Volume 56 — California Reports

<p>County Government Act—Constitutional Law—Judicial Notice.—The Act of the Legislature of April 27th, 1880, commonly known as the County Government Act, is in conflict with the Constitution of the State, and. therefore void.</p>

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

Belden, J. The facts are stated in the opinion. After the decision in Department, the respondent filed the petition that the appeal be reheard in bank, and the application was denied.

Appeal by defendant from a final judgment in partition, and from an order denying a new trial, in the Twenty-second District Court. Temple, J. The motion for a new trial was made with reference to the final judgment, and denied by the Court.

<p>Appeal from a judgment for the defendant, and from an order denying a neAV trial, in the Ttventy-second District Court, County of Mendocino. Temple, J.</p>

<p>Appeal from an order denying the plaintiff a new trial, in the Twelfth District Court, City and County of San Francisco. Daingeefield, J.</p>

<p>Prohibition to the Fifteenth District Court, City and County of San Francisco, and Samuel H. Dwindle, Judge thereof.</p>

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

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

<p>Composition—Accord and Satisfaction—Tender—Debtor and Creditor. —Where the creditors of an insolvent debtor agree to receive a composition on their respective claims, to be secured by promissory notes of the debtor, it is incumbent upon the debtor to tender the notes of the creditors, in order to bar their original claims, unless the latter, by their conduct, dispense with such tender.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Twentieth District Court, County of San Benito. Belden, J.</p>

<p>Corporation—Contract—Agency.—A corporation is endowed with capacity to enter into any obligation or contract essential for its purposes, and for the transaction of its ordinary affairs ; and, where the power to contract exists, it may be exercised by the corporation or its agent, in the samo way a natural person can contract, unless restrained by its charter to some particular mode of contracting.</p> <p>Id. — Id.—Id.—Where the management of the affairs of a corporation is intrusted to a general managing agent, he has the power to assign the dioses in action of a corporation to its creditors, either in payment of, or as security for, the payment of a precedent debt of the corporation, without express authority from the board of directors.</p> <p>Id..—Id. — Id.—Id. — Preference of Creditors—Fraud — Bankruptcy.— In an action by the assignee of an account due to a corporation, assigned by the superintendent in payment of a debt of the corporation, in which the answer was a general denial, the Court in effect found that the assignment was made'for the purpose of giving a preference to the assignee over other creditors of tlio corporation, and that the corporation a few days afterward filed a petition in bankruptcy. Held, that the answer, being a general denial, put in issue only the fact of the indebtedness and the assignment to the plaintiff, and that the finding of fraud in the assignment was outside the issues.</p>

<p>Grand J'ueor—Injury—Action.—A grand juror is not responsible in a civil suit for his action on the grand jury, however erroneous it may be, and however malicious the motive which produced it.</p>

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

Booker, J. Ejectment to recover the south-west quarter of Section 11, T. 4 S., B. 8 E., Mt. Diablo meridian—the complaint alleging ownership in fee, and an ouster, *on the 1st day of February, 1874. The river Mokelumne runs across the southern part of the quartcr-scction, about parallel with the southern boundary.

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

Prohibition to the Superior Court of Alameda County, and W. E. Greene, one,of the Judges thereof. A suit was commenced in a Justice’s Court by T. H. Isaacs against Samuel McConky, this plaintiff in the proceeding, and judgment rendered in favor of the latter. A notice of appeal to the Superior Court was served and filed, but no undertaking for costs and damages was filed.

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

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

<p>Application for a writ of mandamus to I. S. Kalloch and others, constituting the board of election commissioners of San Francisco,</p>

Booker, J. The proceeding in the Court below was certiorari to the board of supervisors of Stanislaus County to annul a resolution of that board, for the publication of the proceedings of the board, and the reports, statements, and advertisements of the officers of the county, in the /Stanislaus County Weel&ly News; and for the execution of a contract with the proprietors of that journal for that purpose. The resolution was passed and the contract executed February 9th, 1878.

<p>Criminal Law—Bill of Exceptions—New Tbial.—It is not necessary for the defendants in a criminal ease, in making a motion for new trial, to have a bill of exceptions or statement prepared beforehand; nor in arguing and submitting their motion without such bill of exceptions or statement, do they waive their right to have a bill of exceptions settled after the motion is determined; hut they are entitled to a record of so much of the evidence, proceedings, and decisions had on the trial as may be necessary to explain the grounds of their motion.</p>

<p>Service of Notice of Appeal.—Where it appears from the indorsements on a notice of appeal that the notice was served on a certain day, and that service thereof was admitted, underneath the indorsement of filing, it will he presumed that service was made on the day of the filing.</p> <p>Evidence — Hearsay — Reporter’s Notes—Interpreter. — The testimony of the reporter, based upon his notes, is incompetent to prove the testimony of a witness given in a foreign language, at a former trial, and taken down by the reporter from the interpreter. The interpreter, or some other person, who heard and understood the language in which the testimony was given, should have been called.</p>

<p>State Lands—Complaint — Pleadings— Reference of Contest — Jubisdiction.—In an action to try tlie rights of contestants to purchase State lands, the jurisdiction of the District Court (under the late Constitution) depended upon the fact that the surveyor-general had made an order referring the contest; and it was therefore necessary for the plaintiff to allege and prove the making of the order, but not necessary for him to allege that a certified copy of the order was filed, in the District Court, before the commencement of the action.</p> <p>Id,—Id.—Id.—Evidence—Onus Pbobandi.—In such an action, the burden rests upon either party to establish his own right; and the fact that the complaint anticipates the case of the defendant, by negative averments as to his qualification and right to purchase, does not alter the rule or shift the burden.</p>

<p>Injunction — Maucious Prosecution—Statute of Limitations. — A temporary injunction was granted, and dissolved, and afterwards judgment went for defendant. In an action by tlie defendant against the plaintiff, in the injunction suit, for suing out tlie writ maliciously, and without probable cause, commenced more than two years after the dissolution of the injunction, but within two years after the judgment; held, that the cause of action ivas barred.</p> <p>Id.—Td.— Id.—Sharpstein, J., concurring in the judgment, on tlie ground that there was no evidence of malice, was of the opinion that the statute commenced running only upon the final termination of the injunction suit; as until then want of probable cause could not be established.</p>

Payne, J. The facts are stated in the opinion. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

Appeals from a judgment for the plaintiff, and from an order denying a new trial, in the County Court of Mono County. Leavitt, J.

<p>Mandamus—Constitutional Law.—The plaintiff applied to the defendant, the collector of licenses of San Francisco, for a license to retail liquors, and was refused, on the ground that the defendant was not authorized to issue such a license without the written consent of a majority of the board of police commissioners. 11eld, that such are the requirements of the act from which the defendant derives Ms sole power to issue licenses; and that, if the act is constitutional, the plaintiff must comply with it before he can demand a license; and if unconstitutional, the defendant has no power to issue licenses at all.</p>

<p>Appeal from an order for a writ of assistance in the Superior Court of San Francisco County. Evans, J.</p>

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

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

Belden, J. The facts are stated in the opinion. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

Beldem, J. The facts are stated in the opinion. After the decision in Department, the appellant filed his petition that the appeal he reheard in Bank, and the application was denied.

<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>

Booker, J. The complaint alleges that the defendant made and entered into an express contract in writing, for value received from plaintiffs, in the words and figures following, to wit; “ This agreement, made and entered into * * * between P. Fabian & Co. ® * * and John Callahan, * * * whereas the party of the first part, named P. Fabian & Co., are holding a certain mortgage, dated * * * in the sum of $1037.23, which I agree to pay to P. Fabian & Co. on or before the first…

<p>Appeal from an order quashing an execution in the Thirteenth District Court, County of Merced. Campbell, J.</p>

Bookeb, J. The facts are stated in the opinion. After the decision in Department, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied..

<p>Exception—Instructions.—An exception to the instruction of the Court made after the retirement of the jury is too late. The Statute requires that an exception he taken at the time of the ruling.</p> <p>Bailment—Eraud.—Plaintiff’s intestate, holding certain notes of the defendant, put them in a box, and placed the box in the defendant’s keeping (the latter not knowing the contents), his object being that he might swear that he had no property, and thus evade payment of an obligation to another party. Held, that the plaintiff was entitled to recover the property.</p>

<p>Appeal from an Order—Becord on Appeal.—Since the amendment of 1874 to § 951, Code of Civil Procedure, the record on appeal from an order consists of the papers used on the hearing in the Court below; and a bill of exceptions is unnecessary.</p> <p>Id.—Id.—Power of Court Bulbs.—As the statute prescribes no mode in which such papers shall be authenticated, this Court has power to prescribe by rule how such papers shall be brought before it on appeal; and if it has power to make such a rule in advance, it has the power to ratify the mode adopted by the Court below.6 Held, accordingly, that the certificate of the judge of the Court below was a sufficient authentication.</p> <p>Change of Place of Trial.—Upon a motion for change of place of trial, on the ground of the residence of the moving parties, and the convenience of witnesses, all the defendants must join.</p> <p>Id.—Case Explained.—The case of O'Neil v. O’Neil, 54 Cal. 187, was one of the class of cases referred to in § 392, Code of Civil Procedure, and does not apply to this case.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying defendant’s motion to set aside the judgment, in the Twelfth District Court, City and County of San Francisco. Temple, J.</p> <p>The facts are stated in the opinion.</p>

Beldeh, J. The facts are stated in the opinion. After the decision in Department, the Appellant filed its petition that the appeal be reheard in Bank, and the application was denied.

<p>Construction of Contract—Damages.—The defendants, in consideration of a conveyance by the plaintiff’s assignor of certain mortgaged premises, agreed in writing that, upon the foreclosure against the mortgagee, they would see that no personal judgment was taken against him, and that the land, if sold under a decree of foreclosure, should sell for sufficient to pay the amount due upon the mortgage. The mortgage having been foreclosed, and the premises sold for less'than the amount due upon the mortgage, and a judgment against the mortgagee for the balance having been docketed, the plaintiff (or his assignee) brought his action against the defendant to recover the amount of the deficiency. Held, that he was entitled to recover.</p>

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

Petition for the writ of prohibition. The State Board of Equalization had given notice to the petitioner to appear at Sacramento, and show cause why the assessment of the property of the petitioner should not be raised.

<p>Appeal from an order of the Probate Court-- of the County of San Joaquin.</p> <p>The facts are stated in the opinion.</p>

<p>Tenant in Common—Ouster.—A refusal after a proper demand by a tenant in common, in possession, to admit his co-tenant is itself an ouster, and dispenses with further proof on that point. Held, accordingly, in an action by a tenant in common against a co-tenant to be let into possession, that an answer of the defendant, denying the plaintiff’s title, died in a former suit by the plaintiff against him, to be let into possession of the same land, was equivalent to an ouster.</p> <p>In.—Statute of Limitations.—In the same action, it appeared from the plaintiff’s testimony that the defendant entered upon the land in controversy some years before he acquired his title, and continued ever after-wards to occupy it for a residence and for cultivation; but there was no evidence of any adverse claim on his part. Held, that the evidence did not show an adverse possession.</p> <p>In.—Former Ajubication.—A judgment in a former case between the parties, held (upon the facts stated in the opinion) not to be a bar.</p>

<p>Alteration of Written Contract.—In an action upon a promissory note, there appeared upon the face of the note, when offered in evidence, an alteration of the date from “ 1871 ” to “1870”; that is, the figure “1” seemed first to have been written, and then changed into a cipher. Held, that it did not appear that the alteration was made after the execution of the note.</p> <p>Evidence—Consideration.—In an action upon a promissory note, held, that certain evidence stated in the opinion was admissible upon the issue of a want of consideration.</p>

Booker, J. Action upon a judgment recovered May 17th, 1871, by the plaintiff, Amelia L. Turner, then Mahoney, against the defendant, for the dissolution of the bonds of matrimony, theretofore existing between them, and for the sum of $50, attorney’s fee ; $56.25, costs; and $75 semi-annually for each of two minor children; and upon two promissory notes, of date October 2nd, 1873, payable November 17th, 1874, the one for $750, and the other for $45; the former bearing legal…

<p>Chattel Mortgage—Damages.—If an officer, under process, seizes personal property mortgaged, without paying or tendering the amount due, the detriment proximately caused hy the seizure is not the value of the property, hut the amount of the mortgage debt; and this detriment the officer, in seizing the property, assumes to make good.</p>

<p>State Lands—Atfdication to Purchase—Affidavit—Curative Act of March 24th, 1870.—The affidavit accompanying an application to purchase State lands, under the Act of March 20tli, 1868, did not state that the applicant desired to purchase the land, or contain a description of the land. Held, that it was insufficient, and the location therefore void; but that the defect was cured by the Curative Act of March 24th, 1870.</p> <p>Id.—Id.—Payment—Construction of Statute.—The provision of the Act of April 4tli, 1870, amendatory of the Act of 1868, to the effect that, in case of failure to make the first payment for the land purchased, within fifty days from the approval of the survey, the land shall revert to the State, and the survey and location become null and void, is merely declaratory of the true sense of the statute.</p> <p>Id.—Id.—Id.—Id.—Curative Act of March 27th, 1872.—The Curative Act" of March 27th, 1872, validated every application to purchase land from the State, where payment had been made in whole or in part to the treasurer of the proper county, and a certificate of purchase had been issued; and, in all such cases, the applicant, by virtue of the act, acquired a right to complete his purchase, even if, when the application was made, there was an entire failure on the part of the applicant to comply with the existing laws, or the State did not own the land, or had adopted no legislation for the disposition of it.</p> <p>Id.—Id.—Curative Act of March 27th, 1872.—The proviso in the first section of the Act of 1872, “ that the act shall not apply to school lands except to the amount of 320 acres to any one purchaser,” did not except from the operation of the act cases in which the applicant had previously applied to purchase more than 320 acres of land; but simply provided that no person should acquire title to more than that quantity by virtue of the act. Held, accordingly, where it appeared that an applicant had made previous applications for more than the designated quantity, but did not appear that any of such applications came within the terms of the act, that the proviso did apply.</p> <p>Id.—Id.—Id.—The operation of the act, with reference to cases in which payments had been made, and certificates issued at the date of its passage, was not affected by the amendatory Act of April 1st, 1878; but with reference to such cases the original act continued in force.</p>

<p>Prohibition to the Superior Court, of the City and County of San Francisco. Freelon, J.</p>

<p>The facts are stated in the opinion. After the- decision in Department, the respondent filed his petition that the appeal he reheard in Bank, and the application was denied.</p>

<p>Amendment — Jurisdiction. — The plaintiff obtained an ex parte order for leave to amend Ms complaint, and afterwards, upon motion of the defendant to vacate the order, the Court modified the same by requiring of the plaintiff, as a condition, that he should file an undertaking for costs. Held, that the Court, under § 473 of the Code of Civil Procedure, had the power to impose terms as a condition of the amendment, and that the order was therefore within its jurisdiction.</p>

<p>Appeal from an order denying a new trial, in the Superior Court of Sonoma County. Temple, J.</p>

<p>Appeal from a judgment for the defendants, in the Twentieth District Court, Santa Clara County. Belden, J.</p> <p>The facts are stated in the opinion.</p>

<p>Title of Complaint—Action by Partners—Variance.—In the title of a complaint, the names of the plaintiffs appeared withput being described as partners, but in the body of the complaint it was averred that they were such; and on the trial a partnership contract was proven, and it was objected and proven that the plaintiffs had not filed or published the certificate required by § 2466, Civil Code. Held—the plaintiffs claiming that the action was brought by them in their individual capacities, and that the allegation of partnership was surplusage—that the Court was inclined to agree with them, but that proof of a partnership contract could not sustain that theory of the complaint.</p>

<p>Garnishment—Judgment—Jurisdiction.— A person ordered under § 717 of the Code of Civil Procedure to answer concerning property of the defendant alleged to be in liis possession, or for indebtedness alleged to be due from him to the defendant, may be punished for contempt for disobeying the order; but a judgment by default cannot be taken against him, and such a judgment is without jurisdiction, and void.</p>

Wheeler, J. The facts are stated in the opinion. The action is now pending in the Supreme Court of the United States on writ of error.

<p>Appeal from a judgment in favor of the plaintiff, in the Fourth District Court, City and County of San Francisco. Morrison, J.</p>

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

Temple, J. The facts are stated in. the opinion. After the decision in Department, the appellant filed its petition that the appeal be reheard in Bank, and the application was denied.

<p>Infant Plaintiff—Guardian ad litem—Complaint—Pleading.— Where an infant sues by a guardian ad ¡item (as provided in § 372 Code Civ. Proc.), the complaint must allege the due appointment of the guardian, for the appointment of such guardian is a traversable fact, and must be stated in order that it may be traversed. Held, accordingly, that a special demurrer to a complaint, on-this ground, was rightly sustained.</p>

Stone, J. The facts are stated in the opinion. After the decision in Department, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Certiorari to R. McGarvey, Judge, and W. L. Bransford, Clerk of the Superior Court of Mendocino County.</p>

<p>Sake of Personal Property—Delivery—Change of Possession—Fraud as to Creditors.—If a vendor of goods in the care and keeping of a third person directs him to deliver them to the vendee, and the party holding the goods consents to retain the goods for him, and does so retain them, it is a sufficient delivery and change of possession to satisfy the requirements of § 3440, Civil Code.</p>

<p>Mandamus to Isaac S. Kalloch and others, constituting the board of new city hall commissioners.</p>

Belden, J. The facts are stated in the opinion. After the decision in Department, the appellant filed his petition that the appeal he reheard in Bank, and the application was denied.

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

<p>Corporations—Savings Banks — Construction op Statutes.—The original certificate of incorporation of a savings bank corporation, filed in I860, omitted to state the amount of the company’s capital stock. In a proceeding in the nature of a quo warranto against the corporation, held, that though the Act of April 14th, 1853, “ to provide for the formation of corporations for certain purposes,” did not seem to authorize the incorporation of any company without a capital stock consisting of a specified number of shares, yet the amendatory and supplemental Acts of March 4th and March 24th, 1870 (Stats, of 1869-70, pp. 32, 364), clearly recognize the validity of the or ganization of such corporations as the defendant, and these acts, taken in connection with the curative Act of April 1st, 1864 (Stats. 1863-64, p. 303), leave no doubt as to the validity of its incorporation.</p>

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

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

McMurtry, J. The facts are stated in the opinion. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Pre-emption.—Section 2261 of the Revised Statutes of the United States does not prohibit a pre-emptor from tiling a second declaration of intention to pre-empt the same tract of land described in a former declaration, when by reason of defects or other reason the first declaratory statement has become unavailing, and there have intervened no rights of third persons.</p>

<p>Damages—Negligence—Parent and Child.—In an action by a father against a person negligently causing a personal injury to his child, he can recover such damages only as he has himself sustained; leaving to the infant a further right of recovery of such damages as are personal to himself.</p> <p>Id.—Id.—Id.—Instructions.—In such action, it is error to instruct the jury that their verdict should be the amount of money which would compensate the child for his injuries.</p> <p>Id.—Id.—Id.—Id.—In such action, it is proper to instruct the jury that the plaintiff is not entitled to recover damages for the pain or suffering which his son experienced from the injuries which he received, or for his disfigurement therefrom.</p>

<p>Appeal from a judgment of conviction, and an order denying a new trial, in the Twenty-second District Court, County of Mendocino. Temple, J.</p>

<p>Appeal from a judgment, and order denying a new trial, in the Sixth District Court, Sacramento County. Denson, J.</p> <p>The action was brought against Miles as principal, and the other defendants as sureties, upon a bond executed by them for the faithful performance of a contract to build the branch State prison at Folsom. The complaint alleged a breach of the contract. The answer sets up a counter-claim for certain extra work, and judgment was entered against the plaintiff for the amount of said counter-claim.</p>

<p>Appeal from a judgment, and order denying a new trial, in the County Court of Solano County. Gregory, J.</p>

<p>XifSTBtrcTioir—CBntntAr, Law. — The following instruction to the jury held to lie erroneous: “ You are not legally bound to acquit the defendant, because you may not be entirely satisfied that the defendant, and no other person, committed the alleged offense.”</p>

Buckley, J. After the decision in Department, the respondent filed a petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from, an order refusing to revoke letters of administration issued to respondent, and to issue letters to appellant, and from an order denying a new trial, in the Probate Court of Marin County. Almy, J.</p>

<p>Appeal from an order appointing an administrator, in the Probate Court of the County of Los Angeles. Stephens, J.</p>

<p>Appeal from a judgment for the defendant, and from an. order denying a new trial, in the Superior Court of the County of Los Angeles. Sepulveda, J.</p>

<p>Evidence—Hearsay.—Certain testimony, stated in the opinion, held to he hearsay.</p>

Appeal by the plaintiff from a judgment for the plaintiff, in the First District Court, County of Ventura. Fawcett, J. Action to foreclose a mortgage executed by defendant Rice.

<p>Water Companies — Corporations—Irrigation.—Every corporation deriving its being from t,lie Act of May 14th, 1862, “ to authorize the incorporation of canal companies, and the construction of canals ”—whether incorporated for other purposes or not—has impressed upon it a public trust—the duty of furnishing water, if water it has, to all those who come within the class or community for whose alleged benefit it was created; and it cannot escape the performance of this public duty as a water company, by the assertion of a right, as another sort of a corporation, to apply all the water to its own uses, or to those of its grantees.</p> <p>Id.—Id.—Id.— Mandamus.—Mandamus is a proper remedy for enforcing this duty.</p> <p>Id.—Id.— Id.— Demand.— It is, however, an imperative rule, that before making an application for a writ of mandamus, an express demand or request must bo made on the defendant to perform the act sought to be enforced by the writ; and the demand should be definite and specific.</p> <p>Id.—Id.—Id.—Id.—Judgment.—In an action for mandamus, the judgment, as well as the preliminary demand, should he for specific and certain relief, such as defines clearly the rights of the plaintiff, and distinctly fixes the obligation imposed upon the defendant.</p> <p>Id.—Id.—Id.—(Myrick, J. concurring.) Section 552 of the Civil Code furnishes the rule by which the rights and duties of parties in this and similar controversies are to he determined.</p>

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

<p>Corporation—Partnership.—W. and T. & B., with two others, in pursuance of the contract stated below, formed a corporation for the purpose of acquiring lands and water rights, and of developing and sellingtlie same,the capital stock to belong, one-half to W. and one-half to T. & B.; and in pursuance of the agreement, W. and T. & B. conveyed to the corporation certain lands, to be paid for by the corporation at specified rates; and W. also conveyed to it certain other lands and water rights, for which T. & B. agreed to pay him the sum of $50,000, as follows: T. & B. agreed to advance money to the corporation for the purchase of certain lands, and also such sums as might be necessary for the purpose of developing its waters; and it was agreed, that one-half of such advances should be credited on their indebtedness to W., and also that two-tliirds of the share of T. & B. in the proceeds of sales of lands conveyed to the corporation by W. should be paid on the said indebtedness. T. & B. failed to advance the money required of them by their contract; and it therefore became necessary for the corporation to use all the money arising from the sales of lands in purchasing the additional land required, and in the development of the water. In an action brought by the executors of W. against the assignee of T. & B. for a settlement, held, that the relation of the corporation to W. and T. & B. was substantially, if not technically, that of a trustee, and the relation of W. and T. & B. to each other, that of partners; that the entire capital stock of the corporation should be treated as partnership assets; and the share of each in the same was the value of his original contribution, increased by his share of profit or loss.</p> <p>Id.—Id.—Jddiciai, Sale—Commissioner.—Accordingly, a decree was ordered that the entire capital stock be sold by a commissioner; and that out of the proceeds, after paying the expenses of the sale and the costs, there be paid to the plaintiffs the amount contributed by IV. in excess of the contributions of his co-partners; and that' the balance be equally divided between the plaintiffs and the defendant (the assignee of T. & B.).</p>

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

Sepulveda, J. The land in controversy, as appears by the findings, was selected by the State April 22nd, 1868, and listed to the State November 24th, 1871, and a certificate of purchase issued to the plaintiffs’ predecessor in interest, May 9th, 1872. The defendant settled upon the land in July, 1872.

<p>Estates of Deceased Persons — Claims — Affidavits — United States Court Commissioner—Construction of Statute.—A United States Court Commissioner is not an officer authorized to administer oaths within the meaning and intent of § 1494 of the Code of Civil Procedure. Ilald, accordingly, that an action could not be maintained against an executor upon a rejected claim against the estate, where it appeared that the affidavit to the claim, had been made before such an officer.</p>

Sepulveda, J. One of the bill of exceptions referred to in the opinion was as follows: “ Be it remembered, at nine o’clock a. at., of this 21st day of March, 1879, the defendants moved the Court for leave to file a supplemental cross-complaint and answer in this case ; but the Court refused to permit the same to be filed, on the following grounds : For the reason that the Court has no discretion left to open the case anew, but simply to obey the decision of the Supreme…

<p>Peobate of Will—Contest of Will—Peactioe.—A decree having been entered, admitting a will to probate, a new trial was granted on the ground that the findings were insufficient to support the decree, in this: that there was no finding that the deceased declared the document to be his will; but this objection was not covered by the grounds of opposition to the probate of the will filed by the contestant. Held, that, as the contestant did not address his contest to this point, an issue upon it was properly omitted by the Court in framing the issues for the jury, and that it was error to grant a new trial on the ground stated.</p> <p>Id.—Id.—Id.—It is necessary, before the Court can admit a will to probate, to require proof of all the acts requisite to constitute the execution of a valid will; but the proof of the acts, as to which the contest is not addressed, will be heard and passed upon by the Court alone, and is not to be submitted to or passed upon by the jury. Held, accordingly, that the judgment was sufficiently supported by the finding of the Court recited therein, that the will was executed in all respects according to law.</p> <p>Id.—Id.—Id.—In general, it would be more orderly for the Court to confine the proofs (especially where a jury is sitting) to the points in controversy; and after the jury has found upon such points, to hear proofs, addressed to the Court alone, as to the uncontested acts; but a different course held not to be erroneous.</p> <p>New Tbtal—Subpbise.—Surprise arising from the testimony of a disappointing witness, the truth of which is not denied, is not a sufficient ground for a new trial.</p> <p>Id.—Newly Discovebed Evidence. — Eespondent’s affidavit of newly discovered evidence, recited in the opinion held to be insufficient.</p>

<p>Reward.—Tn an action to recover a reward offered Ey the defendants for the arrest and conviction of any party guilty of a specified crime, the findings of the Court were in favor of the plaintiff, with the exception of the finding that-none of the acts of the plaintiff wore done with a view of ohtaining said reward, or any part of it. Held, that ho was not entitled to recover.</p>

<p>Appeal from a judgment, and order denying a new trial, in the First District Court, County of Santa Barbara. Fawcett, J.</p>

<p>Vendor’s Lien—Construction oe Deed.—The complaint alleged, that the plaintiff sold and conveyed to defendant T. certain land for tlie sum of one dollar, and for tlio further consideration of the payment of two certain mortgages; that T. afterwards executed a deed of trust to the other defendants for a portion of the land; and that T. failed to pay one of the mortgages, and that an action had been brought, and is now pending for its foreclosure. The Court below gave judgment in favor of the plaintiff for the amount of the unpaid mortgage, and for the sale of the mortgaged premises in case the same was not paid. Held, on appeal, that the complaint did not state facts sufficient to warrant the decree.</p>

<p>Appeal from a judgment for the defendant, in the Sixteenth District Court, County of Kern. Reed, J.</p>

<p>Arfeal-t-Final Judgment—Definition.—The appeal from the judgment in this case, and from an order subsequent thereto, dismissed without prejudice, as prematurely taken.</p> <p>New Trial—Findings —Trial. —If a case be tried by the Court, and findings of fact be made and filed, and the case be then sent to a referee to take and state an account, the trial of the case is not complete until the filing of the referee’s report, and the necessary steps for a new trial should not be taken until then. Held, accordingly, in such a case, that a notice of intention to move for a new trial, filed before the filing of the referee’s report, was premature; and the appeal from the order denying a new trial dismissed.</p>

Appeal by defendants Greene and Jackson from a judgment in favor of defendant Webb, in the Sixteenth District Court, County of Kern. Reed, J„ A petition for a rehearing in Bank was filed by appellants after the decision, and denied.

<p>Appeal by defendant Bicknell, from an order granting a new trial, in the Seventeenth District Court. Sepulveda, J.</p>

<p>State Patent—State Lands—Jukisdiction op Land Officebs.—In an action of ejectment, upon a State patent for land, of which it appeared the patentees liad never been in possession, and upon which the defendant, subsequently to the issue of the patent, had settled as a pre-emptor, the defense was, that the patent was issued without authority, and especially that the land, at the date of the State selection, and until after the issue of the patent, was within the limits of a Mexican claim, still pending and undetermined; and was therefore not public land within the meaning of the Acts'of Congress granting school lands or school indemnity lands to the State. II,eld, that the questions, whether the land was or was not public land within the meaning of the acts referred to, or whether the survey thereof was with or without authority of law, were questions which it was the duty of the land officers to determine, and if the'y made a mistake in their judgment, their action was erroneous, and not a mere nullity, and that the patent could therefore not he attacked.</p> <p>Id.—Id.—Id.—If the authority to issue the patent depends upon the existence of particular facts in reference to the condition or location of the property, or to the performance of certain antecedent acts, and officers have been appointed fort.be ascertainment of these matters in advance, who have passed upon them and given their judgment, then the patent, though the judgment of the officers be in fact erroneous, cannot be attacked collaterally by parties showing title subsequently from the same source, much less by those who show no color of title in themselves. In such cases, the parties without title cannot be heard at all, and the parties with subsequent title must seek their remedy by scire facias, or bill or information to revoke the iirst patent or limit its operation. (Affirming Doll v. Meador. 16 Cal. 325, and other cases.)</p>

Sepulveda, J. The council of Los Angeles, under the provisions of the charter of that city (Stats. 1875-76, pp. 705, et seq.), determined to extend and widen Los Angeles street, and ordered proceedings for condemnation, which were regularly had, unless the omission to make Michael Reese—a mortgagee of a part of the land condemned—a party was an irregularity.

McNealt, J. A petition for rehearing in Bank was filed in this case, after the decision, and denied. The greater part of the argument of counsel turned upon questions of fact, and is omitted.

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

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of San Bernardino County. Bolee, J.</p> <p>A petition for the rehearing in Bank in this case was filed after the decision, and denied.</p>

<p>Tax Deed — Eecitads — Stkeet Assessment.—"Where the statute prescribes the particular form of the tax deed, the form becomes substance, and must be strictly pursued, or the deed will be void.</p> <p>Id.—Id.—Id.—By article ix of the charter of Los Angeles, it is provided, that, upon a sale of property for a street assessment, a deed shall be made to the purchaser, “stating therein that it is made subject to redemption as provided in this article,” and further, that the deed “ must express the true consideration thereof, which is the amount paid by the purchaser.” A deed purporting to be made in pursuance of these provisions, after reciting that the property was sold for $1G8, stated that the deed was made subject to redemption, “as provided in article viii” of the charter, and that the consideration was $187.50. Held, that the deed was void, because it failed to state that it was “made subject to redemption as provided in article ix”; and also because it failed to state the true consideration.</p>

<p>Grand Jury — Interpreter—Indictment.—A person who is a witness on a criminal charge is not, on that account, incompetent to act as interpreter at the examination of other witnesses in the case before the grand jury.</p> <p>Id.—Id.—Id.—Appeal.—An order denying a motion to set aside an indictment, on the ground that such a person acted as interpreter at the examination of witnesses before the grand jury", is not reviewable on appeal by bill of exceptions, or on motion for a new trial, or on motion for arrest of judgment.</p> <p>Confessions—Evidence.—A confession made by a prisoner, under the influence of liquor furnished him with the consent of the officer having him in charge, but not influenced by anything said to him by the officer, held to be admissible in evidence.</p> <p>Instructions.—An instruction cited by the Court, held to have been properly refused because not predicated on the evidence in the case.</p> <p>Id.—A judge is not bound to instruct the jury on the history, object, or purpose of the law. He does his duty by saying what the law is, without an exposition of its reasons.</p> <p>Id.—The Court instructed the jury, that if they found from the testimony that the defendant, soon after the time deceased was killed, if killed at all, concealed himself, or fled from the neighborhood where deceased was slain, then that circumstance might be considered by them with the other testimony in the case bearing upon the question of defendant’s guilt. Held, that this instruction did not assume that the deceased had been killed, but left that fact as the substantial fact in the case for the jury to find.</p> <p>Id. —Circumstantial Evidence. —Certain instructions (given below) upon the subject of circumstantial evidence, held to be correct.</p> <p>Id.—When a legal principle has been once announced in the instructions of the Court, there can be no necessity for its repetition, and there can be no error in refusing to give it in a second instruction. The omission to mark the instruction as refused because given already, if an error, is an immaterial one.</p> <p>Impeachment ot Witness—Evidence.—A witness, introduced to sustain the character of a witness whose reputation had been attacked, was asked (by the district attorney) the question: “From what you know of him, would you believe him under oath?” Sold, that the question was improper, but as it was asked and answered without objection, there was no error.</p>

<p>Contbact— Specific Peefobmance.— A court of equity will not enforce any contract unless it be complete and certain as to parties, as well as to price, subject-matter, etc. Nor can the aid of court of equity be had to specifically enforce that which is only the basis of an agreement, and not the agreement or contract itself.</p> <p>In.—Id.—Constbuction—Deliveby of Deed.—In an action upon the document set out in the opinion, the Court found, in effect, that the same was executed by the plaintiff and defendant for the purpose and with the intent of making a full and complete settlement of all demands then existing between them; that the plaintiff had fully performed the terms of the agreement, and had executed, and the defendant had freely and voluntarily accepted, a deed, in pursuance of the agreement. Held, that the document referred to was not a contract, but a mere basis of a contract, to be framed after further negotiations; and could not be enforced in a court of equity, or an action for damages be maintained upon it; and held, further, that the evidence (as stated in the opinion) was insufficient to justify the finding as to a delivery of the deed.</p>

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

<p>State Lands—Jurisdiction of Land Officers—Estopped—Law of the Oase.—The decision of the Court on a former appeal (reported 52 Cal. 424), held to be the law of the case.</p> <p>Id.—Eiding of Plat—Public Lands.—When the filing of a plat is withdrawn by the proper authority, it is as though the map had never been filed, and the day of its return to the files is, in contemplation of law, the date of its filing. Held,.accordingly, in such a case, that the presentation of a claim, under the Act of July 23rd, 1866, for land confirmed by that act to the State, was within time where presented within the prescribed time after the refiling of the plat.</p>

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

<p>Appeal from a judgment for the defendant, and from án order denying a motion for a new trial, in the Eleventh District Court, County of El Dorado. Wheeler, J.</p>

Appeal by the interveners Thomas L. Acock, Charles W. Pierce, John Richards, James A. Elder, A. G. Rhodes, administrator of the estate of John P, Rhodes, deceased, Charles J. Jenkins and Emma S. Lowe, successors in interest of Marinda Otis, deceased, from a judgment in the Sixth District Court for the County of Sacramento. Reed, J. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from an order denying a motion to change the place of trial, in the Second District Court, County of Butte. Hundley, J.</p>

Hundley, J. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

Wallace, J. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

Safford,- J. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Parties—Reclamation District—Assessment — Service of Summons.—In an action to enforce an assessment upon lands in a reclamation district, any person claiming an interest in the land may appear and answer within forty days after the publication of summons and posting, as provided in § 3406 of the Political Code.</p> <p>Id.—Default.—A person claiming an interest in the land, against which a judgment has been entered in such action, may, after neglecting to answer within the forty days, move to vacate the judgment; and ids ignorance of the pendency of the action renders his neglect to answer excusable.</p> <p>Default—Affidavit of Merits.—In a mo|ion to vacate a default, an affidavit of merits cannot be contradicted.</p>

trial, in the Sixth District Court, County of Sacramento. Denson, J. After the decision in Department, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

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

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

Appeal by certain defendants from a judgment, and order denying a motion for a new trial, in the Sixth District Court, County of Sacramento. Denson, J. After the decision in Department, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>The action was brought to foreclose a lien for labor done at the request of the defendant, the East Branch Mining Company, upon a mining claim alleged to belong to said defendant. It was alleged, that the defendants Crittenden and Smith had or claimed some interest in the mining claim, and that the same was subject to the lien. The decree recited, that the defaults of the defendants Crittenden and Smith had been duly entered, but did not give any specific relief against them. The decree directed the property to be sold to satisfy the demand of the plaintiff. There was no dismissal entered as to defendants Crittenden and Smith.</p>

<p>Court Commissioner—Jurisdiction—Beceiver.—A court commissioner lias no jurisdiction to appoint a receiver, and a bond given by a receiver so appointed is void.</p>

Denson, J. Action to settle the accounts of defendant, assignee of plaintiffs, under assignment for benefit of creditors. The Court allowed $600 as commissions to defendant'. The assignment contained no provision for commissions, but made provision for disposition of the proceeds of all the assigned property. The plaintiffs appealed.

<p>Demurrer—Summons.—The failure to serve a copy of the complaint with the summons is not a ground for demurrer.</p> <p>Justice’s Covet—Jurisdiction—Landlord and Tenant.—The title or possession of real estate is not put in issue, in an action to recover rent alleged to he due on a written lease, hy an answer denying the plaintiff’s title and right of possession, and alleging the title and right of possession to he in , some one else, under whom defendant entered and held possession.</p>

<p>Appeal from a judgment, and order denying a new trial, in the Tenth District Court, Colusa County. Keyser, J.</p> <p>The record contains no findings, and nothing to show whether they were waived.</p>

Hundley, J. The action was brought to obtain a writ of mandamus, commanding the defendant, as county treasurer of Tehama County, to set apart to the relator of plaintiff one-half of certain moneys claimed to have been collected by the defendant upon certain live stock, the owners of which had made statements under oath, in accordance with the provisions of the Act of March 16th, 1874, that it was their intention to drive said stock during the year into Lassen County.

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

<p>New Trial—Evidence.—Held, that the verdict in this case should not be disturbed, on the ground of insufficiency of the evidence to justify it, there being some evidence to sustain it on every point on which the case was contested.</p> <p>Id.—Instruction.—The plaintiff, in replevin, claimed to have acquired the property in controversy by purchase from L. The ownership of L. was put in issue, and also the good faith of plaintiff’s purchase. Held, that it was error to instruct the jury, that, unless the defendant showed by a preponderance of evidence the plaintiff was not a purchaser in good faith of the property, they must find for the plaintiff, as such instruction took from the jury the consideration of the issue as to the ownership of L.</p>

<p>Appeal from a judgment for defendant, and from an order denying a motion for a new trial, in the Fourteenth District Court for the County of Placer. Re ardan, J.</p>

Reaedax, J. The action was brought to obtain a judgment determining that the defendants usurped the office of Trustees of Reclamation No. 3, and to declare that said District had no legal existence.

Wallace, J. The action was brought to recover a sum of money paid by the respondent under protest to the appellant as tax collector of Napa County. The plaintiff claimed that the lands upon which the taxes were paid were not in the county of Napa but in the county of Sonoma. The defendant had judgment. After the decision in Department, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Corporation—Capital Stock—Constitutional Law.—Section 359 of the Civil Code conflicts with § 11, article xii, of the Constitution (of 1879), and is annulled.</p> <p>Id,—Id.—Id.—The first clause of §11, article xii, of the Constitution, providing that no corporation shall issue stock, except for certain purposes, is prohibitory. The last clause of said section, providing for the increase of the capital stock of corporations, is not self-executing.</p> <p>Case Distinguished.—McDonald v. Patterson, 54 Cal. 245.</p> <p>Construction of Constitution.—Section 22, article xi, of the Constitution, as a rule of construction, applies to all the sections of that instrument alike.</p>