Volume 55 — California Reports

<p>Appeal from an order changing the place of trial, in the Superior Court of Los Angeles County. Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the plaintiff, in the Eighteenth District Court, County of San Diego. McNealy, J.</p> <p>The facts are stated in the opinion.</p>

Sepulveda, J. It appeared, from the evidence on both sides, that after the termination of the first contract, referred to in the opinion, the increase of the cattle were not divided, but all the cattle remained together until the termination of the second contract; that upon sales of cattle, pending the contract, and upon the final division of the cattle at its termination, the plaintiff claimed to be entitled to one-half of all the increase, including the increase of the…

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.</p> <p>The^ facts are stated in the opinion.</p>

Appeal by the defendant Pico, from a judgment for the plaintiff, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J. The action was brought upon a promissory note made by the defendants Serrano, and Bilderrain, and Pio Pico. All the dofendants were served and their defaults duly entered, and judgment by default was entered by the clerk against the defendant Pico.

) and from an order denying the defendants a new trial in the Superior Court of the same county.

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

<p>Statement on Motion eob New Tbial—Engbossment.—The statement on motion for new trial, and amendments, as allowed hy the Court, must be engrossed into one, and authenticated by the signature of the Judge, in order to be regarded as the statement required by law, and to be considered on appeal. Accordingly, the Court, upon the ground that the statement was not engrossed, affirms the order of the Court below.</p> <p>Pleading—Answeb—Ebaud.—The answer of defendant, (as set forth below) held to be sufficient.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

Fawcett, J. The complaint contains two counts. The first count alleges that the plaintiff is seized in fee, and entitled to the possession of the land in controversy; that the defendant claims some estate or interest in said premises adverse to the plaintiff; 'that the claim of the defendant is without right, and that he has not any estate, right, title, or interest whatever in the said premises ; and that he heretofore, on or about the 28th day of September, 1877,…

<p>Appeal from a judgment for the defendants, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

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

McNealy, J. After the oral argument, and before the decision, a copy of the judgment as entered (subsequently to the appeal) was filed in the case. The other facts are stated in the opinion.

Beed, J. The judgment in the case of L. Hirshfeld & Co. v. Wm. Glendenning, (referred to in the opinion) was entered (as alleged in the answer) on May 21st, 1878, for the sum of $854.65, and. costs amounting to $117.70. The property is described in the complaint as follows: “ 2,638 sheep with an ear mark, a hole in each ear,” and was delivered to the plaintiff under a writ of replcvin.

Reed, J. The complaint alleges the execution of the mortgage, and a copy is attached and made part of the complaint. It also prays for $>800 as attorney’s fee: otherwise there is no allusion to the subject.

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.</p> <p>The facts are stated in the decision.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Seventeenth District Court,. County of Los Angeles. Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

<p>Trustee — Fiduciary — Administrator’s Sale — Constructive Fraud. — A judge, wlio orders a sale, and has the power to confirm or set it aside, comes within the reason of the rule that trustees, strictly so called, and other fiduciaries, cannot make a valid purchase of any part of the estate, in respect to which they have duties to perform. .</p> <p>Id.—Id.—Id.—Id.—Evidence—Declarations.— H. purchased land at an administrator’s sale, and, on the day he received his deed, conveyed an undivided half of the land to G., the Probate Judge, who ordered and confirmed the sale, the latter paying therefor one-lialf of the purchase-money paid by II. In an action brought by the heirs of the intestate against H. and C.— the complaint alleging that the sale to C. was made in pursuance of an agreement, or understanding, between him and II., entered into prior to the administrator’s sale—held, that the declarations of H., made prior t.o the sale, but in the absence of C., that he was about to purchase for the benefit of himself and 0., were admissible in evidence.</p> <p>Id.—Id.—Id.—Id.—Finding.—In the case stated the Court found that H. conveyed to C. upon a contract and agreement, made on the day of the sale, and not in pursuance of any fraudulent contract made prior thereto. Held, that the finding is defective, as it does not negative the allegation that there was such a prior contract, but simply expresses the opinion of the Court that it was not fraudulent.</p>

<p>Criminal Law—Practice—Bill of Exceptions. — The case was tried hy one judge, and the motion for new trial heard hy his successor in office. lldd, on appeal from a judgment of conviction and an order denying a new trial, that flic bill was properly settled and authenticated.</p> <p>Construction of Statute.—Where a statute is ambiguous, such a construction will be given to it as not to deprive a party of a substantial right. Evidence—Criminal Law—Dying Declaration.—It is essential to the admissibility of a dying declaration, that it appear that it was made under a sense of impending death; and where it appears that the deceased had any expectation or hope of recovery, however slight it may have been, and though death actually ensued within an hour afterward, the declaration is not admissible.</p>

<p>Office—Vaoanov - - Supebvisob.—Under § 996 Political Code, an office becomes vacant, ipso facto, upon the incumbent ceasing to be an inhabitant of the district (if the office be local) for which he was elected, or within which the duties of the office are required tobe discharged; and a successor may be appointed without a previous adjudication that the office is vacant. So held, in an action for usurpation of office brought by the People, upon the relation of one who had been duly appointed and qualified as Supervisor of a certain district, against a subsequent appointee of the County Judge to the same office.</p> <p>Id.—Evidf.nce—Ebbob.—Held further, in the same action, that it was error to admit in evidence a petition of numerous persons for the appointment of the defendant, wherein it was stated that the relator had ceased to be an inhabitant of the State, and the judgment reversed on that account.'</p>

McNealy, J. Action for the foreclosure of a mortgage for the sum of $3,000, executed May 21st, 1874, by Henry M. Willis to H. L. Drew, and by the latter assigned to the plaintiff.

<p>Estates of Deceased Persons—Administrator—Account.—The appellant was appointed administrator of the deceased, but the order was afterward reversed on appeal. Held, that he was not entitled, upon accounting, to an allowance for attorney’s fees and costs expended by him in the contest.</p> <p>Id. — Id.—Id.—Upon a contest for the administration, the estate certainly should not bear the expense of the losing party ; and the question stated but not decided, whether it should bear the expense of tiie winning party.</p> <p>Id. — Id.—Id. — Commissions.—There is but one aggregate sum to be allowed as commissions for administration ; and in case of a cliánge of administration, the Court has no basis upon which to make an apportionment between the administrators, until the close of the estate. The outgoing administrator is therefore entitled upon the settlement of his account only, to commis'sions for the xiortionof the estate fully administered by him, and for his proportion of the balance of the commission must wait until the final settlement of the estate.</p>

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

<p>IGTndings.—Where the findings are contradictory upon a material point, the judgment cannot he sustained. So held, where both the complaint and answer alleged possession in the defendant, and the Court found that all the allegations of the latter were true, and all the allegations of the former were untrue.</p> <p>Gift—Part Performance—Specific Performance—Pleading—Ejectment— Equitable Defense.—A parole gift of land, followed hy possession and improvement of the land hy the donee, is so far executed as to entitle the donee to a specific performance; hut held, in an action of ejectment, hy the grantee of the donor, that the defense must he specially pleaded.</p> <p>Statute of Limitations—Patent—Legal Title—State Lands.—In a suit for the recovery of land, after the issuance of the patent, the Statute of Limitations cannot he held to have commenced running prior to the date of the patent.</p>

<p>Cobpobation.—In an action by a de facto corporation, claiming in good faitb to bo a corporation under the laws of this State, and doing business as such, held, that the question of the due incorporation oE the association could not be inquired into.</p> <p>Statute of Limitations—Gift—Equitable Title—Adverse Possession.— A gift may be made of real estate, if possession is given and taken under the gift, and acts done by the donee to carry out the purpose of the gift. In such case the donee acquires the equitable title, and is entitled to a specific performance; or he may, by adverse possession, acquire the legal title.</p> <p>Id.—Successive Possession—Privy.—Several parties signed an agreement to form a joint-stock company to build a public hall and Odd Fellows’ Lodge, in the town of Bakersfield, and, a parole gift of land having been made to . them for the purpose, they took possession thereof, and commenced building. Afterward, a corporation was formed, in pursuance of the agreement, to which the possession was transferred. In an action of ejectment, by a corporation, in which it appeared that there had been a continuous adverse possession by the parties signing the written agreement, and the corporation, for more than five years before the ouster, held, that the plaintiff was entitled to recover.</p>

Sepulveda, J. Action to determine a contest as to the rights of the parties to purchase a tract of State land, referred to the District Court by the Register of the Land Office. The application of the defendant was made March 14th, 1868, and the certificate of purchase issued July 24th, 1873. The other facts are stated in the opinion.

<p>Voduntaby Payment—Subety—Contbibdtion.—No man can be made a debtor for money paid to bis use, unless it was done at his request, or unless the party paying the money was bound as surety, or otherwise, to pay it for him.</p> <p>Id.—Id.—Id.— Constbuction of Contbact.— The plaintiffs, and defendant, and others—who were sureties on the bond of a Public Administrator-promised and agreed to pay to one E.—to whom their principal had become liable, as his successor in the administration of an estate—the amount of the liability; promising and agreeing each with each and all the others, that they would so pay in certain definite proportions. The plaintiffs, having paid the whole amount, brought their action against the defendant to recover the amount that he should have paid. Held, that under the contract alleged there was no obligation resting upon the plaintiffs to pay the defendant’s part of the amount, and therefore their payment was voluntary, and gave rise to no cause of action against the defendant.</p>

Bouton, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J. The case was tried before a jury, who rendered a verdict on all the issues in favor of the plaintiff. The Court set aside the verdict, and found as stated in the opinion. The other facts are stated in the opinion.

<p>Appeal from a judgment for the defendant, and an order denying a new trial, in the Eighteenth District Court, County of San Bernardino. McNealy, J.</p> <p>The facts are stated in the opinion.</p>

Appeal, by defendant Arpin, from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J. Action for the foreclosure of a mortgage executed by the defendant Jacques Levy to the plaintiff, July 11th, 1876 (duly recorded).

<p>Patent —Vendob and Vendee—Contbact fob Bade of Land —Specific Pebfobmance—Vendob’s Lien—The Booth Bile.—In an action by a vend- or of land for a specific performance of tlio contract, and the enforcement of Ms lien: Held, that the decision of the cause must turn upon the question whether the plaintiff, when he tendered a conveyance of the land to the defendant, had a title thereto such as the parties contemplated at the time they entered into their contract; and held further—the question turning upon the validity of the jiatent discussed in the opinion, and under which the plaintiff deraigned title—that the patent was valid.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

<p>Pbohissoby Bote—Consideration — Barbatby.—Information of an outstanding title to land, in the adverse possession of another, constitutes a good consideration for a promissory note, and the sale of such information is not barratrous.</p> <p>Mon-negotiable Contract — Assignment. — A non-negotiable contract, indorsed in blank, passes by delivery, and the holder may, after the bringing suit, fill up the indorsement with a special assignment to himself.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. • Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

Sepulveda, J. The complaint alleges that the defendants claim an interest in the land in controversy, by virtue of a tax deed based upon the levy for the year 1873-4, and a certificate of purchase based upon the levy of 1875-6. The defendants admit this allegation, and (excepting certain deeds from the heirs of the original owner) claim no other title.

<p>Declaration of Homestead—Construction of Statute. — Under § 1263 Civil Code, a declaration must contain an estimate of the actual cash value. So held, with reference to a declaration of homestead that stated that the ' actual cash value was 15,000 and over.</p>

<p>Appeal from an order settling the final account of a guardian, in the Probate Court of Los Angeles County. Stephens, J.</p> <p>The facts arc stated in the opinion.</p>

<p>Unlawful Entry—Possession—Color of Eight.—Actual possession is prima facie evidence of title in the possessor, and is protected by the law agaiust lawless invasion without right or color of right. An entry upon such possession cannot be made in good faith, unless it is made upon some right, or color of right, or claim of legal right, to make tho entry; and such claim . of right must exist before the entry to constitute good faith.</p> <p>Id.—Id.—Id.—Instructions.—In an action for unlawful entry, (under § 1160 Code Civ. Proc.) it appeared that the defendants entered upon t ho mining claim of tho plaintiff, under the claim that the plaintiff’s location was void, and with the purpose of themselves locating it; and the Court instructed the jury that if the defendants entered peaceably and in good faith, under claim, or color of title, or in good faith believing themselves to be tho true owners, they were entitled to a verdict; but that a party cannot enter for the purpose of obtaining title or color of right, but must have it before he entered; and refused to instruct the jury, at tho instance of the defendant, that if tho defendants entered upon the mines peaceably and in good faith, believing that they were open to location, then the entry was not unlawful. Held, that there was no error.</p> <p>Id.—Evidence—General Belief.—Held farther, that the Court properly ruled out tho following question: “Do you know what the general belief was with reference to those mines; as to-whether they were abandoned or not ? ”</p>

Fawcett, J. The transcript, as originally filed, contains only the judgment roll. Afterward, on suggestion of diminution of the record, a printed eopy of the statement on motion for new trial was filed.

Sepulveda, J. The complaint alleges that on the 15th day of May, 1877, defendants, with force and arms, took from the possession of Ramon and Ysabel Hirigoyen, and drove away, certain property, to wit, 2,000 sheep, the property of said Ramon and Ysabel, of the value, etc.; that on the 29th day of May, 1877, the said Ramon and Ysabel, for value received, by an instrument in writing, sold to the plaintiff said sheep, and assigned to him all claims, demands, and rights of…

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.</p> <p>The facts are stated in the opinion.</p>

<p>Mechanic’s Lien—Notice—Coepobation.—Knowledge of a fact, concerning the business or affairs of a corporation, acquired by a director or other agent—unless acquired in tlie management and condnet of its business— does not constitute notice to the corporation. So held, in an action against a corporation and its tenant to foreclose a mechanic’s lien, for materials furnished in the construction of a building by the tenant on the leased X>remises—and alleged to have been furnished Avith the knowledge of the corporation—where it appeared that a director of the corporation, on ono occasion, was present during the construction of the building.</p> <p>Id.—Building— Stbuctdbe—Definition.— Held further — the property upon which a lien was claimed being “a danoing-hall, swings, and seats” — that, at least, neither the swings nor seats were buildings or structures, (within the intent and meaning of §§ 1183 and 1192 of the Code of Civil Procedure) for Avkieh the corporation would be chargeable even with notice.</p> <p>Id.—Vendob’s Lien—Judgment by Default.—The tenant defendant having suffered default, the Court adjudged that the plaintiff was entitled to a vendor’s Hen for the materials furnished, and that he should have the right to enter upon the premises and to remove and sell the same. Held, that the decision and judgment were outside the issues, and against law, and judgment directed to be entered in favor of the plaintiff for a lien upon such interest as the said defendant had in the land at the date of the accruing of the lien.</p>

McNealy, J. Actions against Hall and others, composing the firm of the San Gorgonio Pluming Co., to foreclose a mechanic’s lien on a flume. The defendants commenced the construction of the flume October 18th, 1876, and the plaintiffs performed labor thereon from October 19th, 1876, to July, 1877. On the 13th day of February, 1877, the San Gorgonio Pluming Co. was incorporated. The corporation answered, and judgment was rendered against it.

Sepulveda, J. The execution in the defendant’s action, referred to in the opinion, was addressed to D. W. Alexander, late Sheriff of Los Angeles County, and after reciting the levy of the attachment, the recovery of the judgment, and an order of the Court for the issue of the execution, commanded the said Alexander to sell all the right, title, and interest, which the judgment debtor had in and to the land in question at the date of the levy.

<p>Construction of Contract—Water Company—Sprinkling of Streets.— In a lease of the Los Angeles Water Works, hy the defendant to the plaintiff, it was provided that the plaintiff should not dispose of water for purposes of irrigation, but should only take from the river the water necessary for domestic purposes. The defendant took water from the plaintiff’s pipes for the purpose of sprinkling the streets of the city: but, while this was done, the plaintiff had on hand of the waters of Los Angeles River more than sufficient for supplying the inhabitants of -the city with water for domestic purposes. In an action by the plaintiff to recover from the defendant the value of the water taken, held, that the plaintiff was only entitled to receive pay for water furnished to the inhabitants of the city for domestic purposes, and that it had no right to the surplus.</p>

Sepulveda, J. The findings referred to in the opinion arc as follow: “ 3rd. That, the defendant Chisholm did, before the 1st day of September, 1877, furnish the materials, erect, furnish, and turn over to the plaintiff, the building provided for in said contract, ‘ Exhibit A,’ and did in every particular perform and discharge each and singular the obligations by him assumed in said contract. , “4th.

Blake, J. The material parts of the charge of the Court below (referred to in the opinion) were as follows: As a general rule, where there is consent there is no larceny, but to this rule there are exceptions.

<p>Legislative Grant — Construction—Timber — Definition.—By the Act of Congress of July 1st, 1862, entitled “ An Act to aid in the construction of a railroad, etc.,” the timber growing on the odd-numbered sections of public mineral land of the United States was granted to the Central Pacific Railroad Company of California; and under the term timber is included all trees and wood. Held, accordingly, that a subsequent patentee of such lands took no title to the timber.</p>

<p>Contempt—Enforcement of Decree of Distribution—Estates of Deceased Persons.—Disobedience of a decree of distribution by an executor or administrator is a contempt of court, and the decree may be enforced by proceedings under the provisions of the Code of Civil Procedure relative to contempt.</p> <p>Id,— Habeas Corpus—Jurisdiction.—The functions of the writ of habeas corpus, when a party who has appealed to its aid, is in custody under process, do not extend beyond an inquiry into the jurisdiction of the Court by which it was issued, and the validity of the process upon the face.</p> <p>Id.—Id.—Id.—Enforcement of Decree of Distribution—Estate of Deceased Person.—Held accordingly, upon an application for discharge upon a writ of habeas corpus by an executor who was in custody under an order of the Superior Court, adjudging him guilty of contempt in refusing to pay over money under a decree of distribution, that the Court had jurisdiction, and, the proceedings being regular and valid on their face, that the prisoner was not entitled to-a discharge.</p>

<p>Appeal from a judgment for the plaintiff, in the Tenth District Court, County of Colusa. Keyser, J.</p> <p>The note referred to in the opinion is signed, “ W. D. Campbell,” “ J. Spurgeon.”</p> <p>The answer alleges the filing of petitions in insolvency by the defendants respectively, subsequently to the execution of the note and other demands sued upon; and a supplemental answer alleges their final discharge. The other facts are stated in the opinion.</p>

<p>Jubisdiction—Judgment — Appeal.— If, after acquiring jurisdiction of the parties and the subject-matter, a Superior Court should order judgment for one of the parties without a trial, such judgment would not be “ without or in excess of the jurisdiction ” of the Court, although it might be erroneous; and in such case the only remedy would be by appeal.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying anew trial, in the County Court of San Joaquin County, Buckley, J.</p>

<p>Instructions—Pleading—Variance.—In an action in indebitatus assumpsit, for work and labor done in and about the defendant’s mining claim, between the 6th day of June, 1876, and the 15th day of November, 1877—the complaint alleging in one count a promise to pay, and in another the value of the work—it appeared from the plaintiff’s testimony that there was no understanding or agreement as to how much he was to receive, or as to how he was to receive it, prior to July 5th, 1877; but the Court instructed the jury in effect that, if the plaintiff went to work upon the defendant’s mining claim, in June, 1876, under an express contract to receive reasonable wages out of the proceeds of his labor on the mine, without looking to the company personally, and.after doing preparatory and unremunei'Rtive work at considerable expense, was discharged by the defendant, without good cause, before he had taken out reasonable wages, then the defendant was liable to the plaintiff for such reasonable wages: Held, that the instruction was a substantial departure from the case made by the pleadings and the evidence, and could not be sustained.</p>

<p>Murder—Instruction — Definition.— Upon the trial of an indictment for murder, the Court, in effect, instructed the jury that if the deceased was shot by the defendant from behind, and that the defendant at the time of the shooting was concealed behind a fence, and that there were no words, demonstrations, or hostile acts, at that immediate time, on the part of the deceased, and that the deceased was unconscious that the defendant was so concealed until he was shot, the defendant was guilty of murder. Held, that the instruction was erroneous.</p> <p>Id.—Id.—Id.—Lying in Wait. — The term “ concealed” is not synonymous with “ lying in wait.” If a person conceals himself for the purpose of shooting another unawares, he is lying in wait; hut a person may, while concealed, shoot another without committing the crime of murder.</p> <p>Id.—Id.—Self-defense.—When a man exercises his right of self-defense, he must be understood to act on the facts as they appear to him; and if, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he supposes the facts to be, he is justifiable, though the facts are in truth otherwise, and he really has no occasion for the extreme measure.</p>

■ The petition alleged, (besides the jurisdictional facts) that the petitioner was the widow of the deceased, and that letters had been issued at her request to J. W. B. Montgomery, the brother of the deceased, and that at the time of the death of the deceased the said J. W. B. Montgomery was his partner. The prayer of the petition was, that his letters be revoked, and letters issued to the petitioner. A demurrer to the petition was sustained, and the petition dismissed.

<p>Habeas Corpus—Police Court oe San Francisco—Inferior Court—Jurisdiction—Case Criticised.—The Police Court of the City and County of San Francisco is an inferior court of limited jurisdiction, whose powers are conferred, and whose duties and modes of procedure are prescribed, by statute, and to which the rule applies that the evidence of its proceedings must affirmatively show jurisdiction of the person of a defendant, and over the subject-matter; and the remark to the contrary, in Ex parte Murray, 45 Cal. 455, is dictum.</p> <p>Id.—Id.—Id.—Id.—Where it affirmatively appears from the record of the proceedings of an inferior court that a person was tried and sentenced to be punished for an act which is not a crime, the judgment is absolutely void, and a person in custody under such a judgment will be discharged on habeas corpus.</p> <p>Cases Distinguished —Ex parte Watkins, 3 Peters, 193 ; 5 Cranch, 173.</p> <p>Id.—Construction of Ordinance.—To constitute an offense under subd. 3, § 28, of Order Ho. G97, as amended by Order Ho. 1,196 of the City and County of San Francisco—which provides that “ Ho person shall address to another, or utter in the presence of another, any words * * having a tendency to create a breach of the peace”—the words must be uttered in the presence of the person whom they tend to provoke to such breach of the peace.</p> <p>Id.—Id.—Police Court of San Francisco—Interior Court—Jurisdiction.— The petitioner was in custody under a judgment. of the Police Court of San Francisco, condemning him to six months’ imprisonment and the payment of $1,000; and the offense charged in the complaint was, that the petitioner “did willfully and unlawfully utter and address to others, to wit, to a large number of persons then and there assembled * * * certain profane words and language, which words and language then and there had a tendency to create a breach of the peace.” But there was no averment that the words were “ addressed to, or uttered in the presence of,” the person of whom they were spoken. Held, that the complaint charged no offense, and that the petitioner was entitled to his discharge.</p> <p>Id.—Id.—Id.—Id.—Id.—A court, (whether superior or inferior) derives its jurisdiction from the law, and its criminal jurisdiction extends only to such matters as the law declares to be criminal; and, when it undertakes to imprison for an offense to which no criminality is attached, it acts beyond its jurisdiction, and the party imprisoned is entitled to his discharge on habeas corpus.—'Thornton, J.</p>

<p>Appeal from a judgment of conviction, in the Twentieth District Court, County of Monterey, and from an order denying a new trial, in the Superior Court of the same county. Bel-REN, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of conviction, and from an order denying a new.trial, in the Superior Court of Tehama County. Lewis, J.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Sixth District Court, County of Yolo. Denson, J.</p>

<p>Application for writ of mandamus.</p> <p>The facts are stated in the opinion.</p>

<p>Action to Recover Personal Property—Pleading — Answer—Eraud.— In an action for the recovery of personal property, the complaint alleged ownership and a taking by defendant; and the defendant in Ms answer denied the ownership, and justified the taking, under an execution issued to him as Sheriff, against one L, Held, that the defendant was not bound to anticipate the ease of the plaintiff, or to assume that he claimed as vendee of L., and that the answer averred all that was necessary to make up the material issues.</p> <p>Id.— Sale of Personal Property —Delivery—Change of Possession— Eraud.—In the same action, it appeared that L., being the owner of the property in controversy, consisting of horses and hay, sold and delivered the same to the plaintiff, and at the same time leased to him the ranch on which the property was, and of which the plaintiff, as the servant of IV, had for some time been the sole actual occupant; and that the property remained upon the ranch until taken by the defendant. Heldr—the jury having found for the plaintiff, and the Court having granted a new trial—that there was no apparent change in the mode of the plaintiff’s occupation, when he ceased to be the servant of D. and became his lessee, and that the Court below did not err in granting a new trial.</p>

<p>Mining Claims—Mining Rules and Regulations—Conflict of Evidence-Abandonment.— In an action of ejectment for a mining claim, in which the verdict and judgment was for the defendants, the evidence was conflicting, as to whether the plaintiffs’ claim had been staked off and surrounded by a ditch, as required by the mining rules and regulations of the district, and also as to whether the claim had been abandoned; there being, on the latter point, evidence tending to show abandonment, and the plaintiffs’ own testimony that he had not intended to abandon. Held, upon the first point, that compliance with the mining rules, in the particulars specified, was essential to the validity of the claim; and, upon the second, that the evidence of the plaintiff as to his intentions, was not conclusive, hut the intention was to bo determined from all the facts and circumstances of the case; and, the evidence being conflicting on both points, that the verdict should not he disturbed.</p> <p>Id.—Evidence — Error.—On the trial the defendants proposed to examine one of the plaintiffs, (who was a witness) as to admissions, and statements, and acts, made and done by him, before he was a tenant in common with his co-plaintiffs; to which the plaintiffs objected, and the objection was overruled. Held, that the ruling could not have injured the plaintiffs, since the record failed to show that any such question ever was, in fact, asked or answered by the witness.</p> <p>Id.— Record —Mistake —Location—Notice.— It appeared on the trial, that 1Iie District Recorder, in recording the notice of one of the defendants’ claims, omitted by mistake, one of the lines, but in fact the lines were distinctly marked on the ground, as required by the mining rules. Held, that tlie defendants were not bound by the mistake of the Recorder, and that the actual location on the ground was sufficient to impart notice to all comers.</p>

<p>Appeal from a judgment of conviction, and from an order denying a new trial, in the Superior Court of Kern County. Brundage, J.</p> <p>The facts are stated in the opinion.</p>

Denson, J. Application for a writ of certiorari to J. S. Phillippi, Justice of the Peace, to review his proceedings in an action brought by James F. Frey against B. Astell, for certain personal property, or its value, $299, and $50 damages for detention.

<p>Action to Quiet Title—Equity—Return of Consideration—Maxim—A plaintiff cannot come into a Court of Equity, and ask for a decree debarring the defendant from asserting a claim under an instrument executed by the former, without restoring the consideration received by him.</p> <p>Id.—Id.—Deed—Bargain and Sale—Statute of Uses.—The plaintiff, and his wife, in the year I860, executed to the defendant a deed whereby, in consideration of the sum of $2,000, they granted, bargained, and sold to the defendant and his heirs and assigns forever, a certain tract of land; but it was expressly provided, and the deed was made upon the express condition, that the parties of the first part should have and retain the entire use and control of the said demised premises, so long as they, or either. of them, should live. In an action to quiet title, brought by the plaintiff against the defendant, this deed was adjudged to be void, and the plaintiff’s title to be good.</p> <p>Upon appeal, held—assuming that the deed was inoperative as a common law conveyance, because an attempt to create or convey a freehold to commence in futuro:</p> <p>1st. That a freehold to commence in futuro could be created by a bargain and sale, operating under the Statute of Uses; and that, if the Statute of Uses was part of our law, prior to the Codes, the deed was valid.</p> <p>2nd. That, if the Statute of Uses was not in force in this State when the deed was executed, the bargain and sale would be recognized and enforced in a Court of Equity, as it would have been before the statute.</p> <p>3rd. That in either case, the Court, as a Court of Equity, had power to settle and determine the actual rights of the parties, and prevent future complications, by decreeing a formal conveyance of the fee from the plaintiff to the defendant, and a reconveyance for the life of the former by the 'latter, and this should have been done.</p> <p>Statute of Uses.—Query, whether the Statute of Uses, (27 Henry 8, eh. 10) was ever in force in this State.</p> <p>Statute of Enrollments.—The Statute of Enrollments (27 Henry viii, ch. 10) has never been in force iu this State.</p>

<p>Appeal from an order denying the defendant a new trial, in the Twenty-first District Court, County of Plumas. Clough, J.</p>

<p>Specifications.— Statement on Motion fob New Teial. — Specifications, in a statement on motion for new trial, “ that the first finding is not sustained hy the evidence," “that the second finding is not sustained hy the evidence,” etc., held, (with reference to the findings cited hy the Court) to he insufficient.</p>

<p>State Lands — Contest — Pleading. — In an action to determine a contest arising in the Surveyor-General’s or Register’s office, each party must allege facts sufficient to show that he is entitled to the issue of a certificate to him.</p> <p>Id.—Application to Purchase—Land Warrants.— An application to purchase State lands by the location of school-land warrants, made subsequent to the Act of April 27tli, 1863, is not invalid for want of the affidavits required by that act—such applications being expressly excepted from the operations of the act by the proviso in the second section.</p> <p>Id.—Id.—Id.—Deputy.—Upon such an application, certain affidavits required by the Act of April 23rd, 1858 (as amended by § 7 of the Act of April 22nd, 1861,) were made before a person signing the jurat as “ Deputy Locating Agent.” Held, that the administration of an oath is a function ministerial in its nature, and the State Locating Agent, as a ministerial officer, had power to appoint deputies.</p> <p>Id.—Id.—Id.—Id.—Estoppel.— Upon the application- of the defendant, one J. P., as Deputy State Locating1 Agent, under .appointment made by the State Locating Agent, made application to the Register of the Land Office, on behalf of the State of California, for the land in controversy; and in pursuance of that application the land was listed to the State. Afterward the plaintiff made his application. Held, that he was estopped from denying the authority of the Deputy Locating Agent.</p>

<p>Action to Recover Personal Property—Pleading—Justification—Evidence—Fraud.—In an action to recover personal property, where the defendant justified as Sheriff under a judgment and execution against the plaintiff’s vendor—whose property the answer alleged the goods to lie—the Court, on the ground that fraud had not been specially pleaded, excluded from the evidence the judgment roll under which the defendant justified, and also evidence tending to show that the sale by the judgment debtor, under which the plaintiff claimed, was not followed by an actual and continued change of possession. Held, that the defendant was not bound to anticipate the case of the plaintiff, or to assume under whom he would claim title, and that the ruling of the Court was therefore erroneous.</p>

<p>Appeal from a judgment for the plaintiffs, in the Twenty-first District Court, County of Plumas. Clough, J.</p>

<p>Assessment—Description—1Tax Suit.—A description sufficiently certain to convey land, between man and man, and which, if contained in an agreement to convey, would authorize a Court of Equity to decree a specific execution, may not answer in a proceeding to enforce the collection of a tax. In the latter case the description must be certain of itself, and not such as to require evidence aliunde to render it certain, llelcl, accordingly, that an assessment, one of the calls of which was, “ * * * north by the lands of James Reagan and others,” was void; and so held, also, with reference to an assessment, which described the land as “bounded * * * south by the lands of Eelton and Patterson.”</p>

<p>Appbabahce—Cbimxjstal Law—Escape—Appeal—Cohstitütioiíal Law.— Under the provisions of the Constitution, and of the Penal Code, a person charged with crime can appear and defend only when in actual or constructive custody, and has no 'longer a right to appear by counsel, when ho has escaped from custody and is at large. Accordingly, where a defendant, convicted of murder, appealed, and afterward escaped from jail, it was ordered that the appeal should stand dismissed, unless the defendant should return to custody within a time specified.</p>

<p>Insolvent Act—Bankrupt Act — Construction of Contract.—Tlio operation of the Insolvent Law was suspended by the Bankrupt Act, in the sense that ho proceeding could be commenced for a discharge under it, while a general bankrupt law existed; but, upon the repeal of the Bankrupt Act, the Insolvent Law revived, and came again into operation, as if it had never been suspended; and its provisions apply as well to indebtedness contracted while it was suspended, as to indebtedness contracted after it again came into operation.</p>

<p>Insoevency—Partnership—Construction of Statute. — Neither the Insolvency Act of May 4th, 1852, or the Supplementary Act of March 31st, 1876, apply to partnerships.</p>

<p>Appeal from a judgment for the defendants, and from an order denying a new trial, in the Sixth District Court, County of Sacramento. Denson, J.</p>

<p>Appeal from an order refusing probate of an alleged will, and from an order refusing a new trial, in the Probate Court of Colusa County. Hatch, J.</p>

<p>Appeal—Party Aggrieved—Definition—Estates of Deceased-Persons.— Upon an appeal from an order directing a resale of real property, which had been previously sold by the administratrix, and confirmed to the appellant as purchaser, held, that the appellant, though not an actual party to the proceedings in the Court below, was a party aggrieved, and entitled to appeal under §§ 969 and 938 of the Code of Civil Procedure.</p> <p>Estates of Deceased Persons—Sale of Real Estate—Petition—Jurisdiction.—A petition for the sale of real estate, whether under § 1630, or under § 1537, Code of Civil Procedure, must, in order to give the Court jurisdiction, set forth the condition of the property, and, if under the latter section, it must be verified.</p> <p>Id.—Id.—Id.—Id.—Proceedings for the sale of real estate, in the Probate Court, are in the nature of an action, and the jurisdiction of the Probate Court depends absolutely on the sufficiency of the petition—in other words, upon its substantial compliance with the requirements of the Probate Law.</p>

Appeal by the plaintiff and defendant, from a judgment in the Sixth District Court, County of Sacramento. Denson, J. The allegations in the complaint, with reference to the homestead, are as follows: “ VI.

Petition for writ of mandamus, to W. B. Brown, late Controller, for whom D. M. Kenfield, the present Controller, has been substituted. The facts are stated in the opinion.

<p>Claim Against a City for Injuries caused by Mobs or Riots.—A claim for damages for injuries to property, caused by a mob or riot, (in the City and County of San Francisco) is not to be presented in the first instance to the Boai'd of Supervisors for allowance, as in the case of other claims, but a judgment must first be had, and thereupon the board must order it to be paid, unless they shall determine to appeal.</p> <p>Id.—Attorney and Counsellor of the City and County of San Francisco—Appeal.—The Attorney and Counsellor of the City and County of San Francisco, while he holds his office by a tenure independent of the board, cannot act independently or against the directions of the board; and held, accordingly—where the board had determined by ordinance not to appeal from a judgment against the city and county for damages, caused by a mob or riot, and had ordered the payment of the same—that an appeal taken by the Attorney and Counsellor was without authority, and did not stay the enforcement of the order of the board.</p> <p>Id.—Estoppel.—Held, further, that the order of the board, directing the payment of the judgment, operated as an estoppel upon the city and county, as against an assignee for value, who purchased the claim, relying upon the action of the board.</p> <p>Id.—Mandamus.—And held, further, that upon the refusal of the County Treasurer to pay the claim, mandamus was the proper remedy.</p> <p>Id.—Appeal—Stay of Proceedings — Mandamus.—Ross, J., (dissenting) was of the opinion, that the appeal by the City and County Attorney could not be treated as a nullity, and that, pending the appeal, the Treasurer could not, by mandamus, be compelled to pay the claim.</p> <p>Ld.—Id.—Id.—Id.—Shakpstein, J., and McKee, J., (also dissenting) were of the opinion that mandamus could not be maintained: 1st, because the appeal, though improperly taken, operated as a stay; and2ndly, because the petitioner had a plain, speedy, and adequate remedy, by a motion to dismiss the appeal.</p>

<p>Application for a writ of mandamus.</p> <p>The facts are stated in the opinion.</p>

Clough, J. The judgment recites : “ Counsel for plaintiff filed a written motion for judgment on the pleadings, which motion is made on the ground that the facts stated in the answer do not constitute any legal defense to the action. The Court being fully advised,'orders that the said motion of plaintiff be sustained, and thereupon it is ordered and adjudged,” etc. The other facts are stated in the opinion.

<p>Appeal from a judgment for the plaintiffs, and from an order denying, a new trial, in the Sixth District Court, County of Yolo. Denson, J.</p> <p>The Tacts are stated in the opinion.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Tenth "District Court, County of Colusa. Kbyser, J,</p> <p>On the trial the plaintiff introduced in evidence the letters of administration, and the decree of distribution, in the matter of the estate of John ICoutz, by the latter of which all the estate of the deceased was distributed to the plaintiff and Elizabeth Gel wicks, (brother and sister of deceased) as his sole heirs. The defendant’s counsel objected to the former order, on the ground that there was no evidence of any petition for letters of administration ; and to the latter, on the ground that it did not appear that the Probate Court had any jurisdiction to make said decree, there being no evidence of the facts conferring jurisdiction in such case. The other facts are stated in the opinion.</p>

<p>Appeal from a judgment for defendants, and from an order denying a new trial, in the Sixth District Court, County of Sacramento. Denson, J.</p> <p>The facts are stated in the opinion.</p>

<p>Bight of Wat.—Where one grants land to another, which is wholly surrounded by other land of the grantor, or partly by land of the grantor and partly by land of a stranger, a “way of necessity ” arises in favor of the grantee over the land of the grantor.</p>

Keyser, J. The complaint is in the ordinary form in ejectment. The defendant in his answer denies all of the allegations of the complaint, and sets up specially the facts stated in the opinion, and prays for affirmative relief.

Hundley, J. The default was opened on the affidavits of Geo. Parry, a stockholder, and J. M. Bassett, the president of the corporation defendant.

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Tenth District Court, County of Sierra. Keyser, J.</p>

<p>Appeal from an order granting the plaintiff a nexv trial, in the Second District Court, County of Butte. Keyser, J.</p> <p>The facts are stated in the opinion.</p>

Key ser, J. The claim of Dyas (which is attached to the complaint) does not state the date of the services, nor does it appear from the claim itself that the indebtedness accrued within the year before the presentation of the claim; but it apipears, from the allegations of the complaint, that the services were, in fact, rendered within the year.

<p>Witness — Sele-Crimination—Privilege. — If a witness discloses a part of a transaction, with which he was criminally concerned, without claiming his privilege, he must disclose the whole. lie cannot, after voluntarily testifying in chief, decline to he cross-examined on the ground that his answers may criminate or disgrace him.</p>

<p>Appeal from a judgment for the plaintiff, in the Fourteenth District Court, County of Placer. Eeaedoh, J.</p> <p>The undertaking sued upon was executed by D. A. Eice, defendant in the attachment suit, and by the defendant in this suit.</p> <p>The other facts are stated in the opinion.</p>

<p>Foreclosure of Mortgage—Attorney’s Fees —Penalty—Findings.—In an action to foreclose a mortgage which provided for an attorney’s fee, the answer alleges that the plaintiff’s attorney received a regular salary in compensation for all his services, and that the plaintiff had not agreed or become liable to pay him any compensation for his services in the action; but the Court failed to find upon the issue, and allowed the attorney’s fee ■ provided for in the mortgage. Held, that the judgment should be reversed for want of sufficient findings; that the plaintiff was not entitled to an allowance for attorney’s fees, except for such sum as it had paid or become liable to pay to its attorney.</p>

<p>Bill of Exceptions.—A bill of exceptions settled and agreed to by the attorneys, but not signed by the judge, held to be insufficient, and the judgment affirmed.</p>

Appeal by the intervenor, Philip Hiffner, from a judgment in favor of the plaintiffs, in the Second District Court, County of Butte. Keyser, J. The facts are stated in the opinion.

<p>Divorce — Fraudulent Judgment — Appearance — Estoppel — Common Property.—In an action of ejectment, in which both parties deraigned title under a deed executed May 15th, 1865, for valuable consideration, to one Amanda C., the defendant by a deed direct from her, and the plaintiff by a deed from J. C.—formerly her husband—the case turned upon the validity of a judgment of divorce rendered J une 23rd, 1864, in a case brought by J. G. against Amanda C., in the State of Indiana, in which the latter appeared by attorney; but it appeared that the appearance of the attorney was without her knowledge or- consent. Held, that the judgment was not void, but, at most, only voidable at her instance, and that it could not be attacked by her husband or his grantee.</p> <p>Id.—Ebaud.—Eraud renders any transaction void at the election of the party defrauded; but the party by whom the fraud is perpetrated has not that election.</p>

<p>Mechanics’ Lien—Obiginal Contbactob —Definition.—Material-men furnishing materials for the construction of a building under a contract with the owner, and persons directly employed by him to work on the building, are not “ original contractors,” within the meaning of §§ 1187, 1194, Code of Civil Procedure, and therefore must file their claims within thirty days from the completion of the building.</p>

<p>District School Tax—Assessment Boll—Evidence. — Though the assessment roll may he prima facie evidence of its contents, it is not conclusive in a proceeding directly based upon its correctness. Held, accordingly, in an action to recover a district school tax, that it was error to exclude evidence offered by defendant to show that the assessment roll was simply copied from the assessment roll of the county, and that no assessment was in fact made.</p> <p>Id. — Notice — Public Places — Definition.— Notices of election were posted at a store and two saloons, occupying three of the corners formed by two roads crossing each other, and within a circumference of eighty feet; and the Court found that the notices were posted in three of the most public places in the district. Held, that the finding was justified by the evidence.</p>

Motion to dismiss appeal. There appears upon the answer, and upon the notice of intention to move for anew trial, and upon the statement, an acknowledgment of service, signed, “Edwin Shearer, Attorney for the Plaintiff”; and the findings and judgment recite, that E. Shearer appeared as counsel for the plaintiff. The other facts are stated in the opinion.

<p>State Lands — Survey — Deitnition. — Sixteenth and thirty-sixth sections are deemed to be surveyed, for the purposes mentioned in § 3195, Political Code, only when the plat of the survey of the township has been approved by the United States Surveyor-General.</p> <p>Id. — Id. — Case Overruled.—Dictum to the contrary in Oakley v. Stuart, 52 Cal. 522, overruled.</p> <p>Id.—Id.—Application to Purchase.—The title to a particular 16th or 36th section does not vest in the State before the plat of the survey of the township has been approved by the United States Surveyor-General; and an application to purchase such land, made before the approval of the survey, is unauthorized and void.</p>

<p>Contract—Agreement—Instructions.—In an action upon an account, the question was whether a bill of sale of a quantity of wheat, executed by the defendant to the plaintiffs, was an absolute sale in satisfaction of the debt, or was only by way of security; and the Court instructed the jury to the effect, that the bill of sale purporting to be an absolute sale, they should find it to be such, unless it appeared from a preponderance of evidence that it was given as security, and that both parties so understood it. Held, that the last clause of the instruction was erroneous.</p> <p>Instruction.—An instruction is erroneous if there is no evidence tending to establish the hypothesis upon which it is based.</p> <p>Delivery —Chattel Mortgage—Loss oe Mortgaged Property—Instruction.—By the terms of a chattel mortgage of wheat, the mortgagor was to harvest the same, and to deliver it into possession of the mortgagees; and, the question being as to who should bear the loss of a portion of the wheat, alleged to have been shipped by railroad to the place of destination agreed upon, but which did not arrive, the Court instructed the jury to the effect, that if the wheat referred to was shipped in the name of the plaintiffs, and the bills of sale taken in their name with their knowledge and consent, then they were in the possession and the owners thereof, and were liable for any loss resulting from their own negligence or carelessness, or that of their agents and employes. Held, that the proposition was not law, and that the instruction was erroneous.</p>

<p>Appeal from an order granting the plaintiff a new trial, in the Sixth District Court, County of Sacramento. Denson, 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 Tenth District Court, County of Colusa. IIeyser, J.</p> <p>The facts are stated in the opinion.</p>

<p>New Trim—Discretion oe Court.— A motion for new trial, upon the ground, of insufficiency of the evidence, is addressed to the discretion of the Court, and an order granting a new trial, upon such ground, will not bo reversed, unless there has been a manifest abuse of discretion.</p>

<p>Appeal from a judgment for the plaintiff, in the Sixth District Court, County of Sacramento. Denson, J.</p>

<p>Appeal from a judgment for the plaintiff, in the Tenth District Court, County of Colusa. ICeyser, J.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Fourteenth District Court, County of Nevada. Reardon, J.</p>

Appeal by defendant from judgment in favor of plaintiff, and from order denying motion for new trial, in the District Court of the Fourteenth Judicial District, County of Nevada. Reardoh, J. The facts are stated in the opinion of the Court.

<p>Receiver — Jurisdiction — Mortgage — Deed oe Trust — Railroad.—Tho Sacramento and Placerville Railroad Company executed a mortgage or deed of trust upon its property to two trustees, to secure the payment of the principal and interest of certain bonds, and it was provided that upon default in the payment of the principal of the bonds, or upon default for one year in the payment of the interest, the trustees should take possession of tho property, and apply the net income to the payment of the principal and interest of the bonds. Default having been made, an action was brought by the surviving trustee to enforce the lien and trust, and to obtain possession of the property, and a receiver was appointed. IMd, upon an application of the successor in interest of the mortgagor for a writ of prohibition, that the case came within the provision of subdivision C, § 564 of the Code of Civil Procedure, and that the Court had jurisdiction to make the order.</p>

der denying a new trial, in the Sixth District Court, County of Yolo. Denson, J. The question asked the witness McCleery (referred to in the opinion) was as follows : “Question.

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of Placer County. Myers, J.</p>

<p>Appeal from a judgment for the plaintiff, in the Superior Court of Kern County. Beundage, J.</p>

<p>Promissory Hote—Praud—Assignee—Conflict or Evidence—Findings.</p>

<p>Information in the Supreme Court, against R. West Pearson, for unprofessional conduct.</p>

Brown, J. The proceeding in the Court below was to contest the election of the defendant as Supervisor in District No. 3, Amador County.

<p>Meeting os' Creditors—Notice—Insolvency Proceedings.</p>

<p>Specific Performance of Parole Contract—Purchaser in Good Faith— Conflict of Evidence—Findings.</p>

Motion to dismiss an application for a writ of mandamus to George C. Perkins, Governor of the State of California, to compel him to make and file a certificate approving a valuation of certain springs, etc., made by the Superior Court of Alameda County, under the Act of April 1st, 1876, cited in the opinion.

<p>Mandamus to D. M. Kenfield, Controller, etc.</p>

Wilson, J. The proceeding in the Court below was mandamus, to compel the defendant to approve and allow tho demand of the plaintiff for salary as teacher in the public schools.

<p>Appeal from an order dissolving an attachment, in the Twelfth District Court. Daingerfield, J.</p> <p>The facts are stated in the opinion.</p>

<p>Prohibition to the Superior Court of Stanislaus County. Hewell, J.</p>

<p>Set-off—Assignment.—Upon a motion by the defendant to set off against a judgment rendered against him, a judgment against the plaintiff assigned to him by another, he must show that he is the absolute and beneficial owner of the judgment, or he cannot set it off.</p>

<p>Dismissal oh Action—Stipulation—Maxim.—In an action of ejectment, (prior to the adoption of the Codes) a stipulation was filed, and an entry thereof made in the register, dismissing the action as to certain defendants and as to part of the land, but no judgment was entered thereon by the clerk. Meld, that if it was necessary for a formal judgment to be entered, the law would consider that as done which ought to have been done.</p> <p>Id.—Id.—Id.—Stay oh Execution—Jubisdiction.—A plaintiff, who obtains judgment in violation of his written stipulation on file dismissing the action, may be restrained by the court in which judgment was obtained, from enforcing it.</p> <p>Id.—Id.—The attorney for the plaintiff has power to dismiss the action by virtue of his general authority, and a stipulation to that effect does not depend for its efficiency upon a special consent or authority given him by the plaintiff.</p>

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

<p>Appeal from a judgment for the defendant, in the Superior Court of the County of Sacramento. Dessoit, J.</p>

<p>Appeal from a judgment of conviction, and from an order denying a new trial, in the Superior Court of the County of San Joaquin. Buckley, J.</p>

<p>Foreclosure Sale—Principal and Surety—Constructive Trust—Constructive Notice.—The plaintiff, to secure the note of her husband, (given for his own indebtedness) executed, jointly with him, a mortgage upon land previously conveyed to her by him, by deed of gift duly recorded; and, upon the foreclosure of the mortgage, the land was purchased by one B., for the husband, and with his money, and was by B. conveyed to him. Afterward, the husband, to secure an antecedent indebtedness, conveyed to the defendant, who took without actual notice of the premises. Bald, 1st, that the husband, in purchasing the property through B. at the foreclosure sale, was but paying his own debt, and, therefore, took the title in trust for the plaintiff; and 2nd, that the records were sufficient to put the defendant upon inquiry, and he was bound at his peril to inform himself as to the facts; and that ho therefore took, subject to the trust.</p> <p>Id.—Id.—Id.—Id.—McKee, J., dissenting, was of the opinion that the defendant took without actual or constructive notice that B. held the title in secret trust for the husband, or that the latter held it for his wife.</p>

<p>RedE3IPtiox— Tenants in Common. — Where land sold under judgment is embraced in one sale, n redemptioner, having a lien upon a share or'part of the land sold, can only redeem by paying the whole of the purchase-money and redeeming the whole of the land; and in such case, lie succeeds to tlio whole interest of the purchaser. Accordingly, where land was sold under' a judgment of foreclosure against tenants in common, and redeemed by a judgment creditor of one of the tenants, who in due course received his deed: Held, that the redemptioner took the interests of both tenants.</p> <p>Id.—Id.—Shabpstein, J., concurring in the judgment, doubted whether the redemptioner had a right to redeem a greater interest in tlie property sold than that of his judgment debtor; but was of the opinion, as the purchaser did not object to his redeeming the whole property, that the effect of tlio transaction was to vest in him the whole interest of the purchaser.</p> <p>Id.—Id.—Lien.—Mykicic, J., dissenting, was of opinion that the redemptioner was subrogated to the rights of his judgment debtor, and thus became tlio owner of the legal title formerly held by him; and, as to the other tenant, that lie acquired an equitable lien upon his interest as security for one-lialf of tho redemption money.</p> <p>Id.—Id.—Cases Explained — Equitable Redemption— Statutory Redemption.—Kirlcman v. Dupont, 14 Cal., was not a case of statutory redemption, hut of redemption by junior mortgagees of tho interest of one tenant in common from a sale in a foreclosure suit against tlio tenants in common to which they were not parties. The difference between tho cases is explained in 1 Vhitney v Iliggins, 10 Cal. 554, and Montgomery v. Tutt, 11 id. 317.</p> <p>Id.—Id.—Id.—Erwin v. Schrivar, 19 Johns. 379, and Fischer v. Hslamann, 08 111. 78, are on statutes with different provisions from the statute of this State.</p>

<p>Findings.—For a finding to be sufficient, either the ultimate fact must be found, or facts from which the ultimate fact is necessarily deduoible.</p> <p>CONTBACT—SUB-CONTBACTOB — ACTION—NOVATION — ASSIGNMENT.— One WllO contracts with another for the building of a house, does not thereby incur any liability to the sub-contractors of the original contractors, except such as may be fastened upon him by proceedings under the Mechanics’ Lien law; and therefore, where there has been no assignment, or novation of the contract, an action cannot be maintained, (otherwise than under the Mechanics’ Lien law) by a sub-contractor against the owner, for work and labor done and materials furnished in the construction of a building.</p>

<p>Constitutional Law—Sunday Act—Special Law—Definition.—The Act of April 16th, 1880, “to regulate and provide for a day of rest in certain cases,” making it a misdemeanor “ for any person engaged in the business of baking to engage, or permit others in liis employ to engage, in the business of baking for the purpose of sale, between the hours of 6 o’clock p. m. on Saturday and 6 o’clock p. m. on Sunday, etc.,” is a special law, and, as such, in conflict with subd. 2, § 25, art. iv, of the Constitution.</p>

<p>Appeal from a judgment for the plaintiff and from an order denying a motion by defendant to strike out the cost bill of the plaintiff, in the Twenty-Second District Court, County of Sonoma. Temple, J.</p>

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

<p>Appeal from an order granting a new trial, in the Twenty-second District Court, County of Sonoma. Wallace, J.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Fourth District Court, County of Sonoma. Temple, J.</p>

<p>Appeal from a judgment for the defendant, in the Twentieth District Court, County of Santa Clara.' Belden, J.</p>

Appeal by the widow and heir of deceased, from an order of sale of real estate in the Probate Court of the County of Santa - Clara. Payne, J.

<p>Appeal from a judgment of conviction, and from an order denying a new trial, in the Superior Court of the County of Humboldt. Haynes, J.</p>

<p>Appeal from a judgment for the plaintiff in the Twentieth District Court, County of Santa Clara. Belden, J.</p>

<p>Appeal from a judgment for the plaintiff, in the Twentieth District Court. Belden, J.</p>

<p>Peohibition to the County Court of Santa Clara County.</p>

<p>Appeal from a judgment for the plaintiff, in the Twentieth ’ District Court, County of Santa Clara.</p>

<p>Eviction—Definition—Pendency of Action—Judgment.—The defendant leased land to the plaintiff upon which there was a stream of water; and the next day, in an action commenced prior to the lease by the San José Water Company—in which, however, no notice of lis pendens had beenfiled—consented to a decree for the condemnation of the water, and tlio water company afterward appropriated the water of the stream. In an action for damages for the loss of the water, held, that, as the defendant’s lease antedates the decree, and he had no notice, actual or constructive, of the pend-ency of the action, he was not affected by it; and that, as the defendant had not participated in the diversion of the water, or done anything beyond consenting to the entry of a decree against himself, which could not in any way affect the rights of the plaintiff, there was no eviction.</p> <p>Id.—Id.—Id.—To constitute a partial eviction, in such a case as the one stated, it would be necessary for the plaintiff to show that the water company had established a right to divert the water by a title prior to that of the plaintiff, or that the defendant had at least had some agency in diverting it. ^</p>

Spencer, J. The plaintiff was elected Justice of the Peace at the city election of San José, held under the act approved March 81st, 1876, entitled “An Act to amend an act to re-incorporate the City of San J osé ánd the case in the Court below was a proceeding for a writ of mandamus to the Mayor and Common Council, to compel them to canvass the returns, and declare the result of the city election as to Justice of the Peace. The Court below denied the application.

<p>Appeal from a judgment for the defendants, in the Superior Court of San Francisco, Department No. 3. Wilson, J.</p>

Temple, J. The rulings referred to in the opinion were as follows: The plaintiff moved the Court to instruct the jury that if they found that there was work done in excess of the estimates of the chief engineer, they should find for the plaintiff for the value of such excess at the contract price, and the Court modified the instruction by adding the following words: “ provided that you find that the estimates of Zooks (the chief engineer) were false and fraudulent, but if…

Appeals, in two cases, from judgments in favor of plaintiff, and orders denying new trials, in the Twelfth District Court, City and County of San Francisco. Daihgebfield, J. In the lower Court, the two cases (numbered respectively 14,113, and 18,502) were, by consent, tried together, it being stipulated that the testimony and proceedings should apply to both cases as far as applicable.

<p>Evidence—Parole Testimony to Explain Res Gestas—Latent Ambiguity—Map.—In an action of ejectment to recover land, alleged to have been selected as a school lot by the commissioners appointed under certain ordinances of the Common Council of San Francisco, and the Act of March 11th, 1858, ratifying the same, the plaintiff put in evidence the report of the commissioners to the Common Council, and the map accompanying the same, and offered to prove that, before the map and report were filed, the lots selected by the commissioners, and referred to in their report, were colored, by them on tlie map; that such coloring was intended to designate them as school lots; and that the lot in question was one of the lots so colored, and intended to be designated as school lots. To this offer the Court sustained an objection, and refused to permit the witnesses to testify. Held, first, that the plaintiff was entitled to prove by witnesses the condition of the map when it was filed, and that this was substantially included in the offer to prove that the lots, referred to in the report of the commissioners, were colored by them before the map and report were furnished to the Comrmm Council; secondly, that parole testimony was also admissible to show that the coloring of the map was done by the commissioners, and the purpose for which it Was done: the grounds of the decision being, that the purpose of the act was part of the res gestos, and could therefore be proven by parole testimony; and also, that, it appearing that tlio purpose of the coloring was to designate the lots as selected for public purposes, there arose a latent ambiguity, as to w hich color was intended to designate the lots selected for school purposes, to remove which, evidence was admissible.</p> <p>Id.—Objections—Offer of Evidence.—When an offer is made of a mass of evidence, complex in its character, and the whole of it is objected to, in such case, if any part of it is admissible, it is error to exclude the whole.</p> <p>Id.—Id.—Id.—Cases Dissented from and Explained.—Ilosley v. Blaclt, 28 N. Y. 444; Gardner v. Barden, 34 id. 438; Beebe v. Bull, 12 Wend. 504; Wharton v. Douglass, 76 Fa. St. 273, to the contrary effect, dissented from; and Coveny v. líale, 49 Cal. 552, explained, as approving the rule laid down in this case.</p>

<p>Boakd of Election Commissionebs — Registeab oe Votebs — Appointment 03? Oeeicebs.—Under the Act of March 18tli, 1878, “to regulate the registration of voters, etc., in the City and County of San Francisco," the Board of Election Commissioners has power to fix the number of clerical assistants to be employed by the Registrar; but the power of selecting and employing such assistants is vested in the Registrar.</p> <p>Ib.—Id.—Id.—Allowed — Pbovided. — The meaning of these terms construed.</p>