Volume 54 — California Reports

McNealy, J. The plaintiffs are the owners of a tract of land described in the complaint, forming part of the Rancho Muscupiabe, a Mexican grant, patented June 22nd, 1872. Lytle Creek is a water-course rising upon Government lands, about six miles above the ranch, and flowing through the lands of the plaintiffs, and through the San Bernardino Rancho, adjoining.

Sepulveda, J. The judgment was in favor of the plaintiffs and certain of the defendants. The appeal is by the defendants Bichard S. Den and the widow and heirs of Nicholas A. Den, deceased. The Bancho Dos Pueblos was held under a grant from the Mexican Government, approved by the Departmental Assembly; and the judicial possession had been delivered. The other facts are stated in the opinion.

McNealy, J. The Court found, with reference to the ditch referred to in the opinion, and other ditches from the same water source, “ that since the construction of the said ditches respectively, as persons have bought and cultivated lands capable of irrigation therefrom, the same have, with the consent of all the parties, been constructed down to and upon such lands, and the same have been irrigated therefrom, the new parties contributing in the samo manner towards the…

<p>Appeal from a judgment for plaintiff, upon an application for mandamus, in the Fourth District Court, City and County of San Francisco. Mokkison, J.</p> <p>The facts are stated in the opinion.</p>

<p>Bah..—Admission to bail pending an appeal, after conviction of felony, is a matter of discretion merely; and in general should not be allowed, except where circumstances of an extraordinary character have intervened. Nature of such circumstances considered.</p>

<p>Appeal from a judgment for the plaintiff, upon an indictment for murder in the Twentieth District Court, County of Santa Cruz. The facts are stated in the opinion.</p>

MorriSOM, J. The action was brought to enjoin the defendants, who constitute the Board of State Harbor Commissioners, from building a sea-wall in front of plaintiffs’ lot. The other facts are stated in the opinion.

Dwinelle, J. A tender was made to the defendant by the plaintiff, of the principal sum due, but not of the interest. The other facts are stated in the opinion.

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Twentieth District Court, County of Santa Clara. Belden, J.</p> <p>The facts are stated in the opinion.</p>

<p>Indictment.—The name given in an indictment to the offense charged is not of itself the charge of an offense; and a mistake in regard to it is a mere irregularity, and not fatal. Accordingly, where an indictment recited that the defendant was accused of the crime of “assault with intent to commit murder,” and then proceeded to state facts showing that the defendant had administered poison with intent to kill, etc.: Held, that the indictment did not charge two offenses, and was good.</p>

<p>x Ebancisco — Stbeet Assessment — Statute, Coxstbuctiox of — Mandatoby Statute.—The Ctli section of the present street law of San Erancisco (St,at. 1871-2, p. 808), requiring the Superintendent of Public Streets, upon the failure of a contractor to complete his work before the expiration of the contract time, to report the same to the Supervisors, and the Supervisors to relet the work, is mandatory, and excludes the exercise, by the Board or Superintendent, of any power to extend the time for completing the work after the expiration of the contract time, or of an extension ordered during the running of the contract time; and such an extension is therefore void.</p>

R. Sharpstein, an attorney-at-law, in obtaining a settlement of a claim which I had against Robert Shechy, by which settlement I obtained from said Sheeliy his two promissory notes for five thousand dollars each, payable respectively on September 1st, 1878, and July 1st, 1879,1 hereby agree to hold said notes, and to collect them when theji and each of them shall become due, or as soon thereafter as I reasonably can, and to pay to said Sharpstein one-half of any sum or sums…

Sepulveda, J. It appeared from the complaint that Augustin Olvera, defendant Olvera’s testator, sold the Rancho Cuyamaca to one Stewart, and took a mortgage for the purchase-money; that Stewart conveyed undivided interests to the defendants Allison and Treat, the latter of whom conveyed an undivided interest to defendant Luco; that the said defendants agreed with Stewart to pay their respective proportions of the mortgage debt, and that they had been garnisheed under an…

<p>Appeal from a judgment for the plaintiff, in the "County Court of Los Angeles County. Stephens, J.</p> <p>The facts are stated in the opinion.</p> <p>Eastman, Haley, King & Roberts, and BicJcnell & White, for Appellant.</p>

<p>Appeal from a judgment against the defendant, in the Municipal Criminal Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

Morrison, J. By the Act of March 27th, 1874, the Board of Supervisors of the City and County of San Francisco were authorized and empowered to receive and accept from the owners or claimants of lots lying contiguous to Channel Street and Mission Street, from Ninth to Eighteenth Streets, deeds of a tract of land, not less than fifty feet in width, for the construction of a sewer and for a street; and also to acquire by purchase, or to condemn such lots.

<p>Appeal from an order dissolving an injunction in the Twentieth District Court, County of Santa Clara.</p> <p>The facts are stated in the opinion.</p>

<p>Bail.—In .fixing the amount of bail, the sole purpose which should guide the court or judge, should be to cause the appearance of the accused to answer the charge against him.</p> <p>Same—Habeas Corpus.—Upon an application of a prisoner, after commitment upon a writ of habeas corpus, for reduction of bail, the court or judge before whom he is brought is not authorized to interfere unless the bail demanded is per se unreasonably great, and clearly disproportionate to the offense charged. A mere difference of opinion, between the court or the judge and the committing magistrate or court, is not sufficient to justify such interference.</p> <p>Same—Same.—Upon an application to reduce bail after an indictment, the guilt of the prisoner is presumed.</p>

<p>Homestead. — A judgment obtained after a declaration of homestead, unless secured by a mortgage, or mechanic’s, laborer’s, or vendor’s lieu, cannot be enforced against the homestead, although an attachment may have been levied upon the premises before the filing of the declaration of homestead.</p> <p>Injunction—Undertaking. — Section 529 of the Code of Civil Procedure provides that the Court, (except where the people are party plaintiff) on granting an injunction, shall require a written undertaking on the part of the plaintiff; and this provision is applicable, whether the injunction be granted upon an ex parte application, or upon an order to show cause.</p>

<p>Application for a writ of prohibition to L. W. Ransom et al., composing the Justices’ Court of San Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Evidence—Admissions—Hearsay.—Statements of third persons, made in pres ence of the defendant, are admissible against him only to the extent they are admitted by him to be correct, either by his words or conduct; and the conduct of the defendant is the gist of the inquiry, and the only matter to be considered by the jury. Such statements are, therefore, inadmissible, unless accompanied with proof of defendant’s statements or conduct in response thereto.</p>

<p>Criminal Law—Mubdeb. — Order fob Execution. — Section 1227 of the Penal Code confers upon a defendant convicted of murder the right to be present in court when the order for his execution is made, and such an order made in his absence is erroneous.</p> <p>Id.'—Appealable Order.—Such an order is appealable.</p>

Judgment was rendered in this case on the 1st day of October, 1878, remanding the prisoner, and a rehearing granted November 26th of the same year. The opinion originally filed was substantially the same as the one now reported. Wallace, C. J., and Ehodes, J., did not express an opinion. The facts are stated in the opinion.

<p>Appeal from an order granting defendants anew trial, in the Fourth District Court, City and County of San- Francisco. Morrison, J.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Application for discharge on writ of habeas corpus.</p> <p>The facts are stated in the opinion.</p>

<p>Bail.—A prisoner arrested for felony must, in order to procure bail, be taken before the magistrate who issued the warrant, or some other magistrate in the same county.</p>

Dain gerfield, J.; The note referred to in the opinion runs as follows: “ Ninety days after date, without grace, I promise to pay,” etc., and is signed as stated in the opinion. The other facts are stated in the opinion.

Wheeler, J. The Court below, in addition to the finding quoted in the opinion, found that “ at the time of the delivery of said note to plaintiff, she did not pay any value therefor, nor at any time part with anything of value, or assume any new obligation as a consideration for the indorsement and delivery to her of said note.” The statement on motion for a new trial specifies that the evidence was insufficient to sustain this finding. The note was executed June 9th, 1874.

<p>Appeal from a judgment for the plaintiff in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.:</p> <p>The note sued upon is made payable to the defendants Black and Kelly, and was made by the defendant Kelly and the other defendants, except Black, for the purpose of taking up another note held by the plaintiffs against the defendants; and was indorsed by Black and delivered to the plaintiffs and the old note taken up.</p>

The proceedings of the Assembly with reference to the bill referred to in the opinion, as they appear in its record, are set out at length in the petition; and from this it appears that the bill was not read at length on its first and second reading, but that the cleik read the title of the bill, and the enacting clause, and a portion of the first section only, and that thereupon the Speaker interrupted the reading by announcing, on the first occasion, “ This is the first…

Morrison, J.: Action for damages for breach of contract. The jury found for the plaintiff in the sum of $250. The bill of exceptions specifies that “ the said verdict in respect to the said damages is not sustained by the evidence, and is contrary to the law and the evidence.” The other facts are stated in the opinion.

Evh>eitce—Fbaud—Sake.—In an action to recover goods, sold by the plaintiffs to E., and by bis directions delivered to defendant—the plaintiffs claiming that the… Held: that evidence of transactions by which defendants and E. had obtained goods from other persons by means similar to those used in the case in question, was admissible for the plaintiffs. Appeal from an order denying the plaintiffs a new trial, in the Seventeenth District Court, City and County of San Francisco.

<p>Estates oe Deceased Persons — Executors and Administrators — Devisee— Ejectment.—During the administration, and until distribution, partial or final, the executor or administrator is entitled to have the possession of the property left by the deceased, and may recover the possession from an heir or devisee.</p> <p>Verdict—Instructions.—Where the evidence is clear in favor of either party, and there is no conflict, it is not error for the Court to direct a verdict in his favor.</p>

Wheeler, J. The complaint is in the ordinary form, for the recovery of two horses. The answer justifies the taking by the defendant, as Sheriff, under writs of attachment against the plaintiff, followed by judgments. Plaintiff claimed the property as exempt under the Code of Civil Procedure, § 690, subd. 6, and introduced evidence to show that he was a peddler or huckster, and habitually earned his living as such.

<p>Contract of Sale—Measure of Damages. — The measure of damages for a partial breach of a buyer’s contract to purchase personal property is recompense to the seller at the contract price for the part performance, and indemnity for his loss in respect to the part unexecuted. Accordingly, where a buyer contracted to purchase a certain quantity of iron-work, and, after accepting a portion thereof, declined to receive the balance: Held—in an action by the seller for the breach—that the plaintiff was entitled to recover for the iron-work furnished such a proportion of the whole contract price as the quantity which he furnished bears to the whole quantity contracted for; and, in addition, the profit he would have made if he had been allowed to complete his contract; together with the damages he incurred in providing means for furnishing the residue of the iron-work called for by the contract.</p> <p>Id. — Assumpsit.—In such case, if the buyer should waive his contract, and sue in general assumpsit, the measure of damages would be the value of the property delivered.</p> <p>Id. — Interest.—In the former case, the plaintiff is entitled to interest on the amount found due from the time of his demand.</p>

Dairgerfield, J. Action for damages for the taking of certain sacks of oats. The plaintiffs claimed as mortgagees of the property in question, under a chattel mortgage of the ’ growing crop, which authorized them to take posséssion at any time, and to harvest and sell the same. The defendant was Sheriff of San Mateo County, and justified under writs of attachment in his hands against the mortgagors.

<p>Lease — Covenant to Renew — Fobeeitube — Landlobd and Tenant.— Payment of rent wlien it becomes due, and performance of other covenants of a lease, under which a tenant is in possession of leased premises, with the privilege of renewing the lease at the end of the term, are conditions precedent to the exercise of the right of renewal.</p>

<p>Supplemental Complaint.—A supplemental complaint cannot he filed after final judgment, or to set up a new cause of action. Such a right can he exercised only with reference to matter which may he consistent with and in aid of the case made hy the original complaint, and which occurred between the filing of the original complaint and the trial or judgment in the action.</p>

judgment for the plaintiff, and from an order denying a new trial, in the Fourth District Court, City and County of San Francisco. Morrison, J. The facts are stated in the opinion.

<p>Appeal from so much of a judgment for defendants as is in favor of the defendant, the Bank of California, in the Fourth District Court, City and County of San Francisco. Morrisox, J.'</p> <p>The facts are stated in the opinion.</p>

<p>Appeal—Attorney—Waiver.—Where an appeal was taken by an attorney not the attorney of record in the Court below, and respondent’s attorney joined with him in certifying the transcript: Held, that the latter waived his right to object to the competency of the former to take the appeal; and intimated by the Court, but not decided, that the attorney taking the appeal was competent to do so, without regard to the waiver; an appeal being, like a writ of error, a new proceeding, and the party appealing having the power to appoint a new attorney.</p>

Daingerfield, J. Action for the conversion, by the defendant, of certain stock pledged to him by the plaintiff. The amended complaint was filed March 6th, 1877. The stock ivas sold for $319, at the regular session of the Board of Brokers, on September 13th, 1876, but without the notice required by law. January 23rd, 1877, the plaintiff tendered the amount of his indebtedness, and demanded a return of the stock.

<p>Appeal from a judgment of nonsuit, and • from an order denying a new trial, in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J.</p> <p>The facts are stated in the opinion.</p>

<p>Rules of Court. — Rules of Court are but a means to accomplish the ends of justice; and it is always in the power of a court to suspend its own rules; or to except a particular case from their operation, whenever the purposes of justice require it.</p>

Wheeler, J. This was a proceeding under § 315, Code of Civil Procedure, to annul an election of directors of the corporation defendant. The other facts are stated in the opinion.

<p>Appeal from a judgment against the defendant, in the Fourth District Court, City and County of San Francisco. MobbiSON, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the plaintiffs, and from an order denying a new trial, in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J.</p> <p>The facts are stated in the opinion.</p>

<p>Rescission of Contract.—A party entitled to rescind a contract on the ground of fraud, can only do so by returning, or offering to return, everything of value which he has received under it, and cannot maintain an action until he has done so. Held, accordingly, in an action to rescind a contract, where the proofs failed to show such a return, or offer to return, that the plaintiff was rightly nonsuited, although he was prepared to make, and did make, the offer at the trial.</p>

<p>Evidence—Offer of Proof.—An offer of proof must Be distinctly directed to some material fact; and if it is vague in this respect, it is not error for the Court to reject it.</p>

<p>Appeal from an order refusing to restrain the execution of a writ of possession against Leavitt, the appellant, in the Twelfth District Court, City and County of San Francisco. Daingereield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Misnomeb.—Where a party defendant is sued, and answers by a wrong name, and judgment is entered against him accordingly, no advantage can be taken of the misnomer.</p> <p>Judgment—Estoppel—Landlobd.—In an action of ejectment against a tenant, if the landlord assume the defense, he is bound by the judgment.</p>

<p>Appeal from a judgment for defendants in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for plaintiff, and from an order denying a new trial, in the County Court of the City and County of San Francisco. Wright, J.</p> <p>Action for forcible entry and detainer. The facts are stated in-the opinion.</p>

<p>Contract—Married "Woman.—Under § 167, Civil Code, while the same was in force as originally enacted, a married woman could not make a valid contract for the payment of money.</p>

<p>Appeals from the County Court of the City and County of San .Francisco.</p> <p>Motion to Dismiss Appeals,</p>

<p>New Trial—Appeal.—Upon appeal from a judgment for defendant, the judg- mentwas reversed, and the cause remanded, with directions to enter judgment for the plaintiff upon the findings, which was done accordingly; and within ten days thereafter the defendant filed notice of intention to move for a new trial. Held—upon appeal from an order denying the motion—that the defendant, if not satisfied with the findings, should have filed his notice within the period prescribed by the Code of Civil Procedure, § 659, and that, this period having elapsed before the filing of his notice, the notice came</p>

<p>Motion in the Supreme Court for an order to stay proceedings. pending the appeal.</p> <p>The facts are stated in the opinion.</p>

<p>CoifsiiTUTioxAi Law—Süpeeioe Couet—Jubisdiction.—The Superior Court of a county is the successor of the District Court, and has jurisdiction to make an order to carry into execution a judgment of death rendered by the District Court.</p>

<p>Appeal from an order denying a motion for a change of the place of trial, in the Twelfth District Court, City and County of San Francisco. Daikgekfield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the plaintiffs, and from an order denying a new trial, in the Third District Court,. County of Alameda. McKee, J.</p> <p>The facts are stated in the opinion.</p>

<p>Replevin—JudgmentI- Findings—Maxim.—In an action to recover possession of personal property, a reference in the judgment to the findings, and in tlie findings to the complaint for a description of the property, is inexcusably circuitous, but the description is not uncertain. Certum est quod certum reddi potest.</p> <p>Id.—Id.—Id.—Amended Complaint. —Such reference is to the amended complaint, if there be one.</p> <p>Id. — Damages.—If the findings in such an action state the value of the property, and the date of the taking, the plaintiff is entitled to interest on such value as damages, without a special finding to that effect; but he is not entitled to recover the money expended by him in pursuit of the property.</p> <p>Id.—Id.—Detinue — Trover.—The distinction between an action to recover possession of personal property, with damages for its detention, and one to recover damages for its wrongful conversion, is as broad as between the common-law actions of detinue and trover. In the latter case the rule of damages is prescribed by § 333G Civil Code, and in the former by § 6G7 Code of Civil Procedure.</p> <p>Judgment Roll—Memorandum of Costs.—The memorandum of costs forms no part of the judgment roll, and the Court having only the judgment roll before it, cannot review an order to retax costs.</p>

Dwinelle, J. The plaintiff ivas the heir of Ann Dubois, deceased, who was admitted to have died seized of the land in controversy. The defendants deraigned title under a deed of her administrator, made in pursuance of an order of sale of the Probate Court. The petition for the sale shows that there was personal property in. the hands of the administrator undisposed of, but not sufficient for the payment of debts and charges of administration.

<p>Substitution of Attorneys—Hew Triae—Irregularity—Accident or Surprise.—S. (the defendant’s attorney) in writing substituted 31. and another as attorneys in his place, and they served upon the plaintiffs’ attorney a written notice that they were substituted, but the substitution was not filed with the clerk. Judgment was afterward entered for the plaintiffs, the minutes reciting that the defendant appeared by S., (his original attorney) and that the judgment was by consent. In point of fact S. was not present, and knew nothing of the judgment until afterward; but 31. (as stated in his affidavit) was present in court on the day the judgment was entered, and being informed by the plaintiffs’ attorney that the case would be called, replied that he (plaintiffs’ attorney) must proceed as he thought fit, and that he (31.) should not give consent to any proceedings in the matter. Hotice of motion for a new trial, on the grounds of irregularity and surprise, was given more than a year after the rendition of judgment, (notice of the filing not having been served) and motion denied. Held, 1st. That after the service of notice of substitution on plaintiffs’ attorney, it would have been improper for him to recognize any other than the substituted attorneys as attorneys for the defendant. 2nd. That there was no irregularity of the Court, or of the adverse party, by which tlio defendant was prevented from having a fair trial; the defendant’s counsel having been present in Court on the day of the trial, and informed that the case would be called, and having made no objection to the Court, or, (as the Court construes his statement,) to the plaintiffs’ attorney: and 3rd. That there was no accident or surprise which ordinary prudence could not have guarded against.</p>

<p>Jurisdiction—Abatement—Contempt.—'Where, pending an application for a writ of mandate to a County Treasurer, his term of office ceases, but judgment is afterward rendered against him, and the writ issued, the judgment and writ have no force against his successor; and proceedings against such successor for contempt for refusing to obey the writ, are void for lack of jurisdiction.</p> <p>Parties.—In an action against a public officer, upon his going out of office, his successor docs not become a party to the suit, and is not affected by the proceedings, until made a party under the provisions of § 3S5 of the Code of Civil Procedure.</p>

<p>Justice oe the Peace—Fine—Impeisohmeht.—A judgment of a Justice of the Peace, in a case of misdemeanor, that the defendant be fined $300, and that in default of payment he be imprisoned in the county jail not exceeding three hundred days, is in substantial compliance with Penal Code, § 1205.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Fourth District Court, City and County of San Francisco. Morrisos, J.</p> <p>The facts are stated in the opinion.</p>

Motion to dismiss an appeal from an order substituting the respondent for the appellant, as plaintiff in an action, in the Fifteenth District Court, County of Contra Costa. Dwinelle, J. The facts are stated in the opinion.

<p>Attachment—Affidavit. —An affidavit for attachment, otherwise in due form, concluded as follows: “ That the payment of the same has not been secured by any mortgage or lien on real or personal property, or any pledge upon personal property; or, if originally so secured, that such security has, without any act of the plaintiff or the person to whom the security was given, become valueless.” Held, insufficient.</p>

<p>AnimnsTKAMON—Nomination of Admuhstkatok.—The surviving husband or wife of a deceased person, though incompetent to serve on account of non-residence, nevertheless is entitled to nominate a suitable person for administrator.</p>

<p>Appeal from a judgment for the plaintiffs, in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.</p> <p>The facts are stated in the opinion.</p>

Myrick, J. The petition of the appellant sets forth, among other things, that the deóeased left a widow, (the administratrix) but no children, surviving him; that the tract of land referred to in the opinion was the separate property of the deceased, and for a long time prior to the death of the deceased had been rented as a stone-yard; and that there has never been any dwelling-house or other building upon it; and that neither the intestate nor his wife ever lived upon it.

Mor-RIS03ST, J. The complaint alleges, and the allegations are not denied in the answer, that on the 24th day of November, 1866, the ■ defendant was indebted to the plaintiff in the sum of $1,449, and on that day paid on that indebtedness the sum of $1,000; and to secure the payment of the balance, executed the instrument set out in the opinion.

<p>Statute oe Lbietatioss.—Where the right to maintain an action on a note or other demand has been suspended by the pendency of bankruptcy proceedings in the case of the debtor, the period of such suspension is not to be counted as part of the time prescribed by the Statute of Limitations to bar the action.</p>

<p>Appeal—Transcript—Clerk—Jurisdiction.—After an appeal to this Court is complete, the action is removed from the Court below, except as to matters not affected by the appeal, and that Court has no longer any power or control over the action, and is not authorized to say what papers shall be used on appeal to this Court. Therefore, an order of such Court forbidding the Clerk to certify a proposed transcript on appeal, is void.</p> <p>Id.—Id.—Id.—Id.—Eor all purposes connected with its appellate jurisdiction, this Court has the same power over the Clerk of the Court below as over its own Clerk; and if such Clerk refuse to certify the transcript, will, on motion, order him to do so.</p> <p>Id.—Id.—Id.—Id.—It is the duty of the Clerk to certify to the correctness of the documents in the transcript, if they are correct copies of originals in his custody; and whether such documents, when certiSeJ, will constitute a transcript on appeal in the case, is not a question for mm to determine.</p>

<p>Conveyance — Fraud — Consideration—Jury Trial —Evidence—Will.— The defendant (who was the sole devisee under an alleged will of T. C.) obtained from the plaintiff—the father and sole heir of T. C.—a deed for his interest in the estate; the consideration paid being about one-sixteenth of its value. In an action to set aside the deed, the Court below refused to allow the plaintiff a jury trial, or to prove that on a trial of a contest of the will, occurring before the deed was made, the jury stood on the first ballot nine, and on the second ballot eleven, against the validity of the will; or to prove, by witnesses dealing in real estate, what they would have paid for the property with the will as a cloud upon it: or to prove that the testator was incompetent when he executed the will (the plaintiff excepting to all the rulings); and found that the deed was not procured by fraud or false representations. Held, on appeal, that there was no error, and judgment and order affirmed.</p>

<p>Appeal by both parties from a judgment for the plaintiff, in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.</p>

<p>Appeal from a judgment against the defendant, in the Municipal Criminal Court, City and County of San Francisco. Blake, J.</p>

<p>Application for a writ of mandamus.</p>

<p>Appeal from judgment for the defendant, upon an agreed case, submitted under the Code of Civil Procedure, § 1138 et seq., in the Nineteenth District Court, City and County of San Francisco. Wheelee, J.</p> <p>The case was as follows: Under the Act of April 4th, 1870, the Board of State Harbor Commissioners leased to the predecessor of the defendant, for the term of fifteen years, commencing January 3rd, 1872, a certain portion of the waterfront in San Francisco, “to be used only for wharf purposes in the business of the lessee or assigns.” The lease provided that all freight landed on the said wharf should pay to the Board of State Harbor Commissioners the same rate of tolls which should, from time to time, be collected on other wharves on the water-front of the city under control of the Board; and that all structures upon the leased premises should be erected and maintained in repair by the lessee or its successors, and should become the property of the State at the expiration of the lease; also, that the party of the second part should do all the dredging it might require at its own expense, and should have no claim against the State or said Board therefor.</p> <p>About the 14th day of January, 1877, the defendant collected dockage ($34) from a vessel called the Mariano, landing at its wharf with a cargo for said defendant; being the amount due for dockage, according to the rates established by the Board. The defendant had always done the dredging of the dock, according to the terms of the lease; and up to this time had always, without objection from the Harbor Commissioners, collected dockage from all vessels landing at its wharf.</p> <p>The Board of State Harbor Commissioners claimed that this money was received by the defendant to the use of the State ; and upon the case submitted, it was agreed that this and all money collected by defendant for dockage subsequently to the date specified, should belong to the plaintiff or defendant according to the judgment of the Court upon the agreed case.</p>

<p>Judgment — Estoppel—Partition.—A judgment in a partition suit is conclusive as an estoppel upon all parties thereto; and, though erroneous, cannot he attacked collaterally.</p>

<p>Estates of Deceased Persons—Administrator—Settlement of Account. Under our system, the Probate Court has jurisdiction to settle the accounts of an administrator, and to ascertain and determine Ms liability to the estate; and the decree of that Court, settling the accounts and fixing the amount of liability, is conclusive. Accordingly, where the final account of an administrator, upon Ms resignation, was settled and approved, and he was discharged; and afterward an action was brought against him by his successor, for neglect in failing to bring suit, within the period prescribed by the Statute of Limitations, for land in the possession of adverse claimants, whereby the land was lost: Held, that if the defendant had incurred any liability, it was full and complete at the time of the settlement of his final account, and might then have been ascertained and determined; and that the order settling Ms account and discharging him was conclusive against his liability.</p> <p>Findings—Nonsuit.—Where the plaintiff is nonsuited, findings are not necessary; and in no event will a judgment be reversed for want of findings, unless it appears from the transcript that findings have not been waived.</p>

<p>Appeal from an order refusing to grant an injunction, in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J.</p>

<p>San Fbancisco, City Hall Acts—Mandamus.—Under the supplementary Act of April 3rd, 1876—relating to the construction of the New City Hall in San Francisco, and directing the payment of certain outstanding warrants, out of a fund arising from the sale of bonds referred to in the act—it was the duty of the Treasurer to pay the interest as well as the principal of said warrants, so long as there was any money in the fund.</p>

<p>Divorce—Extreme Cruelty.—Adultery or habitual intemperance do not, in a legal sense, constitute extreme cruelty; hut the latter is something different from any other cause of divorce, and constitutes a separate and distinct cause of action.</p> <p>Pleading—Several Causes oe Action.—Where the complaint sets up more than one cause of action, each count must contain all the facts necessary to constitute a cause of action; and its defects cannot he supplied from statements in other counts, unless expressly referred to in it; and not then, if the matters referred to constitute the gravamen of the action.</p>

<p>Boundary—Patent—Peat.—The map is an important part of the patent, and in questions of location is often entitled to as much, and perhaps more, weight, than the courses and distances.</p> <p>Id.—Monuments—Survey.—Monuments actually established on the ground at the time of the survey, will control a call for course and distance and the boundary of an adjoining ranch.</p> <p>Id.—Instructions.—Where the instructions on a material point are contradictory, if there were no other error in the record, the judgment must be re, versed.</p> <p>Id.—Id.—Monuments—Survey—Patent—Plat.—A call in the field-notes of the patent of the Rancho El Valle de San José, was from a recognized point, (Station 24) north 458.75 chains, to a post marked “V. S. J.” No. 25, at the intersection of the course with the line of the preliminary survey of the Pocitas Rancho; thence to another recognized point (Station 26). On the plat, Station 25 was represented as a stake in a stone mound. There was evidence tending to show the existence of a stone mound about twenty chains west of where Station 25 would be, if determined by course and distance and the line of the Pocitas Rancho called for, and tending to identify this with the stone mound represented on the plat. The solo question being as to the location of Station25, the Court below instructed the jury: 1st. That Station 25 was fixed, according to the patent, at the intersection of a due north and south line from Station 24 to Station 25 with the lino of the preliminary sui-vey of the Pocitas Rancho; and that that line was a call of the patent, and could not be ignored by the jury. 2nd. That if the jury found that the surveyor, when he ran the line of the Rancho on the ground, used a stone monument at Station 25, and that the line as run by him on the ground from Station 24 to Station 25 terminated in the stone monument, they should find for the defendants. 3rd. That the designation of a stone mound at Station 25 on the map, was no evidence that such a monument was in existence, or established there by the surveyor; and 4th. That if the jury found from the evidence, that a survey could be made of the rancho, according to the calls of the patent, that would close and embrace the quantity of land called for, including the land in controversy, they should find for the plaintiff. Held, 1st.- That the first instruction referred to was erroneous, in making the call referred to the controlling call, in preference to the actual location of Station 25 on the ground by the surveyor at the time of the survey, and because it ignores the plat; 2nd. That the first and second instructions are contradictory, and that this, in itself, was sufficient to reverse the judgment; 3rd. That the plat forms part of the patent, and is evidence of matters represented on it, and that it was error to instruct the jury to the contrary; and 4th. That the fourth instruction was also erroneous, as the calls of the patent with reference to Station 25 were conflicting, and the very question was, which was the true one ?</p>

<p>Appeal from a judgment and order denying a new trial, in the Fourth District Court, City and County of San Francisco. Morrison, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Eighteenth District Court, County of San Diego.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for plaintiff, and from an order denying a new trial, in the Third District Court. McKee, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for defendants, and from an order denying a motion for new trial, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Twelfth District Court, City and County of San Francisco. Daingereield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment upon demurrer to the complaint, in the District Court, City and County of San Francisco. Morrison, J.</p> <p>The facts are stated in the opinion.</p>

<p>Receiver—Jurisdiction—Certiorari.—Under the Code of Civil Procedure, the District Court had no jurisdiction to appoint a Receiver in an action of ejectment; and an order making such appointment should be annulled.</p> <p>Id.— Id.— Id.— Constitutional Law. — Subdivision 6, of § 561 of the Code of Civil Procedure is but declaratory of the equity jurisdiction conferred upon the District Courts by the former Constitution, in giving them jurisdiction of “all cases in equity,” and includes only the suits iu which it has been the usage of Courts of Equity to appoint a receiver: their jurisdiction in this respect would have been the same in the absence of the statutory provision.</p>

<p>Appeal from a judgment on demurrer to the complaint, (in an action for mandamus) in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order denying defendant’s motion to discharge an attachment, in the Twenty-third District Court, City and County of San Francisco.</p>

Morrison, J. The complaint alleges that the plaintiff executed to the defendants, Burr and Dean, two certain deeds of trust, of date December 26th, 1867, and February 9th, 1869, conveying a certain tract of land, in trust, to secure the payment of two promissory notes of even dates, made to the defendant, the Savings and Loan. Society, and authorizing the trustees to sell upon default; and that the trustees had advertised the land for sale; and prays for an injunction.

Daingerfield, J. In the prayer of the complaint the plaintiff demands judgment for the value of the land referred to. The other facts are stated in the opinion.

Thoenton. J. The caption of the assessment in question in this case, is as follows: “ State of California, ) City and County of San Francisco, ) “Assessment made and issued this 13th day of April, 1875, for planking Polk Street from Tyler to McAllister Street, and for reconstructing the side-walks thereon, as per contract with E. Whiting,” etc. Then follows the assessment, the lots being described by reference to the diagram attached; of which the following is a copy: The…

<p>Appeal—Motion to Dismiss—Reaction of a Day.—"Where notice of motion to dismiss an appeal, under Rule 2, was served on appellant’s attorneys, and the transcript was filed the same day, but it was controverted which of the acts was prior in point of time: Held, that the Court would not look into the fraction of a day in order to dismiss an appeal.</p> <p>Lx—Undertaking on Appeal—Justification.—The failure of the sureties on an undertaking on appeal to justify, after an exception to their pecuniary sufficiency has been taken, does not render the appeal ineffectual.</p> <p>Id.—Diminution of Record.—"Where a second appeal was taken, under the erroneous suppdsition that the first had become ineffectual, and the transcript filed contained the second, and not the first notice of appeal : Held, that the record might be amended, upon a suggestion of diminution, by inserting the first in lieu of the second notice.</p> <p>Id.—Technical Objections.—The Court is not disposed to dismiss appeals on technical objections.</p>

<p>Application for a writ of certiorari.</p>

<p>Certiorari—Pleading—Multipariousness.—An objection to a petition for a writ of certiorari, that it is multifarious, is addressed to the discretion of the Court.</p> <p>Id.—The object of the writ of certiorari is to annul, and not to restrain; and in such proceedings the Court cannot take cognizance of things in fieri. Jleld, accordingly, that a resolution pending in the Board of Supervisors could not be reviewed in this proceeding.</p> <p>Id. —Sax Francisco — Quo Warranto. —Upon a writ of certiorari to the Board of Supervisors of San Francisco, and to the Board of Water Commissioners, (appointed under the Rogers Act): Held, that the Court could not in this piroeeeding, review a resolution of the latter Board to the effect that it was necessary for the City and County of San Francisco to acquire the Spring Valley Water Works, etc.; or the act of the Board in appointing Appraisers, or the act of the Board of Supervisors in confirming such appointment; none of these acts being judicial in their nature, and their being—with reference to the appointment of Appraisers—a plain, speedy, and adequate remedy under the Code of Civil Procedure, § 803.</p> <p>Id.—In a proceeding for a writ of certiorari, the party or parties whose acts are the subject of a review should be before the Court. Held, accordingly, that the act of the Board of Appraisers, appointed under the Rogers Act, in making and filing an appraisement of the Laguna de la Merced, could not be reviewed under a writ of certiorari, directed to the County Clerk—as the custodian of the record of the proceedings of that Board, (and others)—but not to the Board itself.</p> <p>Id.—Repeal op Statute—Obligation op Contract—Vested Right.—The repeal of a statute effectually annuls all proceedings had under the act repealed, unless the obligation of a contract would thereby be impaired, or a vested right destroyed. Held, accordingly, that all the proceedings under the Rogers Act, above referred to, were annulled by the repeal of the act, and that therefore it would be neither necessary nor proper for the Court to proceed further with the case.'</p> <p>Id.—Id.—Id.—Id.—Eminent Domain.—The right of the State to take private property for public use in no sense depends upon any contract between the owner and the public. For is there any vested right to compensation, until the property is taken; nor is the Government under any obligation to take the property, if the terms, when ascertained, are not satisfactory.</p>

<p>Pleading—Joinder of Actions.—Where it is desired to unite several causes of action in the same complaint, they should be separately stated. Otherwise, though the complaint contains words which, if properly arranged, might state two causes of action, it will be construed as stating only the cause of action principally intended.</p> <p>Id.—Id.—In an action for the malicious prosecution of an attachment against the plaintiff by the defendant, in the name of another, the complaint alleged, in stating what the defendant did in issuing and levying the writ, that the defendant and another filed their undertaking conditioned to pay all the costs and damages that the plaintiff might sustain; and the court instructed the jury that there were two causes of action set forth in the complaint, namely, one for malicious prosecution, and the other on the undertaking; and that the former was, and the latter was not, barred by the statute. Held, that the instruction was erroneous; that the gravamen of the complaint was the malicious prosecution, and the allegations with regard to the undertaking could not bfe construed as constituting a separate cause of action.</p>

<p>Mechanics’ Liens.—Under the provisions of the Code of Civil Procedure relating to liens of mechanics, the liens of employes of the original contractor are enforceable only to the extent of the money due on his contract, and in subordination to its terms. If the original contractor fails to perform his contract, or if he has performed it in part, and there is no money due to him according to its terms—or if, having performed it, he has been fully paid by the owner of the property, according to the contract, before notice of the liens—his employes are not entitled to enforce a lien upon the property.</p> <p>Id.—Where the contract provided that payments should bo made on the certificate of the architect—who was required by the contract, among other things, to certify that all the work of the mechanics, laborers, and others employed by the original contractor, had been paid—his certificate is conclusive of the rights of all parties concerned, unless it can be shown that it was obtained by the owner by collusion or fraud.</p>

<p>Appeal from a judgment for the plaintiff, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Jurisdiction — Superior Court — Constitutional Law.— An appeal was pending in tlie County Court of San Francisco on the 1st day of January, 1880, from a judgment of conviction in the City Criminal Court; and the judgment was afterward affirmed by the Superior Court, and the defendant arrested upon a bench-warrant from that Court. Upon an application for release upon a writ of habeas corpus: Held, that, under § 3 of art. 22 of the Constitution, the Court had the power to issue the writ.</p>

<p>Sheriff's Sake.—A sale in mass, under an execution, of real estate consisting of several known and distinct parcels, at a price greatly below the actual value, is voidable, and will be set aside upon a proper application of the judgment debtor, when made in a reasonable time after the sale; but such a sale is not void, and will not be set aside if the application is not made within a reasonable time. Held, accordingly—where in such a case the application to avoid the sale was made more than three years after the sale, by a cross-complaint to an action of ejectment brought by the successor of the purchaser—that the application came too late, though the sale should have been vacated had the application been made immediately on. the return by the sheriff, and perhaps in case it had been made within the time allowed for redemption.</p> <p>Id.—Notice.—In case of such a sale, a knowledge of the judgment, execution, and advertisement, is sufficient to put the judgment debtor on his inquiry, and is in effect equivalent to a knowledge of the sale.</p>

<p>Applícatiox for writ of mandamus to the Assessor of the City of Stockton.</p> <p>The facts are stated in the opinion. .</p>

<p>Certiorari.—The writ of certiorari lies only to review the action of an inferior tribunal, board, or officer, exercising judicial functions. It does not lie to review the action of any tribunal, board, or officer, in the exercise of legislative functions.</p> <p>Id . — Text Books — Definition — Judicial Act — Legislative.— The distinction between a judicial and a legislative act is, that the former determines what the law is, and what the rights of the parties are, with reference to transactions already had, and the latter prescribes what the law shall he in future cases arising under it. Held, accordingly, that the action of a Board of Education, in adopting a series of readers for the jiublic schools, in lieu of a series previously in use, was an exercise of legislative and not of judicial power, and cannot be reviewed on certiorari.</p> <p>Id.—Id.—Id.—Id.—Ministerial Act.—McKee, J., and Myrick, J., dissenting: Where a duty is imposed by law on an inferior tribunal, board; or officer, in the performance of which it has nb discretion, its action in the performance of that duty is ministerial. But where the law imposes a duty, in the performance of which a tribunal, hoard, or officer, can exercise judgment and discretion, and its action results in depriving a tax-payer of any of his rights of person or property, such action is in its nature guasi-judicial.</p>

<p>Tenants in Common—Estoppel—Ejectment.—Tenants in common, in possession as such, cannot assail the common title, or call its validity in question. Held, accordingly—in an action by one tenant in common against others, to be let into possession—that the defendants could not justify an ouster of the jilaintiff, by setting up an outstanding title, (though it might be the true title) purchased by them while in possession under the common title; though they might assert their new title in an appropriate action,after letting the plaintiff into possession.</p>

) and from an order refusing to vacate the order of dismissal, and a judgment for defendants, in the Twenty-third District Court, City and County of San Francisco. Thornton, J. The facts are stated in the opinion.

<p>Appeal from an order refusing the plaintiff a new trial, in the Third District Court, City and County of San Francisco. McKee, J.</p> <p>The facts are stated in the opinion.</p>

Daingerfield, J. The complaint alleged that the plaintiff, the defendant, and one Tiburcio Parrott, and two others, entered into a joint adventure for the purchase and sale of stocks—each to contribute equally; that up to the 27th day of March, 1874, there was advanced by the parties the aggregate sum of $217,085.41—of which each of the defendants had advanced about equal sums, except the defendant, who had advanced only $12,368.88 ; and that at the same date there was due…

<p>Appeal from a judgment for the plaintiff, and from an order denying a motion for a new trial, in the Third District Court, City and County of San Francisco.</p>

McKee, J. The former judgment, referred to in the opinion, was in the action of Meyer v. Tully, Durkin, ancl Pierson, the facts of which are stated in the report of the case in 46 Cal. page 70. After the filing of the remittitur, the case was tried on the merits, and resulted in a judgment in favor of the plaintiff.

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Geminad Law.—Indictment.—A ruling of the Court below, refusing to set aside the indictment, approved—the evidence being conflicting.</p> <p>Id.—Juby.—The action of the Court in overruling a challenge to the panel, upon the grounds stated in the opinion, also approved.</p> <p>Id.—Jübob.—Upon a challenge of the District Attorney to a juror, the latter said, on his examination, that he would not convict on circumstantial evidence. Held, that the challenge was properly sustained.</p> <p>Id.—Instbuotions.—Evidence—Where independent facts and circumstances are relied upon to identify the accused as the person who committed the crime charged, each material independent fact or circumstance necessary to complete the chain or series of independent facts tending to establish a presumplitm of guilt, should be established to the same degree of certainty as the main fact. Held, accordingly, that such an instruction asked by defendant Was correct; but—the Court having already give an equivalent instruction—held, that it was not necessary to state the law more than once, and that it was therefore not error to refuse it.</p>

<p>Prohibition—Judicial Proceedings.—Upon an application for a writ of prohibition to the Board of Election Commissioners of San Erancisco, to arrest their proceedings in ordering an election for fifteen freeholders, to prepare and propose a charter to be submitted to the voters of the city and county, as provided in § 18 of art. 11 of the Constitution: Held, that their action was not judicial, and therefore the writ would not lie.</p>

<p>Place of Trial.—Practice.—To entitle a defendant, sued in the wrong county, to a change of place of trial, demand in writing must be made, as required by the Code of Civil Procedure, § 396. Notice of a motion to change the place of trial is not such a demand.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J.</p> <p>The facts are stated in the opinion.</p>

<p>Writ of habeas corpus.</p> <p>The facts are stated in the opinion.</p>

Wheeler, J. Judgment was entered December 28tli, 1877. A statement on motion for new trial was settled and filed January 11th, 1878. An order denying a new trial was made May 3rd, 1878. Notice of appeal from this order and from the judgment was filed May 8th, 1878. A bill of exceptions was settled and signed by the Judge September 13th, 1878.

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Insurance — Evidence — Res Gest/e. — An insurance was effected by the plaintiff with the defendant, through the medium of T., an insurance solicitor—the plaintiff, and the defendant’s agent, S., who issued the policy, not meeting in the transaction. Held, in an action upon the policy, that conversations of tlie. plaintiff with T., occurring in the course of the transaction, were admissible in evidence, not only because they were parts of the res gestee, but also because there was other evidence in the case, from which it might be inferred that T. had given to S. the information derived from those conversations.</p> <p>Id.—Agency—Clause of Forfeiture.—The policy sued upon contained the provision, “ that if any other insurance had been or shall hereafter be made upon the said property, and not consented to by this company, in writing hereon, * * * this policy shall be null and void.” At the time of the insurance, there were other insurances upon the property, which were not noted upon the policy; but S., the defendant's agent, knew of these insurances. Held, that the knowledge of S. was the knowledge of the company, and that the policy was valid.</p> <p>Id. — Estoppel in pais. — S., the defendant’s agent, joined with the other companies in adjusting the loss, and upon the adjustment promised to pay his companies’ proportion ; and, thereupon, the plaintiff settled with the other companies upon the basis of the adjustment. Held, that the defendant was estopped from denying its liability.</p> <p>Id.—Rescission.—After the adjustment, S. paid back to the plaintiff the unearned part of the premium, but retained the portion thereof corresponding with the period from the issuance of the policy to the date of the loss. Held, that to avoid the policy on the ground of deception, it would have been necessary to return the whole premium.</p>

<p>Street Improvement—Evidence—Burden of Proof—Presumption.—In an action upon a street assessment, it appeared that, ten days before the order of the Board of Supervisors directing the clerk to advertise for bids, writ- , ten objections were filed by the owners of more than one-half in frontage of the lots fronting on the improvement. Held, that under the 1st section of the Act of 1863—relating to street improvements in San Erancisco—such written objections displaced the primaj’acie proof of regularity made by the warrant, assessment, and diagram, and threw upon the jffaintiff the burden of showing that the bar effected by the objections had been removed.</p>

Morrison, C. J. The complaint, in effect, alleged that the pueblo of San Francisco on the 22nd day of September, 1848—by its alcalde, Loavenworth —made a grant to one Harris, of a lot 100-varas square, known as Lot Ho. 11 of the Laguna Survey, in the present City and County of San Francisco, and that the title of Hands had vested in the plaintiff; that in 1856, the City and County of San Francisco made an order by which it adopted a plan or map establishing streets in that…

<p>Appeal from an order for the issue of a writ of assistance, in the Fifteenth District Court, City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Partnership.—A mere joint ownership in personal property does not constitute a partnership; nor was a partnership created hy an agreement to divide the income of a business, carried on by a third party with the joint property of the plaintiff and defendant, and paid to the latter for the joint use of himself and the plaintiff.</p> <p>Variance.— A variance between the allegations of the complaint and the evidence, stated in the opinion, and held to be immaterial.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in, the Fourth District Court, City and County of San Francisco. Moeeisojst, J.</p> <p>' The facts are stated in the opinion.</p>

<p>Appeal from an order granting a now trial, in the Fifteenth District Court, City and County of San Francisco. Dwi-NELLE, J.</p> <p>The facts arc stated in the opinion.</p>

<p>Partnership.—Hillegass, (defendant’s intestate) at Philadelphia, in 1849 —being about to start for California—entered into a written contract with the plaintiffs, then his partners, under which they were to have a certain proportion of the proceeds of his mining and other business, af ter first deducting $1,500 advanced by the firm; Held, that the contract created a partnership; there being both a community of interest in the original capital and in the profit and loss.</p> <p>Id.—Stale Demands—Pleading—Demurrer.—H. came to California, and died here in 1876, leaving property of large value. In an action for an accounting brought against his administrator—the complaint alleging that the partnership was never dissolved until the deatii of H., but also alleging, and attempting to excuse the fací., that no demand had ever been made for an accounting in tile life-time of H: Held, upon demurrer to the complaint— without deciding whether in any case an objection that the demand is stale can he taken hy general demurrer—that in this case, in view of the allegation that the partnership was never dissolved, the objection did not lie ; although the other facts stated might tend strongly to show, or prima facie might even show, that in point of fact the partnership had been dissolved long before the date alleged.</p> <p>Pleading—Probative and Ultimate Facts.—Even where a statement of evidentiary facts, if admitted to be true, would establish prima facie an ultimate or pleadable fact, they cannot be substituted in a pleading for an allegation of the fact to be put in issue.</p>

<p>Practice—Reserving Ruling — Irregularity — Immaterial Error. — All questions relating to tlio sufficiency of the pleadings should be passed upon when presented, and before proceeding further with the trial. Accordingly, where the Court below, upon the application of the contestant of a will— made at the close of the testimony—to amend his petition, reserved its ruling, but stated that, in case the will was set aside, it would allow the amendment, and otherwise not: Held,- that this was an irregularity; but held also, as evidence had been admitted as to all the facts alleged in the amended petition, that the contestant was not injured, and that the ruling was not ground for reversal.</p> <p>Evidence—Hearsay—Ruling.—Upon the trial of the contest of a will, a witness testified to some remarks made a few days before the execution of the will, by the proponent, (who was also the principal beneficiary) as to the condition of the testator; and the Court said, “That is not evidence. Declarations of the proponent before the date of the will * * * are not evidence in this case”; to which the contestant excepted, but neither side moved to strike out the evidence. Held, 1st, that this did not amount to a ruling to exclude the testimony; and 2ndly, that the evidence was objectionable as hearsay.</p> <p>Id.—Expert.—Upon an issue as to the mental condition of a testator, the opinions of persons acquainted with Ms business and social habits, held to be admissible in evidence.</p> <p>Will—Undue Influence—Confidential Relations.—The principal beneficiary under a will was the partner of the testator, at the time of the testator’s death and for many years previous. Held, that this did not per se raise a presumption of undue influence.</p> <p>Id.—Id.—Trust.—The testator, soon after the execution of the will, told the proponent that he would some day tell him what he wished to have him do with some of his property; and before his death, directed him to pay certain persons and charitable institutions certain sums. Held, that—while, in a proper case, the Courts would compel a devisee to carry out such directions—the fact of such directions having been given and assented to, was ’ not evidence that the execution of the will was procured by undue influence.</p>

<p>Appeal—Undertaking.—Where a judgment Is reversed hy the State Supreme Court, hut afterward finally affirmed, in pursuance of judgment of reversal of the United States Supreme Court, the sureties on the undertaking on appeal are liable.</p> <p>Id.—Id.—Mesne Profits.—An action upon an undertaking on appeal given, in such a case, for the value of the use and occupation of the land, is not an action of trespass for mesne profits, but is an action upon a contract against the original obligors, upon which, by its terms, the liability of the defendants has accrued; and the action may therefore be brought, before the plaintiff regains the possession of the land.</p>

<p>Notary's Certificate.—Query: Whether in an action to foreclose a mortgage against a married woman—under a simple denial of the execution oí the mortgage—the truth of the notary’s certificate can be attacked?</p> <p>Married AVoman—Mortgage — Acknowledgment—Surplusage. — The law as it was before the Codes, did not require the notary, in taking the acknowledgment of a married woman, himself to make her acquainted with the contents of the instrument., but only that she should be made acquainted with them; and the words “ by me” in a certificate under that law are surplusage.</p> <p>Evidence—Presumption—Conflict of Evidence.—A prima facia presumption of law on the one hand, and the opposing testimony of two or more witnesses on the other, may constitute such a conflict of evidence, that a finding in favor of the presumption will not be disturbed.</p>

<p>Street Assessment—Jurisdiction — Appeal—San Francisco.—In an action upon a street assessment in San Francisco, (under the Act of April 1st, 1872) the defense was, that the Superintendent of Streets entered into the contract before the expiration of five days from the first publication of the award—the period within which, under the sixth section of the act, the property owners might elect to do the work. Held, that the premature action of the Superintendent was one that affected his power or jurisdiction, and was void; and that it did not become valid by a failure to appeal to the Board of Supervisors.</p> <p>Id.—Pleading—Evidence — Constitutional Law. — Held, further, that the provision of the statute, making the assessment, warrant, etc., prima facie evidence of the plaintiff’s right to recover, is a rule of eoidence, and not of pleading; and it was therefore competent for the defendants to disprove the presumption thus arising, by proving that the contract was prematurely made: that the defense is not an affirmatioe defense, and it is therefore unnecessary to decide whether the Legislature can deprive a defendant of other defenses than those specified in the statute.</p>

<p>Motion to reinstate an appeal dismissed by the late Supreme Court.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment in favor of plaintiff, and an order denying a new trial, in the District Court of the Twelfth Judicial District, in and for the City and County of San Francisco. Daingereield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Motion to stay execution pending an appeal from a judgment for the plaintiff, in the Fifteenth District Court, City and County of San Francisco.</p>

<p>Homestead — Deed — Power of Attorney;— Under the Homestead Act of 1862, the alienation oE the homestead could only be by the personal act of the husband and wife; and a deed for that purpose could not be executed by attorney.</p> <p>Id.—D>. — Id. — Afteb-acquiked Title — Sep abate Property — Construction.—G., being the owner of land in San Francisco, and residing thereon with his wife, signed a declaration of homestead, and on the same day executed a power of attorney to D. to sell andfconvey “all the real estate” of G. in San Francisco, and both documents were acknowledged and recorded llio same day. Afterward, D., as the attorney of G., executed a deed of conveyance of the land to S.—the wife of G. joining in the deed. In an action of ejectment, brought by G., after the death of his wife, against the grantees of S., to recover the land, held, that the deed was void, and the plaintiff entitled to recover. Held, also, that the homestead was no part of the separate real property of the husband, and, therefore, the power of attorney did not authorize the attorney to sell and convey it.</p>

<p>Appeal from a judgment for the plaintiff, in the Fifteenth District Court, in and for the City and County of San Francisco. Dwinelle, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order refusing to revoke the probate of a will, in the Probate Court of Alameda County, hi ye, J.</p> <p>The facts are stated in the opinion.</p>

<p>Motion to dismiss appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal—Dismissal op Appeal—Bap.—The dismissal of an appeal for failure to file the requisite papers—unless expressly made without prejudice— is a har to another appeal.</p>

<p>Appeal from a judgment for defendants, in the Twelfth District Court, City and County of San Francisco. Daingereield, X</p> <p>The facts are stated in the opinion.</p>

<p>Practice—Parties.—In an action to enforce a street assessment, judgment was entered against all tlie defendants except one. who had not been served with process, and who was alleged in the complaint to he interested. Held, that the judgment was erroneous; 1st, because the case had not, been disposed of as to tlie defendant not served; and 2ndly, because, in such a case as this, the statute gives no authority for a decree enforcing the lien, in the absence of any of the parties interested.</p>

<p>Evidence—Perjurt—Crjminai. Law.—Upon the trial of an indictment for perjury, alleged to have been committed by the defendant iny testifying upon the examination of a party charged with felony, the complaint against the .latter—sworn to by the defendant—is admissible for the purpose of showing the pendency of the case in which the perjury was alleged to have been committed.</p> <p>Id.—Reporter's Hotes—Interpreter.— By an act of the Legislature, the reporter’s notes, taken before a committing magistrate upon a preliminary examination for felony, are made prima facie evidence of the testimony given; but held, that such notes were inadmissible where the testimony was taken through an interpreter.</p>

<p>Appeal from an order dissolving an injunction, in the Fourth District Court, City and County of San Francisco. Mobbison, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order dissolving an injunction, in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.</p> <p>The action was to enjoin the construction of a street railroad " on California Street, in front of the plaintiff’s property, by the North Beach and Mission Eailroad Company. The complaint alleged in effect that the ordinance granting the franchise for the railroad was void, and that special damage would thereby accrue to the plaintiff’s property.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from a judgment for defendant, in the Fifteenth District Court, County of Contra Costa.</p>

<p>Appeal from an order refusing to direct the payment of a legacy, in the Probate Court of the City and County of San Francisco. Myeick, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Transcript—Statement—New Trial.—Upon an appeal from an order denying a new trial, errors appearing on the judgment roll cannot be reviewed; but only such as appear in a bill of exceptions or statement. Held, accordingly, upon such an appeal—where it had been ordered that the statement appearing in the transcript be disregarded on account of the omission of documents properly belonging to it—that there remained no record upon which appellant was entitled to be heard, and no errors which this Court'could review.</p> <p>Referee—Findings—Judgment.—A referee appointed to try and determine a case is, quoad the trial of the case, in the place of the Court, and his findings and report are the equivalent of the findings and decision of the Court itself.</p>

<p>Appeal from an order granting defendants a new trial, in the Fourth District Court, City and County of San Francisco, Morrison, J.</p> <p>The facts are stated in the opinion, and in the report of the case on the former appeal. (44 Cal. 505.)</p>

Payne, J. Mary Cunningham, wife of Patrick Cunningham, died in July, 1876, leaving a will in the custody of ¡Rev. Hugh P. Gallagher, by the terms of which the bulk of the estate was left to relations of the deceased living in the Eastern States. H. P. Gallagher, who was named in the will as executor, presented the will for probate. The husband of the deceased opposed the probate of the will, and offered for probate a document bearing date December 14th, 1870.

<p>Bridge Assessment—Findings — Dedication.—In an action to enforce an assessment for a bridge—constructed under an act of the Legislature, by the City of Oakland—the answer alleged that the bridge in part rested upon and passed over private property; and the Court found that a portion of the land upon which the bridge rested was claimed as private property by the defendant and others, and by a corporation; and further found, in effect, that there had been a grant or dedication of the right of way by the claimants, other than the corporation, and that the.President and other members of the corporation, individually, but not in their corporate capacity, had given their consent to the use of the land for the bridge, and thus dedicated it to the use of the same. Held, that, if the bridge rested in part on private land, the assessment was void, and the findings defective in not finding upon this issue; and that the probative facts found did not establish a dedication by the corporation; and held, farther, that, the averment of the answer having been treated as sufficient in the Court below, and no special demurrer having been interposed, it was too late to object to its sufficiency.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a motion for a new trial, in the Third District Court, City and County of San Francisco. McKee, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Third District Court, City and County of San Francisco. McKee, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the defendant, in the Fourth District Court, City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the plaintiff, and an order denying a motion for a new trial, in the Tenth District Court, County of Colusa. Keyseb, J.</p> <p>The facts are stated in the opinion.</p>

<p>Assignment—Action.—An action cannot he maintained hy the assignee of . part of an entire demand without the express agreement or distinct ratification of the judgment debtor.</p> <p>Satisfaction of Judgment—Motion.—If satisfaction of a judgment is entered, without notice to the judgment creditor, the latter has his remedy hy motion to set aside the order and entry of satisfaction.</p>

<p>Appeal from an order directing executions to issue upon judgments in favor of the City and County of San Francisco against certain lots of real estate, in the County Court of San Francisco. Nye, J.</p> <p>The case was decided and the opinion filed by the late Supreme Court, December 31st,'1879. A petition for rehearing was afterward filed, and denied by the present Court.</p> <p>The various provisions of the act—otherwise than as stated by the Court—seem to have been complied with; and, judgments having been entered against about 4,000 pieces of real estate, and the Board of Supervisors notified, contracts were let for the work, and the work fully completed.</p> <p>Afterward a petition was filed for the issue pf executions upon the judgments remaining unpaid, and demurrers to the petition having been overruled, the order was made.</p>

<p>Motion to dismiss appeal for failing to file transcript.</p>

<p>Motion to dismiss appeal for failing to file transcript.</p>

Wheeler, J. The questions in the case were: 1st, whether the land in controversy was included in a certain deed of conveyance from one Bernal, under which the plaintiff deraigned title; 2nd, if included, whether her title was divested by a judgment in a partition suit, to which she was a party; and 3rd, whether the land in controversy was included in a deed executed by her to her father prior to the commencement of the action.

<p>Appeal from a judgment for the defendant,, and from an order denying a new trial, in the Fourth District Court, City and County of San Francisco. Morrison, J.:</p> <p>The facts are stated in the opinion.</p>

<p>Nonsuit—Hew Trial.</p>

<p>Appeal from a judgment for defendant, in the Third District Court, City and County of San Francisco. McKee, J.</p>

<p>Appeal—Damages.</p>

<p>Hew Tbial—Statement—Appeal—Tbansobipt—Taxation op Costs.</p>

<p>Appeal—Judgment.</p>

<p>Appeal from a judgment for the plaintiff, in the Third District Court, City and County of San Francisco. McKee, J.</p> <p>The action is for a divorce, and all the allegations of the complaint are denied in the answer. The appeal is on the judgment roll, and the transcript contains no bill of exceptions.</p> <p>The following document appears in the transcript:</p> <p>“Findihgs ahd Decisioh oe the Court.—On the 13th day of December, 1877, the Court duly made and rendered the following findings, judgment, and decree: ' [Title of Court and Cause.] This cause having been brought on to be heard, * * and upon the proofs taken in said action, and upon the report of R. A. Redman, Court Commissioner of this Court and Referee in this cause, * * * and the Court Commissioner and Referee having taken the testimony by written questions and answers, and reported the same to the Court, * * * from which it appears that all the material allegations of the complaint herein are sustained by testimony free from all legal exceptions aá to its competency, admissibility, and sufficiency ; that said plaintiff and defendant were residents of this Alameda County, State of California, at the time of commencing the suit, and was an actual resident of this State for a period of six months immediately prior thereto: on motion of W. Van Voorhies, of counsel for the plaintiff, it is ordered, adjudged and decreed * * * that the marriage between the said plaintiff and the defendant be dissolved, and the same is herely dissolved accordingly, etc. * -* » Judged signature.’ ”</p> <p>No other findings appear in the transcript.</p>

<p>Appeal from a judgment for the plaintiff,, in the County Court of Tulare County.</p> <p>The facts are stated in the opinion.</p>

<p>Statute of Limitations—Bankruptcy.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a motion for a new trial, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J.</p> <p>The statement on motion for new trial was filed April 25th, 1875; and the order denying the motion was made September 25th, 1878; and the appeal taken November 23rd, 1878.</p> <p>On the 24th of January, 1879, an order was made in the lower Court allowing specifications to be filed nunc pro tunc, as of the date of the settlement of the statement (April 5th, 1878).</p>

<p>Dismissal of Appeal—Costs—Abatement.</p>

<p>Practice—Judgment against Codefendant—Cboss-Complaint.</p>

Appeal by the defendant Cronan from an order denying him a new trial, in the Third District Court, County of Alameda. McKee, J. The facts are stated in the opinion.

<p>Injunction—Nuisance.</p>

<p>Mechanics’ Lien — Building Contract —• Breach oe Contract — Extra Work.</p>

<p>Assessment—Constitutional Law—Taxation—Capital.</p>

<p>Dismissal of Appeal—Rules of Court.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a motion for a new trial, in the Third District Court, County of Alameda.</p> <p>The argument of counsel, and a statement of the case will be found in the report of the case in 52 Cal. 590.</p>

<p>Appeal from a judgment for defendant, in the First District Court, County of Santa Barbara. Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal by the defendant Sarah A. Olmstead, from a judgment for the plaintiff, in the First District Court, County of Santa Barbara. Fawcett, J.</p> <p>The facts are stated in the opinion.</p>

Fawcett, J. The mortgage referred to in the opinion, together with the acknowledgment, is attached to the complaint; and the latter does not contain the clause, “ and that she does not wish to retract such execution.” The execution of the mortgage is not denied in the answer. The other facts are stated in the opinion.

<p>Bindings—Conflict of Evidence.—"Where there is a conflict of testimony, this Court cannot interfere with the finding of the Court below.</p> <p>Id.—Pleading—Mechanics’ Lien.—In an action to foreclose a mechanic’s lien, the Court found that the whole of defendant’s laud was required for the convenient use and occupation of the structure; but there was no allegation in the complaint upon the point. Held, that the finding was not within the issues, and therefore could not sustain the judgment.</p>

<p>Fraud as to Creditors—Fraudulent Transfer—Intent—Consideration—Preference of Creditor.—In an action involving the validity, as to creditors, of a transfer of personal property by a debtor, the Court instructed the jury in effect that, if they found from the evidence that there was no good or valuable consideration, the transfer was void as to creditors; and also instructed them that, where the consideration of a transfer is a debt, the property must bear a reasonable proportion to the preferred debt. Held, that both instructions were erroneous—being in conflict with § 3442 of the Civil Code.</p>

<p>State Lands—Application to Purchase — Contest. — An application to purchase. State lands, made in accordance with law, gives the applicant, as against the State—so long as the statute remains in íorco—a privilege to purchase the land applied for; and as against the officers of the State, and subsequent applicants, it gives him a right to purchase, which can only be lost by his own failure to pursue the subsequent steps prescribed by the statute, and of which he cannot be deprived by the malfeasance or misfeasance of any of the officers. Accordingly, in an action upon a reference by the Surveyor-General—under § 3414 of the Political Code—of a contest between applicants to purchase State lands, where it appeared that the application of the defendant was regular, and i>rior to that of the plaintiff, but that the Surveyor-General had approved the application, and issued the certificate of purchase before the expiration of the sixty days required by § 3498 of the Political Code: Held—admitting that the approval and certificate were void—that the validity of defendant’s application was not affected thereby.</p> <p>It>.—Id.—Id.—Constitutional Law—Constbuction—Repeal of Statute.— The original judgment remanded the cause, with instructions to the lower Court to enter judgment for the defendant. Upon the application for rehearing, (cited infra) the judgment was modified so as to direct a new trial.</p>

<p>Replevin—Blearing—Complaint—Demurrer—Oyer.—Replevin for a crop of wheat cut and taken by defendants on land in possession of the plaintiff— the complaint, besides the proper allegations, alleging that the plaintiff was in possession of said land and crop, and entitled thereto by virtue of certain specified instruments of record in the Recorder’s office of Kern County. Held, that the last allegation was mere surplusage, and the complaint therefore not open to demurrer on account of the omission of the instruments. And held, further, that, had the defendants demanded oyer of the instruments, (which the record failed to show) they would not have been entitled to it, because the plaintiff did not count upon the instruments.</p>

<p>Appeal from an order recalling, and from an order staying, execution, in the Sixteenth District Court, County of Kern. Eeed, J.</p> <p>The facts are stated in the opinion.</p>

Reed, J. The original complaint alleged the detention of the goods by the defendant, and prayed for the recovery of possession. The amended complaint omitted the allegation as to the detention, and the prayer for the recovery of possession, and demanded judgment for their value, and damages. It appeared on the trial that the defendant had sold the goods and parted with the possession before the bringing of the action.

<p>Mechanic's Lien—Claim—Mistake.—In a claim of lien by a material-man it was stated, that bricks of a specified value, (quantity or number not stated) were furnished for the construction of defendants’ building, between February 20th and April 14th, 1877. In an action to foreclose the lien, the complaint alleged, and the Court found, that the plaintiff commenced to deliver the bricks on the sixth day of February, and that the statement of February 20th as the date was a mistake; and that, between the former date and April 14th, bricks were delivered by the plaintiff to the quantity and value alleged in the complaint. Held, that the plaintiff was entitled to recover only for the bricks furnished between the dates stated in the claim; and that, as the quantity furnished between those dates did not appear from the finding, a new trial, was necessary.</p> <p>Id.—Id.—Id.—A claim of lien is not an instrument in the nature of a written contract, to be reformed by a Court of Equity in appropriate cases; but it is a prerequisite to the maintenance of a proceeding which gives a plaintiff an extraordinary,remedy, to secure the benefit of which he must comply with the terms of the statute.</p> <p>Id.—Application of Payments.—Pending the delivery of the bricks, and within a few days thereafter, the original contractor paid money to the plaintiff, without specially directing the application of the payments; and the plaintiff applied a portion of the money to the payment of a debt, due him from the contractor previous to the making of the contract. Held— by McKee, J., concurring—that he had no right to do so.</p>

<p>Appeal from a judgment for the plaintiff, in the Sixteenth District Court, County of Kern. Eeed, J.</p> <p>The facts are stated in the opinion.</p>