Volume 4 — California Unreported Cases

<p>Counterclaim.—In an Action for Goods Sold and Delivered, the allegation of a counterclaim of $1,700 for 171,000 bricks sold and delivered by defendant to plaintiff, no part of which has been paid, states sufficient facts to support a judgment for defendant.</p> <p>Counterclaim.—In an Action to Which Defendant Pleaded a counterclaim for brick alleged to have been delivered to plaintiff corporation, the evidence was undisputed that the bricks mentioned in the answer were to be used in a certain building in which plaintiff had no interest. The contractor for the erection of the building testified that .he ordered the bricks from defendant, while defendant testified that they were ordered by a member of an agency who were managing agents for plaintiff corporation, but there was no evidence to connect plaintiff with this transaction through the agency. Held, that the evidence did not justify a verdict for defendant on the counterclaim.</p>

F. Crawford, Judge. Action by Catherine Hamlin against Nancy M. Philips, and Nancy M. Philips as administratrix of the estate of P. J. Philips, deceased, to establish a trust in certain real estate. From a judgment for defendant and from an order denying her motion for a new trial, plaintiff appeals.

Levy, Judge. Action for personal injuries by James Desmond against Otto Faus and others. There was a verdict for defendants, and from an order denying a new trial plaintiff appeals.

<p>Appeal—Sufficiency of Evidence.—Where, on appeal, the evidence is found sufficient to justify the findings of the trial court, the judgment of that court will not be disturbed.</p>

Levy, Judge. Action for malicious prosecution by Moritz Weinburg against P. G. Somps. Plaintiff had judgment, and from an order denying a new trial, defendant appeals.

<p>Divorce—Alimony and Costs.—Under a Judgment in a divorce proceeding, requiring “all costs, expenses, and disbursements provided for and contemplated in this decree or judgment” to be paid by the plaintiff exclusively out of his separate property, defendant has no right to include in her cost bills items not taxable as costs.</p> <p>Divorce—Alimony and Costs.—Motions in a Divorce Proceeding for the payment to defendant of her costs and disbursements, and for permission to plaintiff to mortgage his property in order to pay alimony, counsel fees, and other expenses of the litigation, are addressed to the discretion of the court.1</p>

W. Lawler, Judge. Action by Charles M. Malic against C. G. Fox, W. F. Witzemann, and John J. Staiger. Plaintiff had judgment, from which, and an order denying a new trial, defendants Witzemann and Staiger appeal.

Wallace, Judge. Action by Charles Ashton against the Dashaway Association and others. The case was dismissed and judgment rendered against plaintiff, because of the absence of both himself and his attorney when the case was called for trial. From an order setting aside the order of dismissal and vacating the judgment, defendants appeal.

Appeal.—An Objection to an Instruction as not sufficiently explicit will not be considered, where no request was made to make it more explicit. APPEAL from Superior Court, City and County of San Francisco; A. A. Sanderson, Judge. Julia Crowley sued Mark Strouse to recover for personal injuries. Judgment for plaintiff. Defendant appeals.

<p>Pre-emption Claim—Conveyance Subject to Mortgage.—A preemption claimant, before final proof and payment, mortgaged the claim to secure the repayment of money borrowed to perfect her title. After she had entered upon and paid for the land, and had received her certificate of purchase, she conveyed a part of the claim to one H. Held that, as the title acquired by the pre-emptioner from the United States inured to the benefit of the mortgagee when acquired, the conveyance to H. was subject to the mortgage.</p>

P. Hoge, Judge. Action for an accounting, brought by Emeline Wallace and Cora A. Herzstein against Joseph H. Sisson and Milo A. Burke, executors of A. W. Sisson, deceased, and Julia Ann Crocker, executrix of Clark W. Crocker, deceased. Judgment for defendants. Plaintiffs appeal.

<p>Public Land.—In 1860 a, Married Man Went into Possession of part of the government land known as the “outside lands” of San Francisco. In 1863 he died, and his wife, with their children, continued in possession,, and was in possession at the passage of act of Congress of March 8, 1866 (14 Stat. 4), relinquishing and granting the right and title of the United States in said lands to the city of San Francisco, in trust to be “disposed of and conveyed by said city to parties in the bona fide actual possession thereof by themselves or tenants on the passage of this act,” on such terms as the legislature should prescribe. While the husband and wife were in possession, they executed a declaration of homestead on the land under the California homestead act of 1862, by which the homestead estate, on the death of either, vested absolutely in the survivor. Thereafter the city deeded the land to the widow, she having complied with the various ordinances and legislative acts relative thereto. Held, that as she had bona fide actual possession at the passage of the act, no trust arose under the conveyance to her in favor of said children. Baker v. Brickell, 87 Cal. 329, 25 Pac. 489, 1067, followed.</p> <p>Estate of Decedent.—Where Land Belongs to a Wife, the fact that she, as administratrix of her husband, returned said land as assets of his estate is immaterial, and does not estop her to claim it as her own.1</p>

<p>Action for Trust Funds — Sufficiency of Evidence.—Plaintiff alleged that defendant collected money .belonging to another, and agreed to hold it till a dispute as to its ownership was settled, giving a written acknowledgment that he so held it; that such dispute was settled; and the assignment of claimants’ rights to plaintiff. Defendant’s answer admitted receipt of the money, but denied plaintiff’s other averments. Defendant also pleaded a former judgment on the same cause of action. Plaintiff put in evidence defendant’s written acknowledgment and the assignments to himself, and one of his assignors testified that defendant had not paid the money. Defendant did not put in evidence any memorandum of settlement, nor the judgment pleaded by him. He admitted his signature to the acknowledgment, but said that he had no memory of the matter, and he failed to contradict any of plaintiff’s testimony. Held, that a verdict for defendant was not justified.</p> <p>Trust—Limitation of Actions.—A Certificate That the Maker thereof holds certain money to abide settlement of disputes as to its ownership creates an express trust, with no definite time fixed for its termination by payment, and hence limitations will not run against a claim on such certificate until the true owner has been ascertained, and a demand made by one showing a right to the money.</p>

<p>Easements—Water Bights.—Plaintiff, With Defendant’s consent, conducted water to a tank on his lot from a spring on defendant’s lot. Thereupon he took possession of another lot, owned by defendant, and conducted water to the latter lot from the tank. Having used the water about eight years, he surrendered possession of the lot to which he had no title, and about a year thereafter purchased the same with its appurtenances, and sold the lot on which was the tank. In the conveyance to plaintiff no mention was made of the right to use the spring, but there was evidence that it was understood that he might use it so long as defendant did not need it. Held, that plaintiff had no water rights in the spring appurtenant to the lot.</p> <p>Easement—Water Eights.—The Court Having Found for plaintiff in an action to enjoin the cutting off of the water, an assignment of error that there was no evidence to show any grant of the use of the waters of the spring to plaintiff was sufficient.</p> <p>Easement—Water Eights.—And so of an Assignment that there was no evidence that an easement had been created in favor of the premises deeded to plaintiff, or that a servitude had attached to the land where the spring was located.</p> <p>Easement—Water Eights.—An Assignment That There was no evidence to show the existence of an easement at any time in favor of plaintiff’s land to the spring was likewise sufficient.</p>

<p>Street Assessment—Appeal to City Council.—Act of March 18, 1885, page 147, section 11, provides for an appeal to the city council from an act or determination of the superintendent of streets as to the legality of any assessment; that on such appeal the city council may “confirm, amend, set aside, alter, modify, or correct” the assessment, as it may deem just; that all decisions of the council shall he conclusive, on all persons entitled to such an appeal, as to all errors and irregularities which the council might have remedied. Held, that an appeal on the ground that an assessment for paving a cul-de-sac failed to assess the land at the end of the same presented a question which the city council had power to determine, and therefore their decision was conclusive.</p>

<p>Appeal—Conflicting Evidence.—Where Plaintiff and Defendant are the principal witnesses in the ease, and their testimony is conflicting, a judgment for plaintiff will not be disturbed in the absence of any reason why the court should have believed defendant rather than plaintiff.</p> <p>Promissory Notes.—An Answer in an Action on Notes which denies that certain of the first four notes have not been paid, and alleges that they have been “satisfied and discharged,” does not plead an accord and satisfaction.</p> <p>Promissory Notes.—In Such Action It Appeared That After the date of such first four notes defendant gave plaintiff an order at the bottom of a stated account against him amounting to $70 less than the face of such notes on the attorney for the executor of a certain estate; that such attorney accepted the order, reciting in the ■acceptance that “certain moneys will in the future, in all probability, become due and payable to” defendant out of the income from certain real estate belonging to such estate, and that the order was payable only out of moneys coming from such estate, “and not claimed or affected by attachments or other claims.” Held, that, though an accord and satisfaction was pleaded, it was not error to exclude such account, order, and acceptance from the evidence in the absence of any offer to show by other evidence that they were intended or accepted as satisfaction of either of the notes, or that either the account or order had been paid.</p>

Levy, Judge. Action by Alfred Clarke against Hannah Wittram and others. From an order setting aside a default and permitting said Hannah Wittram to plead, plaintiff appeals.

<p>Forgery—Order- for Teacher’s Salary.—Since the Assignment by a public school teacher of salary not yet earned is void, the false making of such an instrument does not constitute forgery. But if the instrument containing such intended assignment contain likewise a guaranty of payment of the sum assigned, and a provision that, if the sum is not collected by a certain time, it will be paid by the assignee, it is valid in part, and hence is a subject for forgery.</p> <p>Criminal Trial—Beading Evidence from Preliminary Examination.—Where a witness telegraphed and wrote to the district attorney from another state that, owing to business engagements in that state,he could not be present at the trial, which began about twelve days thereafter, and the return to a subpoena for such witness was that he could not be found within the county, there was a showing of such “due diligence” as justified the reading at the trial of his evidence taken at the preliminary examination before a committing magistrate, under Penal Code, section 686, providing for the reading of such, evidence upon its being satisfactorily shown to the court that the witness “with due diligence cannot be found within the state.”</p> <p>Forgery—Witness Befreshing Memory.—On a Prosecution for Forgery, where the prosecuting witness, states that he was present when the complaint was drawn by the district attorney, that they compared the copy therein of the instrument alleged to have been forged with the original, and that such copy was correct, it is proper, if the original is in defendant’s possession, and he refuses to produce it after notice so to do, to allow the witness to refresh his memory as to the original by reference to the copy in the complaint.</p> <p>Witnesses.—Where a Part of an Answer is not Besponsive to the question, and a part is directly so, but the whole is relevant, material, and competent, it is proper to refuse to strike it out as being irrelevant, immaterial, and incompetent, and as being irresponsive to the question.</p> <p>Forgery—Witness Befreshing Memory.—On a Prosecution for forgery, a witness testifying as to the forged instrument cannot refresh his memory by reference to the copy contained in the information, which he does not, of his own knowledge, know to be correct.</p> <p>Municipal Corporations.-—An Order Drawn Directly on a City, instead of on the auditor thereof, is not void on its face.</p> <p>Forgery — Indictment — Variance.—Where an Information for forgery sets out the forged instrument as an order addressed to a city, the fact that it was in reality addressed to the auditor of the city does not constitute a variance.</p>

<p>Mechanics’ Liens—Time for Filing—Completion of Work.—A contractor agreed to excavate a cellar, and to erect walls of concrete and steps to the street, and plaintiff did work thereon for said contractor. The work was accepted by the owner as complete, July 26th; but in August a carpenter employed by the owner placed a frame in the cellar door, and plaintiff, at the owner’s request, filled a small hole outside of the cellar. Held, that the lack of this additional work was a “trivial imperfection,” within the meaning of Code of Civil Procedure, section 1187, which provides that such imperfection shall not prevent the filing of the lien claim, and hence the filing of the claim August 29th was not within the statutory time of thirty days from the completion of the work.</p>

Action by Michael Cleary against J. A. Folger, Jr., to recover an installment paid on a contract for the purchase of land. Judgment for defendant. Plaintiff appeals.

Levy, Judge. Petition of C. W. Mott and others to have Alfred Clarke adjudged an insolvent debtor. From an order so adjudging him he appeals. Witnesses Hutton and Stewart both testified that, when demand was made on Clarke for the payment of certain of his notes, he replied that he was unable to pay them; that he had tried to raise the money and was unable to do so.

Action by William W. Mendenhall against Jason A. Rose to recover on a written contract for services rendered in the sale of certain real property. From a judgment for plaintiff, defendant appeals.

Wallace, Judge. Action by the people of the state of California, upon the complaint and information of the attorney general, to annul the charter of the San Francisco Public Stock Exchange. Judgment for defendant. Plaintiff appeals.

<p>Larceny—View by Jury.—On a prosecution for the larceny of cattle, it is error for the court, jury, counsel and officers of the court to go to a neighboring corral to examine the brands on certain cattle; when such examination is not conducted as a part of the regular trial—neither the cattle nor the brands being offered in evidence, nor defendant given an opportunity to object—since Penal Code, section 1119, authorizing the court to order the jury to be conducted to the place in which the offense was committed, or other material fact occurred, does not apply to such case.</p>

Action by the town of Santa Monica against Robert Eckert and others. Prom a judgment of the superior court reversing a judgment for defendants, defendants appeal.

J. McCann, Judge. Action by Lucius Sanborn and William Vanderhurst, executors of the will of Charles Ford, deceased, A. A. Morey and J. S. Menasco against J. F. Cunningham, James Dougherty and Henry L. Middleton, partners trading as J. F. Cunningham & Co., for the balance of an account for goods sold and delivered. Judgment for plaintiffs. Defendants appeal.

C. B. Iiebbard, Judge. Action by Catherine Beiter against Joseph Bothschild, executor of Hannah Bothschild, deceased, to recover money deposited by plaintiff with H. Bothschild, whose executrix was Hannah Bothschild. Judgment for plaintiff. Defendant appeals.

Wallace, Judge. Action by John Hunt, executor of the will of George F. Sharp, deceased, against Thomas N. Swyney, to establish a trust in favor of testator’s estate in certain lots held by said Swyney. Honora Sharp, testator’s widow, intervenes, claiming the trust for herself. Judgment for intervener. Defendant appeals.

<p>Embezzlement—Drawing Funds from Bank.—The President of a Corporation, to pay an indebtedness of the corporation, the exact amount of which he did not know, signed, as president, a blank check, payable to the secretary, which was given to him, with directions to fill in the amount, and pay the debt. He filled it in for a larger amount, and on having it paid to him appropriated the entire sum. Held, that the money paid him was the money of the corporation, and not that of the bank.</p> <p>Embezzlement—Drawing Funds from Bank.—It Being Within the Course of the secretary’s employment to draw, on like cheeks, the money of the corporation from the bank, and to pay its debts, he is estopped to claim that the money did not come into his control by virtue of his employment, because he filled in the check for a larger amount than he was authorized.</p> <p>Embezzlement — Aiding and Abetting.—By Previous Appointment defendant went to a saloon near a bank, while the secretary drew the funds. They immediately went to another city, where defendant registered under a fictitious name, procured currency for part of the coin, took most of the funds, in a valise, to a railroad station, where he obtained two tickets, paying therefor from the appropriated funds. Defendant carried the funds part of the way, and when arrested had some of them on his person. Held, that the evidence warranted a conviction of defendant for aiding and abetting in the embezzlement.</p> <p>Criminal Trial—Cross-examination of Defendant.—Penal Code, section 688, provides that in a criminal action one cannot be compelled to testify against himself, and section 1323 provides that, if a defendant in a criminal action offer himself as a witness, he may be cross-examined as to matters about which he was examined in chief. Held that, where defendant had merely denied that he had advised another to draw money from a bank for the purpose of embezzling it, and had denied all knowledge of intention of the other so to do, it was error on cross-examination to allow him to be asked questions relating to facts transpiring after the money was drawn.</p>

K. Dougherty, Judge. Action by the people of the state of California against Charles H. Worth, as principal, and others, as sureties, on a bail bond. Judgment for plaintiff and the sureties appeal.

Garber, Judge. Two actions, consolidated: One by H. M. Petersen against E. R. Shain and one Drexler, to recover a personal judgment against Shain,-as contractor, and to enforce a mechanic’s lien for labor done and materials furnished by plaintiff as subcontractor in the construction of a building for Drexler; and the other by C. E. Mooser against H. M. Petersen, E. R. Shain and Drexler, to recover of defendant Petersen a sum claimed to be due for materials furnished, and to…

T. Williams, Judge. Action by Jules Saulque against Buente Durfaide for forcible detainer of a certain tract of land. From a judgment of nonsuit and from an order denying his motion for a new trial plaintiff appeals.

<p>APPEAL from Superior Court, Siskiyou County; J. S. Beard, Judge.</p> <p>Action by Alois Wetzel against C. C. Webb for conversion of grain. Judgment for plaintiff. Defendant appeals.</p>

<p>Writ of Prohibition—Actions to Recover Realty.—Under the constitutional provision that actions for the recovery of real estate shall be commenced in the county in which it is situated, a writ of prohibition will issue to a court'entertaining such an action, for real estate outside the county, though an accounting is also asked as to the rents and profits, and though various proceedings had been had in the action, without any question as to the jurisdiction of the court.1</p>

McM. Shafter, Judge. Action by Peter Connolly against the city and county of San Francisco to recover money alleged to be due on certain contracts for grading streets. From a judgment for defendant, plaintiff appeals.

<p>APPEAL from Superior Court, San Diego County; E. S. Torrance, Judge.</p> <p>Action by Hugh R. Hildreth against Henry A. Williams. There was a judgment for plaintiff, and defendant appeals.</p>

<p>APPEAL from Superior Court, Los Angeles County; Walter Van Dyke, Judge.</p> <p>Action by George W. Daw against William Niles and John B. Niles to foreclose a mortgage. There was a judgment for plaintiff and defendants appeal.</p>

N. Clark, Judge. Action by E. Dupuy against Malcolm Macleod to recover for goods sold and delivered. There was a judgment in favor of plaintiff, and defendant appeals.

Action by the Bituminous Lime Rock Paving and Improvement Company against J. E. Fulton and others to enforce a lien for street assessments. There was a judgment in favor of defendant Henderson, and plaintiff appeals.

<p>APPEAL from Superior Court, San Bernardino County; John L. Campbell, Judge.</p> <p>Action by C. J. Perkins against the West Coast Lumber Company for attorneys' fees. From a judgment for defendant, plaintiff appeals.</p>

<p>Quieting Title.—Mere Possession of Land Within the Limits of a grant to a railroad company, which had complied with the terms of the grant, but had not received a patent from the United States, will not enable such person to maintain an action to quiet title against the railroad company, where he does not show that he was qualified to take land under the pre-emption or homestead laws, or that he settled on it with the intention of filing a pre-emption or homestead claim.</p>

Wallace, Judge. Action by Daniel T. Sullivan against one Hume for professional services as attorney at law. From a judgment for. plaintiff, defendant appeals.

E. Greene, Judge. Ejectment by George B. Mowry against Joseph S. Nunez. There was judgment by default for plaintiff. From an order setting aside the default and vacating the judgment, plaintiff appeals.

Y. Coffey, Judge. Proceeding by Mary A. Clements and another against Eugene McGinn and others to contest the will of James McGinn, deceased, which had been admitted to probate. There was a judgment for contestants and proponents appeal.

<p>APPEAL from Superior Court, City and County of San Francisco; William T. Wallace, Judge.</p> <p>Action by Sarah A. Himmelein against the Supreme Council American Legion of Honor. There was a judgment in favor of plaintiff and defendant appeals.</p>

V. Coffey, Judge. Proceeding by Endora V. Smith to recover a claim against the estate of William Irvine, deceased. There was a judgment-in favor of petitioner, and the administrator appeals.

C. B. Hebbard, Judge. Action by Fritz Grunwald and Otto Munch, partners under the firm name of H. C. Morf & Co. against William Freese. There was a judgment in favor of plaintiffs and defendant appeals.

<p>Sale of Potatoes—Merchantable Quality.—The fact that part of a lot of potatoes contracted for as “merchantable” have “sprouted a little” does not necessarily show that they are unmerchantable, but, there being evidence that the lot in question were salable for table use or shipment, the question whether the purchaser was justified in refusing to receive them is for the jury.</p>

Breen, Judge. Action by Helen M. Moore against Thomas W. Moore and Leonard T. Almstead. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

Wallace, Judge. Consolidated actions by Charles Dunlop and others against Alice Kennedy and John F. Kennedy to enforce liens for material. From a judgment for plaintiffs, defendants, Kennedy, appeal.

<p>APPEAL from Superior Court, Monterey County.</p> <p>Action by Frederika Palmtag against George W. Roadhouse and Emma Roadhouse, his wife, to foreclose a mortgage. From a judgment for defendants, plaintiff appeals.</p>

W. McKinley, Judge. Action by A. G. Hinckley against August Krug on an account for professional services rendered by plaintiff, as an attorney, for defendant. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying his motion for a new trial, defendant appeals.

A. Sanderson, Judge. Action by Mary Tobin against the Omnibus Cable Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Wade, Judge. Petitions by the Security Savings Bank and Trust Company, Main Street Savings Bank and Trust Company, and Los Angeles Savings Bank for a writ to review an order of the board of supervisors of Los Angeles county, sitting as a board of equalization, directing property to be added to the assessments of petitioners. From a judgment annulling the order the board appeals.

<p>APPEAL from Superior Court, Butte County; John C. Gray, Judge.</p> <p>Action by William Hawkins and others against A. A. More-head and others. Prom a judgment for defendant Morehead, plaintiffs appeal.</p>

<p>Appeal—Service of Notice.—In an Action to Foreclose a mortgage, the owners of two-thirds of the property alleged that plaintiff, as mortgagee, had been in possession and received certain rents and profits, and prayed for an accounting. A demurrer to this answer having been sustained, judgment was rendered against such owners, and they appealed. ' The owner of the other third interest consented to judgment for plaintiff, the latter having waived a deficiency judgment. The mortgage debt bore interest at eight per cent, and the judgment at seven. Held, that notice of appeal must be served on the owner of the one-third interest, since he would be injuriously affected by a reversal of the judgment.</p>

Action hy T. A. Gill against S. Dunham and another to foreclose a lien for a street assessment. Prom a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>APPEAL from Superior Court, Kern County; A. R. Conklin, Judge.</p>

W. McKinley, Judge. Action by Smith against the Los Angeles and Pacific Railroad Company. An application for an order directing the sheriff to levy on sufficient property of defendant to satisfy a judgment theretofore obtained by plaintiff against defendant was denied and plaintiff appeals.

Budd, Judge. Action by Thophile Remy against E. J. Olds and George H. Barfield for breach of contract. There was a judgment m favor of plaintiff and defendants appeal.

<p>Arson.—On a Trial for Arson an Instruction that “Malice, within the meaning of the law, includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive,” is correct, Penal Code, section 7, subdivision 4, providing that “the words ‘malice’ and ‘maliciously’ import a wish to vex, annoy or injure another person, or an intent to do a wrongful act.” 1</p> <p>Arson.—An Instruction that, “Where the Evidence is entirely circumstantial, yet is not only consistent with the guilt of the defendant but inconsistent with any other rational conclusion, the law makes it the duty of the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye-witnesses would have been,” is correct.</p>

<p>APPEAL from Superior Court, Tulare County; William W. Cross, Judge.</p> <p>Action by James S. Bradley, Helen Travers and Edwin Bradley against B. G. Parker to enforce a trust. There was a judgment in favor of . defendant, and plaintifÉ James S. Bradley appeals.</p>

<p>Vendor and Vendee.—A Covenant in an Agreement to Convey land, which provides that on noneomplianee by the purchasers with the terms as to payment the seller shall be free from any obligation to convey, and the.purchasers shall forfeit all right thereto, time being made of the essence of the contract, authorizes the seller to avoid the contract or not, at his option, and he is not bound to tender a deed except on payment of the price.</p> <p>Vendor and Vendee.—Where a Land Contract Provides That, on Noncompliance by the purchaser with the terms as to deferred payments, the seller shall be free from any obligation to convey, and the purchaser shall forfeit all rights thereunder, except a right to occupy the premises as a tenant of the seller so long as the sums paid are equivalent to an annual rent equal to twelve per cent per annum of the price agreed on, with the right to purchase during such time, the seller, by bringing an action to recover the unpaid price, waives his right to treat the agreement to convey as void, and hence this clause, giving a right of occupancy for a certain time to the purchaser, which was to apply only in case of forfeiture, has no application.</p>

<p>APPEAL from Superior Court, Ventura County; W. B. Cope, Judge.</p> <p>Action of ejectment by George M. Adair against Prank W. White and others. Prom a judgment for defendants, plaintiff appeals.</p>

S. Beard, Judge. Action by Sisson, Crocker & Co., a. corporation, against P. M. Johnson and others, for an injunction. A preliminary injunction was granted, and, from an order denying a motion to dissolve the same, defendant Johnson appeals. Affirmed. The complaint alleges that plaintiff is a corporation, and that it “was, on and before May 1, 1892, ever since has been, and now is, the owner in fee of” certain described land.

<p>APPEAL from Superior Court, Los Angeles County; William P. Wade, Judge.</p> <p>Action by Thomas Nelmes against J ames G. Wilson. Judgment for defendant. Plaintiff appeals.</p>

<p>APPEAL from Superior Court, Los Angeles County; W. N. Clark, Judge.</p> <p>Action by Alfred Moore against S. H. Mott and W. C. Furney. Judgment for defendants. Plaintiff appeals.</p>

P. Wade, Judge. Action by the San Gabriel Valley Land and Water Company against L. W. Dennis to collect an assessment on stock. There was a judgment in favor of defendant, and plaintiff appeals.

<p>Appeal.—Where the Evidence, Though Conflicting, is quite sufficient to support the findings of the lower court, the judgment based on such findings will not be reversed on appeal.</p>

<p>APPEAL from Superior Court, Los Angeles County; B. N. Smith, Judge.</p> <p>George Abbott was convicted of burglary and appeals.</p>

<p>APPEAL from Superior Court, Fresno County; S. A. Holmes, Judge.</p> <p>Albert Larsen was convicted of robbery and appeals.</p>

Action by A. Klauber and others against the San Diego Street-car Company for specific performance. Judgment for defendant was reversed on appeal: 95 Cal. 353, 30 Pac. 555. Defendant appeals. Motion to dismiss denied: 98 Cal. 105, 32 Pac. 876.

Action by Juan M. Luco against Juan de Toro for partition. The facts are recited in the opinion on the former appeal: 91 Cal. 405, 27 Pac. 1082. Judgment for defendant. Plaintiff appeals.

<p>APPEAL from .Superior Court, Los Angeles County; Walter Van Dyke, Judge.</p> <p>Ejectment by the Los Angeles Farming and Milling Company against Hoff and others. Judgment for plaintiff. Defendants appeal.</p>

<p>Contempt.—A Commitment for Contempt of Court, in disobeying an order requiring the person committed to restore to the administrator of an estate in process of settlement money which he had obtained, as attorney for such administrator, by false pretenses, is void, where the judgment on which the commitment issued fails to show that he was in fact such attorney.</p>

Action by W. S. Packer and others against Phil Doray and others to quiet title. From a judgment in favor of defendants, and from an order denying a motion for a new trial, plaintiffs appeal.

<p>APPEAL from Superior Court, Fresno County; M. K. Harris, Judge.</p> <p>Action by J. E. Chapin, T. E. Peclrinpagh and Charles Peckinpagh against Albert Brown for an accounting. Judgment for plaintiffs. Defendant appeals.</p>

R Swinnerton, Judge. Action by C. B. Williams, administrator of J. E. Magary, deceased—substituted as plaintiff in place of his intestate— against A. Bisagno and others, to enforce a street assessment. There was a judgment in favor of plaintiff, and defendants appeal.

Application by Charles Bell for a writ of habeas corpus, alleging that he was illegally imprisoned under a conviction of petit larceny. Denied.

Petition by L. M. Wagner for a writ of prohibition to restrain the superior court of Los Angeles county from proceeding under an order made by it directing petitioner to appear and show cause why an order made on a petition for insolvency discharging her from her debts should not be vacated. Writ granted.

B. Cope, Judge. Vital was convicted of murder and appeals. Submission of cause set aside and cause restored to the calendar.

<p>Deed—Description—Distances.—Under a Deed Purporting to convey a certain number of feet along a street commencing at a certain point, only that number of feet passed by the deed, and therefore evidence that the grantor, in measuring off the land granted, measured more than that number of feet, is incompetent to show that more than the number of feet stated passed by the deed.1</p>

K. Harris, Judge. Action by G. L. Porter against S. C. Fisher. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>APPEAL from Superior Court, San Diego County; W. L. Pierce, Judge.</p> <p>Action by I. Isaac Irwin against S. A. McDowell for conversion of chattels mortgaged to plaintiff. Judgment for defendant. Plaintiff appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; W. R. Dangerfield, Judge.</p> <p>Arthur Bannister and Prank Hawley were convicted of burglary, and appeal.</p>

P. Hoge, Judge. Action by one Petersen against Jos. W. Taylor to recover money alleged to have been received by defendant for plaintiff’s use. From a judgment in defendant’s favor, plaintiff appeals.

Y. Coffey, Judge. Action by Johanna F. Clarke, administratrix, against Andrew Baird. From an order vacating an order for the inspection of books of account, and from an order denying a motion to strike out defendant’s answer, plaintiff appeals.

<p>APPEAL, from Superior Court, San Bernardino County; George E. Otis, Judge.</p> <p>Jaratarno Nicolosi was convicted of larceny and appeals.</p>

<p>Appeal—Eeview of Decision on Prior Appeal.—Where, on the retrial of an action after a judgment of reversal by the supreme court, the conclusion of the trial court, based on the same facts established on the first trial, is in accordance with the decision on such appeal, such conclusion will not be reviewed on a second appeal.1</p>

H. Grant, Judge. Action by G. L. Threlkel, administrator, etc., of Robert N. Scott, deceased, against Harriet A. Scott, to set aside a conveyance by deceased to defendant as in fraud of creditors. From a judgment for plaintiff, defendant appeals.

<p>Embezzlement—Evidence of Another Offense.—On a prosecution for embezzlement, evidence that defendant, two months after the offense charged in the information embezzled another sum of money from defendant, is not admissible to show his intention in taking the first sum.1</p>

<p>APPEAL from Superior Court, Modoc County; C. L. Claflin, Judge.</p> <p>J. G. Crowl was convicted of assault with intent to rape and appeals.</p>

A. Gregg, Judge. Action by William G. Knight and wife against the Pacific Coast Stage Company for personal injuries to the wife. From a judgment entered on a verdict for plaintiffs and from an order denying a new trial, defendant appeals.

C. B. Hebbard, Judge. Action by Mary F. Corcoran, as administratrix with the will annexed of the estate of William Corcoran deceased, against John Hinkel and others, to redeem certain land which deceased had mortgaged to defendant German Savings and Loan Society, and which was afterward conveyed by it to defendant Hinkel. There was a judgment for defendants, and an appeal by plaintiff from such judgment was dismissed.

<p>Chief of Police—Election.—Where One, Without the Qualification of being a citizen of the United States, has been elected to tiee office of chief of police of a city, the election will be annulled and his certificate canceled.1</p>

<p>Corporations.—Where a President of a Corporation Agrees that the corporation shall assume the debts of a person, it cannot be held liable by a creditor of such person, no corporation action with relation to the contract being shown, but it being claimed simply that money paid on the contract came into possession of the corporation.1</p>

<p>Proceedings to disbar Henry I. Kowalsky. Dismissed.</p>

Wade, Judge. Action by J. T. Ritchey against J. G. McMichael for moneys of plaintiff fraudulently converted by defendant. From a judgment for plaintiff, defendant appeals.

V. Coffey, Judge. Proceedings by Virginia Durstein to have allotted to her a share in the estate of Jose Francisco De Leon, deceased. Decree for plaintiff. The assignee of one of the distributees of said estate appeals.

L. Pierce, Judge. Action by Nathan Nevin against Frank C. Thompson, T. J. Daley, A. R. Sckulenberg and H. T. Christian on a promissory note executed by Thompson, and on a bond whereby the other defendants assumed and agreed to pay such note; and also to reform such bond. From a judgment for plaintiff, defendants appeal.

Action by the Pacific Mutual Life Insurance Company against John Beck and Priscilla Beck and another to foreclose a mortgage. From an order directing a receiver of the mortgaged property to pay rents and profits in his hands to the mortgagor, the mortgagee appeals.

Levy, Judge. Action by Almon Wheelock, executor of Albert G. Whee-lock, deceased, against Arabella Godfrey and the San Francisco Savings Union, for certain money deposited in defendant bank by deceased. From a judgment for defendant Godfrey against the bank, the bank appeals.

Levy, Judge. Action by Almon Wheelock, executor of Albert G. Wheelock, deceased, against Arabella Godfrey and the San Francisco Savings Union, for certain money deposited in defendant bank by deceased. Judgment for defendants. Plaintiff appeals.

W. Cross, Judge. Action by Nannie Esrey against the Southern Pacific Company, in which defendant appealed from the judgment in favor of plaintiff, and from an order denying its motion for a new trial. Plaintiff moves to dismiss both appeals. Motion to dismiss appeal from such order granted. Motion to dismiss appeal from the judgment denied.

Action by the First National Bank of Chicago against the California National Bank of San Diego on a promissory note, and for money loaned. Judgment for plaintiff. Defendant appeals.

<p>APPEAL from Superior Court, Contra Costa County; Joseph P. Jones, Judge.</p> <p>Action of ejectment by Daniel S. C. McHarry against James Stewart. Prom a judgment for plaintiff, defendant appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; A. A. Sanderson, Judge.</p> <p>Action by Henry Kahn against Abraham I. Brilliant and William H. Byington. From a judgment in favor of defendant Byington, plaintiff appeals.</p>

W. Lawlor, Judge. Action by Schmidt and others against Welch and others to recover damages for infringement of a trademark and for an injunction. From a judgment for plaintiffs and from an order denying a motion for a new trial, defendants appeal.

Garber, Judge. Action by E. Mietzsch against Amelia Berkhout and James Gilleran, as superintendent of public streets of the city of San Francisco, for an injunction. From a judgment for defendants, plaintiff appeals.

W. Henshaw, Judge. Action in the nature of quo warranto by the people, on the relation of Fred Y. 'Wood, against John A. Sands. From a judgment for plaintiff, defendant appeals.

S. Torrance, Judge. Action by M. L. Ferguson against Alexander McBean on contract for the sale of lands. There was judgment for plaintiff, and defendant appeals.

<p>Mines.—A Contract Giving an Option to Purchase a mine, wherein the vendors covenant to sink a shaft of at least one hundred feet, imposes on them the absolute duty of sinking the shaft to the agreed depth, though they find no evidence that the mine contains enough valuable ore to justify them in purchasing it. Woodworth v. McLean, 97 Mo. 325, 11 S. W. 43, distinguished.1</p>

Campbell, Judge. Action by H. L. Drew and C. W. Fairbanks against Sarah A. Hicks and William Curtis to enjoin defendants from constructing a bulkhead so as to turn water on plaintiffs-’ premises. From judgment for plaintiffs, defendants appeal.

<p>APPEAL from Superior Court, City and County of San Francisco; F. W. Lawlor, Judge.</p> <p>Action for divorce by Ane Johnson against Neils Johnson. Decree for plaintiff. Defendant appeals.</p>

Action in the nature of a creditors’ bill by C. G. Watkins against R E. Wilhoit, B. F. Langford and M. E. Bryant. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

Campbell, Judge. Action by the Russ Lumber and Mill Company against William Roggenkamp, W. H. Pierce, J. Lee Burton and the Union Bank of Redlands to enforce a mechanic’s lien. From a judgment for plaintiff against defendant Roggenkamp, personally, said defendant appeals.

<p>Foreclosure of Mortgage—Attorney Fees.—On Appeal from a judgment foreclosing a mortgage which provides for the allowance of reasonable attorney’s fees on foreclosure, the allowance will not be disturbed if the appeal is brought up on the judgment-roll alone, without exceptions, and there is nothing in the record to show that the court abused its discretion in making the allowance.</p>

Action by Charles Raskin, administrator with the will annexed of Jean Leonis, deceased, against John Robarts and another, executors of Miguel Leonis, deceased. Prom an interlocutory decree for plaintiff and from an order denying a motion for a new trial defendants appeal. Appeal from decree dismissed. Affirmed on appeal from order denying new trial.

<p>APPEAL from Superior Court, Orange County; J. W. Towner, Judge.</p> <p>Action by W. A. Smith against M. E. Ellis and J. N. Ellis, Sr., to subject certain land to the payment of judgments. Judgment for defendants. Plaintiff appeals.</p>

<p>Appeal—Delay In Filing—Dismissal.—An appeal not filed within the time prescribed by court rules will be dismissed, no good cause for the delay being shown, though no notice of the motion to dismiss was served on -appellant’s assignee in insolvency, he having, however, knowledge of the notice served on appellant’s attorneys.</p>

<p>APPEAL from Superior Court, Santa Barbara County; W. B. Cope, Judge.</p> <p>Action by S. G-. Robinson against John R. Dugan, administrator of William Robinson, deceased. Judgment for defendant. Plaintiff appeals.</p>

<p>, APPEAL from Superior Court, San Bernardino County; John C. Campbell, Judge.</p> <p>Action in ejectment by Luther C. Tibbets against Thomas Bakewell and others. From a judgment for defendants, plaintiff appeals.</p>

<p>APPEAL from Superior Court, San Luis Obispo County; V. A. Gregg, Judge.</p> <p>Action by Hiram A. Dooley against 17,500 head of sheep. Judgment for plaintiff. Gradan Solaberry appeals.</p>

Wade, Judge. Action by William Boehm against E. D. Gibson to recover possession of certain personal property. From a judgment for defendant and from an order denying a motion for a new trial, plaintiff appeals.

Action by Uri Decker against Wesley Perry for money had and received. Demurrer -to complaint overruled and judgment for plaintiff. Defendant appeals.

W. McKinley, Judge. C. H. Clement was convicted of an attempt to commit grand larceny. Prom an order in arrest of judgment, the people appeal.

<p>APPEAL from Superior Court, San Diego County; W. L. Pierce, Judge.</p> <p>Action by Paul Sainsevain against M. A. Luce, C. S. Luce and Olive B. Montania to foreclose a mortgage. Judgment for plaintiff, and defendants appeal.</p>

<p>Mortgage Foreclosure.—A Lien for Attorneys’ Fees cannot be Obtained in a suit to foreclose a mortgage which contains a provision that, should suit be commenced, or an attorney employed, the mortgagors agree to pay an additional sum of ten per cent on principal and accrued interest as attorneys’ fees, since the mortgage does not purport to secure such fees.1</p> <p>Attorney Fees—Allegation of Agreement for.—Attorneys’ Fees cannot be recovered where the agreement to pay them is not directly averred in the complaint, but is merely inferable from an exhibit annexed thereto.1</p>

Wallace, Judge. Action by one Castro and others against the city and county of San Francisco, one Barkley and others. From an order dismissing the action on motion of defendant Barkley, plaintiffs appeal.

Action by Katie E. Dixon against William J. F. W. Pluns for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed: See 3 Cal. Unrep. 735, 31 Pac. 931; 98 Cal. 384, 33 Pae. 268. On motion to amend remittitur.

<p>Appeal—Question not Raised Below.—A judgment in an action by the assignee of an insolvent will not be reversed on the ground, raised for the first time on appeal, that the complaint contained no averment showing that in the proceedings for plaintiff’s appointment a copy of the petition filed by creditors was served on the insolvent, as required by statute, the record being silent on the subject.</p>

<p>Accomplice—Corroboration—Instructions.—On a Murder Trial, the court, on evidence fully authorizing it, submitted to the jury the question as to whether or not a certain witness for the state was an accomplice. The only corroborative evidence was given by the wife of such witness, who testified to certain oral confessions. Held, that it was error to refuse to charge that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of defendants ought to be viewed with caution, under Code of Civil Procedure, section 2061, which directs such instructions to be given “on all proper occasions.”</p> <p>Accomplice—Corroboration—Instructions.—It was also Error to refuse to charge that, if the jury found such witness to be an accomplice, and did not believe the evidence of his wife, then there was no corroborating evidence of the accomplice, and it was their duty to acquit.1</p>

<p>APPEAL from Superior Court, Sacramento County; Matt. F. Johnson, Judge.</p> <p>Motions by respondents to dismiss appeals and strike matter from record.</p>

<p>APPEAL from Superior Court, Santa Clara County; W. A. Lorigan, Judge.</p> <p>George Kilvington was convicted of manslaughter and appeals.</p>

G-ray, Judge. Action Tby Dora Usher against J. B. Usher for a divorce. From an order denying his motion to change the place of trial to Tuolumne county, defendant appeals.

<p>Criminal Law—Record on. Appeal—Continuances.—Where the record fails to show that defendant objected to numerous continuances, a denial of motion to dismiss, made on the ground that he had not been brought to trial within the time required by the Penal Code, will be affirmed.</p>

<p>APPEAL from Superior Court, Tehama County; John F. Ellison, Judge.</p> <p>David Davis, convicted of assault with a deadly weapon, appeals.</p>

Armstrong, Judge. Action by the Natoma Water and Mining Company against John Hancock and Joseph Wild. An order was granted restraining defendants from doing certain things pending the litigation. From an order adjudging defendant Wild guilty of contempt for violating this order, he appeals.

<p>Mortgages—Foreclosure—Maturity of Debt.—When an Overdraft Account with a bank is secured by a note and mortgages payable on or before three years, and interest as due is charged in the account, the rules against parol evidence (Civ. Code, see. 1625; Code Civ. Proe., see. 1856) forbid proof of an oral agreement that the debt should be due at any time within the three years, at the bank’s option.</p>

Action by Joshua Chadbourne and others against the Stockton Savings and Loan Society. From a judgment for plaintiff, and an order denying motion for new trial, defendant appeals.

Action by Clara Spooner against Prank P. Cady in claim and delivery. Plaintiff had judgment by default, from which, and from an order overruling a motion to set aside the default, defendant appeals. Reversed.

<p>Appeal.—Findings of Fact cannot tie Reviewed on conflicting evidence.</p> <p>New Trial.—Newly Discovered Evidence, Which is Merely cumulative, is no ground for a new trial.</p>

<p>APPEAL from Superior Court, Tulare County; Wheaton A. Kent, Judge.</p> <p>Action by Elias Jacob against D. F. Carter. From a judgment for defendant, plaintiff appeals.</p>

Action by James P. Clarkson against Perry Hoyt on a promissory note. Prom a judgment for plaintiff and order denying defendant’s motion for a new trial, defendant appeals.

<p>APPEAL from Superior Court, Nevada County; John Caldwell, Judge.</p> <p>Action by Ellen E. Holbrooke against Caleb Harrington. From a judgment for plaintiff, defendant appeals.</p>

Levy, Judge. Action by Asa Fiske against E. J. Casey, administrator of Henry Shoulters, to foreclose a mortgage. From a judgment for $163.91, and1 for the foreclosure of the mortgage, and an order denying a new trial, plaintiff appeals.

<p>APPEAL from Superior Court, San Joaquin County; Ansel Smith, Judge.</p> <p>Action by C. C. Castle against Jennie Smith. From a judgment for plaintiff, defendant appeals.</p>

P. Gatlin, Judge. Suit by Plerman W. Hoppe and others against Julia Hoppe and W. A. Fountain for partition, consolidated with suit by W. A. Fountain against Julia Hoppe (Herman W. Hoppe and others intervening), to foreclose a mortgage. Partition suit dismissed, and foreclosure decreed. Julia Hoppe and Herman W. Hoppe and others, separately, appeal. The dismissal was affirmed, and the judgment of foreclosure reversed.

K. Harris, Judge. Three actions—one by M. D. Eshleman against the Henrietta Vineyard Company and G. H. Halter, one by the same plaintiff against G. H. Halter and others, and one by the Henrietta Vineyard Company against I. S. Eshleman and others. From a judgment for defendants in each of the actions, plaintiff appeals.

K. Harris, Judge. Action by the Fresno Milling Company against the Fresno Canal & Irrigation Company. From a judgment for defendant and an order denying a motion for a new trial plaintiff appeals.

<p>APPEAL from Superior Court, Riverside County; J. S. Noyes, Judge.</p> <p>Action by Terrance Grogan against S. A. Nolan to foreclose a mortgage. Judgment for plaintiff. Defendant appeals.</p>

Action by one Caffrey against the Omilak Gold and Silver Mining Company to recover for services rendered defendant by one Taggart, plaintiff’s assignor. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals..

A. Dorn, Judge. Action by Jos. Cramer against F. U. Kester, road overseer, to enjoin him from removing a fence. From a judgment for plaintiff and an order denying his motion for new trial, defendant appeals.

<p>APPEAL from Superior Court, Alameda County; W. E. Greene, Judge.</p> <p>Action by Mary Thompson against Christ Gorner on a promissory note. Judgment for plaintiff, with costs for defendant. Plaintiff appeals.</p>

McGarvey, Judge. Suit by J ames Bartlett and others against Cornelius 0 ’Con-nor and others for damages and an injunction. Judgment for plaintiffs. Defendants appeal.

<p>Specific Performance—Conditions Precedent.—A covenant in a contract to convey land to a county for a highway and bridge, binding the county to furnish a cattle-way to the river, need not be performed in advance as a condition to a conveyance.</p> <p>Appeal—Review.—Findings of Fact by the Trial Court will not be reviewed on appeal.</p> <p>Reformation of Deed.—The Discretion of the Trial Court in Granting the reformation of a deed will not be reviewed, except in a very plain case.</p>

F. McCann, J. Action by J ames Sheehy against W. P. Chalmers on a promissory note. From a judgment for plaintiff, and an order dismissing his motion for new trial, for want of prosecution, defendant appeals.

<p>Goods Sold to Arrive by Ship—Delivery—Delay—Expenses.— Where plaintiff sold to defendant iron, to arrive by a certain ship, then on her way—the iron to be delivered at defendant’s wharf, and received by him, as discharged—defendant is liablé to plaintiff for the necessary charges paid by him for the use of the ship and wharfage while awaiting, after arrival, opportunity to discharge, defendant’s wharf being occupied by other vessels.</p>

<p>Sale—Change of Possession—Attachment.—Where plaintiff’s son in law gave to her a bill of sale of articles on his ranch, which remained there and were used by him, there was no delivery and change of possession that would defeat an attachment of the property in an action against the son in law, though, with the bill of sale, there was given to plaintiff a deed of an undivided half of the ranch, and, before the attachment, plaintiff visited her son in law.</p>

Action by Carl C. Bygum against the Southern Pacific Company for damages for causing the death of his minor son. From an order granting plaintiff a new trial, after nonsuit, defendant appeals.

Action by Buttner against Smith to recover money paid defendant to assist him in getting possession of stock. From a judgment for plaintiff and another denying a new trial defendant appeals. From an order denying plaintiff’s motion to add to the verdict interest on the amount from the date demand was made for its return to the date the action was begun, plaintiff appeals. Order denying a new trial affirmed and judgment modified.

Garber, Judge. Action by Numsen and others against Levi and others to recover the contract price of certain oysters sold and delivered by plaintiffs to defendants. From a judgment for plaintiffs, and from an order denying a motion for new trial, defendants appeal.

C. B. Hebbard, Judge. Action by the city and county of San Francisco against E. W. Burr and others to abate a nuisance consisting of maintaining a fence across a public highway. From a judgment for plaintiff, defendants appeal. Reversed as to defendants sued by fictitious names and as to all others affirmed.

W. Lawlor, Judge. Action by Caroline A. Painter and E. B. Dallam, executors of the will of Jerome B. Painter, deceased, against Theodore P. Painter and J. Milton Painter, for an accounting. From a judgment for plaintiffs and an order denying a new trial defendants appeal. Reversed.

Wallace, Judge. Action by C. H. Afflerbach against John McGovern to recover the possession or value of certain personal property. From a judgment for defendant and from an order denying a motion for a new trial plaintiff appeals.

<p>Robbery—Evidence—Statements of Confederate.—Where defendant, in the presence of witness, by arrangement with his partner in crime, agreed that witness should accompany his partner, who should tell witness where the stolen property was, and that witness should get it, and turn it over to defendant’s partner, statements made to witness by such partner, in defendant’s absence, as to where the property may be found, are admissible against defendant.</p>

<p>Application of Chatfield for discharge on habeas corpus. Discharge denied.</p>

Action by Fitzgerald, administrator, against Fitzgerald and others. Judgment for defendants, and order denying new trial. Plaintiff appeals. Appeal from judgment dismissed.

<p>APPEAL from Superior Court, City and County of San Francisco; William T. Wallace, Judge.</p> <p>Action by A. H. Green against Mary E. Barney for money had and received. Judgment for defendant. Plaintiff appeals.</p>

<p>Estate of Decedent—Determination of Heirship—Illegitimate.— On an issue whether petitioner was testatrix’s illegitimate daughter, the exclusion of evidence that testatrix had never mentioned having any daughter was not prejudicial, where petitioner not only made no claim that testatrix had ever recognized her as her daughter, but produced evidence that she had not.</p> <p>Evidence—Book of Registered Letters.—Petitioner introduced evidence tending to show that she received at Buffalo a letter signed C. K. (testatrix’s name), containing a railroad ticket and five dollars. It was shown that the address of O. K. was at 616% N. street, and that at about that time she borrowed five dollars to send, as she said, to her sister at Buffalo. Held, that petitioner might introduce from the book of registered letters of the San Praneiseo postoffiee an entry reciting the receipt of a letter from C. K., 616% N. street, addressed to M. R. (petitioner), Buffalo.</p>

<p>Public Street—Changing Grade—Damages.—Under Constitution of 1879, article 1, section 14, providing that private property shall not be taken “or damaged” for public use without just compensation having been first made, damages peculiar to property of an abutting owner may be recovered of one who fills earth into a street to conform to a new grade to which it had been lawfully changed, though he is duly authorized to do so.1</p>

Action by Seth Warner against the F. Thomas Parisian Dyeing & Cleaning Works. There was a judgment for plaintiff, and, from an order granting defendant a new trial, plaintiff appeals.

<p>APPEAL from Superior Court, Santa Clara County; W. G. Lorigan, Judge.</p> <p>Action by Charles Adams against A. D. Farnsworth and others. There was a judgment for plaintiff, and defendants appeal.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; John Hunt, Judge.</p> <p>Action by Abraham Phillips against Fanny M. Winter and others for partition. Judgment for plaintiff and defendants appeal.</p>

Garber, Judge. Action by C. B. Johnson to enjoin Edwin F. O’Neal, as sheriff, from executing a deed to one of defendants, B. Schwartz, and to enjoin defendants Meyer Greenberg and B. Schwartz from further proceedings in the case of defendant Greenberg against defendant California Bituminous Rock Company. Judgment for defendants, and plaintiff appeals.

G. Lorigan, Judge. Action by Prank Matts and wife against Joseph Borba. Prom a judgment for plaintiffs, and an order denying a new trial, defendant appeals.

W. Slack, Judge. Action by Henry Sutliff against Andrew J. Clunie to compel an accounting by defendant as assignee. From a judgment denying defendant credits for certain items, he appeals.

Finn, Judge. Action by the Savings and Loan Society against John M. Burnett and others to quiet title. From a judgment for defendants and from an order denying its motion for a new trial plaintiff appeals.

T. Wallace, Judge. Action by the Millbrae Company against H. H. Taylor and others to enjoin the nse of a trade name and for damages. Judgment for defendants. Plaintiff appeals.

T. Wallace, Judge. Appeal by Julius Conradt and another from a judgment in favor of C. A. Macomber. Motion by respondent to require appellants to file a new appeal bond.

<p>Sale—Diseased Trees.—Plaintiff Sold to Defendant certain trees. It was provided that, on account of a disease with which the trees were affected, a certain percentage should be excepted. Defendant selected the' trees and they were shipped to him in another county. On account of an ordinance of the county to which the trees were shipped, adopted after the sale, defendant was prohibited from planting therein any of the trees which were diseased, and returned the same to plaintiff, who refused to receive them. Held, that plaintiff could recover for all of the trees selected by and shipped to defendant.</p> <p>Sale—Diseased Trees.—The Fact That an Ordinance of a county to which trees are shipped prohibits the planting of any diseased trees therein does not invalidate a sale of trees as to any diseased ones' included therein, where the sale was made in another county before the ordinance was adopted.</p>

Action by M. A. Luce and another against the San Diego Land & Town Company for a balance due on salary. Judgment for plaintiffs, and defendant appeals.

<p>Water Eights—Injury to Dam—Where plaintiff had the right to the water of a ditch and to a dam on defendant’s land, which the latter used for the purpose of pasturing stock, defendant was not liable for injuries to the dam by the cattle tramping and treading the same, where plaintiff had the right to enter and protect the dam against such injuries.</p>

<p>Habeas corpus ex parte Thomas Murphy. Petitioner discharged.</p>

Campbell, Judge. Action by the Ontario Land & Improvement Company against J. S. Howard to compel defendant to pay a balance due on a contract for the sale of land, or, in default thereof, to foreclose his interest in the land. From a judgment for plaintiff and from an order denying a new trial defendant appeals.

<p>APPEAL from Superior Court, Los Angeles County; W. H. Clark, Judge.</p> <p>Action by James Quill against A. Jacoby and another. There was a judgment for defendants, and plaintiff appeals.</p>

<p>APPEAL from Superior Court, Sonoma County.</p> <p>Action by one Ullrich against the Santa Rosa National Bank. There was a judgment for plaintiff and defendant appeals.</p>

<p>APPEAL from Superior Court, San Luis Obispo County; V. A. Gregg, Judge.</p> <p>Action by the Pacific Coast Railway Company against George W. Ramage, tax collector, to set aside an assessment. Judgment for defendant. Plaintiff appeals.</p>

<p>APPEAL from Superior Court, San Diego County; George Puterbaugh, Judge.</p> <p>Action by J. E. Goetz against Simon Goldbaum on a promissory note. Judgment for plaintiff. Defendant appeals.</p>

R. Conklin, Judge. Action by T. B. Orr against the county of Kern to recover constable’s fees. Judgment was rendered for defendant and plaintiff appeals.

<p>APPEAL from Superior Court, Los Angeles County; J. W. McKinley, Judge.</p> <p>Action by John P. Jones and others against the Los Angeles and Pacific Railway Company. Judgment for plaintiffs. Defendant appeals.</p>

A. Gregg, Judge. Action by Joseph Horton, administrator with the will annexed of James A. Brown, deceased, against R. E. Jack and the First National Bank of San Luis Obispo. Judgment for defendants. Plaintiff appeals. Reversed as to defendant Jack.

<p>Execution Against Husband.—In an Action by a Wife to Recover for cattle alleged to be her separate property, but sold on execution by a judgment creditor of her husband, although the evidence shows that her husband returned the stock for taxation in his name, and had the use thereof for dairy purposes, and represented to the judgment creditor that" he was owner thereof, if it appears that the stock was bought by the wife with money earned before marriage, and its increase was reserved as her property, a finding that the stock was in fact hers will not be disturbed.</p> <p>Trial—Findings.—Where the Sole Issue is the Truth of the allegations of the answer, a finding “that the allegations of the separate defense contained in the answer of the defendant G. are untrue” is sufficient.</p> <p>Execution Against Husband—Levy on Wife’s Property.—A Finding That the Allegations in the answer are untrue is justified when the only allegations therein are that the plaintiff, by her conduct, held out her husband as the owner of her separate stock seized on execution against him, and that, on faith thereof, credit was given the husband, and such allegations are contradicted by evidence showing that the creditor ordered the sheriff to seize the property in question, and gave a bond indemnifying such sheriff against the claim of the wife, and had constructive notice of such claim by a previously recorded statement of her separate property, including the stock seized.</p> <p>Trial—Findings.—Where an Answer Contains Two Separate Defenses, viz., a denial of the allegations of the complaint and a justification of the acts complained of, a finding for the plaintiff on the first defense renders a failure to find on the second immaterial.</p> <p>Execution—Bond of Indemnity to Sheriff.—Code of Civil Procedure, section 689, as amended by Laws of 1891, page 20, provides that, if one claiming property seized on execution serves on the sheriff a sworn claim setting out his title and his right to possession, the sheriff need not keep the property, unless the execution plaintiff gives a bond of indemnity to him against such claim. Held, that proof of the service on the sheriff of such claim is admissible against the sheriff in an action by a claimant for the wrongful seizure of property, though it is not pleaded in the complaint, since the statute is for the benefit of the sheriff, and is matter of defense.1</p> <p>Execution Against Husband—Estoppel of Wife to Set TTp Ownership.—Where a husband pastures his wife’s cattle in return for their use for dairy purposes, she reserving the increase, such use by the husband, accompanied by a representation on his part that they were his, cannot, in the absence of any such representation on her part, or any act tending to mislead one holding a judgment against her husband as to the ownership of the stock, estop the wife from setting up ownership to defeat an execution levied on the stock under such judgment.1</p> <p>Execution Against Husband.—An Inventory of a Wife’s Separate Property, filed with the recorder, is admissible in evidence, against a judgment creditor of her husband, in an action to recover her separate property seized by him on execution, though the husband’s debt to him was contracted before such filing, if the levy of execution was made subsequent thereto.</p> <p>Evidence.—The Account-books of a Judgment Creditor are original evidence to establish clainis against the debtor, and should be introduced as part of the case, and it is proper to exclude them when offered in rebuttal.</p> <p>Execution—Exemptions.—Evidence as to Indorsements on a Sheriff’s Writ of execution, whereby part of the property seized thereunder was surrendered as exempt, was properly excluded on the ground that its ownership was not in issue.</p> <p>Execution Against Husband—Property of Wife.—The Testimony of a Witness in regard to a conversation with the judgment creditor prior to the execution, wherein he offered to take a new note from the husband if the wife would sign it, was admissible to show that the creditor had knowledge that the property levied on was the property of the wife.</p> <p>Evidence—Value of Cattle.—Where a Witness Testifies that he has been in the dairy business for seven years, and is familiar with the value of cattle for that business, his testimony as to the value of the cattle in suit is admissible, although he has not seen them for a year previous to the execution.</p> <p>Pleading—Unverified Complaint.—Code of Civil Procedure, section 437, provides that “where the complaint is not verified a general denial is sufficient.” Held, that where an unverified complaint alleges the value of property converted and the answer is a general denial, the value is put in issue.</p>

Action by Ellen D. Raymond against George W. Glover, Sarah J. Glover, George Munroe and the German-American Savings Bank to establish a vendor’s lien. Plaintiff had judgment and the defendant bank appeals, and, by a cross-bill, seeks to foreclose a mortgage.

<p>New Trial.—The Granting'a New Trial on the Ground of newly discovered evidence is discretionary with the trial court.</p>

Petition by one Perkins for a writ of prohibition against the superior court of Fresno county to prevent proceedings on appeal. Writ denied.

Action by the San Francisco and Fresno Land Company against J. Banbury, as treasurer of Los Angeles county, and others, to compel the acceptance of money paid for the redemption of land sold for taxes. Judgment for defendants, and plaintiff appeals.

<p>APPEAL from Superior Court, Tehama County; John F. Ellison, Judge.</p> <p>Action by Herbert Kraft against H. C. Wilson. There was a judgment for plaintiff and defendant appeals.</p>

E. Jones, Judge. Action by E. N. Todd against Isabell J. Martin, administratrix of the estate of John Martin, deceased, to recover for services as nurse to the deceased in his last illness, and for other services. Judgment for plaintiff, and defendant appeals..

Action by F. Fette against Frank E. Lane to recover on a note secured by mortgage on crops sold by defendant under a second mortgage. Judgment for plaintiff and defendant appeals.

<p>APPEAL from Superior Court, Alameda County; W. E. Greene, Judge.</p> <p>Accounting by the executors of the will of William Walkerly. Motion to dismiss two appeals.</p>

Slack, Judge. Action for divorce by Lillie Wolff against Henry Wolff. From an order granting an allowance for counsel fees and disbursements, defendant appeals.

C. Van Fleet, Judge. Action by S. B. Smith, assignee, against F. W. Fratt and George F- Parker, to recover the value of property conveyed to the defendants before the assignment. Judgment for defendants, and plaintiff appeals.

A. Davis, Judge. Action by Joseph Richard against John Hupp to abate a nuisance caused by the erection of a dam by defendant flooding plaintiff’s mines. Judgment for defendant. Plaintiff appeals.

C. B. Hebbard, Judge. Action by Fairfax H. Wheelan, administrator of the estate of John H. Baker, deceased, against John Brickell and another, to quiet title to the said estate. Judgment by default for defendants and plaintiff appeals.

Action by J. H. Harper against C. M. Anderson and another for a partnership accounting. Judgment was rendered for defendants, and plaintiff appeals.

S. Beard, Judge. Action by W. P. Bennett and others against George Morris and others to restrain the diversion of water, and for damages caused by such diversion. Judgment was rendered for plaintiffs, and defendants appeal.

D. Ham, Judge. Action by Caspar Schaeffer against Conrad Hofmann to quiet title to land. There was a personal judgment for plaintiff for a specific sum, and a final judgment making such sum a mortgage lien on the land. Said Hofmann having died, Ida Hofmann, his administratrix, was substituted as defendant, and she appeals.

<p>Executor—Liability for Services of Attorney.—In an Action to Recover attorneys' fees for services rendered in an action in which defendant was named as defendant both individually and as executrix, though not a necessary party thereto, it appeared that she made no claim in such prior action in her individual capacity, and she testified that she employed plaintiff merely as attorney for the estate, but this plaintiff denied. The property received by defendant in settlement of the prior action was applied to the benefit of the estate of which she was executrix, and plaintiff received an allowance from the estate for his services, under order of court. Held, that a finding that plaintiff was not employed by defendant in her individual capacity was proper.</p> <p>Executor—Liability for Services of Attorney.—In Such an Action the Inventory filed by the executrix, who was the wife of the testator, would not determine whether certain premises were separate or community property, and was therefore inadmissible for that purpose.</p>

<p>Trial—Special Findings.—If a Discrepancy Exists between the general finding and the more specific findings of particular facts, the latter must control.</p> <p>Pleading—Ambiguity.—Where an Instrument Which is in Legal effect a mortgage and not a deed of trust is set out in full in the complaint, the fact that it is there designated a “trust deed so being and operating as a mortgage” does not create an ambiguity in the pleading.</p> <p>A Mortgage Given to Secure Advances Up to a Certain Sum, if duly recorded, takes precedence of a subsequent attachment, to the extent of any balance due on such advances up to said sum.</p>

Campbell, Judge. Action by F. W. Egger against C. H. Rhodes to rescind a contract for the sale of land. Judgment for plaintiff and defendant appeals.

<p>APPEAL from Superior Court, Los Angeles County; William P. Wade, Judge.</p> <p>Action of ejectment by Aaron W. Royal against G." L. Dennison and others. Judgment was rendered for plaintiff and defendants appeal. .</p>

<p>APPEAL from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.</p> <p>Patrick Connelly appeals from a conviction of embezzlement and from an order denying a new trial.</p>

<p>Venue in Civil Cases—How Determined.—The nature of a cause of action, so far as it determines the venue, must be ascertained from the complaint alone, without considering any amendment which plaintiff may intend to make.</p> <p>Venue—Action to Declare Deed a Mortgage.—A complaint asking that it be adjudged that certain deeds of land are mortgages, and that they have been paid, and that, if it be found that any part of the debt remains unpaid, plaintiffs be admitted to redeem, and that they be let into possession, states a local cause of action, which should be brought in the county in which the land lies.</p>

<p>On petition for a rehearing. Denied.</p>

Slack, Judge. Action by Wong Lang against Alaska Improvement Company on contract. From a judgment rendered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

. APPEAL from Superior Court, Alameda County; John Ellsworth, Judge. Action by Prank Silva against Maria C. Silva to establish a trust in land. Prom a judgment for defendant, and from an order denying his motion for a new trial, plaintiff appeals.

W. Henshaw, Judge. Action by Charlotte S. Jones against A. G-. Ainsworth and others to set aside and annul a deed for fraud and want of consideration. Plaintiff having died before the trial, her executors, Welles Whitmore and Cary Howard, were substituted as plaintiffs. Judgment for defendants. From an order denying their motion for a new trial, plaintiffs appeal.

<p>Homicide — Self-defense—Withdrawal from Combat.—Penal Code, section 197, provides that to constitute justifiable homicide, if defendant was the assailant in a mortal combat, he must in good faith have endeavored to decline any further struggle before the homicide was committed. Held, that where one accused of murder commenced the combat, but in good faith tried to withdraw before the homicide, and was followed by deceased, who continued the combat, the fact that deceased, by reason of injuries sustained at defendant’s hands, was unable to realize that defendant sought to withdraw, does not limit the right of defendant to claim that the killing was done in self-defense.</p> <p>Homicide—Self-defense—Withdrawal from Combat.—If it was defendant’s purpose in good faith to withdraw from the combat, and he endeavored to do so, it is not necessary to his justification that the conflict should have actually ceased, or that there should have been such an interval as would divide it into two different combats.</p>

Buck, Judge. Action by Martin M. Millett and .others against Thomas Lagomarsino and others to quiet title to certain land. Judgment for plaintiffs and defendants appeal.

<p>Attorney and Client—Becovery by Latter from Former.— Money received by an attorney from his client, under a misapprehension on the part of the latter as to the purposes for which it is being paid, and under circumstances which require,the attorney in good conscience to refund the same, may be recovered back.</p>

<p>APPEAL from Superior Court, Solano County; A. J. Buckles, Judge.</p> <p>Rico Morasco was convicted of murder, and appeals.</p>

Murphy, Judge. Action by the board of education of the city and county of San Francisco against John Blake and others to compel defendants to interplead and litigate their claim to a certain fund deposited in court. From a judgment for defendant J. D. De Gear, defendants, the Kennedy & Shaw Lumber Company and others appeal. Modified.

Troutt, Judge. Action by Thomas Byrne against the Luning Company to enforce a street assessment. From a judgment for plaintiff and from an order denying defendant’s motion for a new trial defendant appeals.

<p>APPEAL from Superior Court, Alameda County; John Ellsworth, Judge.</p> <p>Action by A. L. Graham against R. Franke. There was a judgment for plaintiff and defendant appeals.</p>

H. Levy, Judge. Action by Vermont Marble Company against William Black. Judgment by default was rendered for plaintiff. After defendant’s death, Annie Black, his administratrix, moved to open the default, and from an order denying her motion she appeals.

<p>Pleading—Amendment.—The Action of the Court in Allowing plaintiff to amend by inserting matters not set out in the notice of amendment served on defendants is not reversible error, where defendants were not injured thereby.</p> <p>Master and Servant—Action for Breach of Contract—Amendments.—In an action for breach of a written contract of employment, plaintiff may amend the complaint to show that her discharge before the time agreed on therein had caused a loss of certain profits, which, by a collateral oral agreement with defendant, she was entitled to receive from each customer, such loss being in the nature of consequential damages.</p>

C. B. Hebbard, Judge, Action by Joseph E. Shain against L. Du Jardín to recover for goods sold and delivered to defendant by Rice & Co., plaintiff’s assignors. From a judgment for plaintiff and from an order denying a motion for a new trial defendant appeals.

Murphy, Judge. Action by Asa N. McVey against Lewis Beam to recover the price of personal property sold and delivered by plaintiff to defendant. From a judgment for plaintiff and from an order denying a motion for a new trial defendant appeals.

Levy, Judge. Action by Henry Garbe against Nellie Wilks to recover a certain sum of money loaned to defendant by plaintiff. There was judgment for defendant, and from that, and an order denying him a new trial, plaintiff appeals.

C. Hebbard, Judge. Consolidated action by Henry Blyth and others against Luigi Torre and others to foreclose mechanics’ liens. From the judgment, plaintiff Blyth appeals.

<p>Appeal.—Where the Evidence is Conflicting, the judgment will not be disturbed.</p>

Wallace, Judge. Action by J. W. Faulkner against Joshua Hendy and the Joshua Hendy Machine Works, a corporation, for the dissolution of a partnership and for an accounting. Pending the action, the cause of action was assigned to E. T. Steen, who was substituted as plaintiff, and defendant Joshua Hendy died, whereupon his executors were substituted in his stead. From a judgment in favor of plaintiff, defendants appeal.

Breen, Judge. Accounting by Robert Cardiff as administrator with the will annexed of the estate of Robert Smith. From the decree made, the administrator and Mary Smith, widow of testator, appeal.

U. B. McSweeney was convicted of murder in the first degree, and appeals from the judgment and order denying a new trial.

L. Pierce, Judge. Action by M. Hall against A. R. Cole and another for the possession of buildings. Judgment for defendants and plaintiff appeals.

<p>APPEAL from Superior Court, City and County of San Francisco; A. A. Sanderson, Judge.</p> <p>Action by W. G. Roberts against A. E. Ball, administrator, and another. Judgment for defendants. Plaintiff appealsi</p>

<p>Assumpsit.—The Fact That the Complaint in an Action by an Assignee of an account for goods sold against copartners, after alleging the incurring of the liability by defendants, also alleges that one of the defendants promised to pay the same, does not render it demurrable, as the latter allegation may be treated as surplusage.</p> <p>Statute of Frauds—Pleading.—In an Action on a Contract, required by the statute of frauds to be in writing, the complaint need not allege that it was in writing.</p>

<p>Probate Sale—Collateral Attack.—A probate sale of realty, when collaterally attacked by the grantee of a distributee under the final decree, who raised no objection to the validity of the sale, will not be set aside for mere irregularities.</p> <p>Probate Sale—Sufficiency of Petition—Presumption on Collateral Attack.—Where an order of probate sale of realty recites that at the hearing thereon the court “heard, understood) and fully considered the law and the premises,” it will be assumed that it heard evidence as to the value of the property sold, and the sale will not, on collateral attack, be set aside because of the absence in the petition for sale of an allegation of the value of said property.</p> <p>Probate Sale—Sufficiency of Petition—Presumption on Collateral Attack.—Where a petition in the probate court for the sale of. realty recited that the petitioner “duly made and returned to said court .... a true inventory and appraisement of all the estate” of deceased, as "will more fully appear by reference to the papers on file in the clerk’s office,” it will be assumed, on a collateral attack on the sale, that the realty was inventoried and appraised as required by statute, and its actual cash value there stated, so as to supply an omission in the petition to state the value of the property.</p>

Action by Leonide H. Burling and others against Frank G. Newlands and Frederick W. Sharon to compel defendants to account as successors of William Sharon, trustee of the property of William C. Ralston, deceased. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal.

<p>Mandamus by Davis to compel William T. Wallace, judge of the superior court, to hear a matter notwithstanding an appeal.</p>

<p>Municipal Ordinance—Presumption as to Adoption.—Where for Fourteen Years after the passage of an ordinance the city recognized its existence and validity, and treated it as duly adopted and published, it will be presumed to have been approved by the mayor and published as required by the city’s charter.</p> <p>Municipal Ordinance—Certificate of Publication.—Where a city charter requires that ordinances shall he published only by order of the council, and that the city cleric shall keep a book into which he shall copy each ordinance, with á certificate annexed to the copy stating, among other things, that it was published according to law, the certificate of the clerk that the ordinance was published is sufficient evidence that the order for publication was made.</p> <p>Franchise.—The Eight to Avoid a Public Grant for Failure to perform a condition subsequent is confined to the government.</p> <p>Franchise.—A Public Grant cannot he Avoided for Failure to perform a condition subsequent, except through a court’s judgment, or a legislative declaration of forfeiture, unless the statute creating the condition expressly declares that a failure to perform it will, ipso facto, avoid the grant.</p> <p>Street Eailway Franchise—Forfeiture—Statute not Self-executing.—Under the Civil Code (section 502), providing that, where a franchise has been granted to a street railroad, work on the road must be commenced within one year from the date of the grant of right of way, and finished within three years thereafter, and. that a failure to comply with such provision “works a forfeiture” of the right of way as well as of the franchise, when a street railroad fails to comply with that provision, its right of way and franchise continue to exist until declared forfeited by a court or by legislative authority, said section not being self-executing.</p> <p>Street Bailway Franchise—Manner of Forfeiture.—When a city railroad’s franchise is liable to forfeiture for a breach of condition subsequent, forfeiture thereof is not effected by the city’s granting the same rights to another company.</p> <p>Street Baiiway Franchise—Estoppel to Claim Forfeiture,— Where a city granted a street railroad franchise to two persons, who organized a corporation to operate a railroad thereunder, and thereafter the franchise became liable to forfeiture because the road was not constructed on certain streets within the specified time, but for eleven years after the breach, with full knowledge thereof, the city, in dealing with the company, by resolutions, orders, and ordinances, recognized the franchise as valid and in force, and took legal steps to enforce the obligations assumed by the company thereunder, and the company in consequence incurred expense in paving the streets on which its tracks were laid, and in paying taxes, the city and the public are estopped to claim a forfeiture of the franchise or deny the company’s ownership thereof.</p> <p>Street Railway.—Where a Street Railroad Franchise was Granted to two persons, and they thereupon organized a corporation for the express purpose of constructing and operating a railroad under the franchise, and so declared in the articles of incorporation, an assignment of the franchise by said persons to the corporation was not necessary to vest the latter with any right relating thereto.</p> <p>Street Railway—Injunction Against Another Company.—In an action by a street railroad company, operating its road under a franchise, to enjoin another railroad company, claiming the right to construct a road on the same street under a subsequent franchise, from tearing up plaintiff’s tracks, plaintiff need not show ownership of the franchise under which it operates, its actual possession of the street being sufficient as against defendant.</p> <p>Street Railway—Injunction Against Another Company.—Where a street railroad company, claiming the right to construct its road over a street under a franchise, tears up the tracks and interferes with the operation of the road of another company already operating on said street under a prior franchise, the latter may bring an action to enjoin said acts, and recover its actual damages on account of them.</p> <p>Street Railway—Injunction Against Another Company.—In an ' action by the company to enjoin the tearing up of its tracks, an ordinance passed after its franchise became liable to forfeiture, granting plaintiff the right to construct a switch, which right should “extend until the expiration of the term. of the franchise” first granted, was admissible, as tending to show both the original existence of the franchise and a waiver of the forfeiture.</p> <p>Municipal Ordinance—Order for Publication.—Testimony of a City Clerk that after search he was unable to find among the city records any orders for the publication of certain ordinances is admissible to show the nonexistence of those orders.</p>

<p>Appeal—Notice—Record.—An Appeal will be Dismissed where the record does not show service of the notice of appeal, required by Penal Code, section 1249, and no certificate of the clerk that there was service has been filed, though permission to file such certificate, on the ground that the failure of the record to show such service was due to an error of the printer, was asked several months before the dismissal.</p>

Y. Coffey, Judge. Petition by Li Tai Wing for the removal of A. C. Freese, public administrator, as administrator with the will annexed of Li Po Tai, and that letters of administration with the will annexed be issued to petitioner. From an order denying the application, petitioner appeals.

<p>Justice of Peace—Jurisdiction of Crime in Another County.— A justice of the peace has no jurisdiction of the crime of embezzlement committed in another county.</p>

T. Wallace, Judge. Action brought by E. W. Chapman against James C. Pennie, administrator of the estate of John Bensley, deceased, to compel him to pay a deficiency judgment on the mortgage note of his decedent. Judgment rendered for defendant. Plaintiff appeals.

<p>APPEAL from Superior Court, Fresno County; S. A. Holmes, Judge.</p> <p>Alfred M. Dillwood was convicted of burglary, and appeals.</p>

<p>If otes—Want of Consideration.—In an Action by a Transferee of a note, where defendant sets up want of consideration, but does not produce any evidence that plaintiff’s transferrer was a party to the fraud, or took the note with notice, or after maturity, a verdict for defendant should be set aside.</p> <p>Appeal—When Frivolous.—In view of the plain provisions of the Code of Civil Procedure, section 662, and numerous decisions of the supreme court, an appeal taken on the ground that trial courts have no authority to set aside verdicts is frivolous.</p>

<p>Appeal.—Where Part of the Defendants have Previously Appealed, and the question has been decided adversely to them, such decision will not be disturbed upon appeal of other defendants, prosecuted on the same grounds.</p>

B. Ogden, Judge. Action by one Cornwall, administrator, against one McElrath and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

S. Torrance, Judge. An action to foreclose a mortgage, brought by the Pacific Mutual Life Insurance Company against John C. Fisher, the mortgagor, his grantee, and others, claiming laborers’ and materialmen’s liens on the mortgaged premises. From a judgment adjudging invalid the liens of certain claimants, who obtained a personal judgment against the mortgagor’s grantee, such claimants appeal.

S. Torrance, Judge. Action by B. T. Blackburn and others, directors of Fall-brook irrigation district, against H. B. Abila. There was a judgment for plaintiffs, and defendant appeals.

<p>Consignment for Sale—Lien for Advances.—Recovery for property consigned to defendant for sale cannot be defeated on the ground that he had a lien thereon for advances and expenses, where, before action, plaintiff tendered the amount of these; Civil Code, section 2905, declaring that redemption from a lien is made by offering to do that for which the property is a security.</p> <p>Consignment for Sale.—Commissions cannot be had for making a sale which the person was not authorized to make, and which the owner rescinded.</p>

A. Dorn, Judge. Action by Thomas McMahon against John Thomas and Agnes C. Thomas on a promissory note. From an order granting plaintiff’s motion for a new trial, after verdict and judgment in favor of defendants, defendants appeal.

<p>APPEAL from Superior Court, Sau Francisco County.</p> <p>Action by Melville M. Regensberger against Annie M. Quinn. Judgment for plaintiff, and defendant appeals.</p>

<p>APPEAL from Superior Court, Santa Clara County; John Reynolds, Judge.</p> <p>Action by Mary A. Austin against Gustav Pulschen, R. II. McDonald, Jr., and Isador Rosencranz. From a judgment refusing her a preference of lien, plaintiff appeals.</p>