Litem: fob Minor Defendants— Presumption—Conclusiveness of Order.—The appointment of a guardian ad litem for minor defendants in an action to quiet title, was based presumptively upon a sufficient showing that they were minors, and that they had been served with process, but if the showing in that regard was insufficient, the order of appointment did not go to the jurisdiction of the court, and it remained valid if not set aside by the court, or reversed on appeal, and cannot be attacked directly or collaterally in any other mode.</p> <p>Id.—Misconduct of Guardian—Failure to Present Defense.—The alleged misconduct of the guardian ad litem as failing to present a defense to the action on behalf of the minors, there being no allegation of collusion between such guardian and the plaintiff, is in legal effect of no different quality and effect than that of neglect or misconduct of counsel for either party to the action, which is not ground for assailing the judgment, after the lapse of the time for motion for new trial and appeal from the judgment.</p> <p>Id.—Jurisdiction of Minor Defendants—Time of Appointment or Guardian ad Litem.—The jurisdiction of the court over minor defendants became complete upon the service of summons upon them; and, without deciding whether the appointment of a guardian ad litem the day after the service of summons upon them was premature and erroneous, the attack upon the absolutely final judgment on that ground, whether it be direct or collateral, cannot be sustained.</p> <p>Id.—Jurisdiction of Persons—Affidavits of Service Out of State— Trial—Conclusive Determination.—The fact that affidavits of service of summons show service out of the state does not prove that the court had no jurisdiction of the persons of the defendants. The court by proceeding to trial determined either expressly or by necessary implication that it had acquired jurisdiction of the persons of the defendants by some accredited mode of service of summons, or by appearance of the defendants, and its determination of that question is as conclusive as upon any other issue.</p> <p>Id.—Presumption—Verity of Record—Burden of Proof.—Whenever the jurisdiction of the persons of the defendants is attacked, it is presumed that the record of the judgment speaks the truth, if it does not show the contrary on its face, and the burden of proof of want of jurisdiction is upon the attacking party.</p> <p>Id.—Attack in Equity upon Judgments—Fraud—Want of Jurisdiction—Extrinsic Showing Required.—In an attack in equity by defendants upon judgments for fraud, or want of jurisdiction, a showing must be made in either case of facts extrinsic to the record. There must, in a ease of fraud, be a showing of extrinsic fraud on the part of the plaintiff. If the action is based upon the want of jurisdiction of the persons of the defendants, the presumption that they were duly summoned must be overcome by an extrinsic showing of facts to the contrary.</p> <p>Id.—Insufficient Complaint.—Held, that the complaints of the plaintiffs assailing judgments do not state facts sufficient to warrant relief in equity, and upon their declining to amend, judgment properly passed against them.</p>

<p>Homestead—Mortgage—Separate Property—Survivorship—Probate Sale Under Mortgage Claim.—The title to a homestead declared by a wife upon her separate property, though subject to the lien of a prior mortgage, upon the death of the wife vested in the surviving husband by operation of law, no order of court being required to perfect his title; and the title thus acquired must prevail over a title acquired by the prior mortgagee merely through a probate sale had under a mortgage claim presented to the administratrix of the deceased wife, there being no title remaining in her estate and no property requiring administration.</p> <p>Id.—Res Adjudicata—Husband not Estopped.—The probate sale cannot have the effect of an adjudication that no valid homestead existed upon the property, nor can the surviving husband be estopped by his neglect or refusal to administer upon the estate of his deceased wife from claiming that the title to the homestead vested in him at her death.</p>

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

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

<p>Wills—Bulbs op Construction.—A will is to be construed according to the intention of the testator; and where his intention cannot have effect to its full extent, it must have effect as far as possible. The intention is to be ascertained from the words of the will, taking into view the facts and circumstances under which it was made, if shown; otherwise, the will must be its own interpreter. The will must have a liberal construction, and a construction thereof favorable to testacy will always obtain when the language used reasonably admits of such construction.</p> <p>Id.—Invalid Trust—Title not Passing to Heirs—Devise op Besidue—Will Eppective as Par as Possible.—A will devising all of the residue of the testator’s estate, real and personal, to a woman named, “in trust during her life for herself, her son,” and two “daughters” named, and providing that upon her death “all of said rest, residue and remainder to go to” the son and daughters, “to be divided amongst them equally, share and share alike, ’ ’ creates an imperfect trust, which is invalid for want of certainty; yet the title does not pass to the heirs of the testator, since it appears from the terms of the will that the woman was to have a beneficial estate 11 during her life, ’ ’ and she will take the whole residue during her life, discharged from all burdens, save such interest in remainder as passed to her children, thus giving to the testator’s intention “effect as far as possible.”</p>

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

<p>Divorce—Quieting Title—Jurisdiction—Joinder of Issues—Trial upon Merits Without Objection.—Although, in an ordinary action for divorce, the court has no jurisdiction to dispose of the separate property of either party, yet, where the wife instituted a dual action for divorce, and to quiet her title against the husband to one-half of property conveyed to her by the husband as her separate estate, and issues were joined upon the complaint and upon the cross-complaint of the husband claiming title to the whole property, and the case was tried upon its merits without objection by either party, the court had power to determine the issues and to award the whole property to the husband as rightful owner.</p> <p>Id.—Breach of Contract of Wife to Pay Mortgage—Failure of Consideration.—Where the court found in favor of the averments of the cross-complaint that the sole consideration of the conveyance to the wife was her promise to pay off a mortgage on the whole property, which she refused to keep, and that the consideration therefor had wholly failed, the judgment for the husband was thereby supported.</p> <p>Id.—Homestead upon Separate Property of Husband—Award upon Divorce.—Where the court also found that a homestead had been declared upon the separate property of the husband, the court upon dissolution of the marriage properly awarded such property to him under section 146 of the Civil Code, as well as upon the ground of the failure of consideration of his conveyance of half thereof to the wife.</p> <p>Id.—Promise by Wife Without Intention of Performance—Fraud —Rescission.—Where it appears from the wife’s pleadings, in connection with the findings, that her agreement to pay off the mortgage was wholly repudiated, and that she made it with the intention never to perform it, such intention when the promise was made constituted a fraud, for which the husband might rescind the contract and avoid the conveyance.</p> <p>Id.—Total Failure of Consideration—Notice of Rescission.—The total failure of the consideration made it unnecessary to give notice of rescission before suit.</p> <p>Id.—Repudiation of Promise—Maturity of Mortgage Immaterial.— The plaintiff’s repudiation of her promise to pay the mortgage rendered the time of its maturity immaterial.</p> <p>Id.—Allowance of Attorney’s Fees—Imposition upon Court—Vacation of Order.—Where the wife obtained an allowance of attorney’s fees by imposing upon the court with a false averment that she had no income-bearing separate property, the court, upon proof of the contrary at the hearing, had jurisdiction within six months to vacate the order allowing the same.</p> <p>Id.—Presumptions upon Appeal—Ex Parte Allowance.—Upon appeal from the order vacating the allowance, all presumptions are in favor of the order, and it will be presumed that the allowance was ex parte, and that the court could vacate it without notice; and that the court made the vacating order in the manner and under circumstances justifying it.</p>

<p>Judgment Lien—Effect of Stay Bond on Appeal—Conveyance’ Pending Appeal.—A judgment lien arising from the docketing of a judgment against the owner of property is destroyed by the effect of a stay bond on appeal; and the owner may convey the land to anyone pending the appeal, provided it is not disposed of with intent to defraud the appellant’s creditors.</p> <p>Id.—Intent to Defraud Creditors not Presumed.—An intent of the-seller of land to defraud creditors is not to be presumed.</p> <p>Id.—Sale on Execution Against Grantors—Cloud upon Grantee’s-Title—Injunction.—A sale of land on execution against the grantor of a legal title which has passed to the plaintiff will cast a cloud upon plaintiff’s title, and he has a prima facie right to> enjoin the sale.</p> <p>Id.—Pleading—Demurrer to Complaint—Averment of Title—Bona Fide Purchase.—The complaint to enjoin the sale against plain- • tiff’s remote grantor, which alleges legal title in the plaintiff, is-sufficient upon general demurrer to sustain an injunction, though it does not aver that plaintiff or his immediate grantor was a purchaser in good faith and for value.</p> <p>Id.—Construction of Stay Bond—Support of Condition.—Though the liability of the sureties on a stay bond cannot be extended beyond the true meaning of the term of their contract, yet this rule does not preclude the application of the ordinary rules for the interpretation of contracts. To support the condition of a bond, the court will transpose or reject insensible words, or supply an omission, and explain it according to the circumstances under which it was made, and the matter to which it relates, and will so construe it as to effectuate the obvious intent of the parties.</p> <p>Id.—Obvious Mistake in Penal Sum—Becital—Presumed Knowledge op Sureties—Intention.—Where the stay bond was given to stay execution upon a judgment aggregating nearly $1,000, and the statement of the penal sum was “$200.00,” followed by the recital, “being double the amount named in the judgment,” the bond shows an obvious clerical mistake, and it being evident from the terms of the bond, and the subject matter to which it relates, and from the presumed knowledge of the sureties as to what the law required to stay execution, that they intended to bind themselves in the penal sum of $2,000, it will be so construed.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>D. W. Burekard, C. L. Witten, H. W. McComas, and W. A. Bowden, for Appellant.</p>

<p>Fraud in Obtaining Contract—Monet Paid for Release—Action for Damages—Insufficient Complaint.—A complaint alleging fraud of the defendant in obtaining a contract for an exclusive right for twenty years to the output of deposits of lime, cement, rock and clay in plaintiff’s land, under the false representation of large means, and a promise to erect large factories, and secure to plaintiff a large income, made without any intention of performance, and with intent to deceive and defraud the plaintiff, who was then infirm in mind and body and unable to manage his affairs, that the recorded contract clouded plaintiff’s title, and that in order to sell the land, he was compelled to pay $1,500 to secure a release, and praying damages for $12,000, does not state a cause of action.</p> <p>Id.—Absence of Necessary Averments.—The complaint fails to state what time elapsed after the contract was made, when the money was paid to secure the release, or when the improvements or factories were to be erected, or that a reasonable time for their erection had elapsed, or that when he paid the .$1,500 for the release in order to be able to sell the property, he was unable properly to conduct his business affairs.</p> <p>Id.—Compromise of Disputed Claim—Consideration.—The defendant having a right under the contract to claim that the contract was valid, and secured to him valuable rights for twenty years, and that it was executed upon a sufficient consideration and not procured by fraud, and having surrendered all rights thereunder for the $1,500 paid, as a compromise of the disputed claim to avoid litigation, such surrender and payment were a sufficient consideration for the compromise.</p> <p>Id.—Policy of Law to Favor Compromises.—It is the policy of the law to discourage litigation and to favor compromises and voluntary settlements. The compromise of a doubtful claim is usually valid, and the mutual release of their respective rights by the parties to the controversy and the desire to avoid a suit at law are a sufficient consideration for such compromise.</p> <p>Id.—Mental Capacity not to be Measured.—Courts cannot measure the mental capacity of every person who enters into a business transaction. There is not even an attempt to allege that at the time of the compromise,' plaintiff did not fully understand and know what he was doing.</p>

<p>Foreclosure op Mortgage—Amendment op Answer by Executrix— New Depense—Trial—Objection upon Appeal.—In an action to foreclose a mortgage where a demurrer was sustained to an original answer, the court properly allowed the defendant to amend the answer by setting up a new defense; and where the plaintiff made no objection thereto by motion, and went to trial upon the issues joined, he cannot, after judgment, object upon appeal to the character of the amended answer.</p> <p>Id,—Mortgage by Widow upon Homestead—Community Property— Survivorship—Preservation op Homestead.—A homestead declared upon community property, upon the death of the husband, vests absolutely in the widow, and retains its homestead character, unaffected by her subsequent mortgage thereupon.</p> <p>Id.—Foreclosure Apter Death op Widow—Presentation op Claim Essential—Loss op Eight op Action.—Where the widow’s mortgage upon the homestead was not foreclosed during her life, the mortgage thereupon must be presented as a claim against her estate, under section 1475 of the Code of Civil Procedure; and upon a failure to do so, the right to foreclose the mortgage, as well as any right of action upon the note seemed thereby, is lost, and there can be no recovery thereupon.</p> <p>Id.—Homestead Preserved for Family—Cessation not- Shown by Eecord upon Appeal.—Upon the death of the widow, the homestead is preserved for her family, if she has any, and where the record upon appeal does not show that she did not leave a family, the cessation of the homestead does not appear therefrom.</p>

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

<p>Sale of Restaurant Business, Goodwill and Furniture—Lease not Included—Action for Value—Support of Findings.—In an action to recover the value of a restaurant business, goodwill and furniture, covered by a bill of sale, not including a leasehold interest, held, that the evidence sustains the findings as to the value of what was sold, and that the findings were to be construed as excluding the lease from the property sold.</p> <p>Id.—Construction of Findings—Support of Judgment—Ambiguity. The findings are to be construed so as to sustain and not to defeat the judgment, and in support thereof are to be liberally construed, and any ambiguity is to be resolved in favor of the judgment.</p> <p>Id.—Sale and Delivery—Price to be Ascertained—Obligation to Pay Value.—By the execution of the bill of sale, and the delivery of the property sold to the defendants, the title thereto vested in them, and they became under an obligation to pay for its value. Property may be transferred by way of sale and delivery, under an agreement that the value is to be subsequently ascertained, and in the absence of an agreement as to the mode of ascertaining the value, the purchaser retaining the property will be liable to an action for its value.</p> <p>Id.—Bankruptcy of Vendor.—Upon the bankruptcy of the vendor, he is incompetent to agree upon the value of the property sold, and his trustee in bankruptcy may enforce the obligation of the defendants for its value.</p> <p>Id.—Title Vested not Affected by Action of Bankrupt.—The title vested in the defendants by the bill of sale is not affected by the action of the bankrupt in including the property sold to them in the schedule of his assets, or by his omitting to include their obligation to pay value as part of his assets.</p>

<p>Negligence—Master and Servant—Liability of Master.—Though the master is not liable for the negligence of a servant who acts independently without any reference to the service for which he is employed, and not for the purpose of performing the work of his employer, but to effect some independent purpose of his own; yet the master is civilly responsible for the negligent acts of his servant committed while in his service and within the scope of his employment—that is, the transaction of his master’s business. The question, generally, is whether the servant, at the very time of the alleged act of negligence, had departed from his employment, or whether he departed from or neglected a duty in the time of his employment.</p> <p>Id.—Injury from Bunaway Horse—Negligence of Superintendent of Defendant—Careless Feeding at Noon.—Where defendant company hired a horse and buggy for the continual and regular use of its superintendent during each day, in the line of its employment, from 8 o’clock in the morning until 5 o’clock in the evening, with privilege of luncheon during the noon hour, and in the careless handling of the horse for the purpose of feeding it at the noon hour in violation of the instructions to him from the livery-stable, the horse ran away to the injury of plaintiff, tlte defendant company is .responsible for the injury.</p> <p>Id.—Duty of Superintendent to Care for Horse at Noon.-—It was the duty of the superintendent, in the line of his employment, to care for the horse and feed it during the noon hour; he was superintendent during the noon hour as well as during the business hours, and could not depart from his duty of caring for the horse at noon.</p> <p>Id.—Appeal from Order Granting New Trial—Refusal of Nonsuit —Review—Presumptions—Reversal of Order.—Where the verdict was for the plaintiff, and a new trial was granted solely on the ground of error in refusing a nonsuit, for the reason that the superintendent, during the noon hour, was not acting in the line of his employment, it must be presumed from the record that the horse ran away through the negligence of the defendant, that plaintiff’s injury resulted therefrom, that the verdict is not excessive, and that no errors of law occurred during the trial, and the order must be reversed upon the proof.</p>

<p>Order Granting New Trial—Appeal—Presumptions—Review of Record.—Upon appeal from an order granting a new trial which is general in its terms, all presumptions are in its favor. The ap- ’ pellate court will examine the entire record upon which the order was based, and if there be found in it any error which would have justified the court in making the order, it will be affirmed.</p> <p>Id.—Insufficiency of Evidence—Discretion.—Where one of the grounds of the motion is insufficiency of the evidence to justify material findings, the motion on that ground is addressed to the discretion of the trial court, and its order granting the new trial will not be disturbed if no abuse of discretion appears.</p> <p>Id.—Findings for Plaintiff—Delivery of Deed to Defendants— Prima Facie Showing.—Where the findings were for the plaintiffs, and if a deed was delivered by the owners of property to the defendants, the judgment should be in their favor, such delivery, being a question of fact, was prima facie proved by the acknowledgment of the deed by the grantor, its possession by the grantees and the placing it upon record, with evidence tending to show that the grantor delivered the deed to defendants, who were his sisters, in his lifetime; and such showing could only be overcome by clear and convincing proof to the contrary. Held, that the court did not abuse its discretion in granting a new trial to the defendants for insufficiency of the evidence to sustain the findings for plaintiff and against the defendants.</p> <p>Id.—Newly Discovered Evidence—Absence of Bill of Exceptions— Presumptions.—Where one of the grounds of the motion for a new trial was newly discovered evidence, and there is no bill' of exceptions stating what was done or what evidence was offered upon the hearing, the presumption is that the order granting a new trial on that ground was regular, and that proper affidavits were offered and read in support of the motion.</p>

<p>HEARING upon habeas corpus to review a commitment by a magistrate to the sheriff of Merced County to answer before the Superior Court of Merced County. J. J. Griffin, Justice of the Peace, Committing Magistrate.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION for writ of mandate to the Board of Police Commissioners of the City of Los Angeles. The facts are stated in the opinion of the court.

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

<p>APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Injunction—Interference with Carpet-beating Works—Validity of Ordinance—Public Nuisance—Conclusive Findings—Effect . of Judgment—Appeal.'—In a suit to enjoin the mayor, supervisors, chief of police, and health department of San Francisco from interfering with plaintiff's carpet-beating and cleaning works, and to avoid an ordinance under which defendants claimed the right to abate the same as a public nuisance, where issue was tendered and tried as to the fact of public nuisance, findings thereupon for defendants must be deemed conclusive upon an appeal taken by plaintiff upon the judgment-roll. The effect of the judgment for defendants is only to deny the injunction sought; and even if it be conceded that the ordinance is void, the judgment must be affirmed.</p> <p>Id.—Power of Officers to Abate Public Nuisance—Presumption of Proper Procedure—Validity of Ordinance Immaterial.— Under section 3494 of the Civil Code, "a public nuisance may be abated by any public body or officer authorized by law," and where the public officials, defendants, are about to abate a public nuisance under the authority of that section, it must be presumed that they will proceed only as authorized by law, and the validity of the ordinance becomes immaterial. They cannot be restrained by injunction from proceeding, according to law, to abate what is found to be a public nuisance, whether the ordinance is valid or void.</p>

<p>APPEAL from a judgment of the Superior Court of Calaveras county, and from an order denying a new trial. A. I. McSorley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PETITION for a writ of review to annul a proceeding of the Board of Supervisors of Tehama County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Butte County, and from an order denying a new trial. John C. Gray, Judge.</p>

<p>Quieting Title—Record Title—Prescription—Equitable Title— Trust.—In an action to quiet title, the legal title must prevail over any merely equitable title; and where the record title is in the defendant, and the plaintiff has not established a title by prescription claimed by him, he cannot, in such action, have a trust declared in his favor against the defendant.</p> <p>Id.—Support of Findings for Defendant—Conflicting Evidence— Prescription not Proved.—Where the findings are for the defendant, and the evidence is substantially conflicting, and, keeping in view the elements of adverse possession, which must be shown by clear and positive proof, it is doubtful whether the evidence would support findings for the plaintiff, the court was assuredly justified in finding for the defendant.</p> <p>Id.—Evidence—Declaration of Ownership in Third Person—Question not Objected to—Striking Out Answer—Province of Court.—Where a witness for plaintiff in answer to a preliminary question: “Did you ever hear the defendant say whether or not he owned the land?” answered: “No, sir—well, I have heard him refer to it as being his father’s,” and defendant moved to strike out the answer on the ground that plaintiff must recover on. the strength of his own title etc., although no objection was made to the question, it appearing that the answer was irresponsive and indefinite as to time, the court did not err in striking it out, and its action will be determined on its merits, and, not measured by the reason invoked in the motion to strike out.</p> <p>Id.—Declarations or Omissions Against Interest—Insolvency Proceedings—Assessment—Land not Included.—Where plaintiff claimed a perfected title hy prescription, when he became insolvent, his petition and schedules in insolvency and a subsequent assessment for taxes against him, neither of which included the land in controversy, were admissible in evidence against him, as constituting acts, declarations or omissions against his interest.</p> <p>Id.—Sale of Land to State for Taxes—Continuity of Adverse Possession Broken.—Where the land in controversy was sold for delinquent taxes assessed to the defendant, the continuity of plaintiff’s adverse possession was thereby broken between the time of such sale and the redemption made from the state.</p> <p>Id.—Evidence of Assessments—Assessment-rolls.—The defendant was properly allowed to introduce the assessment-rolls in evidence to prove that the land was assessed, in order that the court might determine whether plaintiff had paid all the taxes, as required by the statute, to obtain a title by prescription.</p> <p>Id.—Tax Receipts to Defendant—Harmless Ruling.—The admission in evidence of tax receipts in favor of the defendant, if error, was without prejudice, where defendant testified to the payment, and plaintiff afterward admitted it, although claiming that he furnished the money.</p> <p>Id.—Impeachment of Plaintiff—Competency of Witness—Refusal to Strike Out.—The court did not err in refusing to strike out the testimony of a witness who had testified against plaintiff’s reputation for truth, honesty and integrity, stating that he knew his reputation and that it was bad, though his testimony was qualified on cross-examination, where it does not appear that his knowledge on the subject was too imperfect to preclude the court from considering his testimony, and no objection was made to his competency.</p> <p>Id.—Immaterial Errors Disregarded,—Any errors which, in view of the evidence, could not produce a different result, if the rulings had been in the appellant’s favor, are immaterial, and should be disregarded.</p>

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

<p>APPEAL from an order refusing to vacate an order correcting the minutes of the Superior Court of Sacramento County. E. C. Hart, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Defense of Alibi—Burden of Proof— Rebuttal.—Upon a trial for murder, an alibi relied upon by the defendant is an affirmative defense, upon which defendant has the burden of proof. The prosecution, in its evidence in chief, is not bound to anticipate and forestall the defense of alibi; and where the defendant has introduced evidence to prove it, the prosecution is entitled to offer evidence in rebuttal to disprove it.</p> <p>Id.—Rebutting Evidence—Flight of Defendant.—When the defendant, charged with murder in Fresno, was seen there on the day of the homicide, according to some testimony for the prosecution, but called witnesses to prove that on that day he was in San Francisco, evidence was admissible in rebuttal to show that past noon on the day after the homicide he purchased a ticket at Madera for San Francisco, and returned there on that day. The fact that the rebutting evidence tends incidentally to show the flight of the defendant from the scene of the homicide cannot render it inadmissible in rebuttal to disprove the alibi testified to.</p> <p>Id.—Impeachment of Witness—Conversation—Foundation—Corrupt Attempt to Dissuade Witness.—Though it is better practice in impeaching a witness by a conversation had with him to call his attention on cross-examination to the time,, place, and parties present, yet where he was asked if he did not at a certain time and place offer another witness twenty dollars not to testify that he saw defendant in Fresno on the day of the homicide, and though he denied such offer, by giving a different version of the conversation, showed that he understood the time, place and circumstances of it, the foundation is sufficient; and the other witness may eontradiet him by proving such corrupt attempt to dissuade him from so testifying.</p> <p>Id.—Distinction as to Impeaching Evidence.—A witness for defendant who has denied on cross-examination that he has attempted corruptly to dissuade a witness for the prosecution from attending the trial, or giving certain evidence, may be contradicted in this respect. A distinction exists between the right to contradict a witness as to any fact relating to his conduct in connection with the action on trial and the right to impeach his credit generally.</p> <p>Id.—Admonition to Jury—Omission in Record—Presumption upon Appeal.—Where the record upon appeal merely fails to show that the court admonished the jury at each adjournment as required by section 1422 of the Penal Code, this court, in the absence of any showing to the contrary, will presume that the court below did its duty, and gave the proper admonition at each adjournment.</p> <p>Id.—Instructions—Murder in First Degree—Premeditation—Result op Concurrence with Killing.—Where the evidence disclosed no self-defense or facts justifying a verdict of manslaughter or murder in the second degree, an instruction relating to murder in the first degree that “it is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer; and if such is the case, the killing is murder of the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing," is not erroneous as omitting the words “and the result of’’ after “preceded l>y,” where in a preceding part of the instructions the jury had been expressly told that “the intent to kill must be the result of deliberate premeditation. ’'</p> <p>Id.—Refusal op Request Embodied in Charge—Continuance op Presumption op Innocence.—The refusal of a correct instruction requested by the defendant as to the continuance of the presumption of innocence, throughout the entire case, which might properly have been given, was not prejudicially erroneous, where the requested instruction was substantially included in the charge of the court.</p> <p>Id.—Sufficiency op Charge op Court.—Held, that the instructions embodied in the charge of the court, as a whole, gave a full and fair statement of the law pertaining to each and every phase of the case.</p> <p>Id.—Misconduct op District Attorney—Argument.-—Held, that in the argument of the district attorney to the jury, he was not guilty of misconduct in transcending the limits of legitimate argument.</p> <p>Id.—Reference to Failure op Codependant to Testify.—It was not error for the district attorney to refer in his argument to the fact that a codefendant was not called upon to testify for the defendant.</p> <p>Id.—Exceptions not Available—Exiling not Asked for.—Exceptions to the remarks of the district attorney, which were not called to the attention of the court and upon which no ruling was asked, are not available. In case of objectionable remarks by the district attorney, defendant’s counsel must invoke the aid of the court to prevent the remarks from injuring the defendant, before he will be allowed to urge the matter as error in this court.</p> <p>Id.—Newly Discovered Evidence—Discretion of Court.—Where the affidavits of newly discovered evidence showed that it was mainly cumulative and partly impeaching evidence, and there were counter-affidavits, the court might consider them in the light of all that had occurred during the trial, and where no abuse of discretion appears in refusing to grant a new trial on that ground, its action will not be disturbed upon appeal.</p>

<p>Carriers of Passengers—Duty of Utmost Care—Liability for Slight Negligence.—Carriers of passengers must use the utmost care and diligence for their safety, and are liable to them for injuries caused by their slight negligence.</p> <p>Id.—Continuance of Relation—Alighting of Passengers.—The relation between the carrier and passenger continues until the passenger has alighted; and the carrier must exercise as high a degree of care in affording a passenger a reasonable opportunity to alight in safety as in carrying him safely.</p> <p>JLd.—Negligence—Contributory Negligence—Question for Jury-Matter of Law.—The negligence of the carrier and the contributory negligence of the passengers are peculiarly questions for the jury, when different conclusions may be reasonably drawn from the proved facts, whether the evidence is conflicting or not. The case must be a clear one, as matter of law, to justify the court in holding the evidence insufficient to sustain a verdict for the plaintiff.</p> <p>Id.—Stoppage of Car at Unsafe Place—High Step into Gutter Near Curb—Matter not of Law.—Where defendant’s street-car stopped at an unsafe place near the end of a curb gutter, where the lowest step was twenty inches above the ground, which slopes to a depth of two feet six inches nearer the curb, and plaintiff’s foot was injured in alighting for transfer, and it appears that the ear could have been stopped where plaintiff would not have been injured, it cannot be said, as matter of law, that defendant was not guilty of negligence, nor that the plaintiff was guilty of contributory negligence.</p> <p>Id.—Reasonable Conduct of Plaintiff—Invitation to Alight— Reliance upon Carrier’s Care.—Although the plaintiff, with a grip in her hand, made no careful examination of the ground on which she stepped, it cannot be said that the jury were bound to find that she did not exercise the care that a reasonable person would under the circumstances. By stopping the car as it did, and with steps immediately in front of her, the defendant, in effect, invited her to alight at that point. The passenger may rely somewhat upon the carrier’s care, and is only called upon to act as a reasonable person would under the circumstances.</p> <p>ID.—Appeal—Argument—Question Raised in Reply Brief.—The appellate court will not, unless under exceptional circumstances, consider questions raised for the first time in the reply brief of the appellant, not in any manner referred to in the opening brief.</p>

<p>Partition—Interlocutory Decree—Adjustment of Title—Support of Findings.-—Upon appeal from an interlocutory decree in partition, establishing title in the plaintiff, and under the will of a deceased testator, to the exclusion of the appellant, held, that the findings against the appellant are supported by the evidence.</p> <p>Id.—Partnership Land—Sale by Retiring Partner—Decree Against Foreclosure of Mortgage—Payment—Res Adjudicata.—Where plaintiff, the testator and the appellant were members of a partnership to which the land had belonged, and appellant had retired from the firm, selling all his interest therein, and taking a mortgage on the land for $15,000, a former judgment against him upon foreclosure thereof, adjudging that he had agreed to foreclose only for the amount actually due, which had been fully paid before suit, and that nothing was due, was res adjudicata against appellant in the partition suit that he had no interest in the property.</p> <p>Id.—Waiver of Findings—Conclusiveness of Judgment.—The fact, that the findings in the foreclosure suit were waived cannot affect the potency of the judgment, which is conclusive as to all matters embraced within the issues and that might have been litigated in the case.</p> <p>Id.—Estoppel by Mortgage.—One who takes a mortgage upon the whole of real estate is estopped thereby to deny that the mortgagors were vested with the complete title to the property mortgaged.</p> <p>Id.—Conveyance by Indebted Partner—Pendency op Proceedings for Dissolution—Notice.—A conveyance to the appellant by a heavily indebted partner, made with notice of the pendency of proceedings for the dissolution of the partnership, in which it was adjudged that the real property belonged to the plaintiff and to the testator, and that the only other partnership property was the indebtedness of such other partner to the partnership in the sum of $49,000, passed no title in the land to the appellant.</p> <p>Id.—Appellant not Protected as a Firm Creditor.—Where it had been before adjudged in the foreclosure suit that appellant was not a creditor of the firm, he cannot claim protection as a creditor in taking title to the land from a member of the firm notwithstanding the actual indebtedness of such member thereto, and that the conveyance can only be assailed for fraud.</p> <p>Id.—Power of Partner—Transfer of Individual Interest.—A partner cannot transfer an individual interest in any specific article belonging to the firm. A transfer of the partner’s interest, either voluntarily or by legal process, merely entitles the transferee to receive such partner’s share of what may remain after a settlement of the partnership affairs and the payment of the partnership debts.</p>

<p>Breach of Promise of Marriage—Seduction—Pleading—Aggravation of Damages.—In an action for a breach of promise of marriage, the plaintiff may plead seduction brought about by reason of the promise, and the reliance of plaintiff upon the good faith of the defendant in making the promise, in aggravation of the damages for breach of the promise, and to be proved as bearing upon the question of exemplary damages.</p> <p>Id.—Injury and Measure of Damages—Action Allied to Tort.— Though the wrong in an action for breach of promise of marriage arises primarily through the breaking of the contract, yet, as respects the injury and the measure of damages therefor, the action is differentiated from an action of tort, more in the degree and extent of the injury, than from any actual or intrinsic distinction.</p> <p>Id.—Judgment a Bar to Action for Seduction.—A woman who has been seduced under promise of marriage may maintain an independent action for the seduction; but where she has pleaded and proved it in aggravation of damages in an action for a breach of promise of marriage, and has recovered exemplary damages in such action, the judgment rendered therein is a bar to any subsequent aetion-for seduction based upon the same facts.</p> <p>Id.—"Verdict not Excessive—Proofs—Financial Ability of Defendant.—Held, that, under the facts pleaded and proved, a verdict for the sum of $8,000,.which is much less than the amount claimed, and is not disproportionate to the pecuniary condition of the defendant, which may be properly considered, is not excessive, and . cannot be disturbed upon appeal</p> <p>Id.—Support op Verdict—Weight of Evidence—Conflict.—The jury-are the exclusive judges of the weight of the evidence, and their verdict upon conflicting evidence cannot be disturbed.</p> <p>Id.—Evidence—Knowledge of Birth of Child.—The knowledge of the birth of a child from plaintiff, by her relatives, which was claimed to have been the result of the seduction alleged, was properly proved, as being relevant, material and competent evidence upon the question of damages.</p> <p>Id.—Impeachment of Defendant—Inconsistent Statement—Informal Deposition.—The defendant was properly impeached by proof of statements made by him in a previous deposition, inconsistent with his testimony upon the trial, where the proper foundation was laid, upon cross-examination, by showing him the deposition and giving the time, place and persons present, and asking him if he did not so testify; and an objection that the deposition was not one in fact or law, because it had not been read to the defendant, corrected or subscribed by him, was properly overruled.</p> <p>Id.—Scope of Cross-examination—Testing Defendant’s Credibility —Denials in Chief—letter from Plaintiff Unreplied to.— Where defendant in chief denied the promise to marry, the sexual intercourse, and plaintiff’s testimony that when she informed him of her condition he advised her to see a physician, gave her money to pay the fee and requested her to write the result, it was within the general scope of his direct testimony, and was proper on cross-examination, as tending to test his credibility and discredit to some extent his testimony, to ask Mm whether he had not received a letter from plaintiff informing him that a physician told her she was in a delicate condition, and that he must now keep his promise to marry her, to which he made no reply, and to compel him to answer the questions.</p> <p>Id.—Reputation of Defendant—Chastity and Morality—‘ ‘ Integrity”—Harmless Ruling.—Where a number of witnesses wero allowed to testify on the part of the defendant to Ms general reputation, where he resided, for chastity and morality, the refusal to allow a question as to Ms reputation for “integrity,” assuming, without deciding, it to he erroneous, was not prejudicial.</p> <p>Id.—Expert Testimony of Physicians—Rebuttal—Hypothetical Question Based on Evidence.—The testimony of a physician, as an expert, in rebuttal of evidence, tending to show impotency of the defendant to perform the act of sexual intercourse, based upon a hypothetical question including the evidence for the plaintiff and the testimony of the defendant, was admissible to show the defendant’s ability to perform the act of copulation.</p> <p>Id.—Misconduct of Plaintiff’s Attorney—Cure of Irregularity.—■ The misconduct of the plaintiff’s attorney in referring to an offer of compromise not included in the record was cured by the prompt action of the court in striking out the statement, and immediately instructing the jury to disregard it.</p> <p>Id.—Instructions—Refusal of Requests Embodied in Charge.—It was not error for the court to refuse to give requested instructions which were otherwise embodied in the charge of the court.</p>