Volume 6 — California Unreported Cases

<p>Malicious Prosecution—Termination of Action.—An Allegation, in an action for malicious prosecution, that the prosecution on which the action is based had been finally determined in plaintiff’s favor, is sufficient, without alleging, in addition, the means, as by writ of habeas corpus, by which that end was accomplished.</p> <p>Malicious Prosecution—Probable Cause.—When a Prosecution, under Penal Code, sections 701-714, authorizing the arrest of a person charged with having threatened to commit an offense, results, after a hearing, in an order requiring the accused to give an undertaking to keep the peace, the order, unless it is shown to have been procured by fraud, is conclusive evidence of probable cause.</p> <p>Malicious Prosecution—Termination—Probable Cause.—In an action for malicious prosecution, it appears that, in one of the prosecutions on which the action was based, the plaintiff was discharged on a writ of habeas corpus, on the ground of the insufficiency of the commitment, and a possible defect in the warrant; and, in the other, upon the statement that she could not give a bond and assurances that she would not harm defendants, who were seeking to compel her to give an undertaking to keep the peace, she was discharged on motion of the district attorney, on her own recognizance. Held, that an instruction that plaintiff’s release upon the habeas corpus proceedings and the dismissal on the motion of the district attorney were each a sufficient termination of the prosecution, for the purposes of this action, going to show a want of probable cause, is error.</p> <p>Malicious Prosecution—Probable Cause—Advice of Counsel.— A defendant in an action for malicious prosecution, who relies on the defense of probable cause by showing that he in good faith acted on the advice of counsel, after having disclosed to him all the material facts within his knowledge relating to the offense and the accusation, need not show that he also disclosed all the material facts bearing on the ease which he could have ascertained by reasonable diligence, the other disclosures being sufficient.1</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>Action by one Ohlandt and others against one Joost and others. On motion to dismiss an appeal. Denied.</p>

Action by the county of Modoc against John Madden, county treasurer, and another. From a judgment for defendants, plaintiff appeals. Affirmed.

<p>Pledge—Lien—Conversion.—A Pledgee of Stock, even if he converts it, by depositing it in escrow under an agreement to convey it to one on exercise of Ms option of purchase on all the corporation’s property, does not thereby lose his lien, under Civil Code, section 2910, the pledgor having waived the tort by electing to treat the pledgee’s contract as authorized.</p> <p>Limitations—Necessity of Pleading.—The statute of limitations, to be availed of, must be pleaded.</p>

<p>APPEAL from Superior Court, Los Angeles County.</p> <p>Action by Sarah Y. Rubens against Mary N. Mead, executrix. Judgment for plaintiff. Defendant appeals. Affirmed.</p>

<p>Trespass—Claimants Under Lessee.—Owner of Land Who Leases it with understanding that the lessee, if he cannot keep stock of strangers off, shall charge them for the use thereof, cannot maintain trespass against one who, on his cattle intruding thereon, arranges with the lessee to use the land for his stock for the season for a certain amount; and it is immaterial whether the money so collected belonged to the tenant or land owner.</p>

<p>Notes—Fraud as Defense.—No Defense to Note is Shown by answer alleging that, by false representations of plaintiff’s officers, defendant was induced to make the note in payment of others previ ously given for money borrowed by him from plaintiff, no damage being shown.</p> <p>Notes.—Fraudulent Representations, to be Defense to note, must be such as to cause defendant to execute the note.</p>

M. Conley, Judge. Action by N. Rosenthal and L. Kutner, partners, against R. E. Perkins and others. From a judgment for plaintiffs and from an order denying a new trial defendants appealed. Reversed.

<p>Option—Necessity of Notice of Acceptance.—There is No Contract authorizing action for damages by one given option to buy within certain time, where he does not give notice of acceptance of offer, though the offer is withdrawn before expiration of the time.</p>

Action by George F. Todhunter and others against W. S. Armstrong. From a judgment for plaintiffs and an order denying a new trial defendant appeals. Affirmed.

<p>APPEAL from Superior Court, Colusa County.</p> <p>Action by Colusa county against B. Seube. Judgment for plaintiff and defendant appeals. Reversed.</p>

Action by I. H. Bryson against A. J. McCone and others for damages from a breach of contract. From a judgment for plaintiff, he appeals. Affirmed.

Action by the Tustin Fruit Association against the Earl Fruit Company. From a judgment giving plaintiff partial relief and from orders denying a new trial both parties appeal. Affirmed.

<p>Supervisors—Expenses—Liability of Counties.—A member of the board of supervisors, who attended a supervisors’ convention in another county as one of a committee of the whole, authorized and appointed by the board so to do, cannot recover compensation from the county for his expenses, since not within the duties of the board as authorized by law.</p>

Action by Julius Leszynsky against H. L. E. Meyer, administrator of the estate of Joseph P. Hale, deceased, to recover for brokerage commission. From a judgment of nonsuit plaintiff appeals. Affirmed.

<p>Criminal Law—Intoxication as a Defense.—Under Penal Code, section 22, providing that, whenever the existence of any particular motive is necessary to constitute any particular crime, the jury may consider the fact that the accused was intoxicated at the time in determining his motive, a jury is warranted in holding accused responsible for a robbery committed while intoxicated, which he confessed to when in full possession of his faculties.</p> <p>Criminal Law—Intoxication as Defense.—Mo Prejudicial Injury results from sustaining an objection to a proper question on cross-examination as to the manner of accused when intoxicated, where, by other questions to the same witness, the information sought is elicited, and the witness further testifies that accused was not intoxicated the day after the commission of the crime, when he confessed having committed it.</p> <p>Criminal Law—Intent—Reasonable Doubt.—An Instruction concerning intent, as an element in the commission of crime, is not objectionable because it omits to state that a conclusion adverse to defendant must be one that does not admit of a reasonable doubt, where the jury were elsewhere fully instructed as to the doctrine of reasonable doubt.</p>

Action by the San Francisco Savings Union against E. B. Long and others. From a judgment in favor of defendant Guy Shoup and another and from orders denying a new trial the other defendants appealed. Affirmed.

In the matter of the estate of William Murdock, deceased. From an order made on the hearing of exceptions to the executors’ first annual account, they appeal. Affirmed.

Action of one Fox against one Grayson. From an order dissolving a temporary injunction plaintiff appealed, and defendant moves to dismiss the appeal. Motion denied.

<p>APPEAL from Superior Court, Fresno County; Stanton L. Carter, Judge.</p> <p>Two actions against L. A. Spencer—one by Fannie Price and the other by M. A. Layson. From adverse judgments plaintiffs appeal. Affirmed.</p>

A. Sanderson, Judge. Action by H. Clifford More, administrator of Lawrence „ W. More, deceased, against John F. More, administrator of Alexander P. More, deceased. Eliza M. Miller, afterward made special administratrix of Alexander P. More, deceased, and C. A. Baldwin, intervened. From order dismissing complaint in intervention, and from judgment for plaintiff against original defendant, interveners appeal. From order vacating said judgment, plaintiff appeals.

Action by W. H. Wright against the Pacific Coast Oil Company. There was a judgment for plaintiff, and- from the judgment and an order denying a new trial defendant appeals. Reversed.

S. Noyes, Judge. Action by Mary Breedlove against the Norwich Union Fire Insurance Society. From a judgment for plaintiff and from an order denying a motion for a new trial defendant appeals. Affirmed.

H. Clark, Judge. Action by W. E. Webb and others against N. Kuns and others. From a judgment in favor of plaintiffs and an order denying a new trial defendants appealed. Affirmed.

<p>APPEAL from Superior Court, San Bernardino County.</p> <p>Action by C. W. Fairbanks and another against J. M. Rollins on a note. Judgment for plaintiffs and defendant appeals. Affirmed.</p>

Yorke, Judge. Action by Shirley C. Ward against Vicente Yorba to reform a contract to sell lands, and for specific performance as reformed, and for damages. Judgment for plaintiff, from which, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Mortgage Foreclosure—Judgment of Reversal—Construction.— A judgment of the supreme court reversing a judgment in a mortgage foreclosure for $1,200 and costs and attorney’s fees, and directing a judgment for the principal and interest stipulated in a note, less interest paid—defendant to have costs of appeal—does not deny plaintiff the counsel fees and costs of the trial court, no question of such counsel fees or costs being considered on the appeal</p>

<p>Appeal—Fsematurity.—An Appeal from a Final Judgment before its entry is premature, inasmuch as the time within which such appeal may be taken does not begin to run until the entry.</p>

<p>APPEAL from Superior Court, Santa Barbara County; W. B. Cope, Judge.</p> <p>Action by Sarah J. Kenney against W. S. Parks and others. Judgment for plaintiff. Defendants appeal. Affirmed.</p>

<p>Damages—Appeal—Modification.—Finding of Damages in Excess of amount averred in complaint established damages to amount claimed, so that judgment for the excessive amount need not be reversed, but merely modified.</p>

York, Judge. Action by the J. M. Griffith Company against the city of Los Angeles to recover the balance due under a sewer contract. From a judgment for plaintiff for only part of the money sued for it appeals. Affirmed.

Petition by B. A, Maxson and another for a writ of review to review a judgment of the superior court of Madera county entered in an action appealed to that court from a justice court. Judgment annulled in part.

<p>APPEAL from Superior Court, Kern County; Walter Van Dyke, Judge.</p> <p>Action by O. B. Stanton against John Singleton and others. Prom a judgment sustaining a demurrer to the complaint plaintiff appeals. Reversed.</p>

Action by J. K. Tuffree and wife against the Stearns Ranchos Company. From a judgment for plaintiff, from an order denying its motion to amend the judgment and to correct a file mark thereon, and from an order denying its motion for a new trial, defendant appeals. Affirmed as to the judgment, as to the order refusing to amend the judgment, and as to the order denying a new trial, and dismissed as to the order refusing the correction of the file mark.

Action by Minnie E. Stratton against John Burr and others. From a judgment in favor of plaintiff and an order denying a new trial defendants appeal. Affirmed.

Action by Mary McRae, administratrix of the estate of Malcolm McRae, deceased, against the Argonaut Land and Development Company. From a judgment for plaintiff and from an order denying defendant’s motion for a new trial defendant appeals. Appeal from order denying new trial dismissed. Judgment affirmed.

<p>APPEAL from Superior Court, Sacramento County.</p> <p>Action by William S. Howe against Milton S. Halsey. From a judgment of dismissal plaintiff appeals. Affirmed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.</p> <p>Action by James H. Wallace against James B. Randol to .recover on a note. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Sale—Intent to Defraud Creditors.—Civil Code, section 3442, makes a question of fraudulent intent one of fact. Act of 1895 makes a voluntary transfer without consideration by one insolvent, or in contemplation of insolvency, fraudulent as to creditors. Held, that the rule under section 3442 of the Civil Code was not changed by act of 1895, except in transfers of the kind specially mentioned in the act.</p> <p>Sale—Change of Possession.—A Firm Composed of Father and Son sold to the wife and mother jewelry, which was delivered to her and kept for. three months in her house, where she resided with her husband and son, except when she intrusted a part of it to them to sell to obtain necessaries for the family, they returning it on failing to find a purchaser. Held, that there was an actual and continued change of possession, as against creditors.1</p> <p>Sale—Change of Possession.—A Mother Purchased Jewelry from a firm composed of her son and another, and, after keeping the property three months, delivered it to plaintiff, to be sold on commission. Held, that the employment of thé son by plaintiff to assist him in his business, under a contract to which the mother was not a party, did not indicate that there had been no actual and continued change of possession in the mother, as against creditors.</p> <p>Sale—Fraud on Creditors.—A Firm Sold Its Stock to a Creditor, after which plaintiff purchased it from him, and published a newspaper notice stating that a member of the firm was his manager. Held, that as against firm creditors, who attached property of plaintiff as belonging to the firm, the notice was admissible to show the partner’s connection with plaintiff’s business.</p> <p>Sale—Fraud on Creditors—Evidence.—As Against One Claiming Goods under a purchase from an insolvent firm, a statement of the firm to a mercantile agency long before the sale is not admissible in behalf of attaching creditors, if no actual fraud is alleged, and the only question is whether there was an actual and continued change of possession in the purchaser.</p>

<p>New Trial—Statement on Appeal.—An Order Denying a new trial cannot be reviewed where the statement contains no specification of errors or the particular reasons relied on for the new trial.</p> <p>New Trial.—On Appeal from an Order Denying a New Trial, the clerk cannot, by certificate, supply what is required to appear in the statement. '</p> <p>New Trial—Appeal.—The Notice of Motion for a New Trial Constitutes no part of the statement on appeal, without being referred to in the statement as such.</p> <p>New Trial—Appeal.—Error Assigned to the Introduction in evidence of a judgment-roll of another action can only be considered upon the review of the order denying a new trial.</p>

<p>Guaranty.—E. Agreed in Writing With B. to Pay a Note of B. and G. out of the proceeds of sheep mortgaged to B. by G. B. telephoned the payee that he had agreed to pay the note, and asked for thirty days’ extension, which was granted on consideration of his promise. He sold the sheep, and shortly after “guaranteed full payment,” and asked for another extension, and subsequently paid some interest. The sheep were attached in an action against G., and, to secure the release, B. paid the attachment debt, after deducting which, and expenses, the proceeds of the sheep were insufficient to pay the note. Held, that B. had obligated himself unconditionally to pay the note in full, and had not limited his liability to the proceeds remaining after all claims against the principal were satisfied.</p> <p>Guaranty.—Where a Person Who Agreed to Pay Another’s Note, which was payable to a bank, telephoned the cashier that he had agreed to pay it, and thereby secured an extension, the bank’s acceptance of the new agreement is inferred.</p> <p>Guaranty.—An Agreement of the Maker of a Note, Restricting the liability of one who had promised to pay it, is ineffectual, as against the payee, where it was made after the payee had accepted the promise.</p>

Action by the county of San Diego against the county of Riverside. There was a judgment for plaintiff and defendant . appeals. Reversed.

<p>APPEAL from Superior Court, Nevada County.</p> <p>Action by J. T. Cline against H. A. Robbins. From an order made after final judgment denying defendant’s motion to dismiss the action defendant appeals. Affirmed.</p>

Action by J. W. Lilienthal and others against S. D. Ballon and another. From a judgment for plaintiffs and from an order denying a new trial defendants appeal. Affirmed.

<p>Habeas Corpus—Moot Cases.—Habeas Corpus cannot be Resorted to, to obtain a speedy decision as to the validity of an ordinance, where petitioner is not in fact suffering imprisonment, or where the imprisonment terminates on the day of the hearing.1</p>

<p>Appeal—Necessary Parties.—A Defendant, Who Held a Second Mortgage, conditioned that, if the first mortgage was foreclosed, his mortgage should not be foreclosed, by cross-complaint or otherwise, and who answered a foreclosure action, praying the application of surplus, if any, to his mortgage 'debt, and who was by the decree adjudged to hold a second mortgage, on which a certain amount of money was due, is a necessary adverse party, on whom notice must have been served of an appeal from such decree, though it merely directed the payment of the surplus into court to await a further order.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>Action by William Ede against Joseph Cuneo and others. From an order sustaining a demurrer to the petition plaintiff appeals. Affirmed.</p>

Action by the Grangers’ Bank of California and others against J. A. Shuey and others. There was a judgment for plaintiffs, and defendant the Union Savings Bank appeals. Affirmed.

Action by Marion J. McDonald against the mayor and common council of the city of Plaeerville. Judgment for defendant and plaintiff appeals. Affirmed.

Action by William H. Smith against William Williams and Jacob Templey. From a judgment for plaintiff and an order denying a new trial defendant Templey appeals. Affirmed.

Gray and others against George L. Richardson, as superintendent of streets. From an order denying the application and a motion for new trial plaintiffs appeal. Affirmed.

Action by the Thomson-Houston Electric Company against the Central Electric Railway Company. From a judgment for defendant and from an order denying a new trial plaintiff appeals. Reversed.

Action by Lawrence Megginson against J. F. Turner. From a judgment for plaintiff and an order denying a motion for new trial defendant appeals. Affirmed.

Action by A. V. Scanlan against the San Francisco and San Joaquin Valley Railway Company. From a judgment for plaintiff and from an order denying a new trial defendant appeals. Reversed.

<p>APPEAL from Superior Court, San Joaquin County,</p> <p>Action by R. Ramsbottom against B. M. Fitzgerald. From a judgment for plaintiff, defendant appeals. Motion to dismiss appeal denied.</p>

<p>APPEAL from Superior Court, Mariposa County.</p> <p>Action by Lucy Hite against John R. Hite. From an order granting plaintiff alimony and counsel fees defendant appeals. Affirmed.</p>

Action by A. L. Whitney against the American Insurance Company and another. From a judgment for plaintiff and an order denying a motion for new trial defendants appeal. Affirmed.

Action by one Lingard and others against the Beta Theta Pi Hall Association and others to foreclose a mechanic’s lien. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

<p>Manslaughter.—Deceased, Who was Drunk, Approached Accused, a stranger, in a saloon, making an insulting remark, which the latter took to be addressed to himself, and, after pushing deceased away, on his second approach struck him with his fist—once in the face, and several times over the heart. Deceased was unarmed, but accused testified he had his right hand closed, and accused struck him to protect himself, though there was no showing that deceased’s manner was menacing, nor that accused’s violence was justifiable. Deceased died in two hours of heart rupture, which the evidence showed the blows were sufficient to cause. Held, that the killing was manslaughter, under Penal Code, section 192, making killing as the result of an unlawful act, committed without due caution and circumspection, such offense.1</p> <p>* Manslaughter.—The Use of the Instructions in the Argument to the jury is within the discretion of the court.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>One Cappola was convicted of robbery, and appeals. Affirmed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>Action by John E. Nash against Ernestine Kreling. There was a judgment for defendant, and plaintiff appeals. Affirmed.</p>

<p>Contract of Employment.—Defendant, in California, had Been in Communication with plaintiff, in Connecticut, looking to his engagement as stage manager. Plaintiff wrote, declining previous offers, but stated he would sign a contrast for a certain sum for the first year, and, if at the end of that time business should not warrant a certain raise, he would not ask it. Defendant replied by telegram, “Your terms, $90 a week, accepted,” and, in a letter, wrote that she had sent a telegram, which plaintiff could consider a contract until he arrived, when a proper one would be drawn up. Plaintiff became stage manager, and defendant suggested that a contract should be drawn up, but he stated it was unnecessary. Held, to create a contract between the parties.</p>

<p>Forgery.—Where Experts Testified That a Check Defendant was charged with forging was signed by the name charged in the indictment, and the jury so found, a conviction will not be reversed on appeal on the ground of variance, though the name appearing thereon might be deciphered slightly differently.</p>

Action by P. 0. Downing, doing business as Downing & Co., against R. E. Mulcahy and E. De Kay Townsend, partners as Mulcahy, Townsend & Co. Prom a judgment for plaintiff, and an order denying defendants’ motion for a new trial, they appeal. Affirmed.

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>Action by C. W. Mott and others against Alfred Clarke. From an order adjudging defendant guilty of contempt, he appeals. Appeal dismissed.</p>

Action by the Bank of Orland against John Finnell. From a judgment in favor of defendant and from an order denying a motion for a new trial plaintiff appeals. Reversed.

<p>Appeal.—Where the Evidence is Conflicting, and a motion for new trial was denied, the verdict will not be set aside.</p> <p>Check.—In an Action on a Check, Defendants Denied Delivery, and in proof thereof introduced evidence showing that the cheek was made in payment of certain stock to be delivered, and entry of the other parties in the agreement into a pooling contract, and that the check was taken without consent by one of the parties, to whom it had been given for inspection. Held, that evidence of failure of the consideration for which the check was to be given was admissible as tending to show want of delivery.</p> <p>Check.—Where the Payee of a Check had Notice of what was to be done by third parties before the check was to be delivered, evidence of negotiations with such third parties in the absence of the payee of the check is admissible to show nondelivery.</p> <p>Evidence.—A General Objection to Evidence of a Certain Conversation as not had in the presence of one of the parties to the suit was insufficient as affecting certain offensive words used in the conversation, where there was no motion made to strike them out, and they were thereafter repeated to such party in person.</p>

<p>Appeal.—A Finding by the Jury on Conflicting evidence will not be disturbed.</p> <p>Insurance-.—The Fact That an Accident Insurer had Waived a false statement that the insured had never before received compensation for any accident, in so far as it had paid him therefor in 1892, and knew of certain other like payments by third persons in 1892, does not wa'ive the falsity of the statement in that prior compensations for accidents had been paid the insured in 1886, of which the insurer had no knowledge.</p> <p>Insurance.—The Objection of Immateriality cannot be Urged against a warranty in a policy so as to avoid the eftect of a breach thereof.</p>

<p>Well Contract.—In an Action on a Well Contract, Where Plaintiff alleged that he was prevented from finishing the well because of defendant furnishing unsuitable casing, which collapsed and stopped up the well, an allegation that plaintiff offered to dig another well without profit, at its actual cost, was unnecessary to the cause of action, and ineffectual as an offer to perform.</p> <p>Well Contract.—Where a County Having a Well Bored was to Furnish the casing, the presumption that it should be suitable and of proper strength is not overcome by Civil Code, section 1654, providing that an uncertainty in a contract between a public body and a private person shall be presumed to be caused by the latter, and most strongly construed against him.</p> <p>Well Contract.—Specifications for a Well Contract Provided that all materials should be of the best quality and suitable. Held, that this applied to the easing to be furnished by the county having the well bored, as well as to the material furnished by the contractor.</p> <p>Well Contract.—In an Action on a Well Contract, a Count for Extra Work caused by and on account of improper casing furnished by defendant having the work done states a cause of action.</p> <p>Well Contract.—Where, Under a Well Contract, the Owner Could Stop the work at any time, the contractor cannot recover damages for being prevented from completing the contract by the owner’s furnishing defective materials, this not being done willfully.</p> <p>Well Contract.—In an Action Against a County on a Well contract, the petition alleged that the county entered into the contract, acted on it, and made payments under it; and the contract recited that the county made it through its duly authorized agent. Held, on demurrer, that the petition was not bad as not setting out the authority under which the agent acted.</p> <p>Well Contract.—A County cannot Escape Liability Under Its Contract to furnish suitable casings for a well being bored for it because of the neglect of duty of its officers in selecting the casings.</p>

<p>Bobbery—Information.—A Variance Between the Name of the owner of the property, as given in an information for robbery and as shown in evidence, is immaterial.</p> <p>Bobbery—Evidence.—In a Prosecution for Bobbery, the Owner of the property testified that defendant knocked him down, rendering him insensible, and that on recovering consciousness his purse and watch were missing. Another witness testified that he saw defendant holding the owner of the property on the ground. No one distinctly saw defendant rifle the latter’s pockets, nor was the property found in defendant’s possession. Held, that a conviction was justified.</p> <p>Criminal Law—Instructions—Appeal.—Where the Court, of its own motion, gives an instruction based on a contention which it states was made on the trial, it cannot be presumed on appeal, in the absence of such fact being affirmatively shown by a bill of exceptions, that the contention was not made.</p>

Action by Henry Wolters and others against Lena Rossi- and others. From a judgment for defendants and from an order denying a new trial, plaintiffs appeal. Affirmed. The original complaint herein was filed March 15, 1895. On April 1, 1895, the summons was filed showing proof of service on the defendants Lena Bossi and C. Bossi on March 20th, and on the defendant the Farmers’ Bank on March 18th.

Action by one Johnson and others against the Goodyear Mining Company. There was a judgment for plaintiffs and defendant appeals. Dismissed.

Action by the Stockton Ice Company against the Argonaut Land and Development Company. From a judgment for plaintiff and from an order denying a new trial defendant appeals. Affirmed.

<p>Appeal—Service of Notice on Attorney.—Under Code of Civil Procedure, section 940, requiring notice of appeal to be served on the adverse party or his attorney, and section 1015, requiring the service of papers on the attorney, instead of the party, where he appears by attorney, notice of appeal must be served on appellee’s attorney, if he have one.</p>

<p>Appeal,—A Remittitur will not be Recalled where it conforms to the judgment as rendered, and it is too late to amend the judgment.</p>

Action by Mark Meherin, assignee in insolvency of the California Steamship Company, against J. N. Saunders, constable, and another. Judgment for plaintiff and defendant Thomas Ambrose appeals. Reversed.

<p>Appeal—Amendment of Judgment.—The Supreme Court will not amend its judgment directing a demurrer to the complaint to be overruled, by adding thereto a direction that respondents be allowed to answer, as application for leave to answer can be made to the trial court.</p>

Action by Charles L. Fair against James S. Angus and others. From a judgment for plaintiff, defendants appeal. Submission set aside, and resubmission ordered.

<p>Appeal—Setting Aside Submission.—Where a Justice has not Heard the argument, and it is deemed important that all the justices should participate in the decision, the submission of the appeal will be set aside, with leave to counsel to stipulate to resubmit the case on the briefs and printed arguments already on file.</p>

Action for conversion by M. H. Lothrop against M. Golden and others. Prom a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Affirmed.

Action by J. J. Yore against F. J. Seitz and F. J. Seitz, administrator of the estate of Anna Maria Seitz. There was judgment for plaintiff, and defendants appeal. Affirmed

In the. matter of the estate of John Walker, deceased. Prom an order settling the first annual account of J. M. Walker as administrator, he appeals. Affirmed.

Action by Bradbury & Caylor against John McHenry and another. From a judgment for defendants and from an order denying a new trial plaintiffs appeal. Affirmed.

Action by Leo C. Williams and others against Thomas I. Bergin and others. A demurrer to the complaint was sustained, and defendants appeal. Affirmed.

<p>Deeds—Construction by Acts of Parties.—Defendant Conveyed Part of a tract of land, and a fence was constructed by him and a subsequent grantee so as to include the land described in the conveyance and an additional piece belonging to him, and the land was subsequently conveyed to plaintiff by a description following the line of the fence. Defendant claimed that after the fence was constructed he discovered that it included too much land, and so notified the owner, but took no steps to have it moved, and allowed it to remain for twenty years, and in conveying an adjoining piece had it surveyed, and used a description corresponding to the line of the fence. Held, in an action to quiet title to the additional piece on the ground that it should have been included in the original conveyance by defendant, that the subsequent acts of the parties had established plaintiff’s title.</p> <p>Quieting Title—Judgment.—Where, for Twenty-three Years Previous to an action to quiet title, defendant had maintained a dam across a stream at a point where it intersected the line between his land and the land in controversy, thereby backing the water over a part of the land involved so as to divert it into his ditch, and in the action, while alleging title to the land, he fails to allege a right to flow it, merely alleging riparian rights in the stream, he cannot complain that the judgment declaring that he had no interest in the land, but allowing him to maintain the dam, does not also give him the right to divert the water, and flow plaintiff’s land.</p>

<p>APPEAL from Superior Court, Los Angeles County,</p> <p>B. Solomon was convicted of receiving stolen goods, and appeals. Affirmed.</p>

Action by Charles Ashton, trustee, against the Golden Gate Lumber Company, to recover rent. From a judgment for defendant and an order denying a motion for a new trial plaintiff appeals. Reversed.

<p>APPEAL from Superior Court, San Joaquin County.</p> <p>Action by Minnie E. Cowdery against Clark McChesney, as executor of George M. Kasson, deceased. From a judgment for defendant, plaintiff appeals. Reversed.</p>

Action by Peter W. Watson against Eliza M. Miller, as administratrix of the estate of A. P. More, deceased. Certain heirs intervened. From a judgment for defendants, plaintiff appeals. Affirmed.

Ejectment by Mary Buckley against William Mohr. Prom a judgment in favor of defendant and an order denying motion for new trial plaintiff appeals. Affirmed.

Action to recover possession of a promissory note by Louise J. More against H. F. Finger, E. F. Rogers, Thomas R. More and Otto Kaeding. From a judgment for plaintiff, defendants Finger and Rogers appeal. Affirmed.

Action by J. M. Methvin against the Fidelity Mutual Life Association' of Philadelphia, Pennsylvania. From a judgment in favor of plaintiff and from an order denying a new trial defendant appeals. Affirmed.

Action by Harry G. De Greayer, by Septimus De Greayer, his guardian, against the Fidelity and Casualty Company of New York. From a judgment in favor of plaintiff and from an order denying a new trial defendant appeals. Affirmed.

<p>Homicide.—The Admission of Evidence not Affecting Substantial Rights of defendant and not prejudicial to the merits of his defense is not ground for reversal.</p> <p>Homicide—Sobriety of Accused.—Evidence Showing that at the time of the murder defendant was sober is not .prejudicial to defendant, where he and others have testified to the same effect.</p> <p>Homicide.—An Instruction is Properly Refused Which is based upon a state of facts of which there is no evidence.</p> <p>Homicide.—Testimony to the Effect That Witness, on the night of the homicide, passed a young man on the road; that afterward she heard a wagon coming rapidly up behind, and soon after the sound ceased, and she heard a pistol shot; that she passed the place next morning, and saw a pool of blood; and that she had recognized a body at the morgue as the body of the young man she had passed on the road, is material, and properly admitted.</p> <p>Homicide—Resisting Arrest.—Where the Defense to Homicide is that defendant, a constable, was attempting to arrest deceased, an instruction, “If the jury believe that defendant, when he fired the fatal shot, was lawfully attempting to arrest deceased, and intended to shoot over his head, they will find defendant not guilty,” was properly modified to read, “If the jury believe that defendant had reasonable cause to believe, and did believe, that the deceased had committed a felony, and was attempting to arrest deceased, and fired the fatal shot intending to shoot over the defendant’s head.”</p> <p>Homicide—Resisting Arrest.—An Instruction That, “if the jury had any doubt about the lawfulness of the means adopted by defendant to arrest deceased, they should acquit defendant,” is properly refused, as being indefinite.</p>

<p>APPEAL from Superior Court, Sacramento County.</p> <p>Action by McClatchy & Co. against Sperry & Hutchinson. Prom a judgment for plaintiffs, defendants appeal. Application for leave to file a stay bond. Granted.</p>

John Woodruff was convicted of embezzlement, and appeals from the judgment and an order denying his motion for a new trial. Affirmed.

Quo warranto by the people, on the relation of one Fogg, against the Perris Irrigation District (one Hutchings and others, interveners). There was a judgment for plaintiffs and interveners appeal. Motion to dismiss appeal denied.

<p>APPEAL from Superior Court, Alameda County.</p> <p>Partition by Florence Ethel Blair against Mabel E. Squire and others. From a decree in favor of plaintiff, and from an order denying a motion for a new trial, the San Francisco Tool Company, one of the defendants, appeals. Affirmed.</p>

<p>Attachment—Collateral Attack.—Evidence to Impeach an Affidavit of attachment is not admissible in a collateral proceeding by a stranger to the attachment suit to recover possession of the property.1</p> <p>Appeal.—Where There is a Substantial Conflict in the evidence, the finding of the trial court will not be disturbed.</p> <p>Replevin.—Defendant Seized in Attachment Certain Stock which plaintiff claimed to have purchased from the defendant in attachment. Plaintiff’s statement that he purchased the stock and had been in continued possession for some years prior to the attachment was uncontradicted. Held, he was entitled to recover such stock, although it happened to be, at the time of the levy of attachment, on the ranch of defendant in attachment.</p>

<p>State—Bonds—Inability—Appropriation.—Act of May S, 1852 (Stats. 1852, p. 59), provided for the issuance of bonds to pay the expense of military expeditions, such bonds to be payable out of funds appropriated for that purpose by Congress, with the condition that, if such appropriation was insufficient, the bonds would be a valid claim against the state. Congress, in 1845 (19 Stat. 576), appropriated an unapportioned amount intended to pay the military expenses of the state incurred under the act of May 3, 1852, and under prior acts, but such appropriation, while sufficient to cover the expense under the act referred to, was insufficient to pay the entire indebtedness for which it was appropriated, and interest coupons on such bonds held by plaintiff were unpaid. Held, that, the liability of the state being conditioned on the failure of Congress to make an appropriation sufficient to pay the bonds issued under that act, such appropriation being sufficient for that purpose, the state was not liable, though the appropriation was insufficient to cover another and prior indebtedness not mentioned in the act.</p>

Action by George W. Beck against the Pasadena Lake Vineyard Land and Water Company and another. From a judgment for defendants, and orders denying a new trial and refusing to strike out the cost bill, plaintiff appeals. Reversed.

<p>APPEAL from Superior Court, Los Angeles County,</p> <p>T. N. Garcia was convicted of larceny, and he appeals from the judgment and from an order denying a new trial. Affirmed.</p>

<p>Taxation—Mortgages.—Neglect or Refusal of a Land Owner to return a mortgage on his land for taxation does not authorize the assessor to arbitrarily assess it to him, since Political Code, section 3629, requires the land owner to return only property belonging to himself; and section 3633, authorizing arbitrary assessment on refusal of the owner to make a statement, applies only to property belonging to him; and section 3650, subdivision 15, requires the assessor to deduct mortgages and assess them to their owner.</p> <p>Taxation.—Mortgages.—Where the Assessor Fails to Enter the value of mortgages on land assessed, in the proper column, and deduct the same, as required by Political Code, section 3650, subdivision 15, it cannot be presumed that he made the proper deductions, but failed to so state on the assessment-roll.</p>

Action by G. W. Baker, as receiver, against Mabel Brett Varney and others. There was a judgment for plaintiff, and from an order denying her motion for a new trial defendant Mabel Brett Varney appeals. Affirmed.

<p>Appeal—Alteration of Record—Dismissal.—Where, After Numerous Motions to supply the defects in a record in the supreme court, appellant’s attorney makes alterations in the printed record, by underscoring various passages, and by marginal notes and interlineations in writing, for the purpose of directing attention to particular parts of the record, and, without leave of court, alters his reply brief by pasting therein numerous leaflets containing citations of authorities, and comments thereon, of which no service is made on opposing counsel, thus imposing upon the court more labor than would have been required to dispose of the ease on its merits if presented in an orderly manner, and there appears to be no substantial merit in the appeal, it will be dismissed.</p>

Proceedings by George E. Bates and E. 0. Miller against Joseph Escot and another. From a judgment for plaintiffs and from an order denying a new trial defendant Escot appeals. Affirmed.

Action by Margaret Moran and another against John Lennon. From a judgment for plaintiffs and an order overruling a motion for a new trial defendant appeals. Affirmed.

<p>APPEAL from Superior Court, Madera County.</p> <p>Action by Houser & Haines Manufacturing Company against R. L. Hargrove. Prom a judgment in favor of defendant and from an order denying new trial plaintiff appeals. Order reversed.</p>

<p>APPEAL from Superior Court, Santa Clara County.</p> <p>Action by W. P. Lyon against Aurelia Robertson and others. Prom a judgment for plaintiff, defendant Aurelia Robertson appeals. Affirmed.</p>

<p>APPEAL from Superior Court, Los Angeles County.</p> <p>Judicial accounting of Gregory Perkins, assignee of the firm of D. M. Doyle & Son, insolvents. From an order allowing the claim of Lizzie R Doyle and from an order settling the assignee’s account, he appeals. Affirmed.</p>

<p>Trial.—A Finding That All the Allegations of the complaint are true is sufficient to support a judgment, where the complaint states a good cause of action.</p> <p>Statute of Limitations—Findings.—Where a Complaint for Money had and received, filed July 1, 1895, alleged that the cause of action arose “on or about January, 1894,” a finding that all the allegations therein are true is an adverse finding on defendant’s plea of limitations.</p> <p>Statute of Frauds—Pleading.—A Mere Reference in a plea in bar to Civil Code, section 1624 (the statute of frauds), is insufficient as a plea of such statute.</p> <p>Appeal.—A Judgment Supported by Sufficient Findings will not be reversed because of existence of immaterial findings not within the issues.</p>

<p>APPEAL from Superior Court, Santa Clara County.</p> <p>Application for a writ of prohibition by Samuel B. Terrill against the superior court of Santa Clara county to prevent the defendant from taking further proceedings in the case of the people against Samuel B. Terrill. Writ allowed.</p>

Action by Hibernia Savings and Loan Society against Jay E. Russell and Caroline M. Russell for the foreclosure of a mortgage. From a judgment for plaintiff defendants appeal. Affirmed.

<p>Libel—Witness—Impeachment.—Where a Witness in a prosecution for libel testified that he gained access to defendant’s room by climbing through a transom over the door, the testimony of one who had charge of the room and the keys thereof, as to whether or not anyone ever applied to him for access to the room, was incompetent to impeach the former witness.</p> <p>Libel—Impeachment of Witness.—Where a Witness, on cross-examination in a prosecution for libel, testified that he went to a certain town and inquired of M. who the woman in the town was who would have been likely to have written the letters complained of as libelous, and M. answered that he knew of but one woman, testimony of M. that he did not make the statement ascribed to him by witness is inadmissible to impeach the latter, as such statement related to an immaterial and collateral matter.</p> <p>Libel—Opinion Evidence.—In a Prosecution for libel, evidence that a witness knew that the defendant was innocent, and that she did not write the letter complained of, is incompetent, as mere opinion.</p> <p>Libel—Specimens of Handwriting.—In a Prosecution for libel, it is not error to strike out and refuse to submit to the jury specimens of the handwriting of a person other than defendant, who has admitted his authorship of the writing stricken out, where an expert has testified that the writing in the libelous article does not resemble such writings, and there is no evidence to connect the author thereof with the writing of the libelous matter.</p> <p>Libel.—Where Testimony of Experts in Regard to the Authorship of a libelous letter was introduced in a criminal prosecution, it was not error to refuse to instruct that the testimony of experts should be received and weighed with great caution, and that the evidence of a witness who is brought on the stand to support a theory by his opinion is testimony exposed to a reasonable degree of suspicion, which there is great reason to believe is in many instances the result of employment, and his bias arising out of it.</p> <p>Libel.—The Supreme Court will not Reverse a conviction for libel, for refusal to give an alleged requested instruction, where the record does not show that defendant requested the court to give the instruction.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>Action by E. W. Carpenter and others against E. V. S. Cook and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed, and judgment ordered for plaintiffs.</p>

Action by Richard P. Hammond, Jr., referee, against Henry Cailleaud, for breach of contract. Judgment for plaintiff. Prom an order granting a new trial, plaintiff appeals. Affirmed.

Action by Jane Margaret Frank against Thomas F.' Chat-field for the recovery of land. Judgment for plaintiff. From an order denying a new trial defendant appeals. Affirmed.

Petition by one Arnett for writ of prohibition to the superior court to prohibit his retrial on an information charging •him with assault with intent to murder. Denied.

<p>Indictment — Validity — Statutes — Amendment.—Penal Code, section 1008, declares that if a demurrer to an information or indictment is allowed, the judgment is final, and a bar to another prosecution, unless the court directs the case to be submitted to “another grand jury.” Prior to 1880 the act read, "the same or another grand jury.” Held, the words were omitted ex industria, and a submission to the same grand jury was error.</p>

Action by the Bank of National City against one Johnson to recover the amount of an assessment on shares of stock in a corporation. From a judgment for defendant, plaintiff appeals. Reversed.

Action by Delia T. O’Donnell against J. H. Merguire and others. Judgment was rendered in favor of plaintiff, and from an order granting defendants a new trial plaintiff appeals. Reversed.

<p>APPEAL from Superior Court, San Joaquin County.</p> <p>Action by Margaret McCormick against John E. Gross. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Ejectment.—Findings That the Original Owner of Land Conveyed the same to her daughter, reserving in such conveyance an estate for life, and that later the same grantor conveyed the same premises by deed of gift to another daughter, are not conflicting, since the latter conveyance should be understood to mean a conveyance of the life estate, only, then remaining in possession of the grantor.</p> <p>Ejectment.—That Findings of Fact Do not Determine the ultimate fact of ownership of property in controversy is not material, where successive conveyances from the source of title to the plaintiff are found.</p> <p>Marriage.—It cannot be Conclusively Presumed that a woman was married in 1889, at the time of receiving a grant of land, from proof of coverture in 1891, 1893 and 1897, and that in 1897 a son of the same name as her supposed husband commenced a suit, and was presumably of full age.</p>

Action by one Greenwood and others against one Hassett and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

<p>APPEAL from Superior Court, Alameda County.</p> <p>Action for injuries by M. G. Stewart against the California Improvement Company and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.</p>

Action by John A. Owen against the Pomona Land and Water Company to rescind a sale of land and corporate stock for failure of title and breach of warranty. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Bill by the Diamond Coal Company against B. L. Cook and H. D. Welch. Prom a judgment in plaintiff’s favor and from an order denying a new trial defendant H. D. Welch appeals. Affirmed.

<p>Appeal.—Findings Based on Conflicting Evidence will not be disturbed.</p>

<p>APPEAL from Superior Court, San Joaquin County.</p> <p>Action by Mary G. Palmer and another against the Continental Insurance Company. Judgment for plaintiffs and defendant appeals. Reversed.</p>

Action by A. C. Bassett and another against J. A. .Fair-child and others. From a judgment in favor of plaintiffs and from an order denying their motion for a new trial defendants appeal. Reversed.

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>George Walker was convicted of embezzlement and he appeals. Appeal dismissed.</p>

<p>APPEAL from Superior Court, Los Angeles County.</p> <p>Action by C. A. Cortelyou and E. E. Johnson against O. H. Jones and Mary C. Jones. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.</p>

Suit by Owen T. Williams against J. R. Gross to quiet title. Prom a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

<p>Swamp Lands—Reclamation Funds—Assignment—Sale of Land. Since Political Code, section 3477, requiring the county treasurer to pay amounts due on reclamation of swamp land to the original purchaser or his assigns, contemplates payment only to the owner or assignee of the indebtedness, mandamus will not lie to compel such a payment to one who is not shown to be the assignee of the claim on the fund of an original purchaser who became entitled thereto, though he claims as a successor in interest of such original purchaser, by virtue of a purchase of the land.</p>

Action by Joseph Mullaly against F. N. Townsend and others. From a judgment in favor of plaintiff and from an order denying a new trial defendants appeal. Affirmed.

Action by David Adams and others against the city of Modesto. Prom a judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals. Reversed.

<p>APPEAL from Superior Court, San Joaquin County.</p> <p>Action by Mary Sanguinetti against B. Gianelli for an accounting. Prom a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action for divorce by George E. White against Frankie White. Judgment of divorce for defendant on her cross-complaint and for alimony. From an order granting a writ of assistance to obtain possession of leased premises sold to her in part satisfaction of a decree for alimony, the tenant in possession appeals. Affirmed.

<p>Limitation of Actions—Fraud—Corporate Transactions.—Code of Civil Procedure, section. 338, provides that actions for relief on the ground of fraud must he commenced within three years after discovery thereof. A complaint in a suit commenced in 1898 alleged that a corporation’s directors conspired to defraud plaintiff, and accordingly sold him considerable capital stock; that in 1888 they levied an assessment on the stock without necessity, and sold his stock in payment thereof; that in 1889 plaintiff commenced an action to set aside the assessment and sale thereunder, which suit was afterward compromised. Held, that the action was barred, since eight years had expired since the fraud was discovered.</p> <p>Limitation of Actions—Fraud—Corporate Transactions.—The Fact That a Complainant in a suit against a corporation’s directors for fraudulently selling capital stock alleged that the directors afterward appropriated the corporation’s property did not prevent the statute of limitations from running from the time that the sale was discovered, since the sale was the gravamen of the action.</p> <p>Limitation of Actions—Fraud—Corporate Transactions.—Where Plaintiff Knew that a corporation’s directors had fraudulently assessed his stock, and sold the same under the assessment, his failure to discover other frauds perpetrated by them, without seeking to inspect the corporation’s books, did not delay the running of limitations, since he would be presumed to know all that reasonable diligence would have disclosed to Mm.1</p>

<p>Stockholder’s Liability.—Under Civil Code, Section 1473, providing that performanee'of an obligation by one on behalf of the party whose duty it was to perform it, and with his assent, if accepted by the creditor, extinguishes it, an indorser of a corporation’s note, who paid the same and took an assignment thereof from the payee, was not entitled to maintain an action thereon, since the debt was extinguished, and hence he could not enforce the statutory liability of stockholders for such debt.</p>

Action by Alvin B. Smith, road commissioner, against Catherine Glenn and another. From a judgment in favor of defendants and an order denying a motion for a new trial plaintiff appeals. Affirmed.

<p>APPEAL from Superior Court, Riverside County.</p> <p>Actions by the Iowa and California Land Company, substituted plaintiff, against Lillian D. Hoag and Abram Hoag. Judgment for plaintiff and defendants appeal. Reversed.</p>

<p>Embezzlement—Information.—Variance.—When an Information for embezzlement aptly charges the defendant with having received the money of another, and willfully and feloniously appropriated it to his own use, additional averments describing the cheek or instrument upon which he obtained the money are immaterial, and a discrepancy between such description and the proof does no.t constitute a variance.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.</p> <p>Action by the Pacific Paving Company against Reynolds and others on a street assessment. From a judgment in favor of plaintiff defendants appeal. Reversed.</p>

<p>Street Improvements.—Within Ten Days After the Expiration of the Time for the publication and posting of the resolution of intention to order a street improvement, the owners of a majority of the property abutting on the proposed work made their written objection to the same, and delivered it to the clerk of the board of supervisors, who indorsed thereon the date of its reception. No other resolution or action of the board was taken, but after six months from the filing of such protest it passed a resolution ordering the work to be done. Held, that the board of supervisors had no jurisdiction to order the work.1</p>

<p>APPEAL from Superior Court, City and County of San Francisco; William P. Lawlor, Judge.</p> <p>Prosecution of Benjamin Leipsic for embezzlement. From a judgment of conviction defendant appeals. Reversed.</p>

G. Burnett, Judge. Action by John F. Sims against Petaluma Gaslight Company. From a judgment in favor of plaintiff and an order denying a motion for a new trial defendant appeals. Affirmed.

W. Crump, Judge. Suit to foreclose a mortgage by the Bank of Woodland against G. W. Christie and others. From an order refusing to appoint a receiver plaintiff appeals. Affirmed.

<p>Guardian and Ward.—-Where a Petition to Mortgage Property of minor heirs to raise a certain sum of money sets forth the items for which the money is wanted, such petition is not void on its face, though part of the items only are charges against the estate; hence a collateral attack on. the validity of the petition on such ground, in a suit to foreclose the mortgage, is unavailing.</p> <p>Guardian and Ward—Mortgage.—Where an Order of Court Authorizing a guardian to mortgage the property of minor heirs is susceptible of two constructions, one of which makes the interest of -each minor liable only for his share of the entire debt, and- the other makes the share of each liable for the whole debt, and the court can reasonably construe it to bind the interest of each for his share only, such construction will be given, and the order will be held valid.</p> <p>Guardian and Ward—Mortgage—Collateral Attack.—Under Code of Civil Procedure, section 1578, as amended, declaring that a mere error or irregularity in mortgaging the property of minor heirs under order of court shall not invalidate the mortgage where the mortgage is attacked in a collateral proceeding, a mortgage given without delivery of a note to the mortgagee is valid, as failure to give a note is a mere irregularity.</p>

Action by Catherine F. Donnolly and another against Daniel V. Kelly and another. From a judgment for plaintiffs and from an order refusing a new trial defendants appeal. Affirmed.

<p>APPEAL from Superior Court, Los Angeles County; M. T. Allen, Judge.</p> <p>Action by one Blanchard against one Hartwell, treasurer. From a judgment in favor of defendant plaintiff appeals. Reversed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; John Hunt, Judge.</p> <p>Action by J. 0. Meyerink against Benjamin F. Barton. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

W. Crump, Judge. Action by Albert Schweikert against F. H. Seavey. From a judgment in favor of the defendant and from an order denying a hew trial plaintiff appeals. Affirmed.

A. Cutler, Judge. Action by F. Frantz and another, as executors of the estate of H. Gasquet, against J. C. Harper. From a judgment in favor of the plaintiffs the defendant appeals. Affirmed.

<p>Application for a writ of habeas corpus by George Fedderwitz against Oscar L. Rogers and another. Petition denied.</p>

<p>APPEAL from Superior Court, Kern. County; J. W. Mahon, Judge.</p> <p>Suit by E. Downing against Aleck Rademacher and others to quiet title to certain land. Prom a judgment in favor of plaintiff, defendants Aleck Rademacher and T. M. Osmont appeal. Affirmed.</p>

<p>Mortgage Foreclosure—Statute of Limitations.—Where the Trial Court Finds facts showing that a suit to foreclose a mortgage is not harred, failure to find expressly that the suit is not .harred is immaterial.</p> <p>Mortgage—Estoppel.—Where the Vendee in an Unrecorded Deed, acting as attorney in fact for the vendor, procures a mortgage for the latter on the property, and represents that the vendor is the owner, he is estopped thereafter to sei up title to the land except in subordination to the mortgage.</p> <p>Mortgage—Estoppel.—Where the Vendee in an Unrecorded Deed, acting as attorney in fact for the vendor, procures a mortgage on the latter’s property, and represents that the vendor is its owner, one succeeding to his interest as a mere volunteer is equally estopped to set up title except in subordination to the mortgage.</p> <p>Mortgage Foreclosure.—Error in Admitting Secondary Evidence to prove a note in a suit to foreclose a mortgage given as security is waived by failure to object at the time.</p>

Action by Thomas E. Hallinan, by his guardian, against W. R. Hearst and others. From a judgment in favor of defendants and from an order denying a new trial plaintiff appeals. Affirmed.

County of San Francisco; Charles W. Slack, Judge. Action by the city and county of San Francisco against John Center and others. From a judgment in favor of plaintiff and an order denying a new trial defendants Leroy appeal.

<p>Larceny.—An Indictment Sufficiently Describes the Stolen property as “one cow, the same being the property then and there of H.”</p> <p>Criminal Law—Reasonable Doubt—Instructions.—In a Criminal Case, Refusal to charge that the jury have a right to consider that innocent men have been convicted, and to consider the danger of convicting an innocent man in weighing the evidence whether there is reasonable doubt as to his guilt, is proper.</p> <p>Larceny.—In a Prosecution for Larceny of a Cow a Witness had testified to finding on the premises of accused a “slunk” calf— that is, one that had been taken from its mother—and that it had been taken from the stolen co-w, to which no objection nor motion to strike out was made. Held, that a question asking for the appearance of the calf as to when it had been taken from its mother, and his answer giving the facts on which ■ his conclusion was based, were not objectionable as assuming that the calf had been taken from “a” cow., not “the” cow—that is, from the stolen cow.</p> <p>Larceny.—Where a Witness in a Prosecution for the Larceny of a cow had testified in reference to a hide found on the premises of accused, but had not testified that any part of a brand on it was indistinguishable, a question, on cross-examination, asking what part of the brand was indistinguishable, was properly excluded.</p> <p>Larceny.—A Question to a Witness, “How, When You Went to the butcher-shop or slaughter-house for the first time, you didn’t go in?” was properly excluded for uncertainty, as it could not be understood whether it referred to the butcher-shop or the slaughterhouse.</p> <p>Larceny.—Where, in a Prosecution for the Larceny of a Cow,</p> <p>a witness testified, without objection, to the finding of the carcasses of two calves in a certain locality, a question calling for their condition, and the answer to the effect that they were very much decomposed, which was favorable to accused as showing that they could not have come from the stolen cow, were properly admitted.</p> <p>Larceny.—Admission of Testimony as to Statements of a Third Person to one accused of a crime, though not accompanied with proof of the conduct of accused), was not error, where accused did not move to strike it out.</p> <p>Larceny.—In a Larceny Prosecution, a Witness Testifying that the stolen property belonged to one person cannot be impeached by showing that in .another ease he had testified that it belonged to another.</p> <p>Criminal Law.—A Question of One Witness as to Declarations of another, who was not himself questioned in relation thereto, was properly stricken out.</p>

K Dougherty, Judge. ■ Action by the Bank of Ukiah against John S. Reed and others. Prom an order denying a motion to vacate and set aside their default and* the judgment thereon, defendants appeal. Affirmed.

C. B. Hebbard, Judge. Action by Thomas Richardson and V. L. Fortin against the Chicago Packing and Provision Company and others. From a judgment for defendants and from an order denying a new trial plaintiff Fortin appeals. Reversed.

<p>Mechanic’s Lien—Bond.—Under Code of Civil Procedure, section 1203, requiring a bond, in ease of a building contract, it by its terms to inure to the benefit of persons performing labor and furnishing materials for the contractor, one given to “T. [the owner], legal representatives or assignees,” and not in terms inuring to the benefit of anyone else, is insufficient.</p> <p>Mechanic’s Lien—Failure to Take Bond.—Under Code of Civil Procedure, section 1203, requiring a bond, in case of a building contract, in an amount equal to at least twenty-five per cent of the contract price, inuring to the benefit of persons performing labor and furnishing materials for the contractor, and providing as limit of damages, in case of a bond, the value of labor and materials furnished, not exceeding the amount of the bond, and declaring that any failure to comply with the provisions of the section shall render the owner and contractor liable to materialmen and laborers entitled to liens on the property, the measure of damages, in the absence of a bond, is the amount of the claim for labor or material, no(t exceeding twenty-five per cent of the contract price.</p> <p>Mechanic’s Lien—Failure to Take Bond.—Under Code of Civil Procedure, section 1203, giving action for damages “to any and all materialmen, laborers and subcontractors entitled to a lien,” if bond is not filed where there is a building contract, the claimant who sues first and obtains judgment is entitled to recover up to the limit of the owner’s liability, unless other claimants intervene, or, having brought actions, have them consolidated with his.</p> <p>Mechanic’s Lien—Failure to Take Bond.—Though a material-man, suing the owner of a building for failure to have a bond of the contractor filed, alleges nonpayment of the claim for materials furnished, it is enough for him to prove the debt, and defendant has the burden of proving payment.</p> <p>Mechanic’s Lien—Failure to Take Bond.—Under Code of Civil Procedure, section 1803, giving action for damages to a laborer or materialman against the owner of the property who, in case of a contract to build thereon, does not take a bond for their benefit, and providing that action on the bond, if one is taken, shall not affect the laborer’s lien nor any action to foreclose it, except that there shall be but one satisfaction of the claim, action for failure to take bond is not affected by the bringing of an action to foreclose the lien.1</p> <p>Mechanic’s Lien—Failure to Take Bond.—A claim under Code of Civil Procedure, section 1203, for damages by a laborer against the owner of property who, in ease of contract to build thereon, does not take a bond from the contractor, is within Civil Code, section 1458, declaring “a right arising out of an obligation is the property of the person to whom it is due, and may be transferred as such.”</p>

W. Eisley, Judge. Action by the Easton Pacldng Company against J. W. Kennedy and others. From a judgment in favor of plaintiff and from an order denying a new trial defendants appeal. Affirmed.

<p>APPEAL from Superior Court, City and County of San Francisco; F. H. Dunne, Judge.</p> <p>William P. Mendenhall was convicted of assault with intent to murder and appeals. Reversed.</p>

<p>Homicide—Character of Deceased,—A Charge on a Murder Trial that evidence of the character of deceased, tending to show that he was a violent, quarrelsome and dangerous man, was not admitted as tending “in any way” to justify Ms slaying by accused, was not improper when qualified by the rest of the instruction, to the effect that the evidence of bad character was to be considered only as a circumstance illustrating the facts of the homicide, and indicating the aggressor and the nature of the aggression.</p>

<p>Physicians—Abandonment of Case—Damages.—Defendant was employed to attend, plaintiff during her first confinement. He assumed charge of the case, visiting plaintiff at intervals, until he deemed it the proper time to employ instruments to aid in the delivery of the child, whereon the plaintiff shrank back and screamed, compelling the defendant to let go the, instruments. Defendant threatened the plaintiff that if she did not quit screaming he would quit the case, and on the failure of a second or third attempt to use the instruments he abruptly left the house. This was at midnight, and it was an hour or more before another physician could be obtained, who, on examination, found that plaintiff’s condition was not such as to require the use of instruments just then. Held, that a verdict of $2,000 was not excessive for the unwarranted abandonment of the ease and the mental suffering occasioned plaintiff thereby.1</p>

<p>APPEAL from Superior Court, Mendocino County; J. M. Mannon, Judge.</p> <p>Action by Frankie White against James M. Costigan. From a decree in favor of defendant, plaintiff appeals. Reversed.</p>

M. Angellotti; Judge. Action by Mary Brunnings, an insane person, by her guardian, E. Myron Wolf, against Huida R. Townsend. From a judgment in favor of plaintiff, defendant appeals. Motion to dismiss appeal denied.

Daingerfield, Judge. Action by Rudolph Taussig and others against Bode & Haslett, a corporation. From a judgment for plaintiffs and an order denying a new trial defendant appeals. Reversed.

P. Hall, Judge. Action by George A. Newhall against A. T. Hatch and others. From a judgment for plaintiff and an order denying a new trial defendant Sherman, Clay & Co. appeals. Reversed.

M. Seawell, Judge. Action by Leo Block against Peter A. Kearney. From a judgment for plaintiff and an order refusing to set aside the judgment defendant appeals. Affirmed.

<p>APPEAL from Superior Court, Los Angeles County; Waldo M. York, Judge.</p> <p>Action by Maria C. Springer against A. J. Springer and another. Prom a judgment in favor of defendants, plaintiff appeals. Affirmed.</p>

<p>Judgment—Limitation of Actions.—Under Code of Civil Procedure, section 336, limiting the time within which an action on a judgment or decree must be brought to five years, no recovery could be had in an action on a judgment brought more than five, but less than six, years after judgment was entered; Code of Civil Procedure, section 1049, providing that an action is pending from its commencement until its final determination on appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied, not giving additional life to the judgment.</p>

S. Day, Judge. Action by Laura E. Fowler and husband against John Carne and others. From a judgment in favor of defendants and from an order denying a new trial plaintiffs appeal. Affirmed.

W. Hunter, Judge. Proceeding by Georgina Gamer, in the matter of the estate of William Goodman, deceased, for letters of administration, against A. R. Judd. Prom a judgment in favor of petitioner and an order denying a motion for a new trial defendant appeals. Affirmed.

<p>Partnership—Accounting.—Where a Surviving Partner Carried on the firm business with the firm assets until it was terminated by the appointment of a receiver, an accounting should be as of the date of the appointment of the receiver, and a personal judgment against the surviving partner, which merely fixed his liabilities as of the date of the deceased partner’s death, was erroneous.</p> <p>Partnership—Death of Partner.—Where the Assets of a Partnership Dissolved by the death of one of its members were used by a new firm formed by the surviving partner, the old partnership was entitled to a share in the profits of the new firm proportionate to the value of the assets of the old firm used, as compared with the value of the property or services contributed by the new firm; but all the property of the new firm should not be regarded as assets of the old.</p>

Belcher, Judge. Action by Miller & Lux (a corporation) .against the Kern County Land Company (a corporation). From an appeal denying a motion for a change of venue defendant appeals. Reversed.

<p>APPEAL from Superior Court, Santa Clara County; W. G. Lorigan, Judge.</p> <p>Action by Bertha Leibbrandt against Jean Sorg. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

R Webb, Judge. Action by the Fresno Canal and Irrigation Company against W. H. McKenzie and another. From a judgment in favor of defendants and from an order denying a motion for a new trial plaintiff appeals. Affirmed.

V. Coffey, Judge. Judicial statement of the estate of Eugene Edwin Lakemeyer, deceased. Motion by Lillie R. Blizard, as contestant, to dismiss the appeal of John A. Drinkhouse, proponent of the last will of deceased. Motion denied.

<p>Appeal.—Where Appellant Did not File His Points and authorities in time, but they were on file at the time of hearing, a motion to dismiss the appeal will not be granted, no delay being caused.</p>

Jones, Judge. Action by Charles Trabing against the California Navigation and Improvement Company. From a judgment in favor of plaintiff and from an order denying a new trial defendant appeals. Affirmed. Plaintiff, a boy of fourteen years, was arrested by the captain of defendant’s vessel, and chained to a post on the lower deck, and was ejected from the boat at midnight, before arriving at plaintiff’s destination, and thirty miles from his home.

S. Noyes, Judge. Action by Daniel Durkee against Lewis F. Moulton. Prom a judgment in favor of plaintiff and from an order denying a new trial defendant appeals. Affirmed.

<p>APPEAL from Superior Court, Los Angeles County; Lueien Shaw, Judge,</p> <p>Action by Kate Bassett against the Los Angeles Traction Company. Prom a judgment in favor of plaintiff and an order denying a motion for a new trial defendant appeals. Affirmed.</p>

Action by T. J. Bead against the San Diego Union Company and others. Prom an order denying a motion for a change of venue from Los Angeles to San Diego county, defendant San Diego Union Company appeals. Beversed.

W. Hughes, Judge. Action by Adolphus G-. Norris and another against Isadore A. Crandall and others. Prom a judgment for defendants and from an order denying a new trial plaintiffs appeal. Affirmed.

<p>Criminal Law.—Where on Appeal an. Order of the Police Court denying petitioner a new trial was reversed, and a new trial had in the superior court, resulting in a conviction, as to the appeal from the order denying the new trial there was a finality as to petitioner’s rights.</p> <p>Criminal' Law.—Defendant, Being Convicted in Police Court, appealed to the superior court from an order denying a new trial, which order was reversed, and on new trial in the superior court defendant was convicted. Thereafter the superior court, by mistake, owing to the papers on appeal bearing a different number, rendered a decision reversing the judgment of the police court. On the attention of the court being called thereto, it set asido the order wherein the judgment was reversed. Held, that the judgment rendered on appeal reversing the order denying a new trial, and the conviction of appellant on such new trial in the superior court, was final, and there was, therefore, in fact no appeal in the case pending, in which the second judgment was rendered' reversing the judgment below.</p>

York, Judge. . Action by Dolores N. De Carrion 'against Ygnacio De Aguayo and another. From a judgment in favor of defendants and from an order denying a motion for a new trial plaintiff appeals. Affirmed.

<p>Burglary—Verdict,—Under Penal Code, Section 1151, providing that a general verdict on a plea of not' guilty is either “guilty” or “not guilty,” which imports a conviction or acquittal of the offense charged in the indictment, the designation of the offense in a general verdict is mere surplusage, and a verdict finding defendant guilty of "burgulary” is valid.1</p> <p>Burglary.—Defendant Leased a House in Which There "was no furniture. A vacant house on another farm about nine miles distant contained household furniture, which was found in defendant’s possession at the time of his arrest. One witness testified that the defendant had borrowed a team about the time the furniture was supposed to have been taken, and another witness testified as to seeing such a team going in the direction of the vacant house, and later return toward the defendant’s place. Defendant made many contradictory statements as to where he obtained the furniture. Held, sufficient to warrant a conviction for burglary.</p> <p>Burglary—Participant in Crime.—The fact that a person was living with one guilty of burglary at the time the burglary was committed, and that he made untruthful statements as to where the guilty party obtained the property, is not sufficient evidence to warrant the conviction of such person as participating in the crime.</p> <p>Burglary—Cross-examination.—Where, on a Prosecution for Burglary, the defendant’s wife had testified as to the purchase by her husband of the alleged stolen articles, it was proper cross-examination to ask her as to statements, inconsistent with her testimony, at the time of her husband’s arrest.</p> <p>Burglary—Possession of Stolen Property.—On a prosecution for burglary, it was not error to instruct that the possession of stolen property soon after the commission of the alleged offense by the person charged was a circumstance tending to prove their guilt, and that the jury should consider the proximity of the place where the property was found to the place of the alleged burglary, the lapse of time since the property was taken, the character and nature of the property taken, and whether the parties denied or admitted the possession, in determining how far the possession of the property by the accused tended to show his guilt.</p> <p>Burglary—Verdict.—On a Prosecution for Burglary it was not error to leave it to the jury to formulate their own verdict on blank forms furnished, stating the degree of guilt of the defendants, it either of them were guilty, and that, if the jury needed further instruction as to framing a verdict, it should return to the courtroom for such instruction.</p>

<p>Mortgage Foreclosure—Modification on Appeal—Restitution.— Code of Civil Procedure, section 957, provides that when a judgment is reversed or modified! the appellate court may make restitution of all property lost by the erroneous judgment or order, so far as such restitution is consistent with the protection of a purchaser of property at a sale ordered by the judgment. The supreme court directed a superior court to modify a judgment of foreclosure for the sale of personalty and realty by ordering a separate sale of each, which modified decree was entered after the real estate had been sold. Held, that the direction for the restitution of the property being discretionary, such sale would not be set aside, in the absence of any showing that the mortgagors had been injured] by the sale, and that the proceeds were insufficient to pay the real estate mortgage.</p> <p>Mortgage Foreclosure—Appeal.—A Contention That an Order of Sale directed) to be executed by the sheriff was void where performed by a commissioner will not be considered on appeal, the question not having been raised in the lower court.</p> <p>Mortgage Foreclosure—Irregularity in Order.—Under Code of Civil Procedure, section 726, as amended in 1893, providing that a commissioner, when appointed to conduct a foreclosure sale, shall possess the powers and be subject to the duties of sheriffs in like cases, a sale conducted by a commissioner is not vitiated by the fact that the order of sale was directed to the sheriff, the direction to the sheriff being a harmless irregularity.</p> <p>Mortgage Foreclosure.—Where the Supreme Court Ordered a Judgment Modified, a contention that the judgment, as modified, was erroneous, in that the trial court did not amend the findings, is without merit, since the supreme court cannot modify a judgment if it is necessary to amend the findings to support it, the findings not being in the control of such tribunal. '</p> <p>Mortgage Foreclosure.—Where the Commissioner’s Deed and Demand for the premises had) been presented to the general guardian of an incompetent, who was the owner of the premises, the demand was sufficient, without being made on the incompetent, and a writ of assistance will not be set aside for improper service.</p>

<p>APPEAL from Superior Court, Siskiyou County; J. S. Beard, Judge.</p> <p>Suit by Lawrence Ramus and others against Charles E. Humphreys to quiet title. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.</p>

<p>Public Lands.—In an Action to Recover Purchase Money paid on contracts for the sale of lands claimed by defendant under grants from the United States, which contracts provided that the money was' to be returned in ease “it shall finally be determined” that pat-exits shall not issue to the defendant, a finding that neither the supreme court of the United States nor any court had determined that patents should not issue to the defendants for the land in question was a finding of fact, and not a conclusion of law, the complaint alleging that a contrary finding had been made by the United States supreme Court, which allegation was denied.</p>

Campbell, Judge. Action by R. Henry Green and wife against L. M. Grider and others. From a judgment for plaintiffs and from an order denying a new trial defendants Wallace F. Haas and others appeal. Affirmed.

W. Ballard, Judge. Action by Carl A. Borchard against John Eastwood. From a judgment for plaintiff and from an order denying a new trial defendant appeals. Affirmed.

N. Smith, Judge. Action by D. D. Chapman against A. S. Bent. Prom a judgment in favor of plaintiff and an order denying a new trial defendant appeals. Eever-sed.

<p>APPEAL from Superior ' Court, Yolo County; E. E. Gaddis, Judge.</p> <p>Action by the Johnson-Locke Mercantile Company against H. C. Howard. From a judgment for plaintiff and from an order denying a new trial defendant appeals. Affirmed.</p>

V. Coffey, Judge. Appeal by William P. Stout from a decree allowing the account of G. A. Coursen as an executor of the will of Jeanie A. Coursen, deceased, and disallowing the account of appellant as coexecutor, and from a decree of distribution of her estate. Decree settling accounts affirmed, and decree distributing the estate reversed.

<p>Vendor and Vendee—Offense of Selling Land Twice.—A contract to sell land free of encumbrance, which the vendor has previously contracted to sell to another, is not in violation of Penal Code, section 533, providing a penalty for selling land which has been bargained to another with intent to defraud previous or subsequent purchasers, where the previous contract is recognized as an encumbrance which the vendor agrees to settle.</p> <p>Specific Performance—Tender.—Defendant Contracted to Convey Land to plaintiff free of encumbrance on payment of the purchase price on or before a certain day. Plaintiff had the money, and offered to pay the price before the day named, and demanded a conveyance; but defendant had not removed the encumbrances, and on the' day after the date named conveyed to another. Held, that an actual tender by plaintiff was not necessary to enable him to maintain an action for specific performance, since defendant was then unable to perform.1</p> <p>Specific Performance.—Where There is Evidence Supporting a Finding of fact by the trial court, the finding should not be disturbed because there is also conflicting evidence.</p>

<p>Appeal.—Where an Appeal from a Judgment of the Police court to the superior court had been, taken, and papers filed in the superior court many months, the fact that the court decided the appeal without having first made an order submitting it to decision does not render the judgment void.</p> <p>Appeal,—Where the Superior Court Inadvertently Rendered judgment on an appeal from the police court, without first making an order submitting the appeal for decision, the judgment may be set aside on motion, but cannot be treated as void, and a second review and decision of the same question be compelled by mandate.</p>

Action by Earll H. Webb, administrator with the will annexed of the estate of John E. Church, deceased, against Mary Winter and another. From the judgment for plaintiff and from an order denying a new trial defendants appeal. Affirmed.

<p>APPEAL from Superior Court, Santa Clara County; M. H. Hyland, Judge.</p> <p>Appeal by Silas Shirley from an order settling his final account as guardian of Clark Averill, an incompetent. Affirmed.</p>

<p>APPEAL from Superior Court, San Joaquin County; Edward I. Jones, Judge.</p> <p>Action by James Ben Alcorn and another against H. H. C. Batterman and others. Prom a judgment for defendants, plaintiffs appeal. Reversed.</p>

T. Allen, Judge. Action by William Gardner against Catherine Stare and others. From a judgment in favor of plaintiff, and an order denying a new trial, Adeline Johnson appeals. Plaintiff moves for a dismissal of the appeal. Motion denied.

C. B. Hebbard, Judge. Action by Esther E. Swortfiguer against Charles G. White and others. From a judgment for defendants, plaintiff took two appeals. Second appeal dismissed.

C. B. Hebbard, Judge. Action by Esther E. Swortfiguer against Charles G. White and others. From a judgment for -defendants, plaintiff appeals. Motion to amend transcript on appeal granted.

A. Kelley, Judge. Application by Annie McCabe Thomas for the removal of J. W. Hosselkus as administrator of the estate of Matthew Healy, deceased. From an order denying the petition, the petitioner appeals. Reversed.

Daingerfield, Judge. Action by Thomas C. Nixon and another against J. J. Bauer and others. From a judgment in favor of plaintiffs and an order denying defendant Whelan’s motion for a new trial he appeals. Beversed.

W. Risley, Judge. Action by G. H. Malter against the Cutting Fruit Packing Company. Judgment for plaintiff, and from an order denying a motion for a new trial defendant appeals. Affirmed.

M. Troutt, Judge. Action by Mark Strouse and others against Henry Sylvester and others. Mark Strouse having died after judgment in favor of plaintiffs, his executrix was substituted as plaintiff. From an order denying a new trial defendants appeal. Affirmed.

<p>APPEAL from Superior Court, City and County of San Francisco; George H. Bahrs, Judge.</p> <p>Action by Mathilda Nielsen against the Provident Savings Life Assurance Society of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Mechanic’s Lien.—The Fact That a Contract, as to One Item, is improperly set forth in the notice of a mechanic’s lien, will not render the lien void as to the other items, concerning which the contract was correctly stated, but recovery can be had for all such items as are correctly stated.</p> <p>Mechanic’s Lien.—Where, in an Action to Foreclose a mechanic’s lien, it is stipulated that defendant was at all times represented by her father as her agent in all the matters in controversy, that proof of such agency is unnecessary, and that her father attended to all business with plaintiff, evidence that such father told witness, when he wanted materials, to order them, and that when materials were wanted the father either ordered them or directed the witness to do so, is admissible to show authority for supplying extra materials.</p> <p>Mechanic’s Lien—Foreclosure—Costs and Fees.—Under Code of 'Civil Procedure, section 1195, providing that the court must allow, as a part of the costs on foreclosure of a mechanic’s lien, the money paid for filing and recording the lien, and reasonable attorney’s fees—such costs and fees to be allowed to lien claimants whose liens are established—a party establishing a claim is properly allowed such fees and costs where defendant makes no tender of the amount due, or offer to allow judgment for any sum.</p>

<p>APPEAL from Superior Court, Los Angeles County; B. N. Smith, Judge.</p> <p>John H. Coxe was convicted of embezzlement and he appeals. Affirmed.</p>

M. Seawell, Judge. Action by the Hibernia Savings and Loan Society against Leon H. Cochran and others. From an order denying a motion to vacate the judgment, and to set aside default and appearance of the defendant Cochran, and to dismiss the action, he appealed. Motion to dismiss the appeal. Motion denied.

<p>APPEAL from Superior Court,' City and County of San Francisco; J. M. Seawell, Judge.</p> <p>Action by the Hibernia Savings and Loan Society against Leon H. Cochran and others. From an order denying a motion to vacate the judgment, and to set aside default and appearance of the defendant Cochran, and to dismiss the action, he appealed. Motion to dismiss the appeal. Motion denied.</p>

<p>Appeal.—Where There is No Substantial Conflict in the evidence, but it is all against the finding by the court, such finding will be set aside on appeal.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Prank H. Kerrigan, Judge.</p> <p>Action by J. P. Reid against Henry I. Kowalsky. Prom a judgment for plaintiff defendant appeals. Dismissed.</p>

<p>Appeal—Settlement of Bill of Exceptions.—Where the only defense to a motion to dismiss an appeal is that the trial court has refused to settle a bill of exceptions, and that mandamus is pending in the appellate court to compel such settlement, on refusal of the writ of mandamus the appeal will be dismissed.</p>

<p>Burglary—Evidence.—Defendant was Pound at Night, Less Than an Hour after a malt-car was burglarized, and less than two blocks from the car, with two other boys, each having on his shoulder a sack of the stolen malt. Defendant’s companions escaped, but he was seized in the act of dropping the malt. He refused to explain to the officer what .he was doing with the malt, and on his preliminary examination testified that he did not remember anything of his arrest, or that he had any conversation with the officer, or that he had any sack in his possession, or was in company with anyone at the time of his arrest. At the trial he testified that he was intoxicated on that evening; that he met three persons, who had four sacks of malt with them; and that he, at their request, assisted in carrying one of the sacks for them. Held, that defendant’s conduct in refusing to answer the officer, and his failure of memory at the preliminary examination, followed by his recollection of an important fact in his favor on the trial, betrayed guilt, which, corroborated by the fact of the possession of the -stolen property, was sufficient to support a conviction.1</p> <p>Burglary—Evidence.—An Officer Accosted Defendant at Night with stolen malt in his possession, and asked him what he was doing with that; whereupon defendant replied that he was no chicken, and was not going to tell. Held, that such statement was a mere declaration of the defendant against interest, and not a confession, and was therefore admissible without a foundation showing that the statements were voluntary.</p> <p>Criminal Law—Evidence Given at Preliminary Examination.— On a criminal prosecution parts of the testimony of a police officer, given at the preliminary examination of the defendant as to a conversation between the officer and defendant, may be read to the officer to refresh his memory.</p> <p>Criminal Law—Evidence Given at Preliminary Examination.— An objection to the reading of the testimony of a police officer given at the preliminary examination, on the trial, to refresh his memory, merely reciting that it is an objection to the testimony of the lower court on the pretense that it is used to refresh the memory of the witness or for any other purpose, without any objection to the evidence as incompétent, secondary or hearsay, is insufficient.</p>

<p>Larceny—Testimony oí Aecompliee—Corroboration.—On a prosecution for the larceny of $280 it appeared that the defendant knew of the money being in the pocket of the prosecuting witness, and that he, with others, drank with the defendant, and then went with him to a dance-hall, where the money was taken by a woman. On the prosecuting witness making complaint, defendant told him he would try to get back the money, and he got the witness out of town that night. When the prosecuting witness returned, and had the woman arrested, defendant gave him $40, and induced the witness to attempt to have the prosecution dismissed, which the witness did not succeed in doing, and defendant again sent witness out of town. Defendant then fled from the state, and when found was living under an assumed name. Held, that the circumstances were sufficient to corroborate the testimony of an accomplice as to defendant’s guilt.1</p> <p>Larceny—Accomplice.—On a Prosecution for Larceny, Evidence as to a conversation between the prosecuting witness, defendant and another in regard to having a prosecution against an alleged accomplice of defendant, growing out of the robbery, dismissed, was properly received to show the defendant’s solicitude in settling the matter.</p> <p>Criminal Law.—Evidence Received Without Objection will not be struck out on motion.</p>

H. Dunne, Judge. From a judgment convicting John Lapique of forgery and an order denying his motion for a new trial he appeals. Affirmed.

<p>APPEAU from Superior Court, San Bernardino County; John L. Campbell, Judge.</p> <p>Action by A. A. Warren and his wife against the Southern California Bailway Company. Judgment for plaintiffs and defendant appeals. Affirmed.</p>

Campbell, Judge. Action for damages for death of Mary Green by F. L. Green and others against the Southern California Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Action by T. J. Read against the San Diego Union Company and others. From an order denying the motion for a change of venue defendant San Diego Union Company appeals. Dismissed.

<p>APPEAL from Superior Court, Los Angeles County; Lueien Shaw, Judge.</p> <p>Action by the Ruddock Company against F. S. Johnson and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.</p> <p>Action by Charles E. Laidlaw against the Pacific Bank. Mathew McGowan intervened. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

V. G-ottschalk, Judge. Action by J. Salcido against J. W. Roberts, contesting defendant’s election to the office of supervisor. Prom a judgment for defendant, plaintiff appeals. Affirmed.

<p>APPEAL from Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.</p> <p>Action by E. R. Thomason and others against G. H. Richards. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.</p>

<p>Work and Labor.—In an Action for Services Rendered in Supervising the construction of a building, evidence examined, and held not to show that plaintiff’s agreement to work for $60 per month prior to the completion of the building, and until the tenants began to pay rent, was conditioned on his permanent employment by defendant thereafter at $150 per month.</p> <p>Work and Labor—Agreement for Permanent Employment.— Under Civil Code, section 1999, providing that an employment having no specified term may be terminated at the will of either party on notice to the other, except where otherwise provided by law, an agreement to give a party “permanent” employment may be terminated at ■ any time.</p>

<p>Appeal—Notice—Time.—An Appeal will be Dismissed where the notice thereof is not given within the statutory time.1</p> <p>Railroad—Adverse Possession.—On an Issue Whether a Railroad has acquired title to land by adverse possession, evidence that the person whom it had authorized to obtain rights of way for its road had an interview with the land owner, at which the latter agreed that the railroad might enter the land and lay its tracks thereon, provided it put in a station, and that on such performance the owner would make a deed of the right of way, was admissible, although there was no written contract to show that the railroad entered the land under the owner’s permission, and not hostilely.</p> <p>Railroad—Adverse Possession.—A Railroad Company and a Land Owner agreed that, if the former would lay its tracks over the land, and put in a station, the owner would make a deed of the right of way; and thereafter the road was built and operated, but no station was built, nor did trains stop on the land. Held, that, the railroad having gone into possession under permission and in consonance with the owner’s title, which it was not to have until the performance of conditions which had not been performed, the possession of the railroad was not adverse to the owner.2</p> <p>Quieting Title—Prescription—Findings.—Where, in a suit to quiet title, plaintiff claimed title by prescription, and it was found that plaintiff had no title, the findings were not open to the criticism because of no express findings as to limitations, inasmuch as the finding of the ultimate fact as to the title included the whole controversy.</p> <p>Quieting Title—Appeal.—Whether the Findings in a Suit to quiet title sustain a judgment giving defendant restitution of possession cannot be examined on an appeal from an order denying a motion for a new trial.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; J. V. Coffey, Judge.</p> <p>Action by Samuel R. Crooks, guardian, against Annie T. Crooks. From a judgment for defendant, plaintiff appeals. Motion to dismiss appeal. Denied.</p>

S. Noyes, Judge. Action by Margaret Rounthwaite against Samuel Rounthwaite. From a judgment in favor of defendant and an order denying a motion for a new trial plaintiff appeals. Affirmed.

Burnett, Judge. Suit to recover real estate by the Pacific Improvement Company against Lizzie J. Carriger and others. From a judgment in favor of defendants, and from an order denying a new trial plaintiff appeals. Affirmed.

<p>APPEAL from Superior Court, San Joaquin County; Joseph H. Budd, Judge.</p> <p>Mortgage foreclosure suit by Cassie M. Kyle against Moses Hamilton. From a decree in favor of plaintiff the defendant appeals. Reversed.</p>

<p>Replevin.—The Court’s Finding, in an Action to Recover the possession of goods, “that defendants unlawfully and wrongfully detain” the property in question, is a finding on the affirmative defense that the property was not in their possession at the commencement of the suit, and is a finding that defendants were in unlawful possession at the commencement of the action, and is sufficient, in the absence of any evidence to support the affirmative defense.</p>

<p>Nuisance.—On an Issue Whether an. Irrigation Ditch which plaintiff had authorized defendant to construct on his land had been materially enlarged by defendant at a later date, and without authority, so as to entitle plaintiff to damages, and to a judgment abating it as a nuisance, where the evidence was conflicting the finding of the trial judge that the ditch had not been materially enlarged was conclusive on appeal.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Wm. R. Daingerfield, Judge.</p> <p>Action by Thomas E. Ryan against the Pacific Axle Com-pany, a corporation. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Witness—Cross-examination.—Where, on a Prosecution for Rape, the prosecuting witness had already testified that she had agreed to go with a certain party to the dance from which she was returning when the crime was committed, but that she did not intend to keep the engagement, and did not expect to meet him when she left her home that evening, there was no error in excluding further questions as to whether she had agreed to go to the dance with him, and whether she knew when she left her home that she was going to meet him.</p> <p>Witness—Cross-examination.—Where, on a Prosecution for Rape, the prosecuting witness testified that defendant and his participants in the crime struck her “with the fist,” and then described the injuries inflicted, in such a way as to show that the blows must have been powerful and solid, there was no error in excluding a question as to whether the blows were “powerful, solid blows with the fist.”</p> <p>Witness—Annoying or Insulting Questions.—Under Code of Civil Procedure, section 2044, providing that the court must exercise reasonable control over the examination of a witness, so as to make it as little annoying to the witness as possible, and section 2066, providing that it is the right of a witness to be protected from insulting questions, etc., where a witness testified to certain facts as seen by him, and it appeared from the testimony that the facts were not physically impossible, there was no error in refusing to allow the witness to be asked if he did not know that he was testifying to what was physically impossible.</p> <p>Witness—Control of Examination by Court.—Under Code of Civil Procedure, section 2044, providing that the court must exercise reasonable control over the mode of examination, where counsel made a statement to a witness that he was taking a great deal of interest in the ease, and wanted to see defendant convicted, expecting witness to answer, there was no error in requiring the examination to be conducted by questions as to interest, instead of by such statements.</p> <p>Witness—Interest in Case.—Where a Witness, Who had Participated, as a police officer, in the preparation of the case for the prosecution, testified that he was no more than ordinarily interested in the ease, and as to experiments made by him, there was no error in excluding the question whether, in view of the experiments, he still testified that he had no more than ordinary interest in the ease.</p> <p>Criminal Law.—There was No Error in Instructing the Jury that the police officer was under no obligation to assist the defense of any of the parties to the crime by making any experiment.</p> <p>Criminal Law—Beading Testimony to Jury.—Where, on a criminal prosecution, the testimony of a witness was read to the jury at their request, it was not error for the judge to have the last question re-read to him.</p>

M. Seawell, Judge. Action on a street assessment by the City Street Improvement Company against William Babcock. From a judgment for defendant and from an order denying a new trial plaintiff appeals. Reversed.

<p>Homicide—Evidence—Sufficiency.—The External Marks and Bruises about deceased, who was an old woman, living alone, and the condition of her clothing and person, showed she was strangled in resisting a rape. The circumstantial evidence against accused showed his presence at deceased’s home; and a witness stated that accused, who had been drinking, said repeatedly that he proposed to sleep with deceased that night, or choke her to death, and on leaving witness he went in the direction of her house. Accused relied on his uncorroborated evidence, with testimony to discredit such witness. Held, sufficient to justify a conviction for the murder of deceased.</p>

E. Gad-dis, Judge. William Keith, was convicted of rape, and from the judgment and from the order denying a new trial he appeals. Reversed.

<p>APPEAL from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.</p> <p>Action for rent by John W. Butler against John J. Burt. From a judgment for plaintiff the defendant appeals. Affirmed.</p>

Ellison, Judge. Action by the Herbert Craft Company against Dollie L. Bryan in her own right, and substituted as administratrix for James M. Bryan, deceased. From a judgment in favor of plaintiff, defendant appeals. Reversed.

S'. Beard, Judge. Action by J. R. Patterson against Robert Mills and another. From a judgment for plaintiff and from an order denying a new trial the defendants appeal. Reversed.

R. Daingerfield, Judge. Action by Frederick Kleebauer and wife against the Western Fuse and Explosives Company, a corporation. From a judgment in favor of the plaintiffs the defendant appeals. Affirmed.

<p>APPEAL from Superior Court, San Luis Obispo County; E. P. Unangst, Judge.</p> <p>Frank Feliz was convicted of grand larceny and he appeals. Affirmed.</p>

<p>Larceny.—Evidence Examined, and Held to Sustain defendant’s conviction for grand larceny.</p> <p>Larceny—Evidence.-—In a Prosecution for Grand Larceny of a watch, evidence that defendant,.within two minutes after he had been seen with the prosecutor, also had his cane, was admissible as tending to show that the parties were together, and not objectionable as tending to prove another crime.</p> <p>Larceny—Evidence.—In a Prosecution for Grand Larceny, testimony by the officer arresting defendant that he had a conversation with a party who had seen defendant and the prosecutor together, even if material, was not prejudicial, the contents of the conversation not being given.</p> <p>Larceny—Res Gestae.—In a prosecution for grand larceny of a watch, where a witness testified that, as he passed defendant and prosecutor, he noticed the prosecutor’s watch and chain, and that two minutes later he saw defendant leave the prosecutor, his further testimony that he then noticed prosecutor’s vest was unbuttoned, and the watch and chain gone, was admissible as part of the res gestae.</p>

<p>Trustee’s Account.—Where the Record on Appeal from an Order Sustaining objections to a trustee’s account does not show the evidence on which it was based, the decision will be affirmed, as all presumptions are in favor of the action of the trial court.</p> <p>Appeal—Effect on Jurisdiction of Trial Court.—An appeal from an order does not devest the trial court of jurisdiction to make subsequent orders in the cause, but, at most, is only matter in abatement.</p> <p>Trustee’s Accounting.—An Appeal, in a Proceeding against a a trustee to compel an accounting, from an order relating to the account before a certain date, does not preclude the trial court from making an order in reference to the trustee’s accounts subsequent to such date.</p>

T. Allen, Judge. Action by Stella Ballard against Charles W. Nye and others. From a judgment for defendants and from an order denying a new trial plaintiff appeals. Reversed.

T. Allen, Judge. Action by Joseph Green against the Los Angeles Terminal Railway Company for damages for the death of his wife. From a judgment for plaintiff and an order denying a motion for a new trial defendant appeals. Affirmed.

<p>Embezzlement by Bailee—Evidence.—Penal Code, Section 507, makes it embezzlement for one to convert property intrusted to him as bailee. Section 511 provides that, on any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and under a bona fide claim of title, though such claim is untenable. On a prosecution for the embezzlement of a mare sold by defendant while in his possession, prosecutor testified that he intrusted her to defendant to have her for her keep until demanded; that prosecutor stated a price that he would sell the mare for, but that, in answer to a statement by defendant that he might buy the mare, prosecutor said that that would be “an after-consideration.” Defendant testified that prosecutor stated that he might buy the mare at any time for $55. Defendant did not inform prosecutor of the sale of the mare, or remit any of the alleged price. Held, that the evidence was sufficient to sustain a conviction.</p> <p>Embezzlement by Bailee — Intent. — On a Prosecution under Penal Code, section 507, making it embezzlement for one to convert property intrusted to him as a bailee, the question whether it was error to fail to instruct that defendant must have “feloniously” intended to appropriate the property was immaterial on appeal; the jury having been instructed that the test to be applied for determining the guilt or innocence of defendant was whether he intended to permanently deprive prosecutor of his property.</p> <p>Embezzlement by Bailee—Instruction.—On a Prosecution under Penal Code, section 507, for the embezzlement of property by a bailee, the court instructed substantially in the language of Civil Code, section 1572, which defines “fraud.” Held, that though the section defines “fraud” within the meaning of the chapter relative to contracts, and had no application, there was no prejudice to defendant, the instruction being followed by one stating that the question was whether, defendant intended permanently to deprive the owner of his property.</p>

<p>Malicious Prosecution.—Where a Civil Action was Instituted Three Times, but dismissed without trial, no action for malicious prosecution thereof would lie, as a judgment on the merits in defendant’s favor is an essential element of the evidence of want of probable cause.1</p>

<p>Statute of Limitations—Oral Agreement.—Code of Civil Procedure, section 360, relative to limitations, provides that no acknowledgment is sufficient evidence of a new contract by which to take a ease out of the statute unless the same is in writing. Civil Code, section 1697, enacts: “A contract not in writing may be altered in any respect by consent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of a new alteration.” One orally agreed to give another a certain sum in consideration of his moving off certain land, and thereafter the promisor stated to the promisee that he would pay the money as soon as convenient or as soon as he could get the money from a certain source, to which the ‘promisee acquiesced, and there was nothing to indicate that the promisee was pressing payment. Held, that the agreement as to payment from a certain source was not a mere forbearance, and therefore not within section 360, but was either a new or continuing contract within section 360, or a material alteration- within section 169-7, and being oral did not prevent limitations from running against the promisee from the time of his removal.</p> <p>Hew Trial—Reconsideration of Evidence as to Limitations.— The trial court has a right to reconsider the evidence before it, and to grant the new trial for the reason that the findings as to limitations rested only on certain evidence, whereas there was other material evidence which showed the findings to be without foundation.</p>

<p>Vendor and Vendee—Fraud—limitation of Actions.—Defendant in an Action for balance of purchase price of a fruit farm is not barred by limitations from defending, and recovering by cross-complaint money paid, on the ground of fraudulent representations, not having till then discovered the misrepresentation as to amount of land, and become convinced of the falsity of plaintiff's representation as to the amount of profits he had realized from the land, and- his representation, repeated year after year, that the reason defendant did not obtain such profits was due to his want of experience.</p> <p>Vendor and Vendee—Rescission.—False Representations of Vendor that a certain number of acres of the land were under cultivation, and that he had for a number of years obtained certain profits from it, which were fifteen- per cent of the purchase price, are ground for rescission.</p> <p>Vendor and Vendee—Rescission.—Judgment for Defendant in action for balance of purchase money of land, which rescinds the contract, fixes the amount to be paid defendant, he being charged with rent to date, with interest thereon, and plaintiffs with the amount paid, with interest, and provides that on payment by them he shall deliver possession, subject to his right to enter to remove growing crops, empowers them, by paying the judgment, to prevent his retaining possession while they are paying interest.</p>

R. Daingerfield, Judge. Suit by Edward I. Sheehan, tax collector of the city and county of San Francisco, and others, against George Osborne and others. From order denying motion to set aside a judgment of dismissal plaintiff Sheehan appeals. Reversed.

F. Fitzgerald, Judge. Action by the Pickering Light and Water Company against William E. Savage. The plaintiff had judgment and defendant appeals from an order denying a new trial. Affirmed.

<p>Estate of Decedent—Mortgage to Pay Pressing Demands.— Where there are several claims against a solvent estate, some of which are being pressed for immediate payment, and the property cannot be sold at once without great sacrifice, the probate court has jurisdiction to authorize a mortgage to pay off the pressing demands, the requirements of Code of Civil Procedure, sections 1643, 1645, that claims be paid in a certain order, as therein specified, having application to insolvent estates only.</p> <p>Estate of Decedent.—In an Action to Foreclose a “Probate Mortgage,” the order of the probate court authorizing the mortgage cannot be questioned, where the court had jurisdiction to make such order.</p>

<p>APPEAL from Superior Court, Los Angeles County; Waldo M. York, Judge.</p> <p>Action by the Barkley-Gray Grocer Company against the Kelley Cigar Company. From an order denying plaintiff a new trial he appeals. Reversed.</p>

W. Hunter, Judge. Action by Aaron C. Allen and others against McKay & Go. and others. From a judgment for plaintiffs and from an order denying a new trial defendants appeal. Affirmed.