Volume 59 — California Reports

Appeals from judgments for the plaintiff and. from orders •denying new trials, in the Third District Court, County of Alameda. McKee, J. The complaints in these two cases were filed on the same day—No. 6962 being to foreclose a lien under a contract executed August 23d, 1876, and No. 6963 to foreclose a lien under a contract executed September 12th, 1876. The two cases were heard together, and their records are similar.

<p>Breach of Bond.</p>

<p>Promissory Note—Consideration—Conflict of Evidence.</p>

<p>Sunday Law—Construction of Constitution—Special or Local Legislation.—At the time the law in question (the Sunday Law, Pol. Code, § 300) was passed there was no constitutional objection to special or local legislation, therefore the act is not unconstitutional on the ground of being a special law.</p> <p>Id.—Id.—Id.—The provision of section 25, article iv, that “the Legislature shall not pass local or special laws,” applies to future and not to past legislation, and therefore does not act as a repeal of acts passed before the Constitution went into effect.</p> <p>Id.—Id.—Id.—Definition.—It seems that the act in question is not a special law.</p> <p>Id.—Id.—Id.—Uniform Operation—Definition.—The act in question is uniform in its operation, and therefore not in contravention of section 11, article i, of the Constitution.</p> <p>Id.—Id.—Id.—Liberty of Religion.—The act does not interfere with religious liberty, and therefore is not in contravention of section 4, article i, of the Constitution.</p>

<p>Appeal from a judgment for the plaintiff in the Fifth Dis-strict Court, County of San Joaquin, Booker, J., and from an order denying a motion for a new trial, in the Superior Court of the same county. Patterson, J.</p>

<p>Appeal from an order overruling defendant’s motion for a new trial in the Superior Court of Santa Clara County. Spencer, J.</p> <p>Petition for hearing in Bank was filed, after judgment in this case, and denied.</p>

Booker, J. The action was upon a promissory note made by the defendants to the plaintiff for the sum of five thousand three hundred and forty dollars and ninety-four cents, dated November 20th, 1876, and payable six months after date.

<p>Specific Pebfobmanoe of Contbact—Vendob and Vendee—Mutuality.—If an agreement be deficient in either fairness, justice, or certainty, its specific execution will not be decreed, and in addition to these elements the agreement must be mutual; and when from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, it can not be specifically enforced against the other.</p> <p>Id.—Id.—Id.—-Assignment.—P. agreed to convey certain land to B. and J. on or before a date specified, provided the latter complied with the covenants contained in the contract, and the covenants of the latter were, that they would pay for the land a certain sum per acre, and also that they would prospect the land for coal, and should they find sufficient in their opinion to warrant them, they would organize a corporation, and cause to be issued to P. a certain amount of unassessable stock; but that if before the expiration of the specified time they should become satisfied that it was useless to further prospect said lands agreed to be conveyed, for coal, then upon giving thirty days’ notice to P. in writing of their intention to abandon said contract, the agreement should be void,</p> <p>Held, in an action for specific performance by the assignees of B. and J., that the contract called for the exercise of personal skill on the part of B. and J., that it could not be specifically enforced against them, because, besides the difficulty of enforcing the contract for personal services, the contract gave them the option to abandon it, and that therefore it could not be specifically enforced against P.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Superior Court of Humboldt County. Hatees, J.</p> <p>A petition for hearing in Bank was filed in this case after judgment, and denied.</p>

Crane, J. The complaint alleged that said agreement of partnership continued until the 11th day of April, 1879, when an accounting was had of the whole business done by plaintiff and defendant under said agreement, and settlement was made and agreed upon by the said plaintiff and defendant.

<p>Appeal from a judgment for the defendant in the Tim’d District Court, Alameda County. McKee, J.</p>

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

<p>Street Assessment—'Venue—Description—Diagram—Points of Compass—Judicial Notice.—The Courts take judicial notice of the streets of San Francisco, and of their relation to each other, and of the directions in which they run,</p> <p>Held, therefore—in an action upon a street assessment in which the case differed from that in Whiting v. Quacienbush, 54 Cal. 306, only by the absence of an arrow or scroll in the diagram—that the difference was immaterial.</p> <p>Id.—Contract for Street Work—Time of Commencement—Sufficiency of Evidence.</p>

<p>Gut—Weight or Evidence—Juby—Instruction—Trial.—In an action for money loaned (the complaint also containing a count for money had and received, etc.), the defendant and one M. testified (in effect) that they applied to H. (the plaintiff’s intestate) for loans of money to purchase certain stock (the defendant one hundred and M. fifty shares); that H. assented, and gave M. a check for the money with which to purchase the stock, including one hundred -shares for himself; that M. purchased the stock, and that, a day or two thereafter, the defendant, M. and H. being together, and M. having the certificate of shares in his possession, the defendant and M. proposed to give their notes for the money advanced to them, and that H. declined to receive the notes, and told them that he made them a present of the stock; and that M. thereupon handed to defendant his one hundred shares, gave H. his, and took fifty shares himself. Depositions of these two witnesses were also read in evidence, in which (as was claimed by the plaintiff) the witnesses gave a different account of the transaction. At the close of the evidence, the Court in effect instructed the jury, that the mere application of M. and the defendant to H. to make the loan, and the consent of H. to such application, did not necessarily constitute a loan from H. to the defendant, or from H. to M., if H. all the time intended the transaction to be a gift and not a loan. The verdict was for the defendant.</p> <p>Held, That the facts testified to tended to show that the transaction was a gift and not a loan, and that the instruction was correct and applicable to the evidence; that if, as contended by appellant, each of the witnesses contradicted himself and was contradicted by the other, the jury was the sole judge of the weight to be given to their entire testimony and to every part thereof, and that therefore the verdict could not be disturbed.</p> <p>Id.—Admission of Immaiebial Evidence—Teiad.—The admission of immaterial evidence: Held, Upon the facts stated in the opinion, to have been an immaterial error.</p>

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

Brundage, J. The resolution of the Board of Trustees was that an election should be called to submit to the electors of said school district the question whether a tax of two thousand five hundred dollars shall be raised for maintaining the school for the remainder of the term of the present school year, and for the purchasing and inclosing the school grounds, and completion of school buildings in said district, and the notice of the election was substantially to the same…

<p>Tenants in Common—Parties to Action—Trustee and Cestui que Trust.—One of several tenants in common conveyed Ms interest to a third party to secure a debt:</p> <p>Held, That both the grantor and grantee were necessary parties to an action between the co-tenants for an accounting.</p> <p>Id.—Statute of Limitations.—Li such an action by tenants in common against a co-tenant in possession, the complaint was demurred to on the ground that the cause of action was barred by the Statute of Limitations; but the Court in its decree disallowed all items not accruing within four years before the commencement of the action. Held, That this disposed of the question of the Statute of Limitations.</p> <p>Id.—Delivery of Deed—Relation.—A deed delivered to the clerk in order to stay execution, upon affirmance, takes effect as of the date of delivery to the Clerk.</p> <p>Id.—Rents and Profits Received by a Tenant in Possession—Action for Accounting.—Held, upon the facts found by the Court below, and stated in the opinion, that the Court did not err in deciding that the defendant T. was liable to his co-tenants for the moneys he realized from the pasturage of the common property, and in deciding that such earnings were within the legal designation of rents, for which an action could be maintained by a co-tenant. Held, further, that T. was not entitled to an allowance for his services in carrying on the business of the ranch. Id.—Id.—Id.—If one tenant in common occupies the property and cultivates it, investing his own capital and labor at his own risk, the law says that he shall have the product, if he has made no contract with Ms co-owners, but if he rent the property to others he is bound to account, and an action may be maintained by his co-tenant prior to a partition of the property.</p>

Appeal by Charles J. Collins, administrator of the estate of José Domingo Peralta, deceased, from a judgment condemning certain lands alleged to belong to said estate in the Superior Court of Alameda County. Crahe, J.

Briggs, J The Court found that the notes were executed as part of the consideration of the sale and conveyance to the maker by quitclaim deed of all standing and growing timber fit to be sawed and manufactured into lumber, standing and growing upon the lands referred to in the opinion. The deed contained a covenant on the part of the grantor that he would use due diligence to obtain a Government title to said land.

<p>Appeal from a judgment for the defendant in the Superior Court of San Luis Obispo County. McMurtry, J.</p> <p>Petition for hearing in Bank was filed in this case after judgment, and denied.</p>

<p>Admissions in the Pleadings—Finding—Finding Contbaby to Evidence—Definition—Action to Abate Nuisance.—A finding which negatives the existence of a fact admitted by the pleadings, is a finding against evidence, and the judgment rendered thereon is erroneous.</p>

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

<p>State Patent—Statute oe Limitations—Reserved Lands—Mexican Grant—-Unsurveyed Lands—Lieu Lands—Confirmation of State Selections by Act of July 23d, 1860.—In ejectment upon a State patent, the defenses were, the Statute of Limitations; that the lands were a part of a Mexican grant; that the lands in lieu of which the lands in controversy were taken were not lost to the State, and that at the time of the application for the location of the lands patented the same had not been surveyed:</p> <p>Held, upon the last point, upon the facts stated in the opinion, that under ■section 3 of the Act of Congress of July 23d, 1866, the title vested in the plaintiff; and upon the other points, that the findings of the Court in favor of the plaintiff were sustained by the evidence.</p>

McKee, J. The note and mortgage sued upon were subject to the conditions and stipulations of a written agreement, executed by the defendant and his wife, of the same date, which is set out in the transcript.

<p>Execution—Attachment—Exempt Property—Warrant for Pay Due Officer — Ratification — Supplemental Answer—Discretion of Court—Mandamus.—Upon an application filed May 7th, I860, for a writ of mandamus to the County Treasurer to compel him to issue to the plaintiff, a warrant for services due him as District-Attorney, the answer alleged that the defendant had executed a warrant for the sum claimed, and the same had been levied upon and seized by the Sheriff under an attachment and execution regularly issued against the plaintiff; and on the 30th of May, while a demurrer to the answer was still undecided, the defendant asked leave to file a supplemental answer, setting up that the warrant had been sold by the Sheriff under the execution, and that the plaintiff was present at the sale and made no objection, and received and retained the balance of the proceeds after the satisfaction of the judgment, but the Court refused to allow the supplemental answer to be filed.</p> <p>Held, That the matters set forth in the supplemental answer showed a ratification by the plaintiff of the levy and sale, and that there was no unreasonable delay in making the motion to file the supplemental answer.</p>

<p>Corporations—Liability of Stockholders—Pledge—Definition.—In an action against a stockholder to recover his ratable proportion of the debt of a corporation, it appeared that the corporation had transferred to the plaintiff its personal property “as security for the indebtedness due.” The Court instructed the jury that it was no defense that a portion of the property given in pledge to the plaintiff remained in his hands undisposed of.</p> <p>Held, That the instruction was correct, and that other instructions embodying a contrary doctrine were rightly refused.</p> <p>Id.—Id.—The stockholders of a corporation are not sureties as regards the creditors of a corporation.</p> <p>Id.—Id.—Id.—Id.—In the absence of a statute or stipulation to the contrary, the possession of the pledged property does not suspend the right of the pledgee to proceed personally against the pledgor for his debt without selling the pledge.</p> <p>Id.—Id.—Id.—Id.—Held, further, That the transaction (the possession having been transferred to the pledgee) was a pledge, and therefore that it was not error for the Court to refuse to instruct the jury that if they believed from the evidence that it was a mortgage or security for the payment of the indebtedness of a corporation or an actual sale, the plaintiff cduld not recover.</p>

<p>Appeal from a judgment for the defendant and from an order denying a new trial in the Superior Court of Sonoma County. Pressley, J.</p> <p>The Court found that upon an accurate survey and location of the lands conveyed by Vallejo to Munday according to the calls of the deed, the land in dispute would be included in that deed, and also in a deed to the plaintiff from Munday by the calls of that deed. It also found that the patent to Vallejo by the United States was issued on the 19th day of November, 1874. The complaint was filed November 7th, 1879.</p>

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

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

<p>Appeal from an order in the Superior Court of Monterey County. Alexander, J.</p>

Hewell, J. The action was against the defendant F., as Sheriff, and another, for the conversion of chattels levied upon under attachment, and the plaintiff moved for a change of venue to the Superior Court of San Joaquin, the nearest county. Terry, McKinne & Terry, for Appellant, cited Code Civ. Proc., § 170; id., § 398; People v. De Guerra, 24 Cal. 73; Estate of White, 37 id. 190.

<p>Appeal from an order of distribution in the Superior Court of Alameda County. Green, J.</p>

<p>Appeal from a judgment for the plaintiff and from an order denying a new trial in the First District Court of San Luis Obispo County. Fawcett, J.</p>

Temple, J. The complaint alleged in substance, that two certificates of , stock (Nos. 19 and 20) were issued by the defendant to plaintiff’s husband, A. S. Edwards; that the said certificates were assigned for value received, the former to the plaintiff and the latter to Mrs. Frances Haraszthy, and that the defendant had due notice of the assignments; that on or about the 1st of April, 1878, the plaintiff and the said Frances Haraszthy and the said A. S. Edwards advised the…

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

An appeal from an order of the Superior Court of Santa Clara County. Spenser, J. The amount claimed in the complaint was twenty thousand dollars, and the same was specified in the summons as the amount claimed.

Belden, J. The action was by the plaintiff, as surviving partner of the firm of Zuck & Hoover, to recover a balance alleged to be due upon an account stated.

<p>Chattel Mortgage—Crop.—Section 2972 of Civil Code keeps alive the lien of a mortgage upon a growing crop only so long as the same remains on the land of the mortgagor.</p>

<p>Appeal-from a judgment for the defendant in the Twenty-second District Court, County of Sonoma. Temple, J.</p>

<p>Appeal from a judgment for the plaintiff in the Thirteenth District Court, County of Fresno, Campbell, J.; and from an order denying a new trial, in the Superior Court of the same county. Holmes, J.</p>

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

Williams, J. This is an action to vacate a judgment and decree of foreclosure of two mortgages,'under which the defendant, Thomas Mitchell, purchased a portion of the mortgaged property, on the ground of fraud.

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

<p>Appeal from a judgment for the plaintiff, in the Twentieth District Court, County of Santa Clara. Belden, J.</p> <p>A petition for rehearing was filed and denied.</p>

<p>Promissory Note—Oral Testimony to Vary Written Contract—Burden of Proof—Evidence.—In an action upca a promissory note, the defendant pleaded that the note was executed and delivered as security for any sum of money which might be found due upon the settlement of a current account between the parties, and that it was mutually agreed, that the giving of the note should not be considered a settlement of the account, or as evidencing the fact of any sum of money being due thereon, but the account should be settled as though the note had not been given, and the note should then be delivered up.</p> <p>IIeld: Any agreement or understanding between the parties to the note, if such had been made, that it should not be considered a promissory note, or enforced as such, for what it was given to secure, would be nudum pactum.</p> <p>The only question was, whether there were any errors in the account, for the settlement of which the note was given; and on this the burden of proof was on the defendant.</p>

<p>Appeal from a judgment for the defendant in the Thirteenth District Court, County of Fresno. Deeping, J.</p> <p>The following is the affidavit referred to in the opinion: William Helm, being duly sworn, says: I am plaintiff in above entitled action. This is an action to recover possession of personal property unjustly detained by defendant from plaintiff, described as follows, and of the value of five hundred dollars, United States gold coin. Description: One mare mule, about five years old, of a grayish-roan color, and one horse mule, about six years old, of a brown color’, and one set of double harness. That defendant in said action did, on or about 19th October, 1874, fraudulently conceal and remove all said property, to prevent its being found or taken by the sheriff. That all of said property belongs to plaintiff. That affiant has fully and fairly stated the facts of the case to 0. G. Sayle and Wigginton & Marks, his counsel, and they informed affiant that he has a good cause of action against defendant herein, and affiant verily believes he has a good cause of action in this suit against defendant.</p> <p>Plaintiff prays that defendant may be arrested by an order which affiant asks may be issued, according to the provisions of section 479 of the Code of Civil Procedure of California, and dealt with according to law.</p>

<p>Appeal from a judgment for the defendant in the Superior Court of the County of San Joaquin. PATERSON, J.</p> <p>The judgment was rendered upon a demurrer to the complaint.</p>

<p>Contract—Proposal—Acceptance—Cancellation—Cloud upon Title— Action—Agent.—The plaintiff signed and delivered to K. a writing purporting to be an agreement to sell certain land to one B., but the Court found in substance that it was only a proposal or offer in writing given to K., who, as the plaintiff believed, was acting as his agent. The paper was sent to B., who, after reading it and approving of its form, returned it to K. without accepting or agreeing to accept it, and K. thereupon repudiated his agency and had the document recorded, claiming that it was a subsisting contract in which he was interested. Thereupon the plaintiff withdrew his proposal and commenced an action for the cancellation of the document; and afterwards K. caused the document to be assigned by B. to one G-., who, after offering to perform, filed a cross-complaint for specific performance: Held: The plaintiff was entitled to a cancellation of the document.</p> <p>Id.-—Id.—Id.-—Agent.—When a person as agent for another receives a paper to be used as a proposal or offer to sell land to a third party at a fixed price, he can not, after the party to whom the offer is made fails or refuses to accept it, exercise the power conferred by his position to use the paper for his own advantage, and for an entirely different object to that for which he obtained it.</p> <p>Id.—Id.—Id.—Cancellation—Cloud upon Title—Action.—Wherever an instrument of writing exists, which has been obtained without consideration or has become a nullity, or which, if left outstanding, may cause injury to a plaintiff, or may be vexatiously used against him, after the evidence to impeach or invalidate it is lost, or may throw a cloud or suspicion over his title, a Court of Equity will afford relief by ordering it to be delivered up and canceled.</p>

Campbell, J. The following are instructions four, five, and eight, referred to in the opinion: “ 4.

<p>Opening of Montgomery Avenue—Street Improvement—Petition— Construction of Statute—Jurisdiction of Board of Public Works. Under the Montgomery Avenue Act of April 1st, 1872 (Statutes 1871-2, p. 911), the petition to the Mayor of the majority of the owners in frontage of the property to he charged with the costs of improvement (required by section 5) was necessary to set the machinery of the statute in motion, and until such a petition was filed, the Board of Public Works had no authority to organize or to proceed.</p> <p>Id.—Id.—Id.—Id.—Signature of Petition—Certificate of Mayor— Estoppel.—In an action of ejectment, the plaintiff deraigned title under a tax deed executed upon a sale of the premises for the non-payment of a Montgomery Avenue assessment, and the facts were as stated in the opinions of the Court.</p> <p>Held, that the petition required by the act was not signed by the owners of a majority in frontage of the property to be charged with the costs of the improvement; that the certificate of the Mayor (under section 5 of</p> <p>the act) that the petition was sufficient, was not conclusive as an adjudication of the fact; that the judgment of the County Court, in confirming the report of the Board of Public Works—in the absence of any provision for notice to the parties interested—was not conclusive upon them as to the sufficiency of the petition; that the failure of the defendant to resort to legal remedies against the proceeding while in fieri, did not constitute an equitable estoppel; and finally, that the assessment and all the proceedings were void.</p>

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

<p>Appeal from a judgment and order denying a new trial in the Superior Court, City and County of San Francisco. Freelor, J.</p> <p>The defendant was convicted of the crime of robbery.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial in the Fifth District Court, County of San Joaquin. Booker, J.</p> <p>A petition for hearing in Bank was filed in this case after judgment, and denied.</p>

<p>Partition—Water Ditch—Water—Law or the Case.—In an action for the partition of a water ditch and the water rights appurtenant thereto, the complaint alleged “that the plaintiff and defendants are co-tenants, and own, hold, and are in possession, as tenants in common, of the following described real property, situated in the county of Trinity, and State of California, viz.: A certain water ditch, running from and taking water from Conner Creek, at a point on said creek about forty yards below the site of Bartlett & Evans’ sawmill, and running to and conducting the water of said creek to Bed Hill, in said county, for mining and other useful purposes,- which said ditch was formerly known as the Conner Ditch.”</p> <p>Held: Under the decision of McGillivray v. Evans, 27 Cal. 92, this was a sufficient allegation that the property could not be partitioned in any other manner than by a sale and distribution of the proceeds.</p> <p>Held, further: In view of that decision it was not necessary to introduce evidence that the water in controversy could not be partitioned.</p> <p>Id.—Jury Trial—Equity Case.—Held, further: It was optional with the Court to submit or not the issues of fact to a jury, and its refusal to submit them could not be reviewed by this Court,</p>

.Appeal from a judment for the plaintiff in the Superior Court of the County of Santa Clara. The proceeding in the Court below was an application for a writ of certiorari.

<p>Insolvency—Amendment of Clerical Error by the Court.—The petition of insolvent was dated, sworn to, and filed on the twenty-sixth day of May, 1879, and the order for creditors to show cause was indorsed filed on the same day and purported to have been made upon reading, filing the petition, etc., but was dated the twenty-seventh day of February, 1879.</p> <p>Held, that the error was of such a character that it might be corrected by the record.</p> <p>Id.—Construction of Insolvent Act.—Upon the repeal of the United States Bankrupt Law the State Insolvent Law became operative and applied to debts contracted during its suspension.</p> <p>Id.—Discharge of Insolvent—Fraud—De Minimis.—Upon an application for the discharge of an insolvent it was admitted by the insolvent that he had received a debt of twelve dollars after filing his petition, and had not paid it to the assignee, but he denied that there was any fraudulent intent or attempt at concealment, and the jury, upon this issue, found in his favor.</p> <p>Held, in view of the finding and the smallness of the sum, that the order ■ appealed from should not be reversed.</p>

<p>Negligemce—Right of Railroad Company to its Track—Duty or Engineer.—In an action for damages for personal injuries alleged to have been caused by the negligence of the officers of the defendant, in the management of its engine and train, it appeared from the evidence of the plaintiff that he was injured upon the roadway of the defendant while going afoot over a trestle spanning a ravine, over which the road passed.</p> <p>Held: The plaintiff was guilty of contributory negligence, which contributed proximately to the injuries he received, and a nonsuit was rightly granted.</p>

<p>Appeal from an order refusing to dissolve an injunction in the Superior Court of Santa Clara County. Belden, J.</p> <p>A petition for hearing in Bank was filed in this case after judgment, and denied.</p>

<p>Certiorari—Jurisdiction—Summons—Answer.—In an action in a Justice’s Court the defendants moved to quash the summons, which they claimed to be defective, and after a denial of their motion answered and went to trial, and—judgment having been rendered against them, and an appeal taken—renewed their motion in the Superior Court, with the same" result.</p> <p>■ Held, upon an application for a writ of ceHiorari, that the Court had jurisdiction to determine whether or not the motion should be granted, and that its action, whether erroneous or not, could not be reviewed by this writ; and held, further, that the defendants, by pleading to the merits of the case, waived any objection they might have had to the process.</p>

<p>Application for writ of mandamus.</p> <p>The petition stated that the defendant was elected and qualified as Secretary of the Board of Trustees of the City of Napa.</p>

Rosenbaum the Judge thereof. The plaintiff was convicted in the Police Court of San Francisco of a misdemeanor, in placing upon certain premises for measuring gas a meter which had not been inspected by and did not bear the seal of the Official Inspector of gas meters. After the decision the defendant applied for a rehearing in Bank, and the application was denied.

<p>Statute of Limitations—Discoveby of Fbaud—Complaint—Pleading.—In an action commenced in 1879 to cancel a deed executed in 1873, the complaint alleged fraudulent representations upon the part o.f the grantee, and that the plaintiff had no recollection or knowledge of having made the conveyance, but had seen the original deed and it bore his true signature, and that he was first informed of the claim of the defendant under the deed within thirty days before the commencement of the action.</p> <p>Held, that this did not amount to an averment that the plaintiff had discovered the facts constituting the fraud within three years before the commencement of the action, and that upon the face of the complaint the plaintiff was barred.</p>

<p>Practical Location—Boundary—Patent.—Where coterminous proprietors of land, in good faith, agree upon, and fix and establish a boundary line between their respective tracts of land, in which they acquiesce and under which they occupy, for a period of time longer than that prescribed by the Statute of Limitations, the rights of a subsequent grantee of any one of the parties who acquires title to the land as bounded by the line established, can not be called in question by the other.</p>

<p>Sale of Personal Property—Fraud as to Creditors—Findings—Sufficiency of Evidence.</p>

<p>Recalling Remittitur—Jurisdiction.</p>

<p>Liability of Stockholders of Corporations—Misjoinder of Parties— Misjoinder of Cause of Action.—In an action against the stockholders of a corporation, for their respective portions of the debts of a corporation:</p> <p>Held, that an objection on the ground of a misjoinder of parties defendant, or on the ground that causes of action were improperly united—in the absence of special demurrer—could not he considered.</p> <p>Id.—The obligations of stockholders to pay their respective proportions of debts of the corporation is direct and primary.</p>

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

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

Belden, J. The Court found, among other things, as follows: By authority of the Legislature of California, and by the consent and .permission of the Board of Supervisors of Santa Cruz County, and of the town authorities of the town of Watsonville, said defendant in the month of April, 1876, laid the track of its road through said Walker street to the “Pajaro River.” When said road was first laid it was not graded, but was laid upon the natural level and grade of said street.

<p>Appeal from an order of distribution in the Probate Court of San Benito County. Habéis, J.</p>

McGakvey, J. The defendant, besides demurring generally, demurred to the complaint on the ground of misjoinder of parties plaintiff, and also on the ground of misjoinder of actions, specifying under each head the defect referred to in the opinion.

<p>Appeal from a judgment for the plaintiffs, and from an order denying a new trial in the Superior Court of the City and County of San Francisco. Hunt, J.</p> <p>The Court instructed the jury in effect, that the rule in regard to contributory negligence was confined to cases where such negligence immediately or approximately or directly contributed to the result, and that if the deceased did not exercise ordinary care, and yet did not by the want of such ordinary care contribute to produce the injury, the plaintiff would be entitled to recover; that the deceased, and every other person in the exercise of ordinary care, was entitled equally with the defendant to drive upon or across the street in question, and that the defendant had not any rights superior to those of the deceased in that portion of the public street, included between the track, except when its cars were actually thereon or moving over the same, subject to their right of way; that the mere fact itself, unaccompanied by other evidence that the deceased was upon the track of this company, was not of itself evidence of negligence on his part; and also to the effect stated in the syllabus. The instructions asked by the defendant and refused were to the effect that the jury, under the pleadings (which contain no allegation of special damages), should not allow anything for prospective or any damages that had arisen since the commencement of the suit or that might arise or result in the future from the death of the deceased; also that the ordinary earnings of the deceased could not be taken into account under the pleadings, as there was no allegation that he supported the plaintiffs or earned anything for their support; also that under the pleadings the plaintiff could not recover anything beyond nominal damages. The facts appearing in the evidence were substantially as follows: The deceased was driving his cart loaded with coal up Market street, on the right-hand track of the defendant; his horse was gentle, but old, and a little touched in the wind, and (as one of the plaintiff’s witnesses expressed it), “ when he would get short-winded he would get stubborn, and when he did get stubborn you could not very easily handle him.” That at the place where the accident occurred the horse had stopped, and deceased was standing at the near side of the horse, holding him by the head. Upon the approach of the dummy and cars of the defendant, deceased left the horse’s head and jumped on the cart.</p> <p>The subsequent occurrence is thus described by Mayor Kalloch: That the first thing which attracted his attention was a man on a cart making a vigorous exertion to get his horse out of the way of a dummy that was coming down the hill. At that time the dummy was about twenty feet from the cart. The man on the cart was whipping his horse. Instantly, there was a collision, and he (Kalloch) got there a moment or two afterwards. Found the horse wedged in between the car and the dummy. That at the time he first saw the cart, it was backing toward the track, and he saw there would be a collision unless the team could be stopped. That just before the collision the horse’s head was turned to the right, at a sort of right angle to the street. That the dummy struck the rear part of the cart, and the wheels acting like a pivot threw it around, so that the horse and thills were projected between the dummy and the car.</p> <p>The foregoing statement is taken from the evidence of the plaintiff.</p> <p>On the part of the defense, the employee of the defendant who was in charge of the dummy, testified as follows: As he was coming down Market street he saw a coal cart standing on the up-track, heading up the track, and did not think anything of it at first, because there was room for the train to pass. That as he got near them he slowed up a little, because there was only about two feet or such a matter, clear, and passing a team down grade as close as that, he generally did slow up a little. That the man was- standing by the head of the horse—both man and horse still. The man stood in that position until the dummy was very close to him; then left the horse’s head and jumped on the cart. That the horse did not seem to take any notice of the dummy until the forward end of it was almost even with his head. The horse’s head was a little on one side. He was standing facing the other track a little, and when they got that near, the horse suddenly sheered off from the dummy. At the same time he sheered away, the cart ran back just in time for the dummy to catch the wheel. The dummy did not strike the cart very heavy. As soon as the deceased left the horse’s head he (witness) put on the brake as hard as it could be put on, and reversed the engine. When the dummy struck the cart it “slewed” it around and gave it a jar. The horse staggered and swung around, so that his head came in the space between the engine and the car, and that brought the shafts of the cart right before the end of the car. When the dummy first struck the hub, the man fell off or dropped off. The dummy moved five or six feet after the collision. He could not have done anything more to stop in time. He had a steam brake; had the lever in his hand, and had the steam port partly open, so that his brake was on pretty heavy. He slowed down some when he saw the horse move; opened it wide open, and gave the steam brake a full head of steam, and had the other hand on the reverse lever, and pulled that back and reversed the engine up the hill. As the man stood by the horse’s head the dummy would have cleared the nearest point of the car by two feet or such a matter.</p> <p>The Assistant Superintendent of defendant, who was on the train at the time of the accident, testified as follows: Close to where the accident occurred he stepped on the rear step of the car, took hold of the brake to steady himself; looked out to see why they were slowing down. Saw the horse backing the cart. The dummy was nearly abreast of the horse’s head, and the horse was in the act of backing into the dummy. He took in the situation at a glance and threw on the rear brake to help the engineer stop the train. The dummy struck the hub of the coal cart and swung it around nearly parallel with the train. The train moved on the down grade at the time it struck—passed it a little, and when it swung around parallel with the train the deceased was thrown clear over the horse and struck on the forward dashrail of the car and fell between the dummy and the car. The horse swung around and was with his fore feet on the front platform of the car. After they saw the danger there could be nothing more done than was done to stop the train.</p>

, and from an order denying a new trial in the Superior . Court of the same county. Crane, J. There appears in the transcript a specification of particulars of insufficiency of evidence, signed by the plaintiff’s attorney, and following the certificate of the judge to the statement, and indorsed filed as of the same date.

<p>Mining Patent—Construction oj?—Adverse Claim—Construction ot Statute.—A patent for a mining claim issued under the act of May 10, 1872, entitled “An Act to promote the development of the mining resources of the United States” (§ 2322 R. S. U. S.), contained the following condition: “That the grant hereby made is restricted to the land hereinbefore described as lot No. 37, with 2,400 linear feet of the Eclipse quartz mine, vein, lode, ledge, or deposit, and for the length aforesaid throughout its entire depths as aforesaid, together with all other veins, lodes, ledges, or deposits throughout their entire length as aforesaid, the tops or apexes of which lie inside of the exterior lines of said survey, as against all persons claiming under location made upon such other veins, lodes, ledges, or deposits subsequent to May 10,1872.”</p> <p>Held: This excludes from the grant any other ledge located by parties other "than the grantees prior to May 10, 1872, although the top or apex of such other ledge may lie inside of the exterior lines <3f the premises granted.</p> <p>Id.—Id.—Id.—Id.—The act in question provides that when an application for a patent is properly filed, notice thereof shall be published for sixty days, and if no adverse claim is filed before the expiration of that period, “it shall be assumed that the applicant is entitled to a patent, * * * and that no adverse claim exists.”</p> <p>Held: This provision does not apply to adverse claims existing prior to the date of the act, but to such claims only as should arise after its passage. Id.—Id.—Id.—Id.—Action by patentee of a mining claim under the act referred to, for trespass and an.injunction. The locus in quo was outside of the boundaries described in the plaintiff’s patent, but formed part of a ledge—known as the Good Easter ledge—which had its top or apex within those boundaries. The defendants offered to prove a valid loca- ° tion of the Good Easter ledge by their predecessors in title prior to the date of the act. Held: The Court erred in excluding the evidence.</p>

<p>Demurrer—Complaint—Clerical Error.—A complaint in ejectment against several defendants, alleged that the defendant committed the ouster, and was specially demurred to on this ground as ambiguous, unintelligible, and uncertain. Held: The Court did not err in overruling the demurrer.</p> <p>Ejectment—Description oe Land—Findings—Sufficiency of Evidence. In ejectment the Court found title in the plaintiff to the land described in the complaint, and'an ouster by the defendants. Held: The finding was sustained by the evidence.</p>

<p>Appeal from a judgment for the defendant in the Thirteenth District Court, County of Fresno. Campbell, J.</p> <p>It appeared from the evidence (without substantial conflict) that the plaintiff negotiated with the defendant to sell him the land in controversy for fifty head of horses, provided the horses were as represented, and the defendant, on seeing the land, was satisfied with it; that and in pursuance of this negotiation a deed was signed by the plaintiff, and placed in the hands of its agent, Perrin, who was authorized to deliver it after examining and accepting the horses. Perrin and the defendant went to look at the horses, but saw only thirty-five head, the defendant stating that there were fifteen head more about twenty miles away, which he assured Perrin wer< fully up to the average of the horses which he had seen. Perrin thereupon concluded to consummate the trade, and gave the defendant the deed, and the defendant gave him a bill of sale of the horses—all with the understanding that defendant was to have the privilege of going the next day to see the land, and if it suited him it was to be considered a trade; but upon examining the land he was dissatisfied, and returned the deed and took back the bill of sale. Afterwards, the defendant intending to go to San Francisco, where the office of the plaintiff was, Perrin gave him the deed to be delivered at the office of the company. The defendant, instead of doing this, had the deed recorded, and claimed that it had been duly delivered.</p>

<p>Appeal by the- plaintiff, from an order granting a new trial in the District Court of Sonoma County. Temple, J.</p> <p>The action was brought for damages for an injury to the plaintiff, alleged to have been caused by the defendant’s negligence. The jury found for the plaintiff, and assessed his damages at two thousand five hundred and fifty dollars. The order of the Court was, “ that in case the plaintiff shall, within ■ twenty days, file his consent to a modification of the judgment herein, and remitting all over and above one thousand five hundred dollars and costs, then said judgment be so modified, and the said motion for a new trial be, and the same is hereby denied; but in case no such consent be filed, then it is ordered that said motion for a new trial be, and the same is hereby granted.” Both parties appealed from the order.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Superior Court of Alameda County. Crane, J.</p> <p>The only evidence tending to sustain the finding of the Court, was that of Mrs. Levi, one of the grantors in the deed, who testified as follows: “The plaintiff came to the house once before the sale, but I did not know who she was, or that she had anything to do with the purchase of the property, until I saw her at the bank. My husband was then present with me when the money was paid over. * * * When my husband asked her why the deed went to Charles, she said that it was none of his business if she saw fit to give the property to Charles.” Charles 0. Hutchinson, the husband, was not called as a witness. On the other hand, the plaintiff testified that she did not intend the property for a present at all to any one, and that her husband did not claim the property; and several witnesses testified as to declarations of Charles Hutchinson, to the effect that he held the property in trust for his wife.</p>

' Appeal from a judgment for the defendant, in the Twentieth District Court, County of Santa Cruz. Belden, J A petition for hearing in bank was filed in this case after judgment, and denied.

<p>Mistake—Reformation of Deed—Pleading—Demurrer.</p>

<p>Ejectment—Prior Possession oe Public Lands—Pre-emption.</p>

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

<p>County Supebintendents of Schools—Salaby—Boabd of Supebvisobs— Constbuct'ion of Code.—Section 1552, Political Code, clearly contemplates the allowance of a salary to the County Superintendent of Education by the Board of Supervisors before it shall be paid.</p> <p>Id.—Id.—Id.—Id.—Auditoe.—In default of action by the Board, the Auditor can not fix the salary at the minimum provided in the Code. The law does not authorize him to draw Ms warrant for the payment of a salary which has not been fixed.</p>

<p>State Board or Equalization—Equalization or Entire Assessment Roll—Assessment or Money and Mortgages—Constitutional Law. Mandamus to the defendant as Auditor of the City and County of San Francisco, requiring him to obey an order of the State Board of Equal, ization, increasing the entire assessment roll eight per cent, “amounting to the sum of $17,765,025.” The answer alleged that the total amount assessed included $9,831,932 in money, and $32,862,269 in mortgages and deeds of trust; and it was claimed that so much of the order as required these assessments to be raised, was in excess of the powers of the Board, and void.</p> <p>Held: Our conclusion from reading .the section of the Constitution (§ 9, Art. xiii) as a whole, is, that it neither authorizes an increase of the valuation of money already assessed at its legal value, nor does it prohibit an increase of all other property so as to make it conform to its actual value in money. The order of the Board is to be read as requiring the Auditor to add eight per cent, to the assessed valuation of all “ property, except money already assessed at its true and only legal value.” The portion of the order of the State Board which reads, “ amounting to the sum of §17,765,025,” is mere surplusage, which does not affect the validity of the order.</p>

<p>Motion to Withdraw Plea or Guilty—Insanity.—The Court below refused to grant the motion of the defendant to withdraw a plea of “guilty,” and to plead “not guilty.”</p> <p>Held: There was evidence sufficient to raise a doubt as to the sanity of the defendant at the time the plea of guilty was interposed, and under the circumstances of the case the motion should have been granted.</p>

<p>Uncertainty of Verdict — Record — Practice. — Upon an indictment against two defendants the verdict was: “We, the jury, find the defendant guilty as charged in the indictment;” and judgment was entered thereon against both defendants. Held: The verdict was void for uncertainty.</p>

Hewell, J. The following statement appears in the bill of exceptions: “ Frank Repose, called as a witness for the prosecution, testified in substance: ‘I know Imerson Luke; I know that he is dead; I was there when he got shot.’ The District Attorney then said: ‘ I now offer in evidence the testimony of Imerson Luke, given in the previous trial and certified to by the reporter.’ The defense objected to said evidence upon the ground, among others, ‘ that it is not proven nor…

The following were the instructions asked by the defendant and refused by the Court: “ 1. I instruct you that the warrant of arrest under which the constable and posse were acting at the time of the shooting of Wright was void, and did not authorize said constable to arrest or attempt the arrest of defendant. “ 2.

<p>Appeal from a judgment of conviction in the Superior Court of Mendocino County.</p> <p>The defendant was indicted jointly with Samuel Carr, John Billings, and George Gaunce, for the murder of William Wright. For the facts of the killing see People v. Brown (No. 10,601), reported infra, p. 345.</p>

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

<p>Variance as to Ownership op Property—Burglary.—In an information for burglary the property entered was described as a certain building in the town of Gilroy, Santa Clara County, known as “the store of one S. Loupe.” The evidence showed that the store in question was known as “ Loupe’s store;” that there was no other store and no other premises in the county which answered to that description; and that the store belonged to S. Loupe, L. Loupe, and A. Haas, who were partners doing business therein. Held: The variance was immaterial.</p>

<p>Larceny—Jury—Challenge to Panel—Special Venire.—Upon an information for larceny, a special jury was summoned by order of the Court from the body of the county, and a challenge to the panel was interposed by the defendant. It appeared that the number of grand And special jurors for the year 1881 had been designated by an orderiof the Court, but that at the date of the trial (January 27, 1881), there had been no meeting of the Board ofi Supervisors, and consequently no list selected. Held: The challenge was properly disallowed.</p> <p>Id.—Instructions.—A defendant can not object to instructions given at his own request.</p> <p>Id.—Evidence—Possession oe Stolen Property.—Evidence was given, tending to prove that other horses disappeared from the same neighborhood at the same time as the mare and colt, with the larceny of .which defendant was charged, and were found, with the mare and colt, in his possession. Held: The objection to the evidence was properly overrvded.</p>

<p>Appeal from a judgment of conviction in the Superior Court of the County of Calaveras. Gottschalk, J.</p>

<p>Appeal from a judgment of conviction in the Superior Court of Santa Clara County. Belden, J.</p> <p>A petition for hearing in bank was filed in this case after judgment, and denied.</p>

<p>False Testimony—Instructions—Jury.—The jury may reject the whole of the testimony of a witness who has willfully sworn falsely as to a material point.</p> <p>Id.—Id.—Id.—Case Distinguished.—Otmer v. The People (76 Ill. 149) distinguished.</p>

<p>Indictment—Jurisdiction—Place.—An indictment under section 148, Penal Code, for willfully and unlawfully resisting, delaying, and obstructing a constable in the service of a warrant of arrest, failed to allege that the offense was committed in the county, or to show that the justice had jurisdiction to issue the warrant. Held: The demurrer to the indictment should have been sustained.</p>

<p>Place of Committing Crime—Evidence.—The defendant was convicted of the crime of robbery, alleged to have been committed at the City and County of San Francisco; but there was no evidence that the defendant committed the crime at said city and county.</p> <p>Held: This is a sufficient ground for reversing the judgment and the order denying defendant’s motion for a new trial.</p>

Green, J. The following is a portion of the charge of the Court: “ If, then, gentlemen of the jury, you believe that the defendant .did on the fourth day of September, A. D. 1880, at and in the County of Alameda, and State of 'California, willfully, unlawfully, feloniously, and burglariously enter the stable, apartment, and tenement of one Thomas R Badger, the person mentioned in the information, then and there situate, with intent then and there to commit petit larceny, or…

Freelon, J. The defendant was indicted for perjury, alleged to have been committed in testimony given by him before the Coroner’s inquest held over the body of Charles de Young.

<p>Appeal from a judgment of conviction and from an order denying a new trial, in the Superior Court of Tuolumne County. Rooney, J.</p> <p>An application was made to this Court upon a writ of habeas corpus to be admitted to bail, after conviction, and denied, on the authority of Ex parte Smallman, 54 Cal. 35, and Ex parte Marks, 49 id. 681.</p>

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

<p>Bobbery—Instructions—Immaterial Error.—Upon the trial of an information for robbery, the Court instructed the jury “that the prosecution must make out its hypothesis of guilt beyond a reasonable doubt, as against any rational hypothesis of innocence produced upon the part of the defendant.” Held: The charge was not very clear, and may not be strictly accurate; but as the Court elsewhere clearly instructed the jury upon the question of a reasonable doubt, and on the principles of law applicable to the case, the defendant was not injured.</p>

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

<p>Murder—Insanity—Expert—Opinion op Witnesses—Evidence.—Upon the trial of an indictment for murder—in which the defense of insanity was relied upon—a witness, after testifying to a conversation he had with the accused in the forenoon of the day of the alleged homicide, was asked the question, “From his appearance, his actions, his condition, and conversation, what was the state of his mind ?” and the Court excluded the evidence on the 'ground that the witness was not competent to answer it, no foundation having been laid.</p> <p>Held: The exception to this ruling must be sustained. A witness, even though not an expert, who details a conversation between himself and another, may also in connection therewith state his opinion, belief, or impression, as to the state of mind of such person as it seemed or appeared to the witness at the time of the conversation.</p> <p>Id.—Id.—Id.—Id.—Id.—The following question was put by the District Attorney to a witness for the prosecution: “Then taking your knowledge of his having been drinking, and what you, had heard, and his appearance and conduct at the time, the impression made on your mind was simply that he was a drunken man ?”</p> <p>Held: The witness should not have been permitted to testify to an impression which might have been produced by what he had heard any other person than the accused say.</p> <p>Id.—Reasonable Doubt—Instructions.—In one of the instructions of the Court the jury were told that if they entertained “ a reasonable doubt of the insanity of the person he must be acquitted,” and in another that it was not sufficient that they “ should merely entertain a reasonable doubt as to his sanity,” and in a third that insanity “is not proved by raising a cloubt whether it exists or not.” Held: These instructions are clearly contradictory.</p> <p>Id.—Id.—Id.—In another instruction the Court in effect charged the jury, that where insanity is relied upon, it must be clearly established by-satisfactory proof.</p> <p>Held: This was in effect to instruct the jury, that the defense of insanity should at least be proved beyond a reasonable doubt; this was error.</p> <p>Id.—Confession—Evidence.—Some of the witnesses for the prosecution " were permitted, against the objection of the appellant, to testify to what he said at or about the time of his arrest; and it was objected by the defendant, that the declarations referred to amounted to an admission or a confession, which should have been excluded on the ground that it was made under inducements.</p> <p>Held: There is no evidence of the defendants having'said anything which . can be construed as an admission or a confession; but the Court erred in refusing to give an instruction requested by the accused, that “If at the time of making the alleged statements, the jury were satisfied that the defendant was insane, they should disregard them entirely.” The utterances of an insane man ought not to be treated as evidence against himself even; and while the witness did not testify as to his having said anything that would amount to an admission of guilt, it might, in connection with other evidence, have a tendency to prove him guilty.</p>

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

Ferral, J. The information in this case was as follows: “(Title of Cause.) In the Superior Court of the City and County of San Francisco, State of California, the twelfth day of April, A. d. eighteen hundred and eighty-one, John E. Williams is accused by the District Attorney by this information of the crime of felony, committed as follows: The said John E. Williams on the seventeenth day of March, A. d. eighteen hundred and eighty-one, at the said City and County of San…

The petitioner was held in custody under a commitment for contempt, for disobedience of an order of the Superior Court of the City and County of San Francisco, requiring him to turn over to a Receiver in an insolvency case certain property of the insolvent held by him as Sheriff under attachments.

<p>New Trial—Sufficiency of Evidence.—Order granting the defendant a new trial affirmed—the Attorney General conceding that the evidence did not justify the verdict.</p>

Green, J. The portion of the charge of the Court referred to in the opinion was as follows: “ Possession of stolen property, standing alone and unsupported by other circumstances and evidence in the case tending to show guilt, is insufficient to convict; but possession of stolen property, unexplained, at a time immediately following the time when the property was stolen, supported by other circumstances and other evidence in the case tending to show guilt, is a strong…

Cart, J. The action was commenced in the Nineteenth District Court of the City and County of San Francisco, to foreclose a mortgage upon land in the County of Monterey, and transferred to the Superior Court of the same city and county as the sue cessor of the former Court.

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

The petitioner was held under a warrant of arrest, regular in form, upon a charge of assault with a deadly weapon with intent, etc.

<p>Jurisdiction—Habeas Corpus—Criminal Case.—The question of the authority of the Court that adjudges a person guilty of a criminal offense, is one which is always within the limits prescribed to the judicial inquiries of a Court issuing a writ of habeas corpus.</p> <p>Id.—Id.— Id. —Definition — Contempt — Certiorari—Appeal.—To adjudge a party guilty of a contempt of Court, for which he is fined and imprisoned, is to adjudge him guilty of a criminal offense. The imposition of the fine is a judgment in a criminal case; and the jurisdiction of the Court to punish and imprison for such an offense is reviewable by this Court on habeas corpus, on certiorari, or on appeal.</p> <p>Id.—Id.— Contempt—Insolvency Proceedings — Receiver—Order to Deliver Property.—A Superior Court has no authority to adjudge a party guilty of contempt, and to fine and imprison him for not turning over to a receiver in insolvency money and effects held by Mm adversely to the insolvent debtor. Such a power can not be exercised over a party, unless he has collected and holds the money and effects as trustee for the estate of the insolvent debtor, and the Court has jurisdiction over him as an officer of the Court, or as a party to the proceedings.</p> <p>' Id.—Id.—Id.—Id.—Id.—Id.—Parties Corporation.—In an insolvency proceeding against a corporation, neither the president, the secretary, the individual directors, nor the stockholders, are parties; nor does the president become a party by verifying the pleadings.</p> <p>Id.—Id.—Id.—Id.—Id.—Id.—In an insolvency proceeding against a corporation of which the petitioner was president, he was adjudged guilty of contempt for refusing to turn over to the receiver certain money and goods claimed by him adversely to the corporation. The petitioner deraigned title under assignments and transfer made by the corporation prior to the commencement of the insolvency proceedings, and it was claimed and in effect found by the Court that these assignments were in fraud of creditors.</p> <p>Held: The court had no control or jurisdiction over the petitioner, or over his property, and could not by a mere order to show cause why he should not be punished for contempt, make him as an adverse claimant a party to the proceedings, and adjudge his right to the property in a summary way.</p> <p>Id.—Id.—Id.—Id.—Id.—Id.—Proceedings for contempt are not the appropriate proceedings for the trial of issue of title; but such issue should be tried in an appropriate action, in which the verdict of a jury or findings of the Court may be had.</p> <p>Id.—Id.—Id.—Id.—Id.—Id.—Practice.—Instead of proceeding as it did, the Court should have made an order directing the receiver, or assignee in insolvency, to institute suit against the petitioner to set aside the conveyances and transfers under which he claimed the property adversely to the insolvent debtor.</p>

<p>Application to be admitted to bail upon writ of habeas corpus.</p>

<p>Application for discharge upon writ of habeas corpus.</p>

<p>Application for discharge upon writ of habeas corpus.</p>

<p>Application for discharge upon writ of habeas corpus.</p>

<p>New Trial—Criminal Law—Misconduct of Juror—Affidavit of Juror.—An affidavit of a juror may be received in support of the verdict, when attacked for misconduct on the part of the jurors.</p> <p>Murder—Instructions—Intent — Reasonable Doubt.—The Court instructed the jury, that “ intent, or intention, is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. Theintent must be proved, but when an unlawful act has been proved, the law presumes it to have been intended, and the proof of justification lies on the defendant;” and it was objected to this instruction, “ that it requires the defendant to prove his justification absolutely, whereas he is only obliged to prove his justification within, and not beyond, a reasonable doubt.”</p> <p>Held: The instruction has no reference to the measure of proof required on behalf of the defendant, but simply states a well-settled principle of law.</p> <p>Id.—Id,—Degrees of Offense.—The Court instructed the jury that “if the jury believe from the evidence that the deceased died from the effect of a wound inflicted by the defendant, and that said woimd was inflicted with malice aforethought, then they should find the defendant guilty of murder;” and it was objected that the instruction did not inform the jury of which degree of murder they should find the defendant guilty.</p> <p>Held: It would have been error for the Court to have instructed the jury as to the degree of murder established by the evidence.</p> <p>Id.—Id.—Intent—Relevancy of Instructions.—The Court instructed the jury that “every man is presumed to intend what his acts indicate his intentions to have been, and if the defendant fired a loaded pistol at the deceased and killed him, the law presumes that the defendant intended to kill the deceased; and unless the defendant can satisfactorily show that his intention was other than his act indicated, the law will not hold him guiltless;” and it was claimed that the instruction was erroneous “because it is not predicated upon any logical deducible theory of any portion of the evidence.” Held: The instruction was properly given.</p> <p>Id.—Id.—Degrees of Offense—Manslaughter.—The Court instructed the jury that “if the jury believe from the evidence that the defendant, with malice aforethought, or without considerable provocation, inflicted a wound upon the deceased, and that the deceased died from the wound so inflicted by defendant, and that there was no justification for the infliction of said wound, the defendant must take the whole consequence of his wrongful act, and the jury find him guilty of murder.”</p> <p>Held: It is possible that the instruction by itself is not precisely correct; but in view of other instructions the jury could not have been misled by it, and therefore the defendant was not prejudiced. The Court told the jury in several instructions that there could be no murder without malice aforethought, and clearly pointed out the distinction between murder in the first degree, murder in the second degree, and manslaughter, showing the necessary presence and existence of malice in the two former, and the absence of malice in the last.</p> <p>Id.—Id.—Self-defense—Justification.—The court instructed the jury that “ no man can by his own lawless acts create a necessity for self-defense, and then upon killing the person with whom he seeks the difficulty interpose the plea of self-defense; for when a person has by his own lawless acts brought upon himself the necessity to commit a crime, he can not shield himself by the plea of necessity from immunity from punishment for the crime committed. The plea of necessity is a shield for those only who are without fault in occasioning it and in acting under it;” and it was objected that there was no evidence in the case which rendered such an instruction proper. Held: The instruction was a proper one in view of the circumstances attending the homicide.</p> <p>Id.—Id.—Intention—Malice Aforethought—Murder in the Eirst Degree—Definition.—The Court instructed the jury that “the unlawful killing must be accompanied with a deliberate and clear attempt to take life in order to constitute murder in'the first degree. There need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, and if such is the case, the killing is murder in the first degree— no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. ” Held: The instruction is strictly correct.</p> <p>Id.—Sufficiency of Evidence—Interference to Keep the Peace.— The circumstances of the killing are thus detailed by one of the witnesses: “ I was behind the bar when defendant brought T. in; he said, ‘ You son-, do you think that of me ?’ and began shoving him backwards and forwards against the corner of the desk. G. (the deceased) stepped up from behind him, caught him by the shoulders, and pulled him back, saying, ‘ Don’t strike him any more.’ Defendant turned partly around, saying, ‘ What have you to do with this ?’ G. said, ‘lama peace officer.’ At that time defendant slapped G. in the face with his right hand. G. went out of my sight, defendant turned his back to me, and when defendant slapped G. he said, ‘You son-.’ Heard a shot fired, and heard G. say, ‘I am shot.’ G. and T. were running across the street; defendant fired two shots at them.” This is in substance the evidence of other witnesses, and the defendant admitted to the officer who made the arrest that he shot the deceased, claiming, however, that G. was “about to draw his gun on him,” and that he (defendant) drew his gun and shot G. G. was unarmed.</p> <p>Held: There is no substantial conflict in the evidence except that which is found in the uncorroborated statement of the defendant, and his evidence standing alone and uncontradicted does not acquit him of guilt.</p>

<p>Appeal from a judgment of conviction in the Superior Court of Los Angeles County. Sepulveda, 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 Santa Barbara. Hatch, J.</p>

Appeal by the plaintiff from a judgment in favor of the defendant Pio Pico, and from an order denying a new trial in the Seventeenth District Court of the County of Los Angeles. Sepulveda, J.

<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>Appeal from a judgment of conviction and from an order denying a new trial in the Superior Court of the County of Ventura. Hines, J.</p> <p>A petition for hearing in bank was filed in this case after judgment, and denied.</p>

Howard, J. Action to quiet title to an undivided thirteen-fourteenths of the land described in the complaint. The material facts of the case as found by the Court will appear from the following schedules of title: respondents’ title. 1. The title of the estate of Eulogio F. de Celis, deceased, to the north half of the Rancho Ex-Mission of San Fernando, including the land in controversy—admitted. 2.

<p>Justice’s Court—Service of Summons.—The legal service of summons in a justice’s Court includes, as a necessary part of such service, service of the complaint.</p> <p>Id.—Id.—Special Appearance—Jurisdiction.—Where the service of summons is defective, the justice’s Court does not acquire jurisdiction to proceed against a defendant by reason of his special appearance for the purpose of moving to set aside the service.</p> <p>Id.—Appeal—Statement.—Upon an appeal from a justice’s Court, upon questions of law, where the alleged errors appear in the copy of the justice’s docket, or in the copies of papers sent up by the justice as required by Sections 975, 977, of the Code of Civil Procedure, there is no necessity for a statement.</p> <p>Id.—Id.—Service of Summons—Special Appearance—Jurisdiction— Prohibition.—In an action in a justice’s Court the defendant—having been served with the summons, but not with a copy of the complaint— appeared specially for the purpose of moving to set aside the service; and—the motion having been granted, and judgment entered against the plaintiff, and an appeal taken—appeared specially in the Superior Court for the purpose of moving to dismiss the appeal; but the Court, without disposing of the appeal, ordered the defendant to answer and proceed to trial.</p> <p>Held: The Superior Court had jurisdiction only to affirm or reverse the judgment, and had no power to make the order in question.</p> <p>Prohibition.—A writ of prohibition will not go from this Court unless the attention of the Court, whose proceedings are sought to be stayed, has been called to the alleged excess of jurisdiction.</p>

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

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

<p>Lease—Crop—Abandonment—Right of Lessor to Harvest Crop.—By the terms of a lease the lessees were to hold the land long enough to raise a crop of barley, and to deliver to the lessor as rent a fourth of the crop, after it was harvested and sacked. The lessees having failed to harvest the crop until it was about to be lost, and having abandoned the land, the lessor harvested it at an expense of more than twice its market value.</p> <p>Held: It was the duty of the lessees to harvest and remove the crop within a reasonable time; and upon their failure to do so, the lessor had the right to re-enter.</p> <p>Id.—Id.—Id.—Id.—Creditors.—Under these circumstances, the lessees had no interest in the crop which their creditors could reach.</p>

<p>Verification of Answer—Bulbs of Court—Discretion—Practice.—A rule of Court required the pleadings to be paged, and if the answer contained separate defenses, the same to be numbered. The answer of defendant, which was verified, was stricken out for want of conformity to this rule; but subsequently, having been paged and numbered, was, by leave of Court, refiled, without a re-verification, and the defendant moved to strike it out upon this ground.</p> <p>Held: The corrections made in the answer did not change or modify its denials or averments so as to render necessary its re-verification; and if any necessity had existed for its re-verification, it was within the discretion of the Court to allow it to be done at any time before trial.</p>

<p>Fees of Office—Sheriff—Mileage.—The Sheriff charged, and the Court below (in an action against the county), held he was entitled to receive, thirty-one dollars and fifty cents for taking each of five prisoners from the same Magistrate to the County Jail—a distance of one hundred and five miles.</p> <p>Held: Under the provisions of the Act “to regulate fees of office,” etc. (Stat. 1869-70, 148), the plaintiff was entitled to charge mileage for each service in all cases, except those specified in the proviso; namely, those of jurors and witnesses.</p>

<p>Appeal from a judgment for the plaintiff, in the Superior Court of the County of San Diego. McNealy, J.</p>

<p>Deed of Married Woman—Acknowledgment—Notary’s Certificate. The defendants (husband and wife), in consideration of three thousand dollars, made to the plaintiff a deed of conveyance of the land in controversy (the separate property of the wife), and of a house and lot, the deed containing the following provision: “The above sale is absolute. It is understood that the party of the second part will sell and reconvey the above described lands and premises to the parties of the first part, etc., at any time within two years from this present date, upon their paying to him * * * the sum of three thousand dollars, with interest thereon of one and one fourth per cent, per month from this date, interest every six months to be compounded with the principal; but time is of the essence of the agreement or understanding.” In an action by the grantee—commenced after the expiration of the two years—to recover possession of a part of the premises conveyed, the answer of the wife alleged and the Court found that her acknowledgment to the deed was taken through an interpreter, who did not correctly interpret the contents of the instrument, but told her it was a mortgage; but it was not alleged, found, or claimed that the plaintiff had any notice of those facts. Held: The notary’s certificate was conclusive as to the facts stated in it.</p> <p>Id.—Id.—Id.—Delivery.—The delivery by the husband bound the wife; as the grantee might properly regard her execution and acknowledgment of the instrument as evidence of her assent to it.</p> <p>Id.—Defeasance—Mortgage.—As the deed conveyed to the plaintiff the legal title, judgment was rightly entered for the plaintiff.</p>

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

<p>Appeal from a judgment for the defendant and intervenor in the Superior Court of San Bernardino County. Bolee, J.</p>

Appeal by the plaintiff from a judgment for defendant M. Leonis, and from an order denying a new trial, in the Superior Court of the County of Los Angeles. Howard, J. Action for the foreclosure of a mortgage made to the plaintiff by Jacob F. Gerkens and wife, of date July 18, 1876.

<p>Vendor and Vendee—Rescission of Contract.—Under an agreement for the sale of land the vendee paid part of the purchase money, and gave his note, payable at a future date, for the balance; and the vendor executed a deed and placed it in escrow, to be delivered to the vendee on his payment of the note; but reserved the right to rescind on his default. The vendee, being in default, was notified by the vendor that unless he paid the note within ten days, the contract would be rescinded; and at the same time the vendor tendered to him the money paid and the note, and informed him that they were subject to his order, and, after the expiration of the ten days—the note still being unpaid—gave him written .notice of rescission. Held: The contract was rescinded.</p> <p>Id.—Id.—Tender of Deed—Escrow.—The defendant knowing where the deed was, and the mode in which he could procure it under the contract, a tender of the deed was unnecessary.</p> <p>Parol Evidence—Notice.—Parol evidence is admissible to prove the contents of a notice; and it is not necessary to give notice to the opposite party, upon whom it was served, to produce it.</p> <p>Evidence—Record of Deeds.—Copies of the records of deeds, certified by the Recorder, are admissible in evidence without accounting for the absence of the originals.</p>

<p>Appeal from a judgment for the defendant and from an order sustaining the demurrer to plaintiff’s complaint in the Superior Court of the County of San Diego. McNealy, J.</p>

Hines, J. The original findings and interlocutory decree were filed and entered February 8, 1881. A motion for a new trial was made February 18,1881. A motion to amend the findings and interlocutory decree was made March 4, 1881. The appeal was taken from the original decree February 8, 1881.

<p>Foreclosure of Mortgage—Payment of Insurance by Mortgagee—. Supplemental Complaint.—A mortgage contained the provision that upon the default of the mortgagors to keep the property insured, the mortgagee might insure at their expense and the mortgage stand as security for his reimbursement; and in an action to foreclose—in which there was no supplemental complaint—the Court allowed the plaintiff for money paid by her for insurance after commencement of the action. Held: The Court erred.</p>

Appeal by defendant Sckaden from a judgment for the plaintiff, and from an order denying a new trial in the Superior Court of the County of Sacramento. Denson, J.

<p>Ejectment—Possession by Dependant—Admissions by the Pleadings— Nonstjit.—In an action of ejectment, the answer contained a general denial and also a separate defense, the latter of which admitted the defendant’s possession. On the trial the plaintiff failed to prove defendant’s possession, for which reason, among others, the latter moved for a nonsuit.</p> <p>Held: A nonsuit should have been granted. The admission of possession contained in the special defense, must be confined to that defense, and this irrespective of the question whether the matters contained in that plea could or could not have been proved under the general denial.</p>

<p>Mortgage—Constitutional Law—Taxation—Construction or Covenant.—A mortgage executed before the adoption of the present Constitution provided, in effect, that the mortgagee might pay the taxes upon the land, and that the mortgagor should repay the amounts thus paid, and the mortgage stand as security therefor. The mortgagee paid the taxes on the mortgage for the year 1880; and in an action to foreclose, the Court below refused to award him the sum thus paid.</p> <p>Held: In the year 1880 the mortgage, for the purposes of taxation, was an interest in the land, the taxes upon which the defendant had agreed to pay.</p> <p>Id.—Id.—Id.—Law Impairing the Obligation of Contracts.—The agreement to pay the whole tax was valid when made; and so to construe the provision of the Constitution that the agreement may not he enforced according to its terms, would be to impair the obligation of a contract.</p> <p>Id.—Id.—Id.—Section 5, Article viii of the constitution applies only to contracts made after its adoption.</p>

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

<p>Application for a writ of mandamus.</p> <p>A petition for hearing in bank was filed in this case after judgment and denied.</p>

Brown, J. The appellant appealed to the Superior Court from an order of the Board of Supervisors of Sacramento County approving a petition of Eliza Parvin and others for the formation of a reclamation district. The Court below dismissed the appeal upon the ground that the Act providing for such appeals was intended to give appellate and not original jurisdiction to the Superior Court; and was therefore in conflict with the Constitution, and void.

<p>Public Administrator—Sureties on Official Bond—Estates of Deceased Persons—Construction of Order of Probate Court.—A petition was presented by W., in his official character as Public Administrator, for letters of administration on the estate of C.; but in the order appointing him and in his letters his official character was not referred to.</p> <p>Held, in an action against the sureties on his official bond for money of the estate wrongfully appropriated by him, that the letters were issued to W. in his official character, and that his sureties were liable.</p>

<p>Undue Influence—Fraud —Pleading.—In an action to set aside a deed executed by Jesse 0. Goodwin, deceased, to the defendant, the allegation of the complaint was: “Said defendant, contriving and intending to defraud the said Jesse O. Goodwin of his said property, attempted to and did, without just cause, prejudice the mind of the said Jesse O. Goodwin against his relatives, and especially the plaintiff, and by means of false representations and improper and undue influence, aided by the weakness of understanding of the said Jesse 0. Goodwin, did prevail . upon him to execute, acknowledge, and deliver the above-mentioned conveyance without any good, valuable, or lawful consideration whatever.”</p> <p>Held: The complaint is insufficient. Even if it is admitted that “undue influence” is an ultimate fact to be pleaded his verbis, it is not alleged that the execution of the conveyance was induced solely by such influence. Nor is the allegation sufficient as an allegation of fraud, because the facts constituting fraud are not stated.</p> <p>.[d.—Definition.—The undue influence, to vitiate an act, must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary (or other) act; further, there must be proof that the act was obtained by this coercion, by importunity which could not be resisted; that it was done merely for the sake of peace; so that the motive was tantamount to force, or fear.</p>

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

<p>Appeal from a judgment of conviction, and from an order denying an arrest of judgment and from an order refusing defendant a new trial in the Superior Court of the City and County of Sari Francisco. Freelon, J.</p>

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

<p>Burglary—Degrees of Offense — Sufficiency of Evidence.</p>

<p>Costs—Reporter’s Transcript—Appeal.—After a judgment for the plaintiff the defendant moved for a new trial, and in order to prepare his statement procured and paid for the Reporter’s transcript of the evidence; but before the statement was settled, the judgment was reversed, upon an appeal therefrom upon the judgment roll, and the cause remanded with directions to enter judgment for the defendant. Upon the entry of judgment, the defendant filed his memorandum of costs in the lower and in the Supreme Court, including in the former the amount expended for the Reporter’s transcript; and this amount, on motion, was stricken out by the Court.</p> <p>Held: The order was right; the appellant was entitled, in addition to his costs and disbursements up to the entry of judgment, to recover only such costs and disbursements as he was put to by reason of taking the appeal.</p>

<p>Motion to Set Aside Judgment in the Supreme Court—Estates of Deceased Persons—Setting Aside Homestead for Use of Family.— Upon an appeal from an order setting aside a homestead in the Probate Court judgment was affirmed, on the ground that there was no appearance, and no points on file on behalf of appellant; and afterwards appellant’s counsel moved to set aside the judgment.</p> <p>Held: Though not prepared to say that the facts relied upon would constitute a case of mistake, inadvertence, surprise-, or excusable neglect, the Court would be disposed to go as far as the law would permit for the purpose of having the ease heard on its merits, if it could discover any merit in the appeal; but is, satisfied, after a careful inspection of the record, that there was no error.</p>

<p>Vendor and Vendee—Default of Vendee—Ejectment—Equitable Title.—Where a contract for the sale of land contains a provision that, upon default of the vendee, in payment of the principal or interest, or in any other stipulation of the contract, the vendor may re-enter; and the vendee makes default, and, on demand, refuses to deliver possession, the vendor may maintain ejectment.</p> <p>Id.—Id.—Id.—Practice—Cross-complaint.—In such case, if the vendor recovers possession, the vendee may go into equity (where a separate Court of equity exists) within a reasonable time—where time is not of the essence—offer payment of the balance of the purchase money, with interest, and obtain a decree for the performance of the contract; and, in California, he may attain the same end by filing a cross-complaint.</p> <p>Id.—Id.—Id.—Id.—Under our system, a vendee, if entitled to the possession under the contract, may defend his possession at law; and he can not be deprived of his possession at law, if its continuation is not dependent upon his performance of the conditions of the contract under which he entered.</p> <p>Id.—Id.—Id.—Id.—A vendee can not be moved by ejectment, if he has performed the conditions of the contract and is in a position to demand a conveyance; and in such case, it would seem that he may even recover the possession at law, if ousted by the holder of the naked legal title.</p> <p>Id.—Id.—Id.—Id.—Cases Distinguished and Explained. — Gaven v. Hagen, 15 Cal. 208; Willis v. Wozencraft, 22 id. 618; Miller v. Steen, 30 id. 403; and Bohall v. Biller, 41 id. 535, distinguished; Salmon v. Hoffman, 2 id. 143, and Rowrlce v. McLaughlin, 38 id. 199, explained.</p>

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

The complaint alleges, in effect, the construction of a drainage canal by the city to the head of Beach’s Lake, and that, by reason of the waters thus carried into the lake, the waters in said lake are, during the dry season, since the completion of said canal, raised from two to four feet above the natural level, and thereby about sixty acres of the plaintiff’s land have been overflowed and submerged to the depth of two to four feet, etc. A petition for hearing in bank was…

<p>Appeal from a judgment of conviction, and from an order refusing a new trial, and from an order denying a motion in arrest of judgment, in the Superior Court of Lassen county. Hendrick, J.</p>

<p>City Justices—Salary—Office Rent—Municipal Corporation—Constitutional Law.—The question as to the constitutionality of Section 103, Code of Civil Procedure, as amended April 1, 1880, is settled in this State by decisions of this Court holding the act not to be in conflict with the Constitution.</p>

<p>Murder—Declarations of Deceased—Hearsay.— The prosecution was allowed to prove, against the objections of the defendant, declarations made by the deceased six, eight, or ten months before his death, the defendant not being present and not hearing the same.</p> <p>Held: This evidence was extremely prejudicial to defendant’s case, and for its admission the judgment must be reversed.</p>

<p>Appeal from a judgment of conviction and from an order denying the defendant’s motion in arrest of judgment, and from an order refusing a new trial, in the Superior Court of Nevada County. Caldwell, J.</p>

<p>Street Assessment—Stockton.—In an action to enforce a lien for a street assessment on lots in Stockton, alleged in the complaint to have been the property of the defendant at the date of the assessment, it appeared from the assessment list offered in evidence that the lots were assessed to “Shubal Dunham and unknown.”</p> <p>Held: The assessment was void, and the ruling of the Court in excluding it . from the evidence correct.</p>

District Court of the county of San Joaquin, Booker, J., and from an order denying a new trial in the Superior Court of said county.

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

<p>Action to Quiet Title—Outstanding Title.—In an action to quiet title, the defendant offered to prove prior possession of the property in a stranger, and the evidence was excluded on the ground that the defendant did not propose to connect its title with that of the prior possessor. Held: The ruling was correct.</p> <p>Id,—Parties.—A witness having testified to the effect that he and his company claimed to own a part of the land in controversy, the defendant’s attorney moved that the plaintiff be required to amend its complaint, and to bring in the witness and his có-tenants as parties; and the motion was denied.</p> <p>Held: The defendant had no right to insist upon the proposed amendment. Id.—Admission of Immaterial Evidence.—On the trial, a deed was offered in evidence, under which plaintiff claimed to have derived its title, but which did not describe the land in dispute, and was admitted over the objection of defendant that it was incompetent and irrelevant.</p> <p>Held: The admission of the deed did not injure the defendant. The plaintiff, having proved possession of the land, made out all the title required by the law to entitle it to the relief demanded.</p>

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

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

<p>Execution of Deed — Signature — Delivery—Finding against Evidence.—In an action to cancel a deed purporting to have been signed by the plaintiff’s intestate a few hours before his death, it appeared from the evidence that at the time of the alleged execution the deceased was paralyzed so that he could not use his arm, and that a bystander, by his direction, took and guided his hand and thus made the signature. The jury found that the deceased was “in the possession and use of his mental faculties at the time said deed, was signed so as to be capable of understanding and comprehending what was being done in the execution of said deed; that the deed ivas read to him before the same was signed; and that he acknowledged the deed;” but also found that the deed was not signed or delivered by the deceased, or by any one authorized to sign or deliver it. Held: The last finding was not sustained by the evidence.</p> <p>Id.—Id.—One signing a contract commonly writes his name with his own hand; but if another writes it for him, in his presence and at his request, or especially if he holds the top of the pen while another writes it or makes his mark to his name, which the other has written, or if he acknowledges the signature, however made, to be his own, this is sufficient.</p> <p>Id.—Delivery.—The elements of a delivery are, that the writing must be meant by the maker to take immediate effect; and be presumably, or in fact, accepted by the other party.</p> <p>Id.—Conflict in Findings—Mental Competency.—The jury also found that the deceased, at the time of the alleged execution of the deed, was not capable to contract, and also that he did not know the content's of the deed when it was executed. Held: These findings were in conflict with the other findings stated above.</p>

Hendrick, J. The instructions referred to in the opinion and in the syllabus were as follows: “ 1.

Yolo. Bush, J. The action was ejectment, the plaintiff relying upon a certificate of purchase issued in pursuance of the judgments in Laugenour v. Shanklin, and Wright v. Laugenowur, cited in the opinion. The defendant claimed under an application to purchase made^pending the case last referred to.

<p>Appeal from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of the County of Sutter. Keyser, J.</p> <p>Action to recover twenty-six head of stock cattle and six calves, of the value of seven hundred and fifty dollars. The defendant justified as sheriff under an execution against W. F. Nelson, the plaintiffs vendor.</p> <p>The Court found that, Nelson sold the cattle to the plaintiff •on the twenty-sixth day of November, 1876, and with reference to delivery found as follows:</p> <p>That on the twenty-sixth day of April, 1876, at his farm in Sutter County, said Nelson delivered the said eighty head of stock to the plaintiff herein, who immediately took them into actual possession, the water being too high to remove them at that time; that on the first day of May, 1876, he took sixty-three head of said stock to his farm, situated in said Sutter County, about four miles from said Nelson’s place, where he kept them until the eighteenth day of June, 1876, when they came back to their former range, where the cows in the band were cared for by Nelson under an agreement theretofore made with plaintiff, that for such service he should be compensated.</p> <p>And as conclusion of law, the Court found that the sale was accompanied by an immediate delivery and an actual and continued change of possession.</p>

<p>Appeal by the plaintiff from a judgment in his favor, and from an order made after judgment refusing to modify the conclusions of law and the judgment, in the Superior Court of Trinity County. Jones, J.</p> <p>In the lower Court two cases were consolidated and tried together, viz., David Evans & Charles H. Bartlet v. Bartol Jacobs and Henry Jacobs, and the same plaintiffs against Henry Jacob and R. S. Baker; and upon the findings, judgment was entered in favor of the defendants in the former suit, and in favor of the plaintiffs in the latter, both of whom appealed; this being the appeal of the latter, and Case 7,971 reported below being the appeal of the former.</p>

<p>Taxation of Costs—Bill of Exceptions—Discretion of Court.—On an appeal from an order retaxing the appellant’s costs, the bill of exceptions contained the sworn memorandum of costs and the respondents’ motion to retax the same, and no other documents or evidence.</p> <p>Held: The Court can not determine from the record before it that the Court below erred in its order.</p> <p>Findings—Judgment—Practice—Appeal.—Judgment reversed and cause remanded, with directions as in No. 7,942, reported above.</p>

<p>Reformation of Lease—Fraud—Mistake—Parol Testimony to Vary Written Instrument.—Fraud or mistake always constitutes an exception to the general rule that parol evidence is inadmissible for the purpose of contradicting, adding to, or varying the language of a written instrument. Parol evidence is always admissible in case of mistake or fraud in actions in equity to rescind a contract or to reform an agreement so as to make it speak the real intention of the parties.</p> <p>Id.—Id.—Id.—Id.—In an action to enjoin defendant from tearing down and removing certain buildings and improvements on premises leased to him by plaintiff, the defendant pleaded (in effect) that, during the negotiations for the lease, it was distinctly understood and agreed that the improvements above mentioned were the property of defendant; that he was to have the right to remove them on the expiration of the lease, and that such right was and should be one of the conditions of the lease ; that, by accident or mistake, this condition was omitted, and that when the lease was presented to defendant to sign, he objected, and refused to sign it, because of this omission; that on such refusal, the plaintiff then and there agreed with him that such omission should make no difference, as the true conditions of the lease were well known to both parties ; that relying on this agreement, and the good faith and honesty of the plaintiff, the defendant executed the lease; and on the trial, evidence was admitted, over the objection of the plaintiff, to prove the matters thus alleged. Held: The Court properly overruled the objections to the testimony.</p> <p>Id.—Id.—Id.—Id.—Purchaser without Notice—Pleading—Presumption.—When any right is claimed on the ground that the party is a purchaser in good faith for valuable consideration, it must generally be pleaded and proved.</p>

<p>Appeal from a judgment of conviction in the Superior Court of Sierra County. Howe, J.</p>

<p>Appeal from a judgment, of conviction and an order refusing a new trial in the Superior Court of Solano County. Gregory, J.</p> <p>A petition for hearing in hank was filed in this case after judgment and denied.</p>

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

<p>Appeal from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of the County of Colusa. Hatch, J.</p> <p>A petition for hearing in bank was filed in this case after judgment and denied.</p>

Hundley, J. Action to recover the possession of seventeen mules, of the alleged value of two thousand seven hundred dollars. The defendant justified, as sheriff, under an attachment issued at the suit of Baker & Hamilton, against one Eckert, whose property the mules were alleged to be; and also denied that the mules were of any greater value than one thousand seven hundred dollars.

<p>Justice’s Court—Appeal prom a Judgment bt Default—Jurisdiction— Prohibition.—Upon an appeal from a judgment by default in the Justice’s Court, the Superior Court has no jurisdiction to allow the defendant to file an answer and to retry the case; and prohibition will lie to restrain its proceedings.</p> <p>Id.—Appeal from Ordep..—There is no appeal from an order in a Justice’s Court refusing to set aside a default.</p>

<p>Adverse Possession—Prescription—Tenants in Common—Action to Quiet Title—Former Adjudication.—In an action to quiet title, in which, the plaintiff relied upon adverse possession for more than the statutory period, the facts were as follows:</p> <p>In 1865 Treichler conveyed the premises in controversy—at that time in the possession of one R. as his tenant—to the plaintiff’s predecessor in interest, Tansman. After the conveyance R. disavowed the tenancy, and asserted that he held as tenant of F. Thereupon Tansman brought an action of ejectment against R., and recovered judgment; and immediately afterwards (to wit, in 1871) he and F. settled their conflicting claims to the property by agreeing that the former should have two thirds and the latter one third thereof; and from that time the two and their respective grantees held possession under claim of title as tenants in common until the filing of the complaint (June 17, 1878.) In the mean while, and prior to the entry of Tansman and F. under the judgment of the former, an action had been brought by the defendants against F. and R. and others to recover the premises, and in this action the Court, after finding that the parties therein were owners in common of the land, but that the plaintiffs therein had never demanded possession of the defendants, gave judgment for the said defendants F. and R.</p> <p>Held: The defendants can not avail themselves in this action of the possession of F.</p>

<p>Gift Causa Mortis—Resulting Trust.—The plaintiff’s intestate, a few hours before her death, desiring to give money to certain parties, gave her check to the defendant, and assigned to him two bank accounts; and at the same time gave him directions as to the disposition of the greater part of the money, saying nothing as to the balance. The defendant reduced the money into possession in the life-time of the intestate, and after her death made the payments directed by her.</p> <p>Held, in an action by the administrator to recover the money, that so far as the money was directed to be paid to specific persons, the gift was complete, but as to the balance there was no gift.</p>

<p>Minins Partnership—Nonsuit.—In an action for the dissolution of a mining partnership, and for an accounting, it appeared from the plaintiff’s evidence that, prior to the partnership agreement out of which the plaintiff’s claim for an accounting arose (and to which the defendant H. was neither a party nor privy), one of the joint owners of the mining claim had mortgaged her interest to H., and that, subsequently to said agreement, H. had purchased the mortgaged property at a foreclosure sale. Held: A nonsuit was properly granted as to H.</p>

Clark, J. The Court, of its own motion, instructed the jury, among other things, as follows: “ The number of the links in a chain” (of circumstantial evidence) “ are not material, provided they are sufficient to satisfy your minds of the guilt of the person charged. I will mention some of the circumstances which are usual. “1.

<p>Mortgage of Corporation—Notice of Special Meeting of Directors —Burden of Proof.—In an action to foreclose a mortgage of a corporation, it appeared that the mortgage was executed under a resolution passed at a special meeting of the Directors; and it was claimed that there was no evidence that such a notice of a meeting as was required by • law, was served on the Directors. The resolution recited that written notices had been served on each Director. Held: The action of the Board was regular and binding on the corporation.</p> <p>Id.—Id.—Under Section 320 of the Civil Code, it is not required that the notice of a special meeting of the Directors of a corporation should specify the purpose of the meeting. A notice that the meeting will be held, the place where, and the time when it will be held, will be sufficient.</p> <p>Id.—Id.—Id.—In the absence of proof to the contrary, notice to the Directors of a meeting will be presumed, though not recited in the record of the meeting.</p> <p>Id.—Id.—Id.—Id.—Case Distinguished.—In Harding v. Vandewater, 40 Cal. 78, it appeared affirmatively that two of the Directors were not notified.</p> <p>Id,—Mortgage Partly Void—Severance oe Debt.—The mortgage foreclosed included a debt due to the plaintiff from the President of the corporation, but this was severed from the debt of the corporation, and disallowed by the Court below.</p> <p>Held: The private debt being severable, did not render the note void as to the whole amount. It was valid for the balance.</p>

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

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

Appeal by the defendant Stephen Cooper from a judgment for the plaintiffs and from an order denying a new trial in the Superior Court of the County of Colusa. Hatch, J.