Volume 57 — California Reports

<p>Appeal from a judgment for the defendant, in the Superior Court of the County of El Dorado. Williams, J.</p>

Reardan, J. Neither the complaint nor the answer contained any allegations in relation to the order in which the parcels of land should be sold. The other facts are stated in the opinion.

<p>Evidence—Consideration.—Oral evidence is admissible to show the true consideration upon which a written release is executed; such evidence does not tend to alter the terms of the release.</p>

<p>Appeal from an order granting a defendant a new trial, in the Sixth District Court, County of Sacramento. Denson, J.</p>

<p>Master and Servant—Negligence.—A servant voluntarily entering upon an employment, the dangers and hazards of which are known to Min, must be held to have assumed the consequences of such risks. Held, accordingly, that the defendant was not liable for the death of an employee, resulting from a collision caused by its failure to provide fences along the line of its road, if the deceased knew of the want of fences.</p> <p>New Trial—Verdict “against Law”—Definition.—Where a new .trial is asked, on the ground that the verdict is against law, and it appears that the jury must either have disregarded the law as given in the instructions of the Court, or else have found a fact wholly contrary to the evidence, the verdict is against law, and it is proper to grant a new trial on that ground.</p>

<p>Appeal from a judgment for the plaintiffs, in the Sixth District Court, County of Sacramento. Reed, J.</p> <p>The appeal was taken by Thomas L. Acock and others, Interveners.</p>

<p>Master and Servant—Negligence.—The law implies, as part of the contract of service, that the servant assumes all the ordinary risks of personal injury, except the negligence of his employer, incident to the business, including risks from the negligence of other servants in the same business, when ordinary care is used to select only such as are prudent and capable; and that the employer engages, on his part, that he will use ordinary care as well in the selection of laborers as of machinery and appliances; and this includes the obligation to keep in repair.</p> <p>Id.—Id.—The servant also assumes special or unusual risks where he either knows them, or it is his duty in the course of his employment to know them.</p> <p>Id.—Id.—Fellow-Servant—Definition.—One to whom the employer commits the entire charge of the business, with power to choose liis own assistants, and to control and discharge them, is not a fellow-servant with those employed under him, and the master is answerable to all the under-servants for the negligence of such managing assistant, either in his personal conduct within the scope of his employment, or in his selection of other servants.</p> <p>Id.—Id.—Id.—In an action by a wife for damages for the death of her husband, occurring in the employment of the defendant, it appeared that the death was caused by a fire originating from a defective pipe, put up under the supervision of the defendant’s superintendent; and it did not appear that the deceased knew or had reason to know of the defect. Held, that the superintendent was not a fellow-employee of the deceased in the sense intended by § 1070 of the Civil Code; and that the work of putting up the pipe, being done under his supervision, was the same as though done by him in person; that the deceased had a right to rely upon the implied engagement , of the defendant that the pipe was properly placed and constructed, and that the defendant was therefore liable.</p> <p>Id.—Id.—Damages—Instructions.—Held, further, that it was not error for the Court to instruct the jury, that, in determining the amount of damages, they had the right to take into consideration the relations proved as existing between the plaintiff and deceased at the time of his death, and the injury, if any, sustained by her in the loss of his society.</p> <p>Id.—Id.—Id.—Id.—The rulings of the Court in giving and refusing certain instructions in regard to the liability of employers for injuries to employees, occurring in the course of their employment, considered and held to be correct.</p>

Reed, J. The judgment was actually entered July 11th, 1878, and the roll was filed same day, but the original entry purported to show that the former act was done September 1st, 1877, and the latter October 4th, 1877; on November 15th, 1878, after the term, the plaintiff made a motion to correct the record by inserting the true dates; the motion was granted. The defendant appealed from the order.

Denson, J. The action was brought to recover an assessment levied upon a portion of the lands embraced within Levee District No. 1 of Sacramento County.

Williams, J. The complaint stated, that “ the plaintiff is an association duly organized under an act of the Legislature of the State of Pennsylvania, entitled, ‘ An Act authorizing the formation of partnership associations,’ etc., * * * and doing business as such in said county of El Dorado.” Ever since 1854, the plaintiff and its predecessors were the owners of a ditch diverting water from Squaw Hollow Creek, of sufficient capacity to divert all the water of said creek,…

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 plaintiffs, in the Second District Court, County of Plumas. Clough, J.</p> <p>The plaintiffs had judgment for $450, the amount of the judgment recovered against the constable.</p>

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

Clough, J. The Court found, as a conclusion of law, that the damages and costs should be apportioned equally between the defendants. The judgment on this point was, “ that the costs be apportioned.”

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

<p>Evidence—Bill oe Exceptions.—A statement in the bill of exceptions that a writing was offered in evidence, and that an objection was interposed and overruled, is equivalent to a statement that the writing was admitted in evidence, although a direct statement would be more satisfactory.</p>

<p>State Lands—Contest—Surveyor-General—Patent.—1£ a patent issues for land as swamp land, and the same land is a part of the 500,000-acre grant to the State, the patent is void, and does not deprive the Surveyor-General of the power to make an order referring to the appropriate Court a contest arising in his office between two or more contestants as to the right to purchase the land.</p> <p>Id.—Id.—Id.—In such case, after the appropriate Court has made its judgment, the Surveyor-General cannot be permitted to call in question the evidence on which the judgment was based, nor the rulings of the Court on matters of law.</p> <p>Id.—Id.—Id.—Party—Mandamus.—The statute does not contemplate that the Surveyor-General should be a party to the action; it is his duty to act in accordance with the judgment which may be made therein, and his compliance therewith may be compelled by mandamus.</p> <p>Id.—Id.—Id.—Intervention.—In such case, after judgment, new parties cannot come in to prevent the enforcement of such judgment. Section 387 of the Code of Civil Procedure does authorize an intervention under such circumstances.</p>

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

<p>Appeal from a judgment for the plaintiff, in the Fourteenth District Court, County of Nevada. Beardan, J.</p>

<p>■Ajxsitnistrator—Estates op Deceased Persons.—As between the public administrator and the nominee of the married daughter of the intestate, the public administrator has the better right to letters of administration.</p>

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

<p>Appeal from a judgment convicting the defendant of larceny, and an order denying a new trial, and refusing to settle a hill of exceptions, in the Superior Court of the County of Merced. Marks, J.</p>

<p>Vabiaitce.—In the copy of the forged instrument set forth in an indictment for forgery, a word was spelled shipped, and in the instrument offered in evidence as the original, the same word is spelled shiped. Held, that the variance was not such as to exclude the instrument from the jury.</p> <p>In.—The rule in such cases appears to be, that where the word is so misspelled as to preclude the possibility of its being mistaken for any other word in the English language, the import of it is a proper question for the jury to pass upon.</p> <p>Juby Tbial—Instbuctioks—Pbactice—Immatbbial Ebbob.—It is error to allow the jury to take with them instructions refused by the Court; but a party cannot complain of the error, if the instructions be those asked by himself.</p>

<p>Application for the writ of habeas corpus, against the sheriff of Los Angeles County.</p>

<p>Bail—Murder—Abortion.—The petitioner was indicted for murder, and the evidence showed that the death resulted from certain acts of the petitioner done with intent to procure an abortion, but there was no evidence to show actual intent to kill; held, that the petitioner should be admitted to bail.</p>

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

<p>Challenge—Jury Trial—Bias.—In empaneling a jury where one of the parties is a Chinaman, it is proper to ask a juror, whether, other things being equal, the juror would take the word of a Chinaman as soon as that of a white man; and whether, if the defendant, a Chinaman, should be sworn as a witness in Ms own behalf, the juror would give his testimony the same credit that he would give to the story told by a white person, under the same circumstances.</p> <p>Lo.—Id.—A party has the right to put questions to a juror, to show, not only that there exists proper grounds for a challenge for cause, but to elicit facts to enable the party to decide whether or not he will make a peremptory challenge.</p>

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

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

<p>Manslaughter—Accessory — Criminal Law.— Certain evidence stated in the opinion held to be sufficient to support a verdict of guilty of manslaughter.</p> <p>Id.—Verdict—Criminal Law.—A verdict which is more favorable to the defendant than is warranted by the evidence and instructions, but which is within the province of the jury to find, is not in any sense contrary to law. Id.—Intent.—In manslaughter, there need be no appreciable time between the conceiving of the intention to kill and the actual killing. Held, accordingly, in a case where the question of concert entered into the intent, that an instruction that the jury must believe that the concert was in pursuance of an understanding or agreement previously formed, was properly refused.</p>

Alexander, J. The following is the instruction referred to in the opinion: “ The defendant Tams is charged, by the information filed in this Court against him, on the 15th day of May, A. D. 1880, with the crime of murder, alleged to have been committed in the county of Monterey, by willfully, feloniously, and of his malice aforethought, killing and murdering one George Mattart, on the 22nd day of April, A. D. 1880.

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

Belden, J. After the decision, the respondent filed its petition that, the appeal be reheard in Bank, and the application was denied.

<p>Mandamus—Constitutional Law—Information.</p>

<p>Mandamus—Constitutional Law—Information.</p>

<p>Partition—Findings—Statute of Limitations.</p>

Booker, J. After the decision, the respondents filed their petition for rehearing in Bank, and the application was denied.

The affidavit of plaintiff stated that the defendant refused to draw his warrant for any sum whatever, on the ground that there was no law fixing any salary prior to July 1, 1880.

<p>Appeal from a judgment for the plaintiff, in the Thirteenth District Court, County of Tulare. Campbell, J.</p>

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

<p>Motion of the respondent to dismiss the appeal taken in this case.</p>

<p>Default—Attorney and Client—Married Women.</p>

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

<p>Appeal from a judgment for the defendant, and from an order denying a motion for a new trial, in the Second District Court for the County of Tehama. Hundley, J.</p>

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

<p>Application for the writ of certiorari to the Fifteenth District Court. Dwinelle, J.</p>

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

<p>Appeal from a judgment, and order denying a new trial, in the Fifth District Court, County of San Joaquin. Booker, J.</p>

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

<p>Attachment—IT ndertaking.—A bond taken by a sheriff, in consideration of the release of attachment, is not void for want of conformity to the requirements of the statute, which, while prescribing one form, does not prohibit another.</p> <p>Bond—Pleading—Recital.—Whatever an obligor recites in a bond to be true may be taken as true against him, and need not be averred in a complaint on such bond, nor proved on the trial.</p>

Sullivan, J. The action was brought to obtain an injunction restraining the defendants from interfering with the railroad track of the plaintiff upon Montgomery avenue, in the city and county of San Francisco. Before the trial, the plaintiff applied for a preliminary injunction, and an order was made denying its motion in that behalf. The plaintiff appealed from the order.

Booker, J. Tho Court below made no finding upon the issue of the Statute of Limitations, other than as stated in the opinion. After the decision, the respondent filed his petition that the appeal be reheard in bank, and the application was denied.

<p>Mesne Pboeits—Use and Occupation.—A decree was made directing that the plaintiff pay into Court a sum of money, and that the defendant thereupon make a deed conveying certain land to the plaintiff, and also that he surrender possession thereof. Held, that the plaintiff could maintain an action for mesne profits for the period after said payment during which the defendant refused to surrender possession, although no deed was made pursuant to the decree.</p> <p>Id.—Decebe—Legal Title.—Me. Justice McKinstby, concurring, was of the opinion, that after such payment the decree operated to invest the plaintiff with the legal title.</p>

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

Daingerfield, J This is an action to enjoin the defendant, the town of Eedwood City, from paying certain water-works bonds to the defendant John Caddy, and to determine the right of the plaintiff to said bonds. The plaintiff claimed the bonds under an attachment in an action against Caddy, levied by serving a notice of garnishment upon the town of Eedwood City on May 16th, 1877, and under a subsequent sale of the same by the sheriff in said action.

<p>Insolvency Act—Bankruptcy Act—Constitutional Law.—It was competent for the Legislature to pass the Insolvency Act of 1876 while the Bankruptcy Act of the United States was in force, but its operation was suspended until the repeal of the Federal law.</p> <p>Verification—Pleading—Surplusage.—A verification is sufficient, which states that the party “has read the foregoing petition, and is acquainted with the contents thereof; that the same is true of his own knowledge and belief.” The words “ and belief” may be treated as surplusage.</p> <p>Id.—Id.—Demurrer.—An objection to a verification cannot be heard on demurrer.</p> <p>Insolvency Act—Petition.—An allegation in a petition in insolvency held to sufficiently show that certain debts were due.</p>

<p>Receiver—Notice ob Motion.—A motion to discharge a receiver ought only to he heard upon notice to all parties; hut held, in this case, that a failure to give such notice, was not such an irre gularity as to justify a reversal of an order of discharge.</p> <p>Id.—A receiver was in possession of a wharf and of the adjacent land, having taken possession thereof from defendant, and received money from the use of the entire premises. The adjacent land only was adjudged to belong to plaintiff. Held, that upon the discharge of the receiver, it was error to direct the whole of said money to he paid to the plaintiff.</p>

<p>Stbeet Assessjuent—Pabttes — Amendment—Pbaotioe.—In an action to enforce a street assessment against a lot in San Francisco, it appeared from the original complaint that all the defendants were joint owners of the lot, and, as such, necessary parties to the suit; but when the case was called for trial, the action was dismissed, on motion of the plaintiff, as to some of the defendants, and the complaint amended by striking their names from its caption. Hold, that if the effect of the amendment was to show that the dismissed defendants had no interest in the lot, then it was the right of the remaining defendants to amend their answer, and aver that the dismissed defendants did have an interest in the lot.</p>

<p>Statute oe Limitations—Tout.—The procuring of the levy of an execution issued upon a satisfied judgment is a tort, and constitutes a liability not founded upon an instrument in writing; and an action thereon is barred in two years.</p> <p>Id.—Id.—Injunction.—The running of the statute in such case is not suspended by injunction proceedings restraining the enforcement of the execution.</p> <p>Id.—Id.—Damages.—The statute begins to run in such case at the time of the levy, and subsequently accruing damages do not constitute separate causes of action, and do not postpone the operation of the statute.</p>

Wright, J. The proceedings were had under the Act of 1852, and the money in the hands of the sheriff had been received by him under proceedings in attachment against the insolvent.

<p>Admintstbatob — Ebaud — Sabe of Reab Estate—Estates of Deceased Peesous.—An administrator cannot be charged with the value of property sold under an order of the Probate Court without proving gross negligence, or fraudulent suggestion, or concealment on Ms part in obtaining the order of sale.</p>

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

Fawcett, J. After the decision, the appellant filed its petition that the appeal be reheard in Bank, and the application was denied.

Morrison, J. After the decision, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from a judgment, and order denying anew trial, and an order denying defendant’s motion to strike out the plaintiff’s cost bill, in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.</p>

<p>Undertaking on Ajppeal—Judgment against Sureties—Constitutional Law.—The statute permitting judgment to "be entered on motion against sureties on undertakings on appeal, after affirmance of the judgment, is not unconstitutional.</p>

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

Redman, J. Upon the hearing of the settlement of the account, Charlotte G. Page, a minor interested in said estate, appeared by her guardian, E. S. Wetmore, and objected to the account, and appealed from the order settling the same.

<p>Appeal from an order in the Nineteenth District Court, City and Countyof San Francisco. Wheeler, J.</p>

<p>Appeal from a judgment in the Twelfth District Court, City and County of Ban Francisco. Daingerfibld, J.</p>

<p>Mandamus — Injunction — Definition — Appeal — Former Adjudication— Estoppel.—In an action for mesne profits, after a judgment in ejectment, an order was made staying proceedings pending an action in the United States Circuit Court, by the United States against the plaintiff, to annul the patent upon which his title rested. Held, that the judgment in ejectment established plaintiff’s title to the land as against defendant, and the right to recover the rents followed, as a legal consequence; and that the order staying proceedings not being an injunction, no appeal lies from it, and therefore mandamus is the proper remedy.</p>

<p>Constitutional Law — Criminal Law—Due Process oe Law—Pishing Nets.—So much of § 636 of the Penal Code as declares that all nets, etc., used in catching or taking fish in violation of the provisions of chapter i, title xv, of said Code, shall be forfeited, and may be seized by the peace officer of the county, and by him destroyed or sold, is unconstitutional and void.</p> <p>Id.—Id.—Id.—Confiscations without a judicial hearing and judgment, after due notice, are void, as not being due process of law.</p>

<p>Growing Crop—Attachment—Personal Property—Definition.—An unripe growing crop is personal property not capable of manual delivery, and an attachment maybe levied upon it as such.</p> <p>In,—Id.—Id.—Id.—Abandonment.—An attachment upon such property in the possession of the defendant is sufficiently levied by serving upon him copies of the writ and statutory notice; and if the sheriff does nothing further until the crop is ripe, when he gathers it, there is no abandonment of the attachment.</p>

Buckley, J. The judgment distributed the property to the devisees as separate property, and the representatives of the wife appealed.

<p>Commission on Sam—Broker—Agent.—A party who employs a broker to sell real estate may, notwithstanding, negotiate a sale himself; and if he does so without any agency of the broker, and before the latter has procured a purchaser, he is not liable for commission.</p> <p>Id.—Id.—Id.—The commission of a broker is earned by finding a sufficient purchaser ready and willing to enter into a valid contract for the purchase, upon the terms fixed by the owner; and having introduced such a one to the owner as a purchaser, he is not deprived of his right to commission by the owner negotiating a sale himself.</p>

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

<p>Prohibition.—The writ of prohibition does not run to a ministerial officer; the collection of a tax by a town marshal is a ministerial act.</p>

<p>Satisfaction—Tort.—In action against two persons for damages, resulting from personal injury, the jury found that the plaintiff had received satisfaction for the injury alleged in the complaint from one of the defendants. Held, that he could not recover from the other defendant.</p>

<p>Guardian and Ward—Account.—A guardian of a minor lent money of Ms ward to B., on her promise to execute in the future her promissory note therefor, and a mortgage upon lands which she contemplated buying with said money. She bought the land, but refused to execute the note or mortgage; held, that the guardian should be held responsible for the money loaned</p>

<p>Estates of Deceased Persons—Contest of Will—Issues for Jury—Unsoundness of Mind—Drunkenness.—Where unsoundness of mind is relied on to defeat a will, the question of drunkenness, being mere evidence, should not he submitted as a special issue to the jury.</p> <p>Id.—Id.—Unsoundness of Mind — Pleading.—It is sufficient to state, as ground for contest of will, that the deceased, at the time of making it, was not of sound and disposing mind; hut when the grounds embrace conclusions of law, as menace, duress, or the like, the facts relied upon to show such conclusions must he pleaded. ’</p> <p>Signature—Evidence.—A subscribing witness who has no recollection of the execution of an instrument, but who recognizes the signatures, may he asked whether, taking into consideration his recognition of the signatures, it was his belief that the paper was executed as therein stated.</p>

<p>Will, Lost ok Destroyed—Estates oe Deceased Persons—Variance.— In an application for the probate of a lost will, if the will was lost or destroyed after the death of the testator, it must be alleged and proved to have been in existence at the time of the death; if it was lost or destroyed before death, it must be alleged and proved to have been fraudulently destroyed during the lifetime of the testator.</p>

<p>Appeal from a judgment for defendant, in the Twenty-third District Court, City and County of San Francisco. Thornton, J.</p> <p>The Court found that the Board of Supervisors had not ac- ' quired jurisdiction to order the work; hut it also found all the facts enumerated in the Act of April 1st, 1872, as giving jurisdiction to said Board. The assessment was claimed to have been levied under said act.</p>

Wiibeler, J. After the decision, the respondents filed their petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from an order granting a new trial, in the Third District Court, County of Alameda. McKee, J.</p>

Daingereield, J. This was an action to determine that the defendant held certain real property in trust for the plaintiffs. The defendants had judgment. After the decision, the respondent filed his petition that the appeal be reheard in Bank, and the application was denied.

Morrison, J. After the decision, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Outside Lands—Sab Ebancisco—Res Judicata.—A parcel of the lands granted to San Eranciseo hy Act of Congress of March 8th, 1866, had heen awarded to T., as successor of defendant R. The plaintiff, claiming to he himself the successor of R., sued T., R., and the city; and obtained a decree directing the city to convey to plaintiff instead of R., which was done. R. having ejected plaintiff, this action was brought for possession; and defendant claimed that said deed was void, because neither plaintiff nor his predecessors had complied with certain requirements of said act. Meld, that the defense was inadmissible.</p>

<p>Assignment ojt Non-Negotiable Contract—Mortgage—Consideration. —A mortgage, unaccompanied by any negotiable evidence of indebtedness, was executed by the defendant to S., and by him assigned for value to plaintiff; the mortgage recited an indebtedness, but in fact there was none. Meld, that an action could not be sustained by the plaintiff upon the mortgage.</p>

DaingerFIELD, J, The defendants demurred to the complaint, on the ground that the same did not state a cause of action. The demurrer was overruled and the plaintiff had judgment, and the defendants appealed.

McKee, J. After the decision, the appellants filed their petition that the appeal be reheard in Bank, and the application was denied.

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

Thornton, J. The following is the instruction referred to in the opinion: “ The actual occupation of the land by fences, buildings, or such improvements as reduces it to the absolute control of the occupant, to the exclusion of all other occupants, said occupant claiming title thereto in good faith, in the belief that he has a good right to the premises against plaintiff, and with the intention to hold them against the title of plaintiff, constitutes adverse possession.”…

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

<p>Appeal from a judgment, and order denying a new trial, in the Fourth District Court, City and County of San Francisco. Morrison, J.</p> <p>Ejectment to recover one undivided fourth of certain real property. It appeared from the pleadings and findings, that the defendant Finnegan, at the times that the plaintiffs and their grantors acquired their title, was in the actual possession of the premises as a tenant of the other defendants; and that the defendants were aware of the existence of the partnership mentioned in the opinion, that they acquired their title by a deed from John Paty, but that said deed was not made in the course of nor for the purpose of winding up the affairs of said partnership. The plaintiffs had judgment.</p>

<p>Complaint—Surplusage — Pleading—Presumption.—In an action for the conversion of personal property, the complaint alleged attorney’s fees as an element of damage. Held, that this allegation may be regarded as surplusage, and the jury will be presumed to have disregarded it.</p> <p>Appeal—Order—New Trial.—An order dismissing a motion for a new trial is erroneous, and such order, if made after judgment, is appealable.</p> <p>Id.—Practice.—Where there is an appeal from a judgment, and also from an order dismissing a motion for a new trial, an affirmance of the judgment and a reversal of the order should not prevent the Court below from setting aside the judgment, and proceeding to grant a new trial.</p>

<p>Protest — Notice of Non-Payment— Evidence.—The certificate of a notary, stating that he had duly notified all the parties to a promissory note of the protest thereof, by addressing a letter to each of them, and by delivering said letter at his place of business to a person of discretion having charge thereof, is prima facie evidence of that fact.</p> <p>Id.—Promissory Note.—It is not necessary that a promissory note should be protested in order to hold the indorsers.</p>

McKee, J. After the decision, the respondent filed its petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from an order in the County Court of San Benito County.</p>

<p>Amendment—Complaint.—It is error to allow a plaintiff to amend his complaint, changing the proceeding from an action ex delicto to one ex contractu.</p>

<p>Executors—Compromise—Estates or Deceased Persons—Trustee.—Executors and administrators have the legal right to compound and discharge debts due to their testator or intestate. Such a power belongs to all trustees.</p> <p>Id. — Id. — Id. — Section 1588 of the Code of Civil Procedure, authorizing compromises by executors and administrators of debts due the estate, upon the approbation of the Probate Court, was intended for their protection, and is not restrictive of their common-law powers.</p>

Breen, J. The defendant was convicted of murder in the second degree, and moved for a new trial, which was denied, and he appeals.

<p>Demaud—Chauge of Place of Trial.—A notice of a motion to change the place of trial is not a demand.</p>

Booker, J. This an action, against the sureties upon an undertaking given to procure the release upon bail of one McDonald. The plaintiff had judgment. The defendants appealed.

Thornton, J. After the decision, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Service of Summons.—An affidavit of service of summons "by a person other than the sheriff should state that such person was over the age of eighteen years at the time of such service.</p>

<p>Appeal from a judgment, and order denying a new trial, in the Twelfth District Court, City and County of San Francisco. Daixgerfield, J.</p> <p>After the decision, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.</p>

<p>New Teial—Conflict of Evidence.—The decision of the Court in this case sustained on the ground that there was a substantial conflict in the evidence.</p>

<p>Attachment—Insolvency Law.—The Act of March 31st, 1876, dissolves attachments levied within two months before the filing of a petition in insolvency, and in such case it is competent for the Court, upon the motion of the assignee, to direct its officer to release the property from its process.</p> <p>Insolvency Law—Constitutional Law.—There is no objection to the constitutionality of the Act of March 31st, 1876.</p> <p>Constitutional Law—Act of Legislature.—The Court is not prepared to say that if a subsequent act in effect changes or modifies an existing law, the subsequent act is unconstitutional, because the act changed or modified is not re-enacted and published at length as modified.</p>

<p>Surety—Pleading.—In an action against a principal and sureties, the principal pleaded a set-off, "but the sureties did not unite in the plea, and the principal did not appeal. Held, that the surety cannot be heard on appeal in relation to the defense.</p>

Daingerfield, J. The complaint alleged that the defendants were partners, and doing business under the firm name of Martin & Grorrill, and that they had agreed to purchase certain bricks from the plaintiff, etc.

<p>Evidence—Hearsay — Books of Account.— The plaintiff, as a witness, having before him one of his books of account open at the account of the defendant, testified that he sold and delivered certain goods to defendant; but on cross-examination it appeared that he did not sell or deliver the goods in person; held—the testimony having been objected to as hearsay— that the witness manifestly only read from the book, or stated the substance of the account as it therein appeared; that, strictly, this was objectionable as a mode of proving the contents of the writing; but that the account itself being in evidence, the error was immaterial.</p>

Wheeler, J. After the decision, 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, and an order denying the motion of the defendant to amend the findings, in the County Court of the City and County of San Francisco. Wright. J.</p>

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

Thornton, J. The complaint did not state when the plaintiff was incorporated. The certificate of its incorporation introduced in evidence was dated and filed before the date of the paper mentioned in the opinion.

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial, and from an order amending findings, in the Twelfth District Court, County of San Mateo. Dain-GERFIELD, J.</p>

Thornton, J. The publication referred to in the opinion was made in the year 1876. The defendant had judgment, and the plaintiff appealed. After the decision, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from an order in the Probate Court of the City and County of San Francisco. Mybick, J.</p> <p>The respondent was administrator of the estate of H. C. Kibbe, deceased; the Court below made an order settling his account, and approving the sale referred to in the opinion. On the hearing, the widow of the deceased contested the account, and she appealed from the order.</p>

<p>Appeal from an order in the Fifteenth District Court. City and County of San Francisco. DwiNELLE, J.</p>

<p>Appeal from a judgment for the plaintiff, and an order denying a new trial, in the Fifteenth District Court, County of Contra Costa. DwiNELLE, J.</p>

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

Dwinelle, J. One of the findings of the Court below is as follows: “ The buildings about the railroad of defendant, between the bridge and the tule marsh outside of the land condemned, that is, more than fifty feet on either side of the center line of condemnation, as shown on map, 'Exhibit 2, J. B. H.,’ were erected and placed on the land covered by them by defendants, with the consent verbal and in writing of plaintiff Eobinson, prior to the year 1867, and with the…

<p>Distribution—Estates of Deceased Persons.—Where there is not an ascertained balance of assets in the hands of an administrator, or if the assets are merely claimed to exist, and the right to them is involved in litigation, the estate is not ready for distribution, and the Court has the power, in its discretion, to delay the distribution until the right to the assets is judicially determined, and the balance of assets for distribution is ascertained.</p> <p>Estates of Deceased Persons — Trust — Sale.—A trust or power to sell real estate should not be exercised while there is a cloud over the title affecting its value, or the land is held adversely.</p>

<p>Appeal from a judgment in the Twenty-second District Court for the County of Sonoma. Temple, J.</p> <p>The action was brought to quiet the title of the plaintiff to the land conveyed to the plaintiff by Hopper. The judgment determined that the defendant, the Petaluma Gas Company, was entitled to the right of way mentioned in the opinion. The plaintiff appealed.</p> <p>After the decision, the appellant filed his petition that the . appeal be reheard in Bank, and the application was denied.</p>

<p>Mandamus—Discretion—Superior Court.—A Superior Court has no power or discretion to refuse to try an action until judgment in another and separate action in another court of this State.</p> <p>In.—Id.— Id.— Case Distinguished.—Morrison, C. J., and Thornton, J., dissenting, were of the opinion that the principle does not apply in a case where a Superior Court makes an order postponing a trial until another action pending in the Supreme Court, on appeal from the same court, is disposed of. Avery v. Superior Court, ante, p. 247, distinguished.</p>

<p>Appeal from a judgment for the defendant, in the Twenty-third District Court, City and County of San Francisco. Thornton, J.</p>

<p>Appeal from a judgment for the plaintiffs, and an order denying a new trial, in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J.</p> <p>The action was brought by the widow and children of one Frank Spearman for damages resulting from the death of the latter, claimed to have been caused by the negligence of the defendant. The defendant was a common carrier of passengers, operating a street-railroad.</p>

<p>Practice—Findings—Insufficiency of Evidence—New Trial.—On a motion for a new trial it appeared that the evidence sustained the findings, except that the evidence showed that a certain sum should have been credited to the defendant, and such credit was by some mistake not allowed in the findings; the new trial was denied. Held, on appeal from the order an<[ judgment, that the order should be affirmed, and the judgment modified so as to allow said credit.</p>

<p>Estates of Deceased Pebsons—Homestead — Quitclaim Deed.—A quitclaim deed made by a widow after the death of her husband furnishes no ground for the refusal of the Probate Court to set apart to her as a homestead, from the separate property of the deceased, a portion of the same land conveyed by said deed.</p> <p>Id.—Id.—Id.—If an heir convey his interest in the estate of his ancestor, he conveys such interest only as will remain to him after satisfying the objects of administration, unless the deed should in express terms cover more.</p> <p>Id.—Id.—The right to a probate homestead is not the subject of sale, and is not an estate either at law or in equity.</p> <p>Id.—Id.—Id.—Oonstkuction of Statute.—Section 1485 of the Code of Civil Procedure has no application to probate homesteads.</p>

<p>Appeal from an order in the Probate Court of Santa Cruz County. Craig, J.</p>

<p>Appeal from a judgment for the plaintiffs, in the Superior Court of the City and County of San Francisco. Evans, J.</p> <p>The defendant appealed.</p>

<p>Common Cajkrieb—Negligence.—In the absence of any special contract, it is negligence in a common carrier of goods to deliver the consigned goods by merely placing them on the bank of a river at the point of destination, in the absence of the consignee, and not under the care of the agents of the carrier, the latter having agents at that point for the purpose of receiving and delivering goods.</p>

Fawcett, J. The action was brought to foreclose a mortgage, and plaintiffs relied upon the deed referred to in the opinion as constituíing a mortgage. The plaintiffs had judgment, and certain of the defendants appealed.

<p>Appeal from a judgment for the plaintiff, and an order denying a new trial, in the Twenty-third District Court, City and County of San Francisco. Thornton, J.</p>

<p>Evidence—Usage — Stubble — Technical Teem — Consteuction of Contract.—If words in a contract have a special meaning given to them by usage, the meaning should be followed. So, held, in a case where the term “ stubble ” was used in a lease, and evidence was offered to show that by the custom of the country in the locality of the premises, the term included grain remaining uncut after the period of harvest.</p>

Dwinelle, J. The Court below made an order refusing to grant an injunction, and the plaintiffs appealed. After the decision, the appellants filed a petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from an order in the Probate Court of the City and County of San Francisco. Myrick, J.</p>

Fawcett, J. The defendants demurred to the complaint of the plaintiff, and the demurrer was sustained. The plaintiff elected to stand upon the complaint, and judgment was entered for the defendants.

<p>Bill of Exceptions—Exception—Practice.—It is not necessary to present a bill of exceptions to a decision refusing to open a default at the time of such decision. Bills of exceptions, to any decision whenever made, may be presented and settled as provided in § 660, Code of Civil Procedure.</p> <p>Eiling—Clerk—Fees.—A paper in a case is deemed to be filed when it is delivered to the clerk for that purpose, and the clerk’s fees paid if demanded.</p> <p>Id.—Default.—Demurrer.—It is premature to enter a default of a defendant whose demurrer is on file and undisposed of, notwithstanding that the demurrer has not been indorsed as filed by the clerk.</p> <p>Trial—Definition.—A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue.</p> <p>Clerk’s Fees—Mono County.—There is no law authorizing the county clerk of Mono County to receive three dollars fee for filing a demurrer.</p>

<p>Description—Complaint — Ejectment.—In a complaint in ejectment, the starting pioint was described as 208 chains 20 links east of the corner to townships 1 and 2 north, ranges 4 and 5 west, Mount Diablo meridian. On the trial, a witness testified that he was a surveyor, and made a map of the land, and that the starting point mentioned in the complaint was definite, and there could be only one such point. Held, that the starting point was sufficiently described.</p> <p>Patent—Mexican Grant —Administrator.—A patent which recites that the patentee is the administrator of E., the deceased claimant of the lands under a Mexican grant, vests the legal title in the patentee, although the patent purports to grant the land to him in his individual capacity.</p> <p>Id.—Id.— Mortgage—Description—Notice.—A patentee in such case was himself one of the heirs of E., the claimant; before the issuance of the patent he made a mortgage, and described the mortgaged premises as “ all my estate, right, title, and interest in the San Pablo Rancho (which was the land patented to him), meaning to convey all the right, title, interest, claim, and demands, and inheritance as heir of F. and his wife G.” Held, that the mortgage only operated on the interest which the mortgagor derived by said inheritance; and that the recitals in the patent and the language of the mortgage were sufficient notice to the mortgagee of the trust in favor of the other heirs of the claimant.</p> <p>Mortgage—Subsequently Acquired Title.— A mortgage purporting to convey in fee all the estate, right, title, and interest of the mortgagor in a parcel of land operates upon an interest and title subsequently acquired by the mortgagor.</p>

Morrison, J. The defendant Townsend appealed. After the decision, the appellants filed their petition that the appeal be reheard in Bank, and the application was denied.

<p>Appeal from an order in the Fourth District Court, City and County of San Francisco. Morrison, J.</p> <p>The defendant appealed.</p>

<p>Appeal from a judgment for the defendant, and an order denying a new trial, in the District Court, Sonoma County. Temple, J.</p> <p>Action to quiet title, and restrain the execution of a judgment. The plaintiff offered testimony to show that a contest was had in the United States land office between the State and the United States, of which the defendant had notice, and that it was decided by the register and receiver that the land had not been selected by the State, and was public land of the United States; and he offered in evidence a patent from the United States, issued to himself, based upon the homestead claim referred to in the opinion.</p> <p>The defendant offered in evidence the judgment roll in the action of ejectment, Young v. Shin, referred to in the opinion. The judgment therein was entered before the decision of the register and receiver, and before the date of the patent.</p> <p>After the decision, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.</p>

<p>Appeal from an order in the Probate Court for the County of San Mateo. Bicknell, J.</p> <p>On the trial of the petition for the probate of the will, Pardon B. Johnson, the father and heir at law of the deceased, contested the petition, and appealed from the order.</p>

Belden, J. The complaint states that among the franchises exercised by the defendants was the following: To own and possess a certain highway, and to collect tolls thereon.

Wheeler, J. After the decision, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

<p>Petition for the writ of certiorari.</p> <p>No briefs on file.</p>

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

<p>General Fund—Special Appropriation—Drainage Act—Treasurer of State—Construction of Statute.—Money received by the State Treasurer, although collected and specially appropriated under an invalid act, should not be paid into the General Fund. Accordingly, application refused for mandamus to compel the State Treasurer to pay into the General Fund money collected under the drainage act.</p>

Petition for the writ of prohibition. The defendant Kenfield was the Gontroller, and the defendant Weil was the Treasurer, of the State of California.

Thornton, J. The following is a copy of an order entered on the 6th day of August, 1874: “ In the Supreme Court of the State of California. “Thursday, August 6th, 1874. “ Court met at eleven o’clock, pursuant to adjournment. Present, Hon. W. T. Wallace, C. J., J. B. Crockett, J., A. C. Hiles, J., E. W. McKinstry, J. Grant I. Taggart, Clerk. Thos.

<p>Bes Judicata—Mandamus—State Lands.—The State obtained a judgment against the holder of a certificate of purchase, foreclosing the interest of the holder, and annulling the certificate and awarding costs to the State. Execution was returned unsatisfied, and a portion of the money paid upon the certificate was applied to the payment of the judgment. The holder applied for mandamus to compel the Surveyor-General to issue a certificate for all the money paid on the certificate of purchase, on the ground that the State never had title to the land. Held, that the judgment was a bar to the application.</p>

<p>Appeal from a judgment of conviction in the Superior Court of the County of San Joaquin. Buckley, J.</p>

<p>Extortion—Definition—Property—Criminad Law.— The right to take and prosecute an appeal is property within the meaning of § 519 of the Penal Code; and a threat made for the purpose of inducing an appellant to dismiss an appeal is a threat made with intent to extort property from an other.</p> <p>Id.—Id.—Id.—Id.—It is a crime to send or deliver a letter containing such threats with intent to extort property from another, whether such letter be subscribed or not.</p>

<p>Judgment Roll—Criminal Practice.—Section 1207 of the Penal Code does not require the proceedings before the committing magistrate to be inserted in the record, nor does it permit such proceedings to be annexed to the roll.</p> <p>Information — Demurrer—Criminal Practice —It is not necessary that an information should contain any averment with reference to the examination of the defendant before a committing magistrate.</p>

<p>Instruction—Iaematertal Error.—It is no ground for reversing a judgment of conviction, that a portion of an instruction was without meaning.</p>

<p>Testimony on a Dormer Trial—Witness—Evidence—Criminal Practice. —On the trial of an indictment, the reporter’s notes of the testimony given on the trial of a former indictment for the same offense, by a witness shown to be out of the State, are inadmissible in evidence.</p> <p>Id.—Case Distinguished.—People v. Devine, 46 Cal. 48, distinguished.</p>

<p>Evidence—Self-Defense—Assault to Murder—Criminal Law.—On the trial of an indictment for assault with intent to murder, the defendant introduced evidence tending to show that he acted in self-defense, and was assaulted before he made the assault. Held, that it was erroneous to exclude testimony tending to show the extent of defendant’s injuries, and the time and place when they were inflicted.</p> <p>Id.—Criminal Practice—Presumption—Trial by Jury.—If an objection to a question be sustained, and the witness nevertheless proceeds to answer the question, it will be presumed that the jury disregarded the answer.</p>

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

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

<p>Appeal from a judgment for the plaintiff, and an order denying a new trial, in the Ninth District Court, Siskiyou County. Rosborough, J.</p>

Reed, J. The following is the allegation in the complaint referred to in the opinion: “ That said district is, and has been ever since the 22nd day of December, A. D. 1870, a corporation, to wit, a swamp land district, created, organized, and existing under and by virtue of the laws of the State of California, and is and has been ever since said 22nd day of December, A. D. 1870, or thereabouts, a defacto corporation, to wit, a swamp land district, claiming in good faith to…

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

<p>Application for mandamus.</p>

The petition states that the petitioner is restrained of her liberty by P. Crowley, chief of police of the city and county of San Francisco.

Brundage, J. The action was brought to recover a sum of money paid by the plaintiff to the defendant, who was treasurer of Kern County, upon an agreement between the plaintiff and said county, to the effect that the latter would sell and deliver to the plaintiff a certain amount of valid county bonds of said county.

<p>Ejectment—Evidence—Prior Possession.—In an action of ejectment, where the question is one of prior possession, the judgment rolls in actions of ejectment between the grantors of the plaintiff and the defendant are admissible in evidence as tending to prove possession.</p> <p>Bindings—Immaterial Error—Statute of Limitations.—A judgment will not be reversed where the want of a finding on a particular issue is not prejudicial to the appellant. Held, accordingly, in an action of ejectment, where the Court found that the plaintiff was never the owner nor entitled to the possession of the premises, it was unnecessary to find upon an issue of the Statute of Limitations.</p>

<p>Construction of Statute—Office—Vacancy.—Under § 996 of the Political Code, an office becomes vacant when the person elected thereto does not qualify at all, and fails to file his official oath or bond within the time prescribed.</p> <p>Id.—Incumbent—Definition.—Such person is an incumbent within the meaning of said section.</p>

<p>Appeal from a judgment for the plaintiff, in the Superior Court of the City and County of San Francisco. Sullivan, J.</p> <p>After the decision, the appellant filed her petition for a rehearing, and the application was denied.</p>

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

<p>Salary of Officers—Constitutional Law.—The constitutional provision against altering the compensation of an officer during his term applies to those officers elected at the first election after the adoption of the Constitution, whose salaries were fixed by previous laws.</p>

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

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

<p>New Trial—Misconduct of Jury—Affidavit of Juror to Impeach Verdict.—The affidavit of a juror cannot be received to impeach a verdict, to.—Conflict of Evidence—Instructions—Exception.</p>

<p>Ratification of Act of Agent—Estate.—A principal is not bound by liis approval of an act of an agent already done, made under a misapprehension of the real nature of the facts.</p>

<p>Foreclosure—Mortgage—Deed Intended as a Mortgage.—The defendant borrowed from the plaintiff $1,350, for which he agreed to pay the plaintiff, a year after date, $1,600; and to secure the payment thereof, executed a deed of conveyance for certain lands to the plaintiff, and the plaintiff at the same time executed to the defendant a bond conditioned for the reconveyance of the land on or before the expiration of the year, provided the defendant should have paid the said $1,600. In an action to foreclose, held, that the plaintiff was entitled to a judgment against the defendant in the usual form for the sale of the premises, and for the docketing of a judgment for any deficiency resulting.</p> <p>Id.—Id.—Id.—Interest.—1-Ield, further, that the plaintiff was entitled to interest on the $1,600 from the time that the mortgage debt became due.</p> <p>Id.—Id.—Id.—Sale oe Real Estate.—Held, further, that the Court was not bound to find whether it would be to the advantage of the defendant to have the mortgaged lots sold separately.</p> <p>Id.—Id.—Id.—The power of the Court to refer a case to referees depends upon the pleadings, and a reference may be ordered in any equity suit, where either party alleges facts showing an Accounting to be necessary.</p>

Rolee, J. The instruction referred to in the opinion of the Court was as follows: And if you believe that from and after Reutinger commenced the business of bakery in the premises insured, all the stock used in such business from the 1st of May, 1879, to the 16th of February, 1880—the time of the fire—was purchased by Reutinger from the profit of his business, then the Court instructs you that whatever stock was on hand at the time of the said fire was the property of said…

<p>Appeal from an order changing the place of trial from the Superior Court of the County of Santa Barbara. Hatch, J.</p>

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

<p>Appeal from a judgment for the plaintiffs, and from an order denying a motion for a new trial, in the First District Court, County of Ventura. Fawcett, J.</p>

<p>Appeal from a judgment for the plaintiff, in the Superior Court of Los Angeles County. Sepulveda, J.</p>