Volume 5 — California Unreported Cases

Garber, Judge. Two actions by Edward Adams against E. C. De Boom. The actions were consolidated, and from a judgment for plaintiff, and an order denying a new trial, defendant appeals.

W. McKinley, Judge. Action by Charles W. Bryson against C. E. De Camp. There was a judgment for plaintiff, and from an order denying a new trial defendant appeals.

<p>Appeal—Notice.—An Appeal will be Dismissed where notice was not served on all parties interested.</p>

Appeals by the executor of the estate of Stephen Powell Burdick, deceased, by A. W. Burdick and A. M. Sutton as trustees, and by A. W. Burdick individually, from a decree rendered in the final settlement of the estate, distributing one-half of the funds in the executor’s hands to the wife as her interest in the community property.

W. Crump, Judge. Action by the Bank of Ukiah against E. S. Gibson and others to foreclose a mortgage. Prom a judgment denying plaintiff a foreclosure as to part of the property, it appeals.

Jones, Judge. Action by L. S. Jones against J. A. Shuey and the Southern Pacific Company. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

K. Dougherty, Judge. Action by Ella M. Heim and another against James M. Butin to restrain the enforcement of a personal judgment. Prom a judgment of nonsuit, plaintiffs appeal.

Troutt, Judge. Action by Alfred F. Woodbridge against the World Publishing Company and others for the subjection of property. From judgment for defendants, plaintiff appeals.

<p>APPEAL from Superior Court, City and County of San Francisco; Charles W. Slack, Judge.</p> <p>Action by Byron W. Haines against Henry C. Stilwell. There was a judgment for plaintiff, and defendant appeals.</p>

M. Seawell, Judge. Action by W. B. Bancroft against H. H. Bancroft for damages for inducing plaintiff to make a contract. A demurrer was sustained to the complaint, and plaintiff appeals.

Buck, Judge. Action by Richard Cunningham, administrator, and another, against W. H. Norton, as guarantor, for rent. Prom a judgment for plaintiffs, defendant appeals.

<p>APPEAL from Superior Court, Santa Cruz County; J. H. Logan, Judge.</p> <p>Action by Michael Grimes- against James A. Linscott and others for an injunction. Prom a judgment for defendants, plaintiff appeals. Affirmed.</p>

A. Sanderson, Judge. Action by the First National Bank of South Bend against John. Kelso. There was a judgment for plaintiff, and, on defendant’s motion for a new trial being denied, he appeals.

Wallace, Judge. Action by John C. Spencer, administrator of Rebecca Spencer, deceased, against William L. Duncan, to compel defendant to account for money held by him in trust for decedent. Judgment was rendered for plaintiff, and from an order denying a motion for a new trial defendant appeals.

<p>APPEAL from Superior Court, Alameda County; F. W. Henshaw, Judge.</p> <p>Action by Anna Christensen, as executrix of P. J. Christensen, against H. P. Jessen. Judgment for plaintiff. Defendant appeals. Affirmed.</p>

M. Seawell, Judge. Action by the Southern Pacific Railroad Company against Darwin C. Allen for the purchase price of land. From a judgment for plaintiff, defendant appeals.

<p>Habeas Corpus—Commitment for Murder—Evidence.—A person committed on a charge of murder will, not be discharged on habeas corpus where the evidence points to him, and induces a belief that he may be guilty.</p>

F. Sullivan, Judge. Action by Gilbert L. Curtiss against N. S. Bachman and others on an injunction bond. Judgment was rendered for defendants, and plaintiff appeals.

<p>APPEAL from Superior Court, San Diego County; George Puterbaugh, Judge.</p> <p>Action of claim and delivery by Fred. B. Eaton against A. W. Metz, constable. From a judgment for defendant, plaintiff appeals.</p>

<p>Perjury—Evidence.—On an Examination for Perjury it appeared that defendant, on Ms voir dire as trial juror, stated, when asked if he knew the proprietor of a certain gambling place, that he had nothing to do with “such places”; that at the place referred to gambling prohibited by statute was carried on; that defendant visited places where gambling not prohibited by statute was carried on. Held, that he was not guilty of perjury.</p>

<p>Trusts.—Defendant Gave Deceased a Note, for money which he owed her, hy which he promised to pay $400 for her funeral expenses or to return it to her on demand. During her last sickness, deceased handed the note to defendant, saying, “Here is something for you.” Held, that an express trust, to expend the money, after her death, for her funeral expenses, was created.1</p> <p>Trusts.—Where Deceased Gave Money to Defendant in trust to expend, after her death, for her funeral, and he thus expended it, her administrator cannot recover such sum from him, where all preferred claims have been paid, and it does not appear that the probate court has disapproved of the payments made by him, even admitting that claims against a decedent’s estate cannot properly be paid without the sanction of the probate court.</p> <p>Evidence.—Declarations of Decedent, not Against Interest, relative to a transaction with defendant, are n'ot, in an action by her administrator, admissible in his favor.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; D. J. Murphy, Judge.</p> <p>Action by Eobert H. Delafield against the San Francisco & San Mateo Eailway Company and others. Judgment for plaintiff against said company, and it appeals.</p>

S. Torrance, Judge. Action by Henry Daggett, as receiver, against Will M. Gray and others for conversion of property of his insolvent. From a judgment for plaintiff and an order denying a new trial defendants appeal.

<p>Public Lands—Timber Culture—Death of Entryman.—20 Stat.' 113, relating to patents to timber culture claims, provides that no final certificate or patent shall be issued unless, at the expiration of eight years from the date of entry, the person making such entry, or, if he b.e dead, his heirs or representatives, shall prove that for not less than eight years they have cultivated such trees as aforesaid. Held, that one who died within two years after entry had an equitable interest in the land, capable of devise, and the title, when perfected, inured to him in whom the equitable title vested at the date of the issue of the patent.</p> <p>Public Land—Death of Sntryman.—Where a Land Patent is Issued to the heirs of a person who made the entry, the courts should decide to whose benefit it should inure.</p>

<p>APPEAL from Superior Court, San Bernardino County; John L. Campbell, Judge.</p> <p>Action by Mercedes Jensen, as executrix, against R B. Hunter and others, to quiet title. Defendants had judgment, and plaintiff appeals.</p>

<p>"Agent—Lien for Commissions—Receiver.—The petitioner was employed to superintend a canvass for subscriptions to a publication, and held the subscriptions as security for wages and eommissiims due to the solicitors and himself; but it appeared that all wages were in fact paid, and that the commissions were not to be paid to the solicitors until the publication was issued. Held, that the petitioner had no right to hold such contracts as against the receiver.1</p>

Action by Bank of Escondido to enjoin W. W. Thomas and another from using a certain wall as a party-wall. Defendants had judgment, and plaintiff appeals.

<p>Road Overseer—Authority to Do Work.—Under political Code, section 2645, providing that road overseers, under the direction and supervision of the road commissioners, and pursuant to orders of the board of supervisors, must take charge of the highways in their districts, and shall employ the necessary help and keep the highways in good repair, the order of the road commissioner of a district is sufficient authority for the overseer to have repairs done on the road and materials furnished therefor.</p> <p>A Road Overseer has Sufficient Authority to Make Repairs on roads and obtain material therefor, he having kept within the directions of the road commissioner, who, speaking to him in reference to work on the roads, told him not to work in excess of the funds of the district.</p>

<p>Streets—Vacation of Alley—Abutting Owner.—Where a public alley is vacated, the right of an abutting owner to the portion adjoining his land is not, as against an abutting owner on the opposite side of the alley, affected by the fact that the vacation was unlawful.</p>

Action by William W. Cockins against Joseph A. Cook to recover from defendant the proportion of a judgment against a corporation due from defendant as a stockholder thereof. Judgment was rendered for plaintiff, and defendant appeals.

<p>Unlawful Detainer.—Evidence introduced by defendant held sufficient to justify verdict.</p>

<p>Marriage—Want of Authority to Perform.—The fact that the person performing a marriage ceremony in California in 1858 was not authorized to perform such ceremonies would not invalidate the marriage, if assented to by the parties and consummated by cohabitation as husband and wife.</p> <p>Marriage—Necessity of License.—Prior to Act April 9, 1863, a license was not a prerequisite to marriage.</p> <p>Marriage—Woman Under Age of Consent.—Under Statutes of 1850, page 424, making fourteen years the age of consent, and declar-. ing guilty of a misdemeanor one who joins in marriage a female under eighteen years of age without consent of her parent, the marriage is not void, though consent of the parent is not obtained, the female being over fourteen years old.</p> <p>Divorce.—A Sworn Complaint by a Female for Divorce from M., filed after her marriage to H., alleging her marriage to M. prior to the time of her marriage to EL, and that she and M. “ever since have been and now are husband and wife,” is, in the absence of explanation, conclusive, in an action against her by EL to annul his marriage with her, that she and M. were married in due form at the time alleged, and that M. was living, and was her lawful husband, when she married H.</p>

<p>APPEAL from Superior Court, San Diego County; W. L. Pierce, Judge.</p> <p>Action by Mrs. E. C. Rafferty against Annie M. High and others. Judgment for plaintiff. Defendants appeal.</p>

<p>APPEAL from Superior Court, San Diego County; E. S. Torrance, Judge.</p> <p>Action by the Savings Bank of San Diego County against John C. Fisher and others. Judgment for plaintiff. Defendants Mary C. Morse and husband appeal.</p>

M. Troutt, Judge. Action by one Dowling against one Adams and others. Judgment was rendered for plaintiff, and defendants appeal.

S. Noyes, Judge. Action by M. V. B. Wright against Margaret D. Wright, his wife, to have set aside a certain conveyance of gift from him to her, and to have the property covered thereby declared community property. There was judgment for defendant, from which plaintiff appeals.

<p>Homicide—Appeal.—Where, in a Murder Case, the Only Dispute is as to the identity of the murderer, and there is a sharp conflict in the evidence, the supreme court will not disturb the verdict because not entirely satisfactory.</p> <p>Homicide—Appeal.—A Verdict of Guilty will not be Set Aside because of the erroneous admission of evidence which is not injurious to defendant.</p> <p>Homicide—Evidence of Threats.—On Trial for the Murder of T., it was not error to admit evidence that, some time before the murder, defendant, referring to the killing of a certain girl, said that the man who killed her did not intend to kill her: that he was very sorry for killing the girl; that he meant to kill T., and he would have him yet before he stopped.</p> <p>Homicide—Evidence of Proficiency in Use of Firearms.— Where it appears deceased was shot, and there is evidence that defendant, when arrested, said he could not shoot a rifle, or had not shot a gun for a long time, it is proper to admit evidence that he is an expert with the rifle.</p> <p>Criminal Law—Confession.—The People and Defendant Consented that the preliminary evidence as- to the admissibility of an alleged written confession by defendant and a fellow-prisoner, and the argument on defendant’s objections, should be heard in the absence of the jury. Held, that the action of the court in proceeding in accordance with such arrangement would not be reviewed, in the absence of objection and exception in the trial court.</p> <p>Criminal Law.—Where the Defense is Alibi, It is not Error to allow the people, in rebuttal, to contradict the witnesses who testified to the alibi, by disproving the collateral facts testified to by them on their direct examination as a means of fixing the time when they saw defendant at the place distant from the scene of the crime.</p> <p>Criminal Law—Alibi.—It is not Error to Permit the People to rebut the circumstances called out on cross-examination of the witnesses to an alibi, though no foundation is laid for contradiction, where no objection is made on such ground.</p>

K. Dougherty, Judge. In the matter of the estate of William W. Carriger, deceased. Appeal by Soloman Carriger, special administrator of said estate, from an order directing him to pay to the widow of said deceased a certain amount per month, as a family allowance.

S. Torrance, Judge. Ejectment by Maria A. Scott against A. G-. Ehodes and others. From a judgment for defendants for costs, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Sarah B. Simpson against B. F. Simpson for a divorce. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

-APPEAL from Superior Court, San Bernardino County; John L. Campbell, Judge. Action fey William McDonald against the Southern California Railway Company for damages to plaintiff’s premises, caused by a defectively constructed bridge. Judgment for plaintiff, and defendant appeals.

A. Davis, Judge. Action Tby Sarah Andrews against J. L: Wilbur. Judgment for plaintiff. From an order denying his motion for a new trial, defendant appeals.

Action by James Masterson, Jr., against P. H. Clark, sheriff of the county of Glenn, to recover the possession or value of certain personal property. Plaintiff had judgment, and defendant appeals.

M. Conley, Judge. Action by A. J. Etter against Matilda B. Hughes and William M. Hughes for the recovery of money. The latter consented that judgment be entered against him, and from a judgment in favor of Matilda B. Hughes plaintiff appeals.

<p>Burglary—Sufficiency of Judgment.—Defendant Pleaded Guilty to a charge of burglary in the first degree, and the judgment recited that, “whereas defendant has been convicted of the crime of burglary in the first degree, .... it is ordered,” etc. Held, that the judgment was valid, though the minutes of the court did not show that • any evidence was heard to prove the degree of the crime of which defendant was found guilty, there being nothing in the minutes to contradict the recitals of the judgment.1</p>

R. Webb, Judge, Action by B. C. Wells against W. N. Snow and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

K. Law, Judge. Action by M. McCarty against F. J. Owens and his assignee for the purchase price of materials furnished. From a judgment for plaintiff, and an order denying them a new trial defendant assignees appeal.

<p>Trial—Findings—Indefiniteness.—Where, in an Action to Quiet Title, involving the question whether a conveyance to plaintiff was with intent to delay or defraud creditors (declared in such ease by Civil Code, section 3439, to be void), the jury returned answers to interrogatories, which the court adopted, subject to its findings of fact, such findings to govern in case of conflict with the answers, and the jury found that plaintiff’s husband conveyed the property to her to prevent defendant from satisfying his claim against him, that plaintiff knew her husband was insolvent, and that he made the deed to plaintiff with intent to hinder and delay, but not to defraud, defendant; and the court found that the deed to plaintiff was not executed “with a view to conceal his property from defendant or his other creditors, nor improperly to hinder or delay them”—the findings will be held too indefinite to support a judgment for plaintiff.</p>

<p>Criminal Law—Review.—'Where No Brief is Filed, a conviction will be apirined if it appears that the evidence sustains the verdict, and no exception was taken to any ruling of the court.</p>

Action by George H. Castle, Jr., and others, as executors of the last will and testament of George H. Castle, deceased, against Edward Hickman and others. Judgment for plaintiffs. Defendants appeal.

<p>New Trial.—Where There is a Substantial Conflict in the evidence, an order denying a new trial will not be disturbed.</p> <p>Evidence.—Error in Admitting Testimony is Harmless where the party complaining testified to the same facts.</p>

<p>Appeal—Dismissal—Notice.—A Motion to Dismiss an appeal cannot be considered where it is uncertain to which of two notices of appeal it is directed.</p>

<p>Pledge of Crops for Bent—Creditors of Lessee.—An oral agreement between landlord and tenant that title to crops raised during the term should remain in the landlord, and that the crop was to be put in warehouse in the landlord’s name, and that from a sale thereof the landlord was to retain as rent an amount equal to the rent reserved in the lease, and turn over the balance to the tenant, is merely an agreement that, after the crop was harvested and stored, it should become a pledge for payment of the rent, and does not create a lien which would support an action of conversion against a sheriff for levying on the crop while growing, and seizing it under attachment against the tenant as soon as harvested.</p>

<p>APPEAL from Superior Court, San Joaquin County; Ansel Smith, Judge.</p> <p>In the matter of the estate of Hiram Fisher, deceased. Appeal by S. C. Fisher, administrator, from an order settling his account.</p>

M. Seawell, Judge. Action by C. S. Healey against William H. Norton on promissory notes. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

J. Buckles, Judge. • ¡ Action by William Buhman against Charles Beeker foi; reasonable value of services in working and permanent inrprovements to a vineyard. Prom a judgment for plaintiff, defendant appeals.

Action by Mary A. Austin against Gustav Pulschen, R. H. McDonald and others, to enforce a vendor’s lien. A judgment refusing her a preference of lien was reversed in department (4 Cal. Unrep. 988, 39 Pac. 799), and R. H. McDonald appeals to the court in bank. Commissioners’ decision

<p>Embezzlement—Sufficiency of Evidence.—In a Prosecution for Embezzlement of a check, the evidence showed that one T. employed defendant as a broker to obtain a loan for him; that defendant went to complainant, who agreed to make the loan, and defendant was directed by her to attend to the matter of looking after the title to the land, and taking of a mortgage thereon; that defendant found the title satisfactory; that T. made the mortgage, and gave it to defendant, to be delivered to complainant on receipt of the money; that afterward she drew the cheek in question for the balance in favor of defendant, who cashed it, and with the proceeds paid certain of T.’s obligations; and that defendant refused to deliver to complainant the mortgage until she settled with him for his services in the matter, and for certain other services which he claimed to have rendered her. Held, that the evidence was insufficient to sustain a conviction.</p>

Action by Haas and another against the Mutual Relief Association of Petaluma on a benefit certificate. From an order denying its motion to change the place of trial, defendant appeals.

<p>APPEAL from Superior Court, Merced County; Joseph H. Budd, Judge.</p> <p>Action by Theophile Remy against E. J. Olds and others. From an order denying change of venue, defendants appeal.</p>

Johnson, Judge. Action by C. W. Thresher against Gregory Bros. & Co. for the purchase price of peaches. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

<p>APPEAL from Superior Court, Fresno County; M. K. Harris, Judge.</p> <p>Action by William M. Leverone' against George W. Hildreth. There was a judgment for defendant and plaintiff appeals.</p>

A. Sanderson, Judge. Action by Jacob Fogel against the San Francisco and San Mateo Railway Company for personal injuries. From a judgment for plaintiff and an order denying a new trial defendant appeals.

Budd, Judge. Action by John H. Wise and another against J. E. P. Williams and others to foreclose a mortgage. Defendants had judgment, and plaintiffs appeal.

Slack, Judge. Action by Robert Haight, assignee, against David T. Sexton. From a judgment for plaintiff and an order denying a new trial defendant appeals.

Wallace, Judge. Action by Emily S. Newell against Mary J. Steele and others. From a judgment for plaintiff and order denying a new trial defendants appeal.

Action by Carl Flick and others against Joseph E. Bell to enjoin defendant from removing certain water-pipes and destroying a certain reservoir situated on plaintiffs’ land, to adjudge that defendant had no right or claim to such pipes and reservoir, and to quiet plaintiffs’ title thereto. From a judgment for defendant and from an order denying their motion for a new trial plaintiffs appeal.

H. Logan, Judge. Action by Clement Mutter against the I. X. L. Lime Company, a corporation, to recover for work and labor performed. Plaintiff had judgment and defendant appeals.

H. Grant, Sludge. Action by W. C. White and others against Moses Adler upon a contract to pay the purchase price of land, or reconvey the same to plaintiffs. From an order denying his motion to change the place of trial defendant appeals.

Actions by the Stimson Mill Company, a corporation, and by one Duncan, against Spurgeon V. Riley and others. The cases were consolidated, and from the judgment plaintiff the Stimson Mill Company appeals.

<p>APPEAL from Superior Court, Alameda County; John Ellsworth, Judge.</p> <p>Action by James J. Wardlaw, by James Wardlaw, his guardian ad litem, against the California Railway Company. Judgment of nonsuit and plaintiff appeals.</p>

G. Lorigan, Judge. Action by Charles Krouse against John A. Woodward and others to recover certain shares of stock. From the judgment entered plaintiff appeals.

B. Conklin, Judge. Jesus Knight was convicted of rape, and from the judgment and an order denying him a new trial he appeals.

Action by Sarah Osterman against District Grand Lodge No. 4, Independent Order of B’nai B’rith, to recover an endowment benefit. From a judgment for plaintiff and an order denying a new trial defendant appeals.

<p>APPEAL from Superior Court, San Bernardino County; John L. Campbell, Judge.</p> <p>Action by Henry. Broker against John Taylor, administrator, etc. Plaintiff had judgment and defendant appeals.</p>

S. Torrance, Judge. Action by J. B. Runk against the San Diego Plume Company and others for malicious prosecution. Prom a judgment for defendants, plaintiff appeals.

<p>APPEAL from Superior Court, City and County of San Francisco; A. A. Sanderson, Judge.</p> <p>Action by William F. Smith and others against John I. Sabin. There was a judgment for defendant and plaintiffs appeal.</p>

Action by Peter Johnson against Albert Thomas for personal injuries due to negligence of defendant’s servant. Prom a judgment for plaintiff and an order denying a new trial defendant appeals.

C. B. Ilebbard, Judge. Action by the Santa Cruz Rock Pavement Company against Ellen Lyons and another to foreclose a lien for street work. Judgment for plaintiff and defendants appeal.

York, Judge. Action by W. E. Witter a-gainst the McCarthy Company to quiet title. From a judgment for plaintiff and an order denying a new trial defendant appeals.

Action by John Peterson against Domingo Machado for an injunction. From a judgment for plaintiff and an order denying a new trial defendant appeals.

<p>Nuisance—Abatement—Pleading.—Under Code of Civil Procedure, section. 430, the failure of a complaint, in an action to abate an embankment, to allege any damage to plaintiff different or peculiar from that resulting to the common public, is not a ground of demurrer, though, in a proper ease, the objection may be urged, under a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Pleading—Waiver of Objections to Complaint.—Under Code of Civil Procedure, section 434, providing that if objections to a complaint are not taken, either by. demurrer or answer, the defendant must be deemed to have waived the same (with certain exceptions), the objection that a complaint is ambiguous or uncertain, that being a specific ground of demurrer, is waived, if not raised by demurrer.</p> <p>Bight of Way—Grant or Dedication.—The fact that a strip of land, over which a private right of way had been granted by the owner to two other land owners, to enable them to reach a highway from their land, is used, without objection, by others, going to and from their own lands, or the places of the two grantees, does not establish a dedication to the public.</p> <p>Nuisance.—In an Action to Abate an Embankment, thereby throwing surface water over plaintiff’s right of way, where there is no allegation that the right of way was a public one, it is unnecessary to allege any special injury differing from that resulting to the public.</p>

<p>APPEAL from Superior Court, Santa Cruz County; J. H. Logan, Judge.</p> <p>Action by Dwight Younglove against James F. Cunningham on a promissory note. From a judgment for plaintiff, defendant appeals.</p>

<p>APPEAL from Superior Court, Los Angeles County; Walter Van Dyke, Judge.</p> <p>Action by the California Loan and Trust Company against 'James Hammell. Judgment for defendant and plaintiff appeals.</p>

R. Daingerfield, Judge. Action by Charles McGee and others, by their guardian, James W. Collins, and another against the San Francisco and North Pacific Railway Company, a corporation. There was a judgment for plaintiffs and defendant appeals.

Action by one Fladung against Dawson and others and J. G. Adams. From a judgment for plaintiff against him defendant Adams appeals. Reversed.

<p>APPEAL from Superior Court, San Bernardino County.</p> <p>Action by the Southern California Railway Company, a corporation, against the Southern Pacific Railroad Company and the Pacific Improvement Company, corporations, and others, to restrain the construction or maintenance of a railroad track. Prom a judgment in favor of plaintiff and from an order denying a motion for a new trial defendants appeal.</p>

<p>APPEAL from Superior Court, Tulare County.</p> <p>Action by the People’s Ditch Company against the ’76 Land and Water Company and the Alta Irrigation District to enjoin a diversion of water. From a judgment in favor of plaintiff and from an order denying a new trial defendants appeal.</p>

Budd, Judge. Frank St. Clair was convicted of grand larceny, and from the judgment and an order denying a new trial he appeals.

<p>Larceny—Evidence.—A Conviction of Larceny of a Horse and cart will not, after denial of a new trial, be disturbed, where there was evidence that the property was stolen; that defendant, when seen, shortly afterward, traveling away with it from the scene of the larceny, tried to evade identification, and when arrested with the property, a few hours afterward, twenty-three miles away, made false statements in explanation of his possession.</p>

Milling-ton, Judge. Action by Eppinger & Co. against J. K. Kendrick and another. From a judgment for defendant Kendrick and an order denying a new trial plaintiffs appeal.

<p>APPEAL from Superior Court, Placer County; W. H. Grant, Judge.</p> <p>Action by John Ertle against Placer county and others. From an order made after final judgment defendants appeal.</p>

<p>APPEAL from Superior Court, Placer County; W. H. Grant, Judge.</p> <p>Action by John Ertle against Placer county and others. From an order made after final judgment defendants appeal.</p>

L. Prick, Judge. Petition by Richard P. Thomas to be declared an insolvent under act for relief of insolvent debtors. Prom an order adjudging the petitioner an insolvent, one of his creditors appeals.

<p>APPEAL from Superior Court, Los Angeles County; J. W. McKinley, Judge.</p> <p>Action by Henry Susskind against J. C. Cline as sheriff, A. I. Hall, assignee, intervener. Judgment for the intervener and plaintiff appeals.</p>

<p>APPEAL from Superior Court, Sacramento County; A. P. Gatlin, Judge.</p> <p>Action by Seth. Gainsley against Mamie E. Gainsley. Plaintiff had judgment and defendant appeals.</p>

<p>Insolvency—Fraudulent Transfers.—In Replevin, where defendant, as assignee of an insolvent debtor, allegés that the property was fraudulently transferred to plaintiff by the insolvent in order to defeat Ms creditors, special findings that plaintiff knew the debtor was insolvent at the time of the transfer, and that the transfer was made to prevent the property from coming into the hands of the assignee, and from being distributed among the creditors with a view to defeat the object of the California insolvent act of 1880, plaintiff having reasonable cause so to believe, but that the transfer was not made to give preference to any creditor, are sufficient to support a general verdict for the defendant under act of April 16-, 1880, section 55, relating to transfers by insolvent debtors.</p>

<p>APPEAL from Superior Court, San Diego County; George Puterbaugh, Judge.</p> <p>Action by R. A. Thomas against the Pacific Beach Company. From a judgment for plaintiff and from an order denying a new trial defendant appeals.</p>

<p>Bills and Notes—Indorsement Before Delivery.—A person writing Ms name on a bill before maturity, to enable the drawer to whose order it was drawn to negotiate the same, is liable as an indorser.1</p> <p>Bills and Notes—Indorsement Before Delivery.—A bill drawn payable to the drawer’s order, and indorsed by Mm in blank, before maturity, is transferable by delivery merely.</p> <p>Bills and Notes.—An Indorsee of a Note Takes the Same Subject only to such defenses as would have been good against Ms indorser.</p> <p>Trial.—A Finding That All the Allegations in the Complaint not specifically found on are true, and the allegations in defendant’s answer not specifically found on are untrue, does not require a reversal, where it appears that specific findings, on the allegations not directly found upon, would have necessarily been adverse to appellant.</p> <p>New Trial—Newly Discovered Evidence.—The Refusal of a new trial on the ground of newly discovered evidence will only be reversed for abuse of discretion.</p>

<p>APPEAL from Superior Court, Tulare County; Justin Jacobs, Judge.</p> <p>Action by John G-. Ellis against Tulare county. Judgment for plaintiff and defendant appeals.</p>

<p>Corporation—Purchasing Its Own Stock.—The purchase by a corporation of a part of its own stock, until it is reissued, in effect reduces its stock to that extent.</p> <p>Corporation—Sale of All Its Property.—The sale by a corporation of all its property and franchises, except its corporate franchise, does not carry with it shares of its own stock, which it had bought in for delinquent assessments, and had not authorized to be reissued.1</p>

<p>Mortgages—Foreclosure—Pleading—Dilatory Practice.—In foreclosure, after a demurrer to the petition had been overruled, defendants were granted fifteen days to answer, and on their motion were given five days more. They filed an answer May 2, 18-95, which plaintiff moved to strike out because unverified. Defendants confessed the motion, and asked leave to file an amended answer, purporting to have been verified April 3, 1895, by a defendant who claimed no interest in the premises. There was no showing why the verified answer, which stated no defense, was not filed in the first instance, it being an exact copy of the other. Held, that the court did not err in denying leave to file the amended answer.</p>

<p>APPEAL from Superior Court, Placer County; J. E. Prewett, Judge.</p> <p>Action by James P. Kennedy against W. C. Conroy. Prom a judgment for defendant and an order denying a new trial plaintiff appeals.</p>

Seawell, Judge. Action by D. E. Easterbrook against the city and county of San Francisco to recover back money paid under protest for special assessments levied for the widening of Dupont street, in the city of San Francisco. From a judgment in favor of defendant, on refusal of plaintiff to plead further after demurrer to the complaint was sustained, plaintiff appeals.

<p>APPEAL from Superior Court, Butte County; John C. Gray, Judge.</p> <p>Action by Elizabeth Myers against J. M. Nelson and J. C. Richardson to enjoin defendants, who are, respectively, road supervisor and his employee, from digging up and removing earth which plaintiff had placed across a culvert crossing a highway, for the purpose of preventing the flow of water through such culvert on her land, in which a preliminary injunction was allowed. From an order dissolving such injunction plaintiff appeals.</p>

<p>Highways—What Constitute—User.—Occasional Travel on a road across government land, which has never been laid out, recorded or worked as a public road, will not constitute it a highway.</p> <p>Highways—Establishing by User—Repeal of Statute.—The provision of Political Code, 1876, section 2619, as originally enacted, that “all roads used as such for a period of five years are highways,” was repealed by act of March 30, 1874, as to all counties, though the amendment was in terms made applicable to certain counties only.</p>

<p>APPEAL from Superior Court, Sacramento County; Matt F. Johnson, Judge.</p> <p>Action by 'William S. Kendall against Joseph Earl and others to recover damages for breach of contract. There was judgment for defendants and plaintiff appealed.</p>

T. Hasten, Judge. Action by Clara Spooner against Prank P. Cady for conversion of personal property. Prom a judgment in favor of plaintiff and from an order denying his motion for a new trial defendant appeals.

<p>Carrier—Minor Running Between Cars to Board. Train.—In an action against a railroad company for injuries received by a boy seventeen years old, while attempting to pass between the ears of a freight train to reach a passenger train which he intended taking, an instruction that no recovery could be had if the boy possessed mental capacity to realize the danger to which he was subjecting himself, because the law is that one going into a place of danger assumes the risk, without any restriction as to the qualified measure of care and caution required of one not of full age, was not objectionable, where such qualifications were repeatedly given, and specifically applied in other instructions.</p>

M. Seawell, Judge. Action by W. A. R. Loose against Leland Stanford, which, on the death of defendant, was continued against Jane L. Stanford, his executrix. There was a judgment for defendant, and plaintiff appeals.

<p>APPEAL from Superior Court, City and County of San Francisco; John Hunt, Judge.</p> <p>Action by Patrick Burns against Sennett & Miller for personal injuries. From a judgment of nonsuit plaintiff appeals.</p>

H. Logan, Judge. Action by Batisto Scrivani against Charles Pondero. Plaintiff appeals from an order setting aside a verdict in his favor and granting a new trial.

P. Gatlin, Judge. Mandamus by Thomas A. Lewis to compel Edward P. Colgan, as state controller, to draw his warrant in favor of plaintiff for. an amount claimed to be due him as expert to the state board of examiners. A demurrer to the answer was sustained and a peremptory writ granted. Defendant appeals.

<p>Setoff.—An Equitable Estoppel to Plead a Setoff of a note in an action on an account against defendant, which had been assigned to plaintiff by the maker of the note, did not arise out of the assignor’s direction to defendant, after the assignment, to pay the amount of the account to plaintiff, and defendant’s silence as to his possession of said note, it not appearing that plaintiff had knowledge of such request.</p>

<p>County—Claim for Repair of Highway.—In an action against a county, by a road overseer, to recover for services and money expended in the repair of county roads, testimony of the road commissioner that he had spoken to plaintiff in regard to working on the public roads, and had always directed him not to run in debt in excess of the funds appropriated for such work, and that he did not know anything about plaintiff’s doing the work on which Ms claim was based until the bills therefor came in, is insufficient to show that the work in question was authorized by the commissioner, so as to authorize plaintiff to recover therefor.</p> <p>Garoutte, J., dissenting.</p>

<p>Railroads—Injuries to Licensee on Right of Way.—A complaint for injuries sustained by falling into an excavation between the tracks of defendant’s road alleged that the right of way was an easement in a public highway. On trial, plaintiff admitted that the fee of the right of way was in defendant. Without any amendment, and without objection from defendant for variance, the trial proceeded on the theory that plaintiff could recover as a licensee, and that the excavation was in a path in general use by the public, to the knowledge and acquiescence of the defendant. Held, reversible error to exclude evidence that the path had been used constantly by the public, without objection from defendant, on an objection that it was “immaterial, irrelevant, and incompetent,” since the objection was insufficient to raise the poiht of variance.</p>

<p>APPEAL from Superior Court, Sonoma County; S. K. Dougherty, Judge.</p> <p>Ejectment by A. H. Stites and others against J. E. Gater. Prom a judgment for defendant, plaintiffs appeal.</p>

Action by Neihaus Bros. & Co. against Mattie Morgan and others to enforce a mechanic’s lien. From a decree for plaintiffs and an order denying a new trial defendant Mattie Morgan appeals.

Troutt, Judge. Action by E. H. Morgan against E. Righetti and another, as partners. Judgment for plaintiff against said E. Righetti and said defendant appeals.

<p>APPEAL from Superior Court, City and County of San Francisco; John Hunt, Judge.</p> <p>Action by Charles Quiggle against Simon Prouty. Judg-</p> <p>ment for defendant and plaintiff appeals.</p>

<p>Real Estate Broker—Commissions—Contract.—A real estate broker who makes a contract with a property owner can recover commissions only in accordance with such contract.</p>

Levy, Judge. Action by N. W. Spaulding against J. W. Wesson and others to recover on a street assessment for grading. From a judgment in favor of plaintiff and from an order denying their motion for a new trial defendants appeal.

<p>Building Contract.—In an Action for Services for Construction of a building, defendant, after testifying that plaintiff left the job uncompleted, and that he (defendant) thereafter superintended the work himself, and that it took up his time so that he could not attend to his business (which, it appears, was that of a merchant) for two months, was asked “the value of the time he lost” while personally superintending the work. Held, that the question was objectionable, as calling, not for the reasonable compensation of a superintendent, but for the value of his time.</p> <p>Building Contract.—Allowing Defendant, on Cross-examination, in an action for construction of a building which he claimed he had to complete himself, to be asked if he had not told the brickman that he would not pay him, but that if he got anything he would have to get it out of plaintiff, even if error, is harmless, defendant’s answer being “No.”</p> <p>Jury—Misconduct.—The Presumption Being That Jurors have ■ faithfully performed their duty, a new trial is properly denied where the affidavits charging misconduct of jurors are fully met by counter-affidavits of the jurors.</p>

<p>APPEAL from Superior Court, Alameda County; John Ellsworth, Judge.</p> <p>Action by A. C. Dietz against C. H. Kucks and others. Judgment for defendants and plaintiff appeals.</p>

<p>Appeal—Record.—Where Error is Predicated on the court’s failure to give certain instructions, they must appear in the record.</p> <p>Conversion — Principal and Agent—Demand.—In conversion, where plaintiff alleges that she placed in the hands of defendant, as her agent, a sum of money to be loaned on security, and defendant denies the agency, plaintiff need not allege or prove a demand on him for the money before suit.</p>

<p>Probate Proceeding—Effect of Decree Dividing Property.—A decree of the superior court, in a probate proceeding, making division of the property of a testator in accordance with a petition and stipulation of the widow and residuary devisees, filed with the final account of the executors, and without notice to other parties in interest, does not affect the rights of a prior grantee of the widow, by deed conveying her interest in community property, who was not a party to the proceedings, though such decree set off the property in severalty to other devisees. Such a decree can, in any event, extend only to the succession or testamentary rights in the property.</p>

Action by Vincent Neale against W. N. Bardue and others to quiet title and for other relief. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Michael McDonald was convicted of robbery and from the judgment of conviction and an order denying him a new trial he appeals.

E. Greene, Judge. Action by Samuel Bartlett against James McGee to recover a deposit on a contract for the purchase of land on defendant’s failure to furnish a good title. Prom a judgment for plaintiff and an order denying a new trial defendant appeals.

Action by Robert B. Oullahan and others against Frank T. Baldwin and others to recover brokerage commissions under contract of defendants with Gaman & Lyon, assigned to plaintiffs. From a judgment for defendants, plaintiffs appeal.

<p>Appeal.—A Specification of Insufficiency of Evidence, "that the evidence clearly showed that the total amount due .... was not the sum of-,■ but was the sum of-, and no larger or greater sum whatever,” is insufficient.</p> <p>Corporations.—Notice to One Who is Secretary, Bookkeeper and director of a corporation, that a note given by it had been assigned, is notice to the corporation.</p> <p>Corporations—Declarations of President.—In an Action by the .Assignee of a note given by a corporation to its president, declarations of the president as to the amount due at the time of the transfer are not admissible against the corporation.</p> <p>Appeal.—An Exception, “To Which Said Charge, and the whole thereof, defendant then and there duly excepted,” is not sufficiently specific.</p>

Slack, Judge. Action by George F. McKenzie against Herman Joost and others. From a judgment allowing him only nominal damages and from an order denying a new trial plaintiff appeals.

<p>Divorce—Complaint—Description of Property.—An allegation in a complaint for divorce that plaintiff is possessed of “considerable property, both real and personal, situate and being in the state of California,” plaintiff’s separate property, is sufficient to admit of evidence of a definite description, there being no special demurrer, but a default.</p>

W. Henshaw, Judge. Action by Kelly and others against Lemberger and' others. Prom a judgment for plaintiffs and an order denying a new trial defendants appeal.

<p>Work and Labor—Conflicting Evidence—Appeal.—Where the only point in dispute on an appeal relates to the value of the services sued for, on which the evidence is conflicting, the verdict of the jury will not be disturbed.</p>

Action by one Goodrich against one Loupe and others. Plaintiff appeals from an order setting aside a default judgment in his favor.

<p>Default Judgment—Setting Aside—Appeal.—An order setting aside a judgment by default is largely discretionary, and, where moved for at once and granted upon terms, will not be disturbed on appeal, though the showing made is not strong.</p>

Minor, Judge. Action by the First National Bank of Fort Collins against George T. Hughes. From a judgment for defendant and an order denying a new trial plaintiff appeals.

<p>Attachment.—An Order Refusing to Dissolve an attachment will not be reversed on appeal where the evidence is conflicting.</p> <p>Attachment—Debt Secured by Bond.—Under the Provision of Code of Civil Procedure, section 538, excluding ’from the debts on which an attachment may be obtained those secured “by any mortgage or lien upon real or personal property, or any pledge of personal property,” the fact that a debt is secured by a bond executed by the debtor with sureties will not defeat an attachment thereon.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; James M. Troutt, Judge.</p> <p>Action by Adolph Pottkamp against John G-. Buss and others. Judgment for plaintiff, and defendants appeal.</p>

<p>APPEAL from Superior Court, Ventura County; B. T. Williams, Judge.</p> <p>Action by the Ventura and Ojai Valley Railway Company against J. S. Collins. Judgment for plaintiff. Defendant appeals.</p>

F. Johnson, Judge. Action by Abbie A. Hayford against Emeline Wallace to quiet title. Defendant answered, setting up that the conveyances to plaintiff were fraudulent, and filed a cross-complaint to quiet title to the same lands. A decree was rendered quieting plaintiff’s title to one part of the land, and quieting defendant’s title to another portion, and both parties appealed from orders denying their motions for new trials. On defendant’s appeal.

S. Beard, Judge. Action by Nathan Ascha and others against C. S. Fitch to enforce three several liens, one in favor of each of the plaintiffs, on the Gold Nugget mining claim. From a judgment of nonsuit plaintiffs appeal.

Petition by K. E. Kelley for a writ of mandate to compel J. F. Sersanous, treasurer of Glenn county, to pay a warrant drawn on said treasurer by the county auditor, and payable to petitioner. From a judgment in favor of defendant, petitioner appeals.

F. Johnson, Judge. Action by Abbie A. Hayford against Emeline Wallace. There was a judgment for defendant and from an order denying a new trial plaintiff appeals.

H. Logan, Judge. Application for the appointment of Joseph L. Enos as administrator of the estate of Silvar, deceased. Prom an order granting the petition, Antonio Silvar appeals.

<p>APPEAL from Superior Court, Santa Cruz County; J. H. Logan, Judge.</p> <p>Action by the Santa Cruz Butchers’ Union against the I X L Lime Company. Judgment for plaintiff and defendant appeals.</p>

R. Conklin, Judge. Thomas F. Fugitt was convicted of grand larceny and from an order granting a new trial the people appeal.

K\ Dougherty, Judge. Action by one Cannon against McGrew and others to restrain the obstruction of an alleged right of way. There was judgment for defendants and plaintiff appeals.

Wallace, Judge. Action by the Union Transportation Company against Charles Bassett and others, composing the hoard of state harbor commissioners, to enforce the execution of a resolution passed by said board. From a decree for plaintiff and from an order denying a motion for a new trial defendants appeal.

H. Logan, Judge. '.Action by Peter Lasserot against A. W. Gamble for the forcible detention of certain lands. From a judgment for defendant and from an order refusing a new trial plaintiff appeals.

W. McKinley, Judge. Action by Anna M. Spence, executrix of the last will of E. F. Spence, deceased, against J. P. Widney and others, to set aside a conveyance in trust. From a judgment for plaintiff and from an order denying a new trial defendants appeal.

E. Prewitt, Judge. Action by the Colfax Mountain Fruit Company against the Southern Pacific Company to recover damages resulting from delay in the transmission of freight. Judgment for plaintiff, and defendant appeals.

B. Cope, Judge. Action by Hart and others against Kimberly and others. An appeal was taken from the judgment, and appellees moved to dismiss the same for failure to file the transcript.

N. Smith, Judge. W. H. Thompson was convicted of a crime, and sentenced to death. From an order fixing the time of execution, the defendant appeals.

Action by Augustus Laver and another against A. P. Hotaling to recover for services rendered by plaintiffs as architects. From a judgment in favor of plaintiffs, defendant appeals.

P. Gatlin, Judge. Action of trover by M. J. Warren against Sarah J. Connor and W. W. Connor for the conversion of certain personal property, consisting principally of farming implements, tried to the court without a jury, in which there was a judgment for plaintiff. From an order denying their motion for a new trial defendants appeal.

C. Van Fleet, Judge. Action of ejectment by B. H. Stephens, administrator, etc., of P. H. White, deceased, and others, against J. W. Hambleton and others. From a judgment in favor of plaintiffs and an order refusing a new trial defendants appeal.

<p>APPEAL from Superior Court, Placer County; J. E. Prewett, Judge.</p> <p>Action by Archibald Skym and others against the Weske Consolidated Company, William Muir and others. From a judgment for plaintiffs, defendant Muir appeals.</p>

Seawell, Judge. Proceeding by one Livingston and others against one Widber, treasurer, etc., for a writ of mandate. There was a judgment for petitioners and defendant appeals.

<p>-APPEAL from Superior Court, San. Joaquin County; Ansel Smith, Judge.</p> <p>Action by Barnhart against J. T. Davis, Edwards’ administrator, and others. Judgment for plaintiff. Defendant Davis appeals.</p>

<p>Trial.—A Finding, “That the Matters and Facts Alleged in defendant’s special defense and cross-complaint on file herein, except the allegations of plaintiff’s employment, and agreements under such employment, are untrue in substance and in fact,” supports a judgment for plaintiff, where the answer and cross-complaint both allege that defendant employed plaintiff as a physician and surgeon, for a reward, and that plaintiff undertook the service, whereby defendant was damaged by plaintiff’s negligence and ineompeteney.</p> <p>Physician.—Where Plaintiff Sues for Services as Physician, and defendant, by a cross-complaint, seeks damages for alleged negligent treatment, and plaintiff, in answer, alleges that defendant’s suffering was aggravated by his own negligence and failure to follow plaintiff’s directions, a finding that all the facts alleged in the cross-complaint, except that of plaintiff’s employment, “are untrue,” renders the issue of defendant’s negligence immaterial, and a finding as to it is not required.</p> <p>Physician-—Compensation.—In Determining What is a Reasonable compensation for surgical and medical services in a given ease, the skill and learning of the operator and the character and circumstances of the subject to which he devotes his services must be considered, and the rule that compensation is determined by “the usual price at the time and place of performance” does not necessarily apply.</p> <p>Evidence.—Possible Error in the Exclusion of Evidence, on an issue which could not have affected the judgment, is harmless.</p> <p>Physician—Malpractice.—Before a Witness can Testify on the issue of a physician’s neglect and unskillful practice, his competency must be shown.</p>

<p>APPEAL from Superior Court, Los Angeles County; Waldo M. York, Judge.</p> <p>Action by J. H. Johnston against the county of Los Angeles. Judgment for defendant and plaintiff appeals.</p>

<p>Application by Maggie G. Barrett against the Superior Court of Placer County (J. E. Prewett, Judge), for a bill of review.</p>

<p>Petition, on the relation of N. S. Wirt, against James H. Budd, for a writ of mandate.</p>

<p>Liquor License—Appeal.—Where a Board of Supervisors Be-fuses a liquor license, and, after a peremptory writ of mandate, approves the bond filed by the applicants, and orders the license to issue, it cannot appeal from the judgment of mandate.1</p> <p>Liquor License.—An Appeal by Supervisors from a Judgment of mandate requiring it to issue a liquor license, when the hearing is after the license "has expired, will be dismissed.2</p>

<p>Pleadings—Amendment—Changing Cause of Action.—A complaint alleged that on April 1, 1891, defendant gave his note to plaintiff, and to secure payment thereof delivered a stock certificate which he had assigned to plaintiff on March 31, 1887. The prayer was for sale of the stock to apply on the overdue note, and for a personal judgment for any deficiency. An amended complaint alleged that on March 31,, 1887, defendant gave his note to plaintiff, and delivered said certificate as security, and that on April 1, 1891, a new note was given in place of the old one, and the certificate redelivered to plaintiff as security for the new note. The prayer was the same, except that plaintiff waived judgment for deficiency. Held, that the amendment did not set up a different cause of action.</p> <p>A Pledge of Corporate Stock by Indorsement and Delivery of the certificate is valid as between the parties.</p>

K. Dougherty, Judge. Ejectment by M. C. Meeker against Sarah E. Shuster and others. From a judgment in favor of defendants and from an order denying a motion for a new trial plaintiff appmls.

Action by C. T. H. Palmer, as assignee of C. A. Warren, against Helen M. Burnham and others, to enforce a lien for an assessment for street work under a contract for grading in the city of Oakland. Judgment for defendant on demurrer to the complaint and plaintiff appeals.

Slack, Judge. Action by H. H. Bancroft against the San Francisco Tool Company. There was a judgment for defendant for costs, and from an order denying a new trial plaintiff appeals.

<p>APPEAL from Superior Court, Humboldt County; G. W. Hunter, Judge.</p> <p>Action by William H. Matthews against John C. Bull, Jr. From a judgment in favor of plaintiff and an order refusing a new trial defendant appeals.</p>

<p>Contempt—What Constitutes.—An Attorney for Defendant, in an action in which judgment is rendered that defendant restore possession of premises, who thereupon notifies the sheriff that he is the owner, and in exclusive possession, of the premises, and that defendant is not in possession, and that he will, by all lawful ways, resist any attempt to take possession from him, is not thereby guilty of contempt, though his notice deters the sheriff from serving the writ.</p>

<p>Justice of Peace—Notice of Appeal—Evidence of Filing.-—-The marking of the filing of a notice of appeal by a justice is not the only competent evidence of the filing of the paper, and the absence of an entry in the justice’s docket is not conclusive proof of the fact that it had not been filed.</p>

<p>Justice of Peace—Notice of Appeal—Evidence of Filing.-—-The marking of the filing of a notice of appeal by a justice is not the only competent evidence of the filing of the paper, and the absence of an entry in the justice’s docket is not conclusive proof of the fact that it had not been filed.</p>

<p>Chattel Mortgages — Tender of Amount Due.—When a mortgagor in default as to an installment tenders the amount due before the mortgagee elects to treat as due the entire debt, as the mortgage authorizes him to do on default, the right of election is lost.1</p>

M. Seawell, Judge. Action by the Bowers Rubber Company against H. G. Blasdel. From a judgment for plaintiff and an order denying a new trial defendant appeals.

<p>Mortgage—Deed Absolute.—In an Action to Declare a Deed Absolute in form a mortgage, a judgment for defendant cannot be set aside where, in confirmation of the presumption of the deed, there was evidence from the conduct of the grantor, and from his pecuniary condition at the time of its execution, and his declarations before and after, that the deed was in fact absolute.</p> <p>Evidence—Harmless Exclusion.—Where Plaintiff had Already Testified as to what he told his grantee certain lands conveyed by him “ought” to have been worth at the time, exclusion of his estimate of their value was harmless.</p>

<p>Ejectment for Street.—A City cannot Maintain ejectment for recovery of possession of a street dedicated to the public by user, without showing ownership in the fee.</p>

M. Conley, Judge. Joseph Marie Achille Fournier was convicted of destroying by fire a certain building with intent to defraud an insurance company, and appeals.

<p>Habeas Corpus.—A Prisoner not Brought to Trial Within Sixty Days after commitment will be discharged on habeas eorpus.1</p>

<p>Divorce—Subsequent Order for Alimony.—Where, on rendering a decree of divorce, the question of alimony is reserved, a subsequent order awarding alimony is not void.</p>

L. Pierce, Judge. Action by Margaret J. Barry, administratrix of John M. Little, against the St. Joseph’s Hospital and Sanitarium of the Sisters of Mercy and others. Judgment for defendants, and plaintiff appeals.

York, Judge. Action by the Santa Monica Lumber and Mill Company, a corporation, against J. H. Hege and William Naumann, to enforce a materialman’s lien. From a judgment in favor of plaintiff and from an order denying a new trial defendant Hege appeals.

Otis, Judge. Action by W. T. Leedom against A. M. Ham, H. H. Ham and Smith Leedom for an accounting of a partnership between plaintiff and the last-named defendant, and to recover the value of property converted by the other defendants. Defendant Leedom defaulted, and from a judgment for defendants Ham and from an order denying a motion for new trial plaintiff appeals.

W. Towner, Judge. Petition by John D. Van Vleck for a peremptory writ of mandate to the board of dental examiners of the state of California, and the individuals composing such board, to compel the issuance to petitioner of a certificate entitling him to practice dentistry. From a judgment granting the writ, and from an order denying a new trial, defendants appeal.

Action by E. A. Ingham and R. D. List, trustee, against J. Irving Weed, James P. McCarthy, Edward McCarthy, the McCarthy Company, L. A. Thompson, W. E. Witter and G. P. Lyman, for the foreclosure of a mortgage. Judgment for plaintiffs, from which, and from an order denying a motion for new trial, defendants Weed, the McCarthys, and the McCarthy Company appeal.

Smith, Judge. Action by John B. Irish against Benjamin Pauley on a contract. Judgment for plaintiff, from'which, and from an order denying a motion for new trial, defendant appeals.

S. Beard, Judge. Action by E. L. Gnekow against Saul Confer, Jr., and W. E. Hanks (copartners under the firm name of Confer & Hanks), and Masonic Building Association (a corporation). From a judgment in favor of the Masonic Building Association, plaintiff appeals.

W. Risley, Judge. Petitions by A. G. Clough, Frank M. Borello and N. P. Justy for letters of administration on the estate of Giovanni Galliano, deceased. From an order denying the petition of Clough, and granting those of the others, he appeals.

<p>Boundary.—The Findings of the Trial Court as to the Location of a division line will not be disturbed where the evidence is conflicting.</p>

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

<p>Appeal—Credibility of Testimony.—The determination of a jury as to the credibility of testimony is not subject to review.</p>

Action by one Rhoads and others against one Gray and others. From a judgment in favor of defendants and from an order denying a new trial plaintiffs appeal.

A. Gregg, Judge. Suit by P. W. Murphy against the city of San Luis Obispo and others. From a judgment for defendants and from an order denying a new trial plaintiff appeals.

<p>Counterclaim.—An Attorney Sued for Services Under a contract. Defendant claimed damages from negligent advice given by plaintiff before the contract was made, and not given in the performance of the services sued for. Held, that defendant’s claim, being for unliquidated damages, should be pleaded, to be available, even though treated as a cross-demand, within Code v of Civil Procedure, section 440, providing that “when cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other.”</p> <p>Counterclaim—Limitations.—Not Having Been Pleaded in the original answer, limitations ran against defendant’s claim, till set up in an amended answer.</p> <p>Counterclaim—Limitations.—The Trial Court’s Failure to Find on issues presented by a counterclaim against which limitations have run is immaterial, where findings upon such issues could not have defeated the bar of limitations."</p> <p>Trial.—A Concluding Finding That “All Other Averments in the pleadings herein and in issue, not comprised and passed upon in these findings, are not true,” is improper, but is not reversible error, where the preceding findings are so full and specific, and so clearly cover all the material issues, as to rebut the suggestion of uncertainty.</p>

<p>Appeal by One Who has not Previously Appealed.—A person whom the record shows to be a party aggrieved may appeal, though he has not previously appeared in the ease.</p> <p>Attorney—Presumption of Authority to Appear.—On Appeal it will be presumed that appellant’s attorney had authority to appear for him, from the mere fact that he assumes to do so.</p>

<p>APPEAL from Superior Court, Santa Clara County; John Reynolds, Judge.</p> <p>Appeal from an order in the matter of the estate of Euthanasia S. Meade, deceased. On motion to dismiss the appeal.</p>

<p>APPEAL from Superior Court, Placer County; J. E. Prewett, Judge.</p> <p>Action by C. A. Willeford against A. 0. Bell. Judgment for plaintiff. Defendant appeals.</p>

<p>Partnership—Good Faith in Dissolution and Liquidation.— Under Civil Code, sections 2410, 2411, partners are bound to act in the highest good faith toward each other, and this continues and extends to the dissolution and liquidation of the partnership affairs.</p> <p>Partnership—Fraud in Settlement of Affairs.—Where, on settlement of a partnership, the withdrawing partner accepted certain land in payment of his interest at $70 per acre, the deed will not be set aside, on the ground of fraud in the settlement, where it was evident that both parties believed the land to be of such value, that it was located at a distance, at a town in which there was at the time a “land boom,” and similar property was then selling at from $100 to $150 per acre.</p>

<p>APPEAL from Superior Court, Los Angeles County; Clark, 'Judge.</p> <p>Action by Joe P. Taggart against John D. Bosch. Judgment for plaintiff, and from an order denying a new trial defendant appeals.</p>

<p>City Marshal—Fees for Serving Process.—Act of March 13, 1883, section 790 (Stats. 1883, p. 261), as amended by Statutes of 1893, page 299, provides, with reference to municipal corporations of the fifth class, that the city marshal shall execute and return all process issued and directed to him by any legal authority; that he shall, for service of any process, receive the same fees as constables, and shall receive from the city such compensation as shall be fixed by ordinance, in addition to the fees and mileage received for service of process in the state courts. Penal Code, section 817, makes marshals peace officers, and section 814 provides that warrants of arrest shall run "to any marshal,” among other officers. Held, that fees earned by a marshal in serving process issuing out of a justice’s court for the township in which the city is situated are chargeable to the county.</p> <p>City Marshal—Fees for Serving Process.—Section 790 contains the condition that the marshal shall receive a compensation from the city in addition to the fees and mileage received “for service of process of the courts of this state, other than the recorder’s court of such city.” Under the municipal corporation act the recorder may be a justice of the peace as to some matters, and a recorder as to others. When acting as a justice in criminal matters coming before him under the Penal Code, his fees are chargeable to the county. Held, that, where the reecorder is acting as justice of the peace, the marshal’s fees for service of process issuing out of the recorder’s court in, misdemeanor cases under the statutes of the state are chargeable to the county.</p>

<p>Execution Sale—Reversal of Judgment—Title of Purchaser.— Plaintiff claimed title to certain land under execution sale and sheriff’s deed to his grantors. After such sale the judgment was reversed in the supreme court as far as it awarded counsel fees, but was in all other respects affirmed. Held, that, since no order for the restitution of the property sold was ever made, as provided by Code of Civil Procedure, section 957, plaintiff’s title acquired by the execution sale was not affected by such reversal.</p> <p>Execution Sale—Relation of Deeds.—Where Judgments are Rendered foreclosing liens for labor, the liens relate back to the time when the labor for which they were claimed commenced, and the deeds executed in pursuance thereto take effect by relation to the time the liens attached.</p> <p>Execution Sale.—In Order to Recover Possession of Property purchased at execution sale, it is necessary to introduce in evidence the judgment as a basis of the execution.</p>

Smith, Judge. Action by E. Spaulding against the Mammoth Spring Mining Company and J. D. Reilly to recover of defendant company money due plaintiff for services, and to establish a lien therefor. Pending the action, plaintiff died, and H. Spaulding, administrator of his estate, was substituted as plaintiff. There was a judgment against defendant company by default.

W. Risley, Judge. Action brought by the Fresno Loan and Savings Bank to enforce a materialman’s lien against Mary Husted and W. R. Flannagan. Plaintiff appeals from the judgment of the court below and its order denying a motion for a new trial.

<p>APPEAL from Superior Court, City and County of San Francisco; John Hunt, Judge.</p> <p>Suit by Mechanics’ Institute, a corporation, against J. K. Firth and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Note.—Release of T. and L., Two of the Signers of a note, by the other signers, in consideration of the agreement of L. to make a conveyance to such other signers, is not invalidated, as to T., at least, by failure of L. to make the conveyance.</p> <p>Note.—A Release in Writing of Certain Signers of a note by the other signers need have no consideration; Civil Code, section 1541, providing, “An obligation is extinguished by a release therefrom given by the creditor .... in writing with or without new consideration.”</p> <p>Note—Agreement for Indemnity—Consideration.—An agreement by certain signers of a note to assume responsibility for its payment, and to indemnify the other signers for any loss or damages they may sustain on account of it, stands on the same footing, as concerns consideration, as a release.</p> <p>Note—Indemnity—Contribution.—A Signer of a Note, Who has Been Released from liability thereon by the other signers, who also agree to indemnify him for any loss or damage he may in any manner sustain on account of the note, can, on paying judgment rendered against him on the note, recover therefor of the others, though they had paid the note before judgment was rendered against him, and though they had no notice of the action against him, there being no defense which he was informed of and neglected to interpose.</p> <p>Note—Indemnity.—The Release of One of the Signers of a note by the others from liability thereon, and their agreement to indemnify him for any damages on account of the note, being joint, he can recover against them all, though judgment is rendered against him on the note for only the balance thereof remaining after one of them had paid his proportion thereof.</p>

B. Ogden, Judge. Action by W. H. Knight, administrator, against W. G. Tripp. After judgment for plaintiff, a new trial was granted and plaintiff appeals.

<p>Appeal.—An Order of the Court, of Its Own Motion, Settirig Aside a Verdict is the equivalent of an order granting a new trial, and is reviewable upon a statement on appeal; but, being a matter within the legal discretion of the trial court, this court will not interfere with it unless abuse of discretion is shown.</p> <p>Malicious Prosecution—Probable Cause.—Where the Uncontradicted Evidence in a suit for malicious prosecution tends to show probable cause, and the verdict of the jury is against the instructions of the court, we cannot hold that there was an abuse of discretion in setting it aside.</p>

<p>Venue—Change.—A Defendant has a Statutory Eight to Have the Place of trial changed to the county of his residence, and, there being no counter-motion to retain the cause for the convenience of witnesses in the county where it was commenced, the motion should have been granted.</p>

Ejectment. The complaint alleged, and the court found, that plaintiff had been in the peaceable possession of surveyed United States lands which were open to pre-emption; that while in such possession and the actual occupation of such lands defendant forcibly ejected plaintiff from said land, and took, and continued to the time of the action to hold, said lands unlawfully from defendant.

<p>Prohibition—Procedure—Demurrer and Answer.—Where respondent to petition for writ of prohibition filed a demurrer and answer, and the demurrer was overruled, and judgment absolute given against respondent on the insufficiency of Ms answer, when, in the absence of a motion for judgment on the pleadings, he expected that only the demurrer would be passed on, a motion to vacate the decision on the ground of surprise, and to allow an amended answer, will be granted.</p>

<p>Judge—Disqualification.—The Answer of a Judge to a Petition to restrain him from further acting as judge in a case pending before him admitted that he claimed to be the owner of certain land. The petitioner, who was a party to such pending action, claimed in his petition that said land was involved in the said action pending before the judge. Held, that a prohibitory order would issue to such judge, though by his answer he declared that, his attention having been called to the fact that the land claimed by him was claimed to be involved in the suit, he would not further act in it.</p>

<p>Pleading — Amendment — Discretion.—Applications to. Amend Pleadings are addressed to the discretion of the trial court, and should be allowed at any stage of the trial, when necessary for the purposes of justice.</p> <p>Pleading—Form of Action.—A Complaint Which Sets Out that defendant received plaintiff’s money under an agreement which he afterward refused to perform, and asks damages for the breach, does not state a cause of action sounding in tort.</p> <p>Statute of Limitations—When Begins to Bun.—Where Money is Given under an agreement that the person who receives it will do certain things, and he fails/ to perform his agreement, the statute of limitations will not commence to run against the claim of the person who gave money until there is a refusal to perform the contract.</p> <p>Statute of Limitations.—Where an Amended Complaint is Filed which does not state a new cause of action, nor bring in new parties, it relates back to the filing of the original complaint, and the statute of limitations ceases to run. against plaintiff’s claim at the date of filling the original complaint.</p> <p>Interest.—In an Action to Becover Money Given Under an Agreement that the person who received it would do certain things, where such person has refused to perform his agreement he is chargeable with interest on the sum received from the time of such refusal.</p>

<p>APPEAL from Superior Court, Tolo County; A. J. Buckles, Judge.</p> <p>Action by M. Diggs against S. Porteus to recover a house and lot and damages for their detention, etc. Judgment for plaintiff, and defendant appeals. Reversed, unless plaintiff agrees to strike off the money part of the judgment.</p>

Action by E. A. Meserve and others against the Pomona Land and Water Company and others. There was a judgment in favor of defendants and plaintiffs appeal.

<p>APPEAL from Superior Court, Del Norte County; James E. Murphy, Judge.</p> <p>Action by Daniel Haight against Dennis Tryon for partnership accounting. Prom a judgment for defendant and an order denying a new trial plaintiff appeals.</p>

W. Henshaw, Judge. Action by Joseph Davis against George W. Lamb, administrator of the estate of William H. Lamb, deceased, and another, on a promissory note. Judgment for plaintiff. Defendant Lamb appeals.

<p>Bes Judicata.—In Ejectment Against Several Defendants a Judgment in a former action between plaintiff and one of the defendants, offered generally against all, is inadmissible, unless they are privy in estate and bound by such judgment.</p> <p>Res Judicata.—A Prior Judgment is Conclusive upon the Parties Only as to matters actually and necessarily decided therein.</p> <p>Ejectment—Evidence.—Upon an Issue That Plaintiff’s Grantor had taken title for the joint benefit of himself and defendants, and that plaintiff took title from him with notice of defendants’ rights, it is competent to show the circumstances of the purchase by such grantor, and his declarations at that time, as tending to show defendants’ interest.</p>

E. ■Prewett, Judge. Action by one Fleckenstein against the county of Placer to recover constable’s fees. Judgment was rendered in favor of plaintiff for less than the amount claimed hy him, and he appeals.

Cross, Judge. Action by Lower Kings River Reclamation District No. 531 against P. C. Phillips to recover an assessment by such district upon defendant’s land situated therein. From a judgment in favor of defendant, and denial of a new trial, plaintiff appeals.

T. Action by the Santa Paula Waterworks against Julia Peralta, in which judgment was rendered for plaintiff, and defendant appealed. For the failure of appellant to file a brief respondent entered a motion to dismiss the appeal.

<p>Promissory Note—Forgery as a Defense.—The faet that nothing was heard of a defense that an indorsement on a note was a forgery until the maker had absconded does not estop the party from asserting it, especially where there was evidence that he did not know that he was held liable until suit was commenced.</p> <p>Promissory Note—Defense to Liability as Indorser.—In an action to hold one liable as an indorser, evidence that defendant was seventy-five years old, and unable to read or write; that he never authorized the indorsement, but only authorized his name to be written on an undertaking for a small amount, is sufficient to sustain a verdict that defendant did not indorse the note.</p> <p>Evidence. —■ The Reception of Inadmissible Evidence over appellant’s objection is not reversible error where it was afterward stricken out on appellant’s motion.</p> <p>Pleading—Amendment.—Granting Leave to Amend Pleadings at the trial will not be reversed except for abuse of discretion.</p>

<p>Contracts—Conditional Liability.—One G-. contracted: “On or before sixty days, I, G., do hereby agree to pay B,, or order, out of the profits realized by me from my business of packing raisins at M. during the present season, the sum of $310 in gold coin of the United States of America.” A few days thereafter G. sold his interest in the raisin business, and made no profits therefrom for that season. Held,, that G. never became liable on the contract.</p> <p>Guaranty—Failure of Principal’s Liability.—A guaranty of the above contract read: “I, E., do hereby guaranty the payment of the foregoing note in accordance with the conditions thereof. [Signed] E. J.” Held, that the guarantors were not liable on the guaranty, as the principal’s liability had never attached.</p>

M. Seawell, Judge. Action by Miers F. Truett against Andrew Onderdonk for an accounting and a dissolution of their copartnership. From a judgment in favor of defendant, plaintiff appeals.

<p>APPEAL from Superior Court, Siskiyou County; J. S. Beard, Judge.</p> <p>Action by P. Kuschel and another against Harry H. Hunter and others. From a judgment for plaintiffs, defendant</p> <p>A. R. Campbell appeals.</p>

<p>Certiorari.—Errors in Proceedings, not Involving Excess of jurisdiction, cannot be reviewed by certiorari.</p>

<p>Deeds—Delivery—Presumption.—Proof That the Consideration for a deed was not paid is not alone sufficient to rebut the presumption under Civil Code, section 1055, that a grant duly executed is delivered at its date.</p> <p>Partition—Validity of Sale—Estoppel.—After a Sale in Partition of devised land, the bidder refused to pay his bid, whereupon, as agreed between plaintiff devisee and the other devisees, a deed was executed by the referee to said bidder, who conveyed the property to plaintiff and certain devisees, accepting the same in lieu of money from the estate, and devisees who received no part of the land were paid so much more money. Held, that plaintiff was estopped to impeach the transactions on the ground that the referee had no authority to make the deed without the receipt of the amount of the bid.</p> <p>Partition—Attack on Referee’s Deed in Subsequent Partition.-— And where plaintiff thereafter obtained conveyances from all the devisees except defendant, without any additional consideration, the referee’s deed, if invalid, could not be assailed on a subsequent partition suit by plaintiff, unless she tendered to defendant the money which he would have received from the estate, and in lieu of which he had accepted an additional interest in said land.</p>

Action by Ada F. Ward, individually and as administratrix of the estate of F. G. Ward, deceased, against Charles A. Forkner, county treasurer of Lassen county, for writ of mandate. Writ granted.

0. Minor, Judge. Action by one Woodside and others against Thomas E. Tynan, on whose decease his executor, one Hewel, was substituted as defendant. From a judgment dismissing the eomplaint and from an order denying a new trial plaintiffs appeal.

<p>APPEAL from Superior Court, San Diego County; J. W. McKinley, Judge.</p> <p>Action by Y. E. Shaw against the San Diego Water Company. Judgment for plaintiff. Defendant appeals.</p>

D. Ham, Judge. Action by William B. Bourn against James Dowdell and Arthur B. C. Dowdell. From a judgment for defendants and an order denying a new trial plaintiff appeals.

<p>Criminal Law—Second Appeal.—Under a Charge of Assault with intent to commit murder, defendant was convicted of the lesser offense of assault with a deadly weapon, and a new trial was granted him, for insufficient evidence. On a second trial he was convicted of the higher offense, and on his motion a new trial was granted on the sole ground that he had been twice put in jeopardy for the same offense. On appeal by the people the judgment was reversed because he did not plead former jeopardy. The trial court, on return of remittitur, pronounced judgment on the verdict. Held, that the supreme court could not, on appeal by defendant from such judgment, review its former decision.</p> <p>Criminal Haw.—Where the. Record on Appeal Discloses Sufficient Evidence to uphold a conviction, the judgment will not be disturbed.</p>

W. McKinley, Judge. Action by A. S. Moody against Newmark & Edwards and J. S. Robinson. From a judgment against Newmark & Edwards and an order denying them a new trial they appeal.

<p>Wills—-Attestation of Witnesses—Presumptions.—Where a will on its face does not show that the testatrix subscribed it in the presence of one of the witnesses, or acknowledged to him that she signed it, or declared it to be her will, or that said witness signed it at her request, or in her presence, the law will not presume that all of such acts, being statutory requirements, have been done.</p>

<p>APPEAL from Superior Court, Riverside County; J. S. Noyes, Judge.</p> <p>Action by Jacob S. Westerfield against the county of Riverside. From a judgment in favor of plaintiff, defendant appeals on the judgment-roll.</p>

In the matter of the estate of J. H. Nichols, an insolvent debtor. Appeal from an order settling appellant’s account as assignee.

<p>APPEAL from Superior Court, Santa Cruz County; J. H. Logan, Judge.</p> <p>Action by William F. March against S. Barnet and others. From a judgment in favor of certain of the defendants, plaintiff appeals.</p>

. Action by I. F. Dehail and others against the city of Los Angeles for an injunction. From a judgment in favor of defendant, plaintiffs appeal.

<p>APPEAL from Superior Court, Los Angeles County; Walter Van Dyke, Judge.</p> <p>Action of foreclosure by Eliza Connolly against M. L. Wicks and others. Decree for plaintiff, and defendant Alexander Robertson appeals.</p>

W. Towner, Judge. Action by Jacob Yaeger against the Southern California Railway Company for damages for personal injuries. Verdict for defendant. Plaintiff appeals from order denying motion for new trial.

Coffey, Judge, In the matter of the estate of Thomas J. Brannan, deceased, an order was made directing the executrix to sell certain lands, and she appeals.

<p>APPEAL from Superior Court, City and County of San Francisco; Walter H. Levy, Judge.</p> <p>Action by the Silberhorn Company against George H. Wheaton and others. From a judgment for defendants on their counterclaim plaintiff appeals.</p>

<p>Appeal—Divided Court.—Where One Justice of the supreme court is disqualified, and the six remaining are equally divided in opinion, the judgment will be affirmed.</p> <p>Corporation—Purchase of Railway.—A Stockholder of a corporation, which purchased -a street railroad of another corporation and agreed to assume bonds issued by it, cannot raise the question of fraud in constructing the road, or attack the validity of the bonds.</p> <p>Corporation—Stockholder’s Suit—Parties.—Where a Corporation Purchased! all the property of another corporation-, including a street railway, and all the property it might acquire, and all its rights, except its right to be a corporation, and assumed certain bonds that it had issued, the latter corporation is a necessary party defendant, where a stockholder of the former attacks the validity of the bonds, and charges that the railway was fraudulently constructed.</p> <p>Corporation—Assumption of Bonds.—It is not Ultra Vires for a corporation to assume the payment of bonds that were issued by another corporation, in violation of Civil Code, section 309, prohibiting the contraction of debts beyond the subscribed capital stock.</p> <p>Corporation—Limitation on Indebtedness. — A Corporation Which, in Payment for property, assumes the payment of bonds issued by another corporation, cannot retain the property, and claim the bonds were invalid, as being overissued, in violation of Civil Code, section 300, prohibiting the contraction of debts beyond the subscribed capital stock.</p> <p>Corporation—Original Bonded Indebtedness.—Prior to the Statute of 1889, directors of a corporation had power to create an original bonded indebtedness.</p> <p>Corporation—Bonds—Notice of Meeting.—A stockholder claiming that bonds issued by the directors were void, because issued without notice to the stockholders, must allege that the stockholders did not consent to the meeting at which the indebtedness was created, as Civil Code, section 317, provides that such consent abrogates the necessity of notice.</p> <p>Corporation—Limitation on Indebtedness.—Bonds of a Corporation issued in violation of Civil Code, section 309, prohibiting the contraction of debts beyond the subscribed capital stock, are not void.</p> <p>Corporation—Bonds.—The Decision of the Supreme Court that bonds of a corporation, issued in violation of Civil Code, section 309, are not void, is a declaration of a rule of property, and will not be overruled.</p> <p>Corporation—Limitation on Indebtedness.—Shares of Stock Delivered by a corporation to the stockholders of another corporation, as a part of the price of property purchased from it, are part of the former corporation’s capital stock, within Civil Code, section 309, prohibiting the creation of debts by a corporation beyond its “subscribed capital stock.” 1</p> <p>Corporation—Fictitious Stock.—Complainant Alleged That a corporation purchased property of another corporation worth at least $1,200,000, and as the price assumed an indebtedness of $1,050,000, and issued to the latter corporation’s stockholders twenty-four thousand seven hundred and fifty shares of stock, of the par value of $2,475,000. He did not allege that the former corporation had any property before such purchase. Held, that there was no fictitious issue of stock, within constitution, article 12, section 11, providing that all “fictitious” issues of stock shall be void.2</p> <p>Corporation.—A Dissatisfied Stockholder Alleged That the Directors, in pursuance of a fraudulent scheme, had created a bonded indebtedness in excess of the capital stock, and had purchased certain property of another corporation, of which they were also directors, and in payment therefor had issued stock to its stockholders, and had assumed the payment of illegal bonds. Held, he was entitled to no relief that could not be granted to the corporation itself.</p> <p>Corporation.—A Stockholder Alleged That the Directors Purchased property of another corporation worth at least $1,200,000, and in payment therefor issued shares of stock of the par value of $2,475,000, and assumed an indebtedness of $1,050,000. He did not allege that the corporation owned any property before such purchase. Held, he did not show that he was injured.</p> <p>Corporation—Fictitious Stock.—Where Directors of a Corporation Purchased of another corporation, of which they were the stockholders, property of the value of $1,200,000, and in payment therefor issued to themselves 24,750 shares of stock, of the par value of $2,475,000, and assumed an indebtedness of $1,050,000, a stockholder of the former corporation is not entitled to have such issue of stock declared void and fictitious, without setting aside the whole transaction.</p> <p>Corporation—Overissue of Bonds.—Where a Stockholder of a corporation alleges that its bonds were invalid, as being an overissue, it will be presumed the bonds are in the hands of bona fide holders, in the absence of allegations to the contrary.</p> <p>Corporation—Bonds.—The Allegation of a Stockholder, Assailing the issue of bonds by the directors, “that six per cent bonds, legally issued and properly secured, were worth much more than the face value, to wit, fifteen per cent more in the market,” is not an allegation that the six per cent bonds issued by' the corporation were worth fifteen per cent premium.</p> <p>Corporation.—A Stockholder’s Allegation That Certain Directors furnished labor and material for the corporation, and charged large profits against it, “with the consent and connivance of” the other directors, is not sufficient to show liability of the latter directors.1</p> <p>Corporation.—An Allegation That a Corporation’s Stockholder “is informed and believes” that certain directors furnished labor and material for the corporation, and charged large profits against it, and that no accounting had been made, is insufficient on demurrer.</p> <p>Corporation.—A Purchase by a Corporation of All the Property of Another corporation is not void merely, because the boards of directors of both corporations were the same.</p> <p>Corporation—Stockholder’s Suit.—A Transaction by Directors that is voidable only will not be set aside at the instance of the stockholder, unless he shows that he sustained damage.</p> <p>Pleading—Sustaining Demurrer Without Leave to Amend.—A complainant cannot, on appeal, first complain of error in sustaining a demurrer without leave to amend.</p> <p>Pleading—Amendment—Refusal,—It is not an abuse of discretion to refuse leave to amend a fourth amended complaint.</p>

T. Allen, Judge. Action by Samuel W. Livingston against Frederick Conant, administrator, etc., substituted for Mary A. Livingston, deceased. From a judgment for the plaintiff, defendant appeals. Affirmed.

<p>Forgery.—Where Defendant, in a Prosecution for Forgery, testified in his examination in chief that he had won the cheek in question at a game of cards, and also testified to his arrest, it was proper, on cross-examination, to ask him if he had admitted such fact to the arresting officers or to the jail officers.</p> <p>Forgery.—On a Trial for Forgery, Testimony That Witness knew of a certain fluid which would remove ink marks from white paper was competent. If such evidence was irrelevant, the admission of it was harmless.</p> <p>Forgery.—It was Harmless Error to Charge That Defendant was guilty of forgery, if he abetted the commission of the crime, where there was no evidence that he had done so.</p> <p>Criminal Law.—The Court Should not Charge in the Disjunctive that a defendant is guilty if he “aided, abetted, or assisted” any other person to commit the crime.</p> <p>Criminal Law.—Error in Using the Disjunctive in a Charge That Defendant was guilty if he “aided, abetted, or assisted” any other person to commit the crime was harmless.</p> <p>Criminal Law.—It was Harmless Error to Charge That “Where Weaker Evidence is produced, when in the power of the party to produce • higher, it is presumed that the higher evidence would be adverse, if it had not been produced,” where the record did not show that defendant offered weaker evidence when it was in his power to produce higher.</p> <p>Criminal Law—Instructions.—Where the Evidence was Largely Direct and Positive, it was not prejudicial error to charge that, where the evidence is entirely circumstantial, yet it is not only consistent with the guilt of defendant, but inconsistent with any other rational conclusion, the jury must convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye-witnesses would have been.</p>

J. Murphy, Judge. Action by Morris Fitzgibbon against C. S. Laumeister and another. From an order denying a new trial, and from a judgment in favor of plaintiff, defendant Weatherly, the execution creditor, appeals.

<p>APPEAL from Superior Court, San Joaquin County.</p> <p>Action by B. Bamsbottom against B. M. Fitzgerald and others. Judgment for plaintiff, and defendants appeal. Affirmed.</p>

<p>APPEAL from Superior Court, Fresno County.</p> <p>Action by Sarah I. Foulke and husband against H. G. De Witt and J. N. Hines, intervener. Defendant and intervener appeal from the judgment.</p>

Action by Louis Meyer against Matilda Meyer for divorce. From an order made, on defendant’s motion, for alimony and counsel fees, plaintiff appeals.

<p>Pledge.—An Order to the Pledge-holder of Ho tes already indorsed, to hold them for the payment of another debt, constitutes a pledge without further delivery.</p> <p>Appeal.—Where the Evidence is Conflicting, the Findings of the trial court will not be disturbed.</p> <p>Pledge.—In am Action to Foreclose a Pledge of Notes placed with a bank as pledge-holder, the pledgee is entitled to their possession, and to have them remain in the custody of the bank.</p> <p>Pledge.—One Having No Interest in the Property pledged is not aggrieved by, and cannot complain of, the sufficiency of the judgment against the pledge-holder, in an action to foreclose the pledge.</p> <p>Pledge.—Both am Order Directing a Pledgee to Hold notes to secure payment of plaintiff’s debt and the notes referred tó are proper evidence in an action to foreclose the pledge.</p>

<p>APPEAL from Superior Court, Los Angeles County.</p> <p>Ejectment by Henry Sehwannecke against S. Goodenow and Edward W. Grannis. From a judgment for plaintiff, defendants appeal.</p>

<p>APPEAL from Superior Court, Placer County.</p> <p>E. P. Reed was convicted of manslaughter, and he appeals.</p>

Action by William Aikman, administrator, against John P. Sanborn and another. From a judgment for plaintiff and an order denying a new trial defendants appeal.

<p>Covenants.—In an Action for Breach of Covenant in a Deed, the complaint alleged a certain money consideration, upon which issue was joined, the answer alleging the consideration to consist ,of certain contracts between the parties, which contracts plaintiff had violated. The findings of fact showed a contract resembling the one set up in the answer, and that plaintiff had violated it; but there was no finding whether the deed rested for its consideration on the payment of money as alleged by plaintiff, or on the contract set up in the answer, though there was evidence touching this issue. Held, that a judgment for defendant was not supported by the findings.</p>

W. Risley, Judge. Action by Alex. Jackson against the Puget Sound Lumber Company and another. From a judgment in favor of plaintiff, entered upon the report of a court commissioner, defendants appeal.

<p>APPEAL from Superior Court, Santa Barbara County.</p> <p>Action by Gerard Grant against Louis G. Dreyfus on an account. From a judgment for plaintiff, defendant appeals.</p>

<p>Elections—Illegal Votes.—Testimony by the Inspector of Elections and the ballot clerk that they did not see a mark of identification on a ballot when they were counting them is sufficient to support a finding that such mark was placed thereon after it came out of the ballot-box.</p> <p>Elections—Illegal Votes.—Under Code of Civil Procedure, section 1116, prohibiting the introduction of testimony of illegal votes in an election contest unless the contestant deliver to the defendant, at least three days before trial, a written list of the votes which he intends to prove were illegal, evidence as to the illegality of a vote is properly excluded which did not appear on the list served on the defendant, although it did appear on a list served by the defendant on the contestant.</p> <p>Elections.—The Legality of a Vote, in an Election contest will not be determined where it was not claimed to have been cast for plaintiff, and it was not counted for defendant.</p> <p>Elections—Residence of Voter.—A Wood-chopper, Who had No Home, but who made a particular place in a ward his home whenever in town or out of work for five years past, and who was sent there when sick, and who never voted in any other place for eleven years, is a legal voter in such ward.1</p>

<p>Fraud.—In Charging Fraud, a Complaint must State the facts constituting the fraud—at least, in a general way; and such facts must be alleged with sufficient distinctness to enable the adverse party to come prepared with evidence on the general questions of fraud which will be raised.</p> <p>Appeal—Retrial of Case.—When, on Appeal, the Judgment of the lower court is affirmed as to one cause of action, and reversed and remanded for a new trial as to another cause of action, all the issues involved in the cause of action remanded must be retried, though the appellate court deems the evidence sufficient to sustain the judgment of the trial court on one of the issues.</p> <p>Fraud—Presumptions.—When Defendants are Charged with a fraudulent conspiracy for two purposes, and it is proved for one purpose, the presumptions are still in favor of the innocence of defendants of conspiring for the other purpose.</p> <p>Fraud—Evidence.—Fraud cannot he Conjectured from the Fact that defendants have been guilty of other independent frauds. The evidence must be satisfactory, within the rule stated in Code of Civil Procedure; section 1833, defining “prima facie evidence” as that which suffices for the proof of a particular fact until contradicted and overcome by other evidence.</p> <p>Fraud.—The Admissions of Questions and Answers of witnesses in evidence, which assumed that certain samples of ore were fair samples, and that assays thereof were fair assays, without proof that such was the case, when the question at issue was whether they were fair samples, and whether they were properly assayed, is error.</p> <p>Pleading.—When the Complaint is Amended in Any material respect, so as to present new questions, on which issues may be taken, defendant may answer, as of course; and in such case the court cannot limit the defenses which may be interposed.</p> <p>Parties—Fictitious Names.—Some of Defendants Were Sued by fictitious names, but the summons was personally served on them. The complaint was afterward amended so as to properly name defendants. Held, that defendants were made parties, within the statute of limitations, when the summons was served.</p> <p>Appeal—Retrial of Case.—On the First Trial, Evidence was Taken of plaintiff’s right to bring the action as a stockholder of a corporation, and the court found facts authorizing plaintiff to sue in behalf of the company. Defendants did not except to-the sufficiency of such evidence, or present the question thereof on appeal. The case was affirmed on appeal as to a certain issue, and remanded for retrial as to another issue. Held, the findings being sufficient to show the right of plaintiff in that regard, that the issue as to the right of plaintiff to bring the action as stockholder was not open for investigation in the second trial, either as to the issue on which a new trial was denied, or as to that on which a new trial was awarded.</p> <p>Appeal.—Where a Judgment is Affirmed as to Certain Issues and reversed and remanded for a new trial as to other issues, it is a modification of such judgment, and such action is within the province of the supreme court.</p>