Volume 60 — California Reports

12. Fekral, J. The material facts are stated in the opinion. The appellant contended that shares of stock were not subject to embezzlement, not being tangible, movable, corporeal things, of which only embezzlement could be committed.

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

<p>Appeal prom Judgment—Dismissal.—The transcript does not contain the judgment from which the appeal purports to he taken, and the appeal therefore can not he entertained.</p> <p>Felony—Instructions.</p>

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

Appeal Tby defendant Annie B. Galloway, and Annie B-Galloway, executrix of J. W. Galloway, deceased, from a judgment for the plaintiff in the Superior Court of the City and County of San Francisco. Hunt, J.

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

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

Logan, J. Action of replevin. The property was taken by the defendant, who was Assessor of Santa Cruz County, for road property tax, under Sections 3820 and 3821 of the Political Code. The twelfth finding, referred to in the argument of appellant’s counsel, was as follows: “ Twelfth.

Bowebs, J. In the original bill of exceptions, appearing in the transcript, there was no evidence whatever tending to show that the defendant was guilty of the crime charged.

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

<p>Justifiable Homicide — Self-defense—Instructions. — The Court instructed the jury as follows: “If you believe beyond a reasonable doubt, ■ from the evidence, that the defendant killed the deceased, then, to render said killing justifiable, it must appear that defendant was wholly without fault imputable to him bylaw, in bringing about or commencing the difficulty in which the mortal wound was given.</p> <p>Held: Even if the defendant had been the assailant, if he had really and in good faith endeavored to decline any further struggle before the homicide was committed, the killing might be justifiable in self-defense.</p> <p>Id.—Id.—Conflicting Instructions.</p>

<p>Appeal from a judgment of conviction, and from an order denying a new trial in the Superior Court of Humboldt County. Haynes, J.</p> <p>No briefs on file.</p>

<p>Application for discharge on writ of habeas corpus.</p> <p>Robert Ashe, for Petitioner.</p>

<p>Application for discharge on habeas corpus.</p> <p>The prisoner was convicted in the Police Court of the city and county of San Francisco of misdemeanor in disturbing the peace, and was sentenced to pay a fine of twenty dollars and in default of payment to be imprisoned in the County Jail for the period of ten days. The commitment was for ten days or until the fine should be paid.</p> <p>No briefs on file.</p>

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

<p>Jurisdiction—Presumption in Favor of Judgment—Certiorari—Contempt—Trial.—Upon an application for a writ of certiorari to review a judgment for contempt of Court, the record sought to be reviewed consisted of the affidavits of the facts constituting the contempt, the answer of the party charged, and the judgment for contempt; the last of which stated that the matter had been regularly heard; and it was contended that witnesses should have been examined in the court below.</p> <p>Held: It does not appear that this course was not pursued.</p> <p>Id—Id—Id—Correction of Record.—When jurisdiction is once had of th subject-matter in person, every intendment must be made to support the judgment. If the record is incorrect, it must be corrected by motion, or suggestion to the court below.</p>

<p>Appeal from a judgment of conviction, and from an order denying a new trial in the Superior Court of the City and County of San Francisco. Freelon, J.</p> <p>No briefs on file.</p>

<p>Patent—Mineral Lands — Statute of Limitations — Constructive Trust.—Action to quiet title. The plaintiff deraigned title under a patent of the United States issued within five years of the commencement of the action. The defendants pleaded title by the statute of limitations; and also facts which they contended constituted the plaintiff trustee for them of the title; but on this issue the Court found against them.</p> <p>Held, as to the latter defense, that the finding was justified by the evidence, and as to the former that the statutes could not avail the defendants against the patentee.</p>

The petitioner was held under a bench warrant, issued upon an indictment for petit larceny, in the Superior Court of the County of Napa.

<p>Larceny—Variance as to Ownership op Property—Name.—The appellants were convicted of the crime of grand larceny, for stealing a horse and wagon, the alleged property of one Sang Hop. On the trial of the case the owner of the property stolen testified that he had two names— a business name and a personal one. His personal name was Yup Chin, and his business name Sang Hop; and that in all his business transactions and dealings, for years, he has been known by his business name only.</p> <p>Held: The name of the owner of property stolen is not a material part of the offense charged. It is only required to identify the transaction, so that the defendant, by proper plea, may protect himself against another prosecution for the same offense. The owner may have a name by reputation, and if it is proved that he is better known by that name than any other, the charge in the information by that name is sufficient.</p>

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

<p>Indictment—Misdemeanor—Misconduct in Office—New City Hall Commissioners—Appeal—Jurisdiction of Supreme Court.—The defendants, as New City Hall Commissioners for the City and County of San Francisco, were indicted for misconduct in office: Held, This Court has jurisdiction of the appeal.</p> <p>Id.—Id.—Id.—Id.—Held further, The indictment is fatally defective.</p>

<p>Indictment.—Misconduct in Oemce.—The indictment in effect charged the defendant, who was Mayor of the City and County of San Francisco, with having corruptly received from a city official a part of his salary, which salary had been increased by the influence of defendant; but did not charge him with having received any reward or promise thereof as an inducement to his official action.</p> <p>Held: The act charged did not constitute a violation of Section 70 of the' Penal Code.</p>

<p>State Lands—Contest—Jurisdiction—Surveyor General—Application to Purchase under Amendatory Act of April —, 1870— Judgment.—After judgment has been entered in an action upon a reference of a contest by the Surveyor General to determine the right of contestants to purchase State lands, it is the duty of the Surveyor-General to obey the judgment, and mandamus will lie to compel him. So held in a case where the jurisdiction of the District Court was called in question, on the ground that the amendatory Act of April, 1870—under which the plaintiff’s application was made—was void.</p> <p>Id.—Id.—Id.—Id.—Estoppel.—In such case the State and its officers are . estopped from selling the same land to an applicant who filed his claim pending the action or subsequent thereto; and the reception and filing of such an application does not create such a contest as to authorize a reference to the Court under Section 3314, Political Code.</p>

<p>Rape—Sufficiency of Evidence.</p>

McKee, J. The instructions asked by the defendant and refused by the Court are as follows: 1. “This action is brought to recover the sum of four thousand five hundred seventy-three and thirty-five one hundredths dollars, on the ground that defendant, Wilcox, connived with one Charles W. Carter, and requested said Carter to draw checks on the plaintiff when he had no money on deposit with it, which checks the defendant, as President of the plaintiff, and with the intent to…

<p>Larceny.—Circumstantial Evidence.—Instruction. —On the trial the Court gave the jury the following instruction: ■ “There are two classes of evidence recognized and admitted in courts of justice, upon either of which juries may lawfully find an accused guilty of crime. One is direct or positive testimony of an eye-witness to the commission of the crime, and the other is proof by testimony of a chain of circumstances pointing sufficiently strong to the commission of the crime by the defendant, and which is known as circumstantial evidence. Such evidence may consist of admissions by the defendant, plans laid for the commission of the crime, such as putting himself in position to commit it; in short, any acts, declarations, or circumstances admitted in evidence tending to connect the defendant with the commission of the crime. There is nothing in the nature of circumstantial evidence that renders it any less reliable than other classes of evidence. A man may as well swear falsely to an absolute knowledge of the facts as to á number of facts from which, if true, the facts on which the guilt or innocence depends, must inevitably follow.</p> <p>“ No human testimony is superior to possible doubt, and all that is required, if under the foregoing rules the testimony is sufficient to convince you as reasonable men to a moral certainty and beyond a reasonable doubt, that the defendant committed the act charged in the information, then I charge .you it is your duty to convict.”</p> <p>And it was claimed that the forgoing instruction was erroneous, because, in the very nature of things, there is an inherent difference between direct and positive evidence, and circumstantial"evidence.</p> <p>Held: The instruction contained a correct statement of the- law and was free from legal exception.</p> <p>Id.—Credibility of Witness Testifying in his own Behalf.—Weight of Evidence.—Instruction.—The Court instructed the jury as follows: “ The defendant has offered himself as a witness, on his own behalf, on this trial, and in considering the weight and effect to be given his evidence, in addition to noticing his manner and probability of his statements, taken in connection with the evidence in the cause, you should consider his relations and situation under which he gives his testimony, the consequences to him relating from the results of this trial and the inducements and stipulations which would ordinarily influence a person in his situation. You should carefully determine the amount of credibility to which his evidence is entitled, if convincing and carrying with it a belief in its truth, to act upon it; if not, you have a right to reject it.” Held: The defendant, in a criminal case, testifying in his own behalf, occupies a relation to the case different from that occupied by any other witness. It is only by virtue of a provision of the Code that he is permitted to testify at all, and it is manifest that he labors under the strongest temptation to which any witness could be subjected. It is not error, therefore, for the Court to call the attention of the jury to that circumstance, and we see no error in the instruction complained of. (Shabpstein and McKee, JJ. dissenting.)</p>

<p>Application for writ of prohibition.</p>

<p>License Taxes—Constitutional Law—Tax—Definition.—The license fees imposed by the Political Code were imposed mainly, if not solely, for purposes of revenue and are therefore in effect taxes within the meaning of that term as used in §12 Art. xi. of the Constitution. (Mckbe, J. dissenting.)</p> <p>id.—Id.—Repeal of Statute.—Such license taxes beiug imposed for county purposes are in contravention of the section above referred to and the sections of the Political Code imposing the same are therefore no longer in ' force. (McKee, J., dissenting.)</p>

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

<p>Prior Possession—Ejectment—Finding.—Ejectment upon an alleged prior possession. Findings upon this issue and judgment for defendant. Held: The finding was justified by the evidence.</p> <p>Id.—Id.—Immaterial Finding—Preemptioner.—Held further: The finding that the defendant entered as preemptioner was not sustained by the evidence; but the fact found is immaterial.</p>

<p>Application for a writ of mandamus.</p> <p>No briefs on file.</p>

<p>Water Rates—Order Number 1573 Establishing Water Rates in the City of San Francisco—Constitutional Law.—By an ordinance of the Board of Supervisors of San Francisco known as “Order No. 1573,”—es-tablishing water rates—it is provided that ‘ ‘ The rates of compensation to be collected for water supplied to the city and county of San Francisco for municipal purposes shall be as follows : Fifteen ($15) dollars per month for each and every hydrant for fire purposes and for flushing sewers. Five hundred ($500) dollars per month for water furnished to Golden Gate Park. Seven thousand ($7,000) dollars per month for water furnished for all the public buildings * * * due and payable at the end of the month ;” and rates are also prescribed to be collected for water furnished for domestic and other purposes to private consumers. But, it is also provided that “in case the rates or compensation hereby fixed for Water supplied to the city and county of San Francisco for municipal purposes shall be fully paid monthly by the said city and county to the Spring Valley Water Works, the same shall be allowed by said corporation upon the rates charged to its consumers other than the city and county, for the month succeeding the month in which the same are collected, and in such manner that the rates to such consumers for such succeeding month shall be diminished twenty-five (25) per cent., or such proportion thereof as may be collected from said city and county.</p> <p>Held: The order does not fix the rates of compensation for the use of water, but leaves them indefinite and uncertain; and is therefore not a ■ valid execution of the power confered upon the Board of Supervisors by Section 1, Article xiv, of the Constitution.</p> <p>Id.—Id.—Id.—(Myriok, J., concurring.)—The Board of Supervisors of the city and county of San Francisco has had, since the new Constitution went into effect, and has, the power to fix and determine the rates or compensation to be collected by the Spring Valley Water Works as well from the city and county (for water used for fire purposes, for flushing sewers, for public buildings and offices, for sprinkling streets and for beautifying parks), as from private persons; any provision in any statute to the contrary notwithstanding.</p> <p>Id.—Id. —Id.-—Case Explained—(Ross, J., concurring.)—The construction placed on the provisions of the new Constitution in relation to water in the case of the Spring Valley Water Works v. The Board of Supervisors of San Francisco, 58 Cal.,—necessarily results in relieving that Company of the obligation to furnish water to the city and county of San Francisco free of charge for any purpose.</p>

<p>Application for a writ of habeas corpus.</p>

Crane, J. The defendant was sworn as a witness, and upon the inquiry of the Court as to what facts were proposed to be proved by said witness, the attorneys for defendant offered to prove by said witness the following state of facts: “Mr. Griffith. Well, Sir (to the Court), we propose to prove by Mr. Pryal and other witnesses, that Mr. Alden, at the time he conveyed us this land by certain metes and bounds, so many feet front, knew that he did not own that amount of land.

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

<p>Appeal prom Order—Record—Transcript—Identification of Papers— Bill of Exceptions—Clerk’s Certificate.—Upon an appeal from an order, opening a default, papers appeared in the transcript as printed, purporting to be an affidavit of the defendant, and a counter-affidavit of tho plaintiff; and there was a certificate of the Clerk, that the transcript contained full, true, and correct copies of all papers used upon the hearing of the motion, in the Court below; but there was no bill of exceptions or certificate of the Judge as to the identity of the papers.</p> <p>Held : It is not for the Clerk to determine what papers or evidence the Court acted upon; and his certificate must be disregarded.</p>

<p>National Bank—Limitation on Rate of Intebest.—Section 38 of the National Banking Act (Rev. Stats. § 5197) provides: “Every association organized under this Act may take, receive, reserve and charge on any loans * * * interest at the rate allowed by the laws of the State or Territory where the bank is located, and no more; except that where by the laws of the State, a different rate is limited for banks of issue organized under State laws, the rate so limited shall be allowed every association organized in any State under this Act.”</p> <p>Held: Under this section—construed with §1918 0. O.—the national banks in this State are allowed to charge and receive such rates of interest as may be agreed upon.</p>

<p>Appeal in Probate Proceedings—Appealable Order.—Appeal from an order vacating a decree of distribution.</p> <p>Held: Appealable judgments and orders in probate proceedings axe all enumerated in the third Subdivision of Section 963, Code of Civil Pmm cedure; and as the order appealed from is not therein mentioned, it is not an appealable order.</p>

Motion to dismiss an appeal from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of Colusa County. The appeal was perfected December 10, 1881. Notice of motion to dismiss was served January 27, 1882, by leaving a copy in the office of appellant’s attorney.

<p>Appeal from an order of the Nineteenth District Court of the City and County of San Francisco. Wheeler, J.</p> <p>The first count of the complaint, after alleging the execution of the guaranty sued upon, alleged that afterwards, and before the first day of October, A. D., 1876, the crop of the said P. Albaran for the season of 1876, and the proceeds thereof, came into the possession of and were received by the said defendant.</p> <p>The second count was similar.</p> <p>These allegations were denied, and the Court found that there was never, at any time, any proceeds of said crop of the season of 1876, and no proceeds thereof came into the possession of the defendant.</p>

Edmond, J. The judgment appealed from contains the following recital: This cause came on regularly before the Court for trial on the twenty-fourth day of February, A. D. 1880.

<p>Appeal from an order made after judgment in the Twenty-third District Court of the City and County of San Francisco. Thornton, J.</p> <p>The order appealed from was an order vacating a judgment by default “ upon the ground that this Court never had jurisdiction of the person of defendant.”</p>

<p>Estates oe Deceased Persons—Final Distribution—Definition— Pendency oe Administration—Claims Against Estate—Statute oe Limitations.—Until the entry of a decree discharging the executor or administrator, the administration of the estate is still pending, and until then (under C. C. P. § 1569) no claim against the estate which has been presented and allowed is effected by the statute of limitations.</p>

<p>Unbecobded Deed—Subsequent Pubchaseb in Good Faith—Recital or Consideration in Deed—Evidence.—M. purchased land, but caused the deed to be taken in the name of J., and the deed was duly recorded. M. took possession, and afterwards at his request the property was conveyed to him by J.; but the deed was not recorded until after the commencement of this action. Afterwards, at the instance of M., J. made a deed to the plaintiff, then a single woman but subsequently the wife of M. This deed recited a consideration of six thousand dollars, and was delivered and recorded after the marriage—the plaintiff having no notice of the former deed; but there was no proof as to the consideration. Afterwards M. sold and conveyed the land to the defendant for the sum of twelve thousand dollars. J. sues to recover the land.</p> <p>B eld: It is apparent that the legal title to the premises is with defendant. It is only subsequent purchasers for a valuable consideration who are protected against prior conveyances unrecorded; within which category plaintiff does not come.</p> <p>Id.—Id.—Id.—Id.—Estoppel.—There is no ground for the operations of the doctrine of estoppel in favor of the plaintiff against the defendant.</p>

<p>Money Had and Received—Tenants in Common—Outside Lands of-San Fbancisco—Obdeb Numbeb 800.—On June 5,1861, the defendant, then being the claimant of a certain tract of land called the Donahue Tract, part of the lands known as the outside lands of the City and County of San Francisco, by a bargain and sale, deed conveyed an undivided interest therein equal to ten acres to one B., and also interests to others, After the passage of the Act of Congress of March 6, 1866: “To quiet the title to certain lands within the corporate limits of the City of San Francisco,” and the act of the Legislature confirming order ‘No. 800’ of the Board of Supervisors of San Francisco, the defendant caused the Donahue Tract to be delineated upon the map of the outside lands, and paid all the necessary taxes and assessments; and a part of the tract being taken for Golden Gate Park, and an award made therefor, received the amount of the award from the proper officer of the city—except a portion thereof retained by the officer for the purpose of paying the shares of the vendees of defendant other than B., and executed to the city a deed for the land taken. The names of the other vendees appeared upon the map; but neither B. nor any of his grantees, ever had actual possession of any part of the land, or paid any part of the taxes or assessments, or had any thing to do with the delineation of the claim upon the map. Action by an assignee of B. to recover of the defendant the proportion of the money received by him corresponding to B. ’s interest in the land.</p> <p>Held: It does not appear that D. took upon himself to act for B.; their relationship as tenants in common did not cast upon him that duty; therefore it does not appear that by any agreement express or implied, or by any obligation, the moneys received by D. were received in whole or in part for or on account of B. or his interest.</p>

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

<p>Application for writ of mandamus to A. M. Crane, Superior Judge of Alameda County.</p>

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

Wheeler, J. On the trial,the defendant offered to show the usage and custom among grain merchants in San Francisco in selling grain, and that by such custom and usage, the sale is not deemed to be complete until the vendee has an opportunity to, and does, examine the grain sold, and if satisfied, delivery and payment is then made, and the sale is not complete until then. Plaintiff objected thereto and the Court sustained the objection, to which defendant excepted.

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

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

Appeal by the plaintiff from a judgment for defendants, Thomas B. Howard and Mary T. B. Howard, and from an order denying a new trial in the Third District Court of the City and County of San Francisco. Thornton, J.

Appeal by defendants, C. H Johnson and Mariana G. Day, from a judgment for plaintiffs and defendant Eymond, and from an order refusing to set aside said judgment in the First District Court of the County of San Luis Obispo. Fawcett, J.

<p>Appeal from a judgment in the Fifteenth District Court, City and County of San Francisco, for the plaintiff upon a writ of certiorari. Dwinelle, J.</p> <p>These proceedings grew out of the case of R C. Mowbray against Luke Descalso (respondent herein) commenced in the Justice’s Court of the City and County of San Francisco, October 1, 1877. The complaint in this last named action was on quantum meruit by Mowbray against Descalso for professional services as a dentist.</p> <p>The plaintiff recovered judgment against defendant in the Justice’s Court for the sum of one hundred and fifty-seven dollars, and seven dollars and eighty cents percentage, and ten dollars and fifty cents costs.</p> <p>The defendant appealed to the County Court of the City and County of San Francisco.</p> <p>The transcript on appeal was filed in the County Court, October 22, 1877.</p> <p>On July 31, 1878, case was dismissed by the Municipal Court of Appeals, on motion of defendant’s attorney, no one appearing for plaintiff, but was subsequently, by consent, restored on motion of the plaintiff, and judgment rendered in his favor.</p> <p>Afterwards, upon a writ of certiorari to review the proceedings, the judgment appealed from was rendered, annuling the judgment of the Municipal Court of Appeals.</p> <p>The affidavit of plaintiff filed in the lower Court alleged:</p> <p>That on or about the twentieth day of May, 1878, and while said cause was pending on appeal in said County Court, the said County Court, on its own motion and without the consent of affiant, made a general order transferring all cases then pending in said County Court on appeal from the Justice Court, to the Municipal Court of Appeals of the City and County of San Francisco, for trial.</p> <p>That no order was ever made by said County Court in said cause, transferring it to said Municipal Court of Appeals.</p> <p>The return to the writ contains no reference to the above or any order of the County Court transferring the case to the Municipal Court of Appeals.</p>

<p>Foreclosure of Mortgage—Option to Consider the Whole Amount Due upon Failure to Pat Installments—Complaint—Pleading.—-A mortgage contained a clause to the effect that if any of the installments of principal or interest should remain unpaid for ninety days after it became due, the whole amount of the note should become due immediately at the option of the payee or holder.</p> <p>Held: Upon a failure to pay any of the installments of the note according to its terms the note became due immediately at the option of the payee, and it-was not necessary for the payee, before commencing proceedings to enforce it for the full amount, to announce his option to the maker by notice in writing that he elected to consider the whole amount of the note as due; it was sufficient if he made his election, and demanded payment of the whole amount before the commencement of the action.</p>

<p>Jurisdiction of Municipal Court of Appeals—Transfer of Cases from County Court—Order Nunc pro Tunc—Service of Notice of Appeal—Justice’s Court.—Appeal from judgment of affirmance (upon certiorari) of a judgment of the late Municipal Court of Appeals of the City and County of San Francisco, rendered upon an appeal purporting to have been taken by the defendant in the action to the County Court from a judgment of the Justice’s Court of said City and County. Judgment was rendered in the Municipal Court October 15, 1879, but there was no order made by the County Court transferring the case until November 17, 1879, when an order of transfer was made, and ordered to be entered nunc pro tunc. There was no evidence in the record of service of the notice of appeal, or of a waiver thereof.</p> <p>Held: The order of transfer made subsequently to the rendition of the judgment and entered nunc pro tunc, was wholly ineffectual to confer a jurisdiction on the Court which it had not at the time it attempted to exercise it.</p> <p>Sold, further: Without service of notice, the appeal was ineffectual, and the appellate Court acquired no jurisdiction of the case.</p>

<p>Lease—Illegal Consideration—Finding.—In an action for rent, the defendant pleaded that the premises were let to him for the purpose of being used as houses of prostitution, with the knowledge and consent of the plaintiff, but the Court found to the contrary. Held: The evidence Sustains the finding.</p>

<p>Jurisdiction or the Superior Court—Appeal prom Justice's Court— Constitutional Law.—Under the Constitution and prior to any act of the Legislature relating to appeals from Justices’ Courts, the Superior Court had jurisdiction of such appeals.</p>

<p>Appeal by the wardens and vestrymen of St. John’s Episcopal Church from a judgment of the Probate Court of the County of San Joaquin. BUCKLEY, J.</p>

The case in the Court below was an application for a mandamus to require the defendant Dunn, as Auditor for the City and County of San Francisco, to audit a demand in favor of plaintiffs on the treasury of the said city and county.

<p>Amendment of Answer—Discretion of Court—Street Assessment— Practice.—In an action against the appellants and other defendants to foreclose a street assessment lien upon a lot in San Francisco alleged to be the property of defendants, the appellants—having in their original answer admitted ownership of the premises in dispute—moved for leave to file an amendment, in which by way of separate defense they denied ownership; and the motion was denied.</p> <p>Held: The refusal to allow the filing of the amendment, under the circumstances in which the application was made, was not an abuse of discretion with which this Court will interfere.</p> <p>Id.—Id.—Id.—Id.—Amendment of Complaint—Service of Amendment. Upon the case being called for trial the plaintiff dismissed the action as to certain of the defendants not served, and by leave of Court amended the complaint by erasing their names from the title; and thereupon the appellants moved for leave to answer the complaint as amended by refiling the amendment previously offered—which motion was denied.</p> <p>Held: The amendment of the complaint was not such an amendment as the law or rules of the Court required to be served upon the defendants, or which entitled them to answer.</p>

<p>Stipulation—New Trial—Bill op Exceptions—Practice.—After a motion for a new trial had, by consent of parties, been passed upon by 0., the District Judge, who tried the case—upon a bill of exceptions amended and settled but not engrossed,—a dispute arose between counsel as to the engrossment. Thereupon—June 17, 1880—it was stipulated “that the bill of exceptions, as engrossed by plaintiff, together with the bilí as prepared by plaintiffs and the amendments proposed by defendants, and the order of Judge 0., settling said bill, be all sent to Judge C. for him to decide if said bill is properly engrossed, and if not properly engrossed to correct the same, and sign said bill as of December 1, 1879, when so corrected.” Subsequently, Judge 0., after striking out certain portions of the bill as engrossed by the plaintiffs, certified the same as correct, and afterwards the defendants moved the Judge of the Superior Court to strike out portions of the bill. Held, that, in view of the stipulation, it was not error to deny the motion.</p>

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

Appeal by defendants, Peter McGrath and Edward Roper, from a judgment for the plaintiff in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J. The evidence with reference to the possession of the defendants, at the time of bringing the suit, was substantially as follows: Samuel Grim, defendant, called for plaintiff, sworn: I am one of the defendants and know the premises described in this complaint, and a deed that has just been offered.

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

<p>Appeal from a judgment for the defendant.</p> <p>The points involved and the argument in this case are substantially the same as in case No. 6676, reported infra.</p>

<p>Harbor Commissioners—Dockage—Wharves—Streets.—The State Harbor Commissioners have no power to collect dockage upon vessels lying at the Potrero Gas Works’ wharf.</p>

<p>Execution of Mortgage by Married Woman—Acknowledgment—Complaint—Findings.—In an action to foreclose a mortgage, the complaint alleged, and the Court found that the defendant, a married woman, “made, executed, and delivered” the instrument.</p> <p>Held: The finding that the mortgage was “executed ” imported that it was “ acknowledged.”</p>

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

<p>Motion to set Aside Judgment—Waiver of Jury Trial—Calendar- of Court.—A case for goods sold and delivered, was, on motion of plaintiff’s attorney, put upon the equity calendar in the absence and without the knowledge of the defendant, and in consequence the ease was tried without his presence, and judgment rendered for the plaintiffs for the full amount claimed. A motion of the defendant to set aside the judgment was subsequently denied by the Court for the reason that the notice of the motion did not specify the grounds upon which it would be made.</p> <p>Held: The failure of the defendant to appear when the case was called on the equity calendar did not operate as a waiver of a jury for the reason that the case was improperly there.</p> <p>Id.—Id.—Id.—Notice of Motion—Amendment—Discretion of Court.— Assuming that the motion was properly denied on the ground stated, it was the duty of the Court to allow defendant’s motion for leave to amend his notice so as to make it conform to the rule of the Court. The Code is very liberal on the subject of amendments, and the recent decisions of this Court have been in full accord with the spirit of the Code.</p> <p>Rules of Court—Judicial Notice.—(Sharfstein, J).—This Court does not take judicial notice of the rules of the Superior Court.</p>

<p>Appeal from a judgment for the plaintiff in the Superior Court of the City and County of San Francisco. Evans, J.</p> <p>Action to cancel a tax sale to the defendant McCartney and to enjoin the defendant Grady, who was tax collector, from making a deed in pursuance thereof. The assessment under which the sale took place was for the year 1880-81.</p>

<p>Unlawful Detainer—Landlord and Tenant—Demand for Rent.—In an action by a landlord against a tenant for holding over after default in the payment of rent and demand therefor, the demand proved was for “the sum of ten dollars which became and was due from you as such rent to us on the twenty-eighth day of April, 1879, for the preceding month of your tenancy,” etc. and it was objected that the notice failed to denote what preceding month was intended: Held: The notice was sufficiently definite.</p> <p>Id.—Verification of Pleading by Agent.—In an action of unlawful detainer the complaint was verified by an agent of the plaintiff, who stated in the affidavit that the facts stated in the complaint were within the knowledge of affiant. Held: The complaint was properly verified.</p> <p>Id.—Other Action Pending—Rinding—Conclusion of Law.—Upon the issue of another action pending in the same Court for the same cause of action, the Court found “that there was not at the time of the commencement of this action any other action pending in this Court between the parties to this action for the same cause of action mentioned and contained in the cause of action set forth in the complaint in this action.”</p> <p>Held: The finding was sufficient.</p>

Edmonds, J. The note sued upon was as follows: “San Francisco, January 17, 1878. “Five (5) years after date, without grace, I promise to pay to Frederick Weisenborn, or order, the sum of eight thousand ($8,000) dollars, payable only in gold coin of the government of the United States, for value received, with interest thereon in like gold coin at the rate of eight (8) per cent, per annum from February 1, 1878, until paid, and if not so paid, then to be added to and become a…

<p>Presumptions in Pavor of Judgment—Action on Street Assessment— Dismissal of Parties Defendant.—A decree for the plaintiff in an action to foreclose a lien for street assessments, recited that the action was dismissed as to some of the defendants. The defendant appealed upon the judgment roll.</p> <p>Held: All presumptions are in favor of the correctness of the proceedings of Courts of general jurisdiction, and as the consent of the defendants would have justified the order, we must presume that such consent was given, there being nothing in the record to show that it was not.</p> <p>Id.—Id.—Id.—Cases Distinguished.—Olarlc v. Porter, 53 Cal. 409 j Diggins v. Reay, 54 Id. 525; Harney v. Applegate, 57 Id. 205; Tobleman v. Roper, 7 P. C. L. J. 56; distinguished.</p>

<p>Appeal from a judgment of conviction, from an order denying an arrest of judgment and from an order refusing anew trial in the Superior Court of the City and County of San Francisco. Fbeelon, J.</p> <p>The indictment charged that defendant on the nineteenth day of April, A. p., 1879, at the said City and County of San Francisco, unlawfully, feloniously, and with malice aforethought, with a deadly weapon, namely, a pistol, upon the body of one Victoria DeCleer, alias Victorie DeCleer, alias Victoire Dedeer, alias Victoria Bacon, alias Victorie Bacon, alias Victoire Bacon, in the place then and there being did make an assault; and her, the said Victoria DeCleer, alias Victorie DeCleer, alias Victoire DeCleer, alias Victoria Bacon, alias Victorie Bacon, alias Victoire Bacon, did then and there shoot and wound with the unlawful and felonious intent then, there and thereby, her the said Victoria DeCleer, alias Victorie DeCleer, alias Victoire DeCleer, alias Victoria Bacon, alias Victorie Bacon, alias Victoire Bacon, wilfully and of his malice aforethought to kill and murder contrary to the former force and effect of the statute, etc.</p>

Appeal by defendant Dudley from a judgment for the plaintiff and from an order denying a new trial in the Fourth District Court of the City and County of San Francisco. Booker, J.

<p>Appeal from a judgment for the plaintiff in the Superior -Court of Santa Clara County.</p>

<p>Appeal from an order denying defendant’s motion for a new trial in the Third District Court of the City and County of San Francisco. McKee, J.</p>

Belden, J. The action was brought to cancel and annul the approval of a tide land survey made by the Surveyor General on the twelfth day of June, 1868, and the certificate of purchase issued thereon.

<p>Appeal from a judgment for the defendants, Christian Feck and The Stockton Building and Loan Association, in the Fifth District Court of the County of San Joaquin.</p>

<p>Injunction—Discretion—Appeal.—The continuance or dissolution of an injunction to prevent a sale of property, pending an action between the parties to determin e the right to the property, isa matter within the sound discretion of the Court that issues the injunction, and this Court will not interfere with the exercise of that discretion, except in a case of palpable error or abuse of discretion.</p>

<p>Appeal from an order denying defendants’ motion to change place of trial in the Superior Court of Tulare County. Ceoss, J.</p>

Appealable Ordeb.—An order denying defendant’s motion for judgment by default on bis cross-complaint is not appealable. Appeal from an order of the Superior Court of San Bernardino Co. Bolee, J.

<p>Credibility of Witness—Convict—Instruction.—The Court below did not err in refusing to instruct the jury, that, “A witness who has been convicted of the crime of burglary, and served out a term of imprisonment for such crime, is not entitled as a witness to full credit at your hands.”</p>

Spencer, J. The following is the statement of Houghton referred to in the opinion.

<p>Application for a writ of prohibition to the Superior Court of Contra Costa County.</p>

<p>Appeal from a judgment for the defendant and from an order rendered after judgment in the Superior Court of San Bernardino County. Rolfe, J.</p> <p>The complaint was as follows:</p> <p>Plaintiffs complain and allege that a short time anterior to the twelfth day of March, 1879, they were the owners and possessors of the one quarter section, west one half of southwest one quarter of section thirty-four, township two, south range five west, containing eighty acres of land.</p> <p>That plaintiffs appropriated over twenty-five feet on the west side of said land, running the entire distance of half a mile towards a public road called Magnolia avenue, running north and south, and plaintiffs set thereon a row of pepper and eucalyptus trees eight feet apart, two thirds the entire distance in a straight line, on said avenue.</p> <p>That on the twelfth day of March, 1879, plaintiff sold and deeded to one Elvira D. Bartlett part of said described land, commencing at a point on said avenue leading from Riverside ■¿o Temescal, thirty rods and twelve feet from the northwest corner of the Government survey of said lot of land, and running south two hundred and nine feet parallel with said avenue, thence at right angles two hundred and eight and one half feet, thence at right angles two hundred and nine feet, thence right angles two hundred and eight and one half feet to the place of beginning, containing one acre and sixteen square feet of land.</p> <p>The plaintiffs sold and deeded to said Bartlett up to and parallel with said trees set out and owned and held by plaintiffs, but did not include said trees nor the land on which they stood, and plaintiffs measured off said land and put good and substantial stakes on the four corners so that there could be no mistake about the line.</p> <p>That said Bartlett did, on or about the ninth day of October, 1880, sell said land herein described to defendant, and defendant moved thereon an old blacksmith shop, and defendant cut down and destroyed several of said trees, and erected said shop some two feet over the line herein described, and on said avenue, thereby breaking said straight line of trees and taking in some two hundred and eighteen square feet of land belonging to plaintiffs more than was sold and deeded to said Bartlett.</p> <p>That when defendant was constructing his said shop on said land, plaintiffs often called defendant’s attention to the fact that defendant was trespassing over the line and upon plaintiffs’ land, dedicated to said avenue, but defendant willfully and maliciously persisted in building and holding over said line as herein described, notwithstanding plaintiff pointing out to defendant the corner-posts put in by plaintiffs, and which defendant took up or broke down in order to extend said shop over said line. And plaintiffs further complain and allege that defendant has taken exclusive possession of a certain portion of said highway, to wit: some two feet by one hundred and nine feet, thereby excluding the public from the use of it as a public highway, and thereby destroying the design of a sidewalk, and destroying the straight line of trees and the beauty of said avenue, and thereby depreciating the value of plaintiffs’ land herein set forth. And, further, that defendant has constantly, in front of said shop and in the public highway, a lot of old wagons, plows, cultivators, harrows and other articles for repair which disturbs the public travel and destroys the beauty and symmetry of said avenue.</p> <p>That said shop, situated as it is, some two feet in the public traveled road, and the old, dilapidated state it is in, the same is a nuisance to plaintiffs and to the community and traveling public.</p> <p>That all right and title to said land, constituting the part appropriated for said avenue by plaintiffs, is in the name of plaintiffs, there having been no sale or deed given to the county, and it not having been appropriated for the period of five years.</p> <p>Wherefore plaintiffs allege that they have sustained the sum of five hundred dollars damage. And plaintiffs pray judgment that defendant is indebted to them in the sum of five hundred dollars damage, and that said nuisance he abated by the removal of said blacksmith shop from said public road, and far back on defendant’s land sufficient for his customers to leave their wagons and farming utensils for repair in front without obstructing said highway, together with costs of this action.</p> <p>“ Luther C. Tibbetts.”</p> <p>[Duly verified.]</p>

Wheeler, J. Material allegations of the complaint were denied by the answer and there were no findings.

<p>Application for release on habeas corpus.</p>

<p>New Tbiae—Ejectment—Possession—Sueeiciency oe Findings—Decision against Law.-—In an action of ejectment issue was taken on the allegation of possession by defendant at the commencement of the action, and on this issue evidential facts were found by the Court, but not the ultimate fact of possessed or not possessed.</p> <p>Meld: There being no finding on this issue the decision of the Court below was against law, and a new trial was rightly granted.</p>

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

<p>Foreclosure of Mechanic’s Lien—Lien—Premature Action.—La an action by several plaintiffs (under § 1195, C. C. P.) to foreclose separate mechanics’ liens, it was alleged with reference to each cause of action that the defendant promised to pay the agreed amount “upon the completion of the buildingand also that at the time of the commencement of this action the building was not completed.</p> <p>Held: There can be no foreclosure of a lien until the debt for which the lien is made and held as security has become payable.</p> <p>Id.—Pleading—Waiver of Defects Cured by Verdict or Default.— Defects in the statement of a cause of action may be cured by failing to answer or by verdict, but not a defective cause of action.</p>

Dwinelle, J. The action was ejectment; and the only proofs introduced j on the trial (except evidence is to the identity of the premises,) i were the mortgage and deeds and the record referred to in | the opinion. *

Wilson, J. The complaint alleged the execution of the contract hereinafter set forth betweén Wetzlar and the city and the passage of the ordinance referred to in the opinion; and further alleged that the defendants under the name and style of “The San Francisco Company for the Removal of Dead Animals, in open and direct violation of plaintiffs’ rights under said contract, unlawfully set up and established order boxes for their own use and benefit, for the reception of orders…

<p>Replevin—Pledge by Consignee oe goods—Notice.—Goods were shipped by the plaintiff to the California Type Foundry Company with the following written instructions; “as I wrote you before, 1 want you to keep these consignment goods as such—as my property until sold.” While, the property was still in the warehouse of the Railroad Company the consignee pledged the goods to F. Bros, and the property was then placed in defendants’ custody to be kept in store for F. Bros.</p> <p>Held-. Passing the question whether the mere possession of property, under written instructions showing that the possessor has no title, would he sufficient evidence of ownership to protect the pledgee who advances his money on the hare statement of the possessor that he is the owner,—in this case the pledgor was not in the actual possession of the property at the time the loan was negotiated. F. Bros, must have seen (from the letter of instructions), that the plaintiff was the owner of the property, had they required some evidence of title in the proposed pledgor as they ought to have done.</p>

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

<p>Marine Insurance—Change of Ship—Transshipment of Cargo.—It is an implied condition of a policy of marine insurance that the ship named in it shall not, after the commencement of the risk, be changed without necessity or the consent of the underwriters; for such unnecessary or nnsanctioned change of the ship would produce an alteration of the risk run by the underwriters, and therefore exempt them from their liability.</p> <p>Id.—Id.—Id.—Connections.—Plaintiff’s wheat was insured by the defendant on the steamer Colorado and connections. The customs and usage of the steamship company, with reference to cargoes to Hong Kong and Batavia, was for the ship taking the cargo at San Francisco to carry the same to Hong Kong without transshipment; but in this case the cargo was transshipped in Yokahama (without necessity,) to other ships of the Company, and by them carried to Hong Kong where it was lost.</p> <p>Held: The “connections” referred to in the policy were the regular connections of the company only, and the term was not intended to include a casual, unusual and unanticipated connection with a ship substituted for the occasion upon a state of things temporary in its nature, and unknown at the time that the contract was made. The loss at Hongkong occurred subsequent to the change of ship, and under the terms of the policy the defendant was not responsible.</p> <p>Appeal—Reversal of Judgment—Hew Trial—Practice.—Extreme caution ought to be exercised in refusing new trials where judgments are reversed. The discretion of the appellate Court should be exercised in that direction only in cases where it is plain, either from the pleadings or from the nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the suit.</p> <p>Held, accordingly in this case (Thornton, J., dissenting), that the cause should be remanded for a new trial.</p>

<p>Foreclosure of Mortgage—Attorney’s Fee.—Action to foreclose a mortgage which provided for payment of an attorney’s fee “to become payable on filing the complaint for foreclosure.” After the commencement of the suit the defendant paid the principal, interest, and Court costs, but not the attorney’s fee; but was informed by the plaintiff that there was an attorney’s fee due which he would have to pay before the mortgage would be satisfied or the suit dismissed.</p> <p>Held: The plaintiff was entitled to proceed with the action to enforce the payment of the attorney’s fee.</p> <p>Id.—Id.—The cause was tried before a jury which returned a verdict for the plaintiff for one hundred and twenty-one and forty-five one hundredths dollars, on which the Court entered a decree in favor of the plaintiff for the sum mentioned.</p> <p>Held: It was the province of the Court to fix the amount of the attorney’s fee, but as the Court adopted as correct the amount returned by the jury, the amonnt may be considered as having been fixed by the Court.</p>

Wheelee, J: Besides the allegations referred to in the opinion, the complaint alleged that, at the time of the conveyance to the plaintiff and from thence up to the time of his death, McElroy owned in severalty a tract of land lying between the parcels sold and conveyed to the plaintiff and the larger tract fronting on Mission and Tenth streets in which he had an undivided interest, which parcel so owned in severalty extended northerly from the land conveyed to Mission…

<p>Dedication of Stbebt—Abatement of Nuisance—Injunction—Action by the State.—In an action by the people of the State to have certain premises in the City of Oakland adjudged to be a public street and for the abatement of obstructions therein, and for an injunction the Court, (upon the evidence stated in the opinion), found that the land in question was the property of the defendants, and had never been dedicated by them or their predecessors in title as a street, and judgment was entered for them accordingly. (McKee, J., and Boss, J., dissenting.) Held: The evidence shows a dedication by defendant’s grantors; and the Court erred in finding to the contrary. The elements entering into and constituting a dedication, viz., an intention by the owner, clearly indicated by his words or acts to dedicate the land to public use, and an accept- . anee by the public of the dedication, established by the use by the public of the land for the purpose to which it had been dedicated, are clearly manifested.</p> <p>Id.—Evidence.—On the trial the relator offered to prove certain declarations by predecessors in title of the defendant (before any conveyance by them) to the effect that the premises in controversy were a public street, but the evidence was excluded by the Court. Held: The evidence was admissible.</p>

<p>Fees of Clerk of Board of Supervisors of Plumas County—Statutes —Constitutional Law.—The provisions of the Act of 1878, relating to fees of county officers in Plumas County (Stats. 1877-8, p. 547), which were to take effect on the first Monday of March, 1880, never went into effect.</p>

<p>Appeal by plaintiff from a judgment for defendant Pagles in the Twentieth District Court of the County of Santa Cruz. Bebden, J.</p> <p>The judgment was reversed.</p>

<p>Appeal by petitioner, Helen M. Moore, from an order of the Probate Court of the County of Santa Cruz, denying a new trial. Craig, J.</p>

The judgment was on demurrer to the complaint, which was as follows: The plaintiff, Jose Aurrecoechea, for cause of action against the above-named defendants, avers and shows to said Court the following facts, to wit: I. That the plaintiff is ignorant of the names of certain defendants herein, and has designated such defendants by the names of John Doe and Richard Roe.

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Twenty-third District Court of the City and County of San Francisco. Thornton, J.</p> <p>The defendant’s lot is numbered 11 on the diagram attached</p> <p>The Court found with reference to the assessment and diagram as follows:</p> <p>On the fourth day of December, 1875, was made a pretended assessment of the total amount of expense of said work necessary to be assessed to cover the sum due for said work and the incidental expenses thereof, upon the lots and lands fronting on said portion of Greenwich street whereon said work was done, but did pretend to assess the expense of so much of said work as was done on the said main street-crossings upon the lots and lands included within the four quarter blocks adjoining and cornering on said crossing respectively, except as to the middle fifty-vara lots in the blocks between Laguna and Fillmore streets, and each lot, and each part of lot, excepting said middle lots, was thereby separately assessed in proportion to its frontage on said streets, at rates per front foot, which rates were sufficient to cover the total expense of such work; and said assessment was signed by said Superintendent, and had attached thereto a diagram exhibiting each street and street-crossing, lane, alley, place, or court on which said work was done, and showing the relative location of each distinct lot, and portion of a lot, to the work done, and numbered to correspond with the numbers in said assessment, and also showing the number of feet fronting on said streets, and assessed for said work contracted for and performed, and to which assessment was attached the warrant issued in said case, and hereinafter described, which assessment, diagram, and warrant are hereto annexed and made a part hereof, and marked “ Exhibit A;” that there was no diagram attached to said assessment, showing the lots included within the four quarter blocks adjoining and cornering on several crossings, and so pretended to be assessed, on which said lots the expense of work should have been assessed.</p> <p>The following is a copy of the diagram referred to:</p> <p> </p>

McKee, J. The complaint alleges: That on the thirtieth day of June, A. D. 1878, at the City and County of San Francisco, said plaintiff and defendant executed and entered into a written agreement, of which the following is a copy: “Whereas, James R Lee, of the City and County of San Francisco, is. seised at law and in equity of certain mining claim on the Comstock lode, being part of the ground now occupied by the Mexican Gold and Silver Mining Company, and some time since…

<p>New Trial—Dismissal of Motion—Order Denying Motion—Practice.— After a notice of intention to move for a new trial had been filed and a statement duly prepared and certified and filed, the Court made an order dismissing the motion for want of prosecution.</p> <p>Held: The order must be considered as an order denying the motion; and the case is properly here on appeal.</p> <p>Forcible Detainer—Unlawful Entry—Good Faith—Evidence.—In an action for forcible detainer, evidence is not admissible, on the part of the defendant, to show that the entry was made in good faith and under claim and color of title. Under the Code, all entries on the actual possession of another are unlawful, and the question of good or bad faith, on the part of the defendant, no longer affects the right of the recovery.</p> <p>Id.—Id.—Id.—Id.—Cases Distinguished.—Thompson v. Smith, 28 Cal. 532; Shelby v. Houston, 38 Id. 422, have no application under the provisions of the Code of Civil Procedure.</p> <p>Forcible Entry and Detainer—Evidence.—On the trial of an action for forcible entry and detainer, a witness for the plaintiff was asked the question: “ State if anything occurred with reference to that crowd of people there, with reference to the Mayor’s going on the ground and ordering them to stop ? ” and the Court excluded the question.</p> <p>Held: The question should have been allowed. It related to the circumstances of the entry, and was asked to show that it was forcible.</p> <p>Id.—Id.—The court also ruled out the following questions to a witness of the defendant: “During that time, there was a litigation pending in regard to this property between you and Mr. Voll?” “Was there not a suit brought by yourself in the Twelfth District Court to quiet title, in which you set up this very possession against Mr. Voll?”</p> <p>Held: The questions were proper. They had reference to the relations between the witness and the plaintiff Voll, and were asked to show a state of feeling by witness towards Voll, as to which the questions were allowable. The Court erred in sustaining the objections.</p>

<p>Application for a writ of certiorari.</p> <p>The material parts of the affidavit filed upon the application for the writ, were as follows:</p> <p>James F. Cunningham, the petitioner above named, being duly sworn, says: That he was the defendant in a certain action heretofore pending in the Superior Court of Santa Cruz County. That said action was commenced by Grover & Co., who, on the fourth day of April, 1882, did file the following amended complaint in said action. * * *</p> <p>(Here follow allegations, in two counts, of an aggregate indebtedness from defendant to plaintiff of one hundred dollars and eighty cents, for goods sold, etc.)</p> <p>And thereupon, on the twenty-fifth day of April, 1882, in the said respondent’s Superior Court, a judgment was rendered and entered against said petitioner, which judgment is as follows, to wit:</p> <p>(Here follows judgment for amount prayed for.)</p> <p>That in rendering and entering said judgment, the said Superior Court of Santa Cruz County, and the Judge thereof, exceeded their jurisdiction, and the said judgment is in excess of the jurisdiction of said Court and of the Judge thereof, as appears on the face thereof.</p> <p>That the rendering and entry of said judgment on said 'amended complaint was and is in excess of the jurisdiction of said Superior Court.</p> <p>The petitioner further avers:</p> <p>That there is no appeal from said judgment, and petitioner has not any plain, speedy, and adequate remedy. That the plaintiff in said action, to wit: the said Grover & Co., have threatened and are about to enforce the said judgment, and, as petitioner believes, will so do, unless the respondents be ordered to desist from further proceedings in said matter.</p>

<p>Substitution of Parties in Action—Administrator.—Certiorari to review a judgment of the Superior Court upon appeal from a Justice’s Court. Judgment affirmed.</p>

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

<p>Murder—Trial—Argument—Reading erom Book on Medical Jurisprudence.—Upon the trial of an information for murder, the District Attorney, in his closing argument to the jury, said he would read, “as a portion of his argument, ” from a book called ‘1 Browne’s Medical Jurisprudence of Insanity. ” No testimony had been introduced to show that this was a recognized work or standard authority, or that it was a scientific work. The defense objected to said book, or any part thereof, orto any opinion of said alleged writer, on the ground that it had not been established to be a scientific work, or a standard or recognized authority, and that it was incompetent. The Court overruled the objections, and defense excepted; and the District Attorney did read from the book various sections thereof, commenting upon and treating of the subject of insanity, and sustaining the prosecution's theory of the case.</p> <p>Held: The Court erred in permitting the District Attorney to read the extracts referred to.</p> <p>Oases Overruled.—Harvey v. State, 40 Ind. 516, disapproved.</p>

<p>Sureties op Administrator—Action por Accounting—Equity.—Where an administrator dies without rendering an. account, jurisdiction to compel an accounting vests in the appropriate Court of Equity; and it would seem that the adjustment of the account by that Court is a prerequisite to an action against the sureties.</p> <p>Id.—Id.—Id.—Judgment against Principal—Maxim.—In such am action, where the sureties were made parties, but were afterwards dismissed, upon their objection by demurrer to being joined, the decree is conclusive against them, and they can not he heard to object that they were not parties. To this the maxim alligans contraria non est audiendus applies.</p> <p>Id.—Id.—Id—Judgment.—Breach op Bond.—The judgment, in such an action, does not come within the provisions of Section 1504, C. C. P., requiring a copy of the judgment to he filed among the papers of this case, hut, so far at least as the enforcement of the payment, it directs against the estate of the deceased, it is to be regarded in the light of a decree of the Probate Court settling the account and directing payment; and the failure of the administratrix of the administrator to make the payment constitutes a breach of the bond, for which the sureties are liable.</p> <p>Judgment—Pleading.-—In pleading a judgment, it is sufficient to allege that the same remains unpaid and in full force. It is unnecessary to allege that the judgment was never appealed from.</p>

Motion to dismiss an appeal from a judgment for plaintiff and from an order denying a new trial in the Superior Court of the City and County of San Francisco. Hunt, Jr., J.

Appeal by defendant F. Palomares from a judgment for the plaintiff in the Superior Court of Los Angeles County. Howard, J. The affidavit of service of summons is in the following form: M. J. Wicks, being duly sworn, deposes and says: I am over the age of eighteen years and not a party .to nor interested in this action, etc., etc. There was an amended complaint in the case with an affidavit of service on defendant Palomares.

<p>Action fob Death Caused by Negligence—Sufficiency of Evidence— Vebdict.—In an action by the widow and administratrix of a deceased person for damages for the death of the intestate alleged to have been caused by the negligence of the defendant, the jury rendered a verdict for the plaintiff.</p> <p>Held: The question of evidence was submitted to the jury under instructions as favorable to the defendant as it could ask, and under instructions it did ask for, and as there was evidence from which negligence might be inferred the verdict should not be disturbed.</p> <p>Id.—Admissibility of Evidence.—1. The plaintiff was allowed to testify that it was the usnal custom of deceased, during his married life, to be at home after business hours, and that they had lived a happy married life; that for eight years prior to Ms death she had been an invalid and unable to leave the house, and that during that time he had been very kind and attentive, and that she was dependent upon him. 2. The daughter of deceased was allowed to testify that he was kind as a father; that the social and domestic relations as to the family on his part were happy, and that he was kind and loving to plaintiff. 3. The plaintiff was permitted to testify that after Mr. Cook had been taken to his home she discovered pieces of flesh.</p> <p>Held: The first and second points above stated are fully covered by §377 C. C. P. “Such damages may be given as under all the circumstances of the case may be just”—and by the decision of this Court in Beeson v. Green Mountain G. &8. Go., 57 Oal. 20. As to the third point there is nothing in the case to show that any damages were asked or given for suffering borne by the deceased; the action was for negligently causing his death; and the evidence given was of circumstances attendant upon the injury.</p> <p>Id.—Damages.—The damages found (eight thousand dollars) were not excessive.</p>

<p>Appeal from an order in favor of defendants Daniel and Jeremiah Callaghan staying a writ of possession in the Superior Court of the City and County of San Francisco.</p>

<p>Appeal from two orders made after final judgment in the Fifteenth District Court of the City and County of San Francisco. Dwinelle, J.</p> <p>The first order, dated December 19,1879, directs the money referred to in the opinion to be paid into Court upon the delivery or tender to the defendant of the undertaking; the last, dated December 22,1879, recites the execution and approval of the undertaking and directs the payment absolutely.</p>

<p>Undertaking on Appeal—Judgment against Soreties—Notice.—Where an undertaking is given under Section 942, C. 0. P., to stay the execution of a judgment or order directing the payment of money, and the judgment or order is affirmed, the prevailing party is entitled—if the appellant does not pay the judgment or order within thirty days after the filing of the remittitur—to have judgment against the sureties upon his motion; and of this motion the law requires no notice; for the sureties stipulate in the undertaking that judgment may be so entered.</p> <p>Id.—Id.—Satisfaction of Judgment—Practice.—In such cases, if, in fact, the original judgment was paid, although not satisfied of record, the parties have their remedy, under Section G75, 0. C. P., to have satisfaction entered, and for that purpose, to recall any execution which may have been issued against them; or they may have the judgment vacated or annulled.</p> <p>Id.—Id.—Presumption in Favor of Judgment.—In this case, there being nothing in the judgment-roll to the contrary, the intendment is, if necessary, that the Court below found that the appellants had notice.</p>

<p>Appeals from judgments for the plaintiffs, and from orders denying new trials, in the Superior Court of Los Angeles County. Hines, J.</p>

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

<p>Motion in the Supreme Court by the appellant, for temporary alimony and counsel fees pending an appeal from a judgment of divorce in the Superior Court of Alameda County. Crane, J.</p>

<p>Appeal by the • plaintiff from, a judgment for defendant Ancker in the Superior Court of San Bernardino County. Bolee, J.:</p>

<p>Appeal from a judgment for the plaintiff and an order denying a new trial in the Superior Court, of the City and County of San Francisco. Sullivan, J.</p> <p>The instructions referred to by the Court appear in the argument of appellant’s, attorneys.</p>

<p>Mining Law—Local Regulations—Customs—Instructions.—In an action of ejectment for a mining claim, the Court instructed the jury, that the location of a mining claim must not only observe the law of Congress (Act of May 10, 1872, Statutes at Large), which requires that “ten dollars’ worth of labor shall be performed or improvements made each year for each one hundred feet in length along the vein,” but also the local regulations of the miners of the district, which require “that work shall be done every sixty days on the claim.”</p> <p>Held: The Court erred; there is a clear conflict between the law and the regulations, and the law must prevail.</p>

<p>Replevin—Saxe of Personal Property—Prattd as to Creditors—Change of Possession.—In an action to recover the possession of personal property—in which the defendant justified as Sheriff, under an attachment against one C., alleged in the answer to be owner—it appeared from the evidence that the property (consisting of the stock of a drug store) was purchased by the plaintiffs’ vendor from the assignee in bankruptcy of C., and that C., who was -then in possession, was allowed to remain in possession pending negotiations for a purchase by him; that subsequently the plaintiffs made a written agreement to sell the property to 0. upon certain terms, and that, upon the failure of C. to comply with the terms of the contract, the plaintiffs took possession some time prior to the levy of the attachment. The findings and judgment were for the plaintiffs.</p> <p>Held: At the time of the transfer it was the assignee who was in possession and had control of the property, and there is no evidence which tends to prove that he did not immediately deliver it to the purchaser, or that the sale was not followed by an actual and continued change of possession. Therefore the transfer can not be conclusively presumed to be fraudulent as against the creditors of the bankrupt.</p> <p>Id.—Id.—Id.—Sufficiency of Evidence—Finding.—Whether the property at the time of the seizure of it was the property of the plaintiff, is a question for the Court, sitting in place of a jury, to determine; the evidence being conflicting, the finding upon that point can not be disturbed.</p> <p>Id.—Damages—Conversion.—The action being for the recovery of possession of personal property, and not for its conversion, it was error for the Court to include in the judgment the money expended by the plaintiff in the pursuit of the property.</p>

Bolee, J. The following is the instruction asked by defendant and refused by the Court: “ The Court on the part of defendant instructs the jury as follows: That the character of a party’s motives even when they are unquestionably of a criminal nature, may nevertheless be susceptible of different interpretations and indicative of very different degrees of moral and legal guilt. “In all cases every sound principle of interpretation and judgment requires that the act shall be…

<p>Appeal from a judgment for the plaintiff in the Superior Court of the County of San Diego. McNealy, J.</p> <p>The complaint in effect alleged and the Court found “That •on the thirty-first day. of March, 1877, the plaintiff borrowed •of the Commercial Bank of San Diego, a corporation duly •organized and acting under the laws of the State of California, the sum of three hundred dollars, and, jointly with the defendant, executed a promissory note therefor to said corporation. That the defendant executed said note solely and only as security for said plaintiff. That at the time of the execution of said note the plaintiff was the owner of all the real estate described in his complaint, but that the title thereto stood of record in the Recorder’s office of this county, in the name of C. R. McClellan and John Fisher, and that, for the sole and only purpose of securing the defendant against all loss or damage on account qf having signed said note as surety for plaintiff, the said C. R McClellan and John Fisher, solely at the request of plaintiff, conveyed all of said real property to the said defendant. That said conveyance was made by a deed absolute in form, and purporting on its face to grant a fee-simple title to defendant, but was only intended by the plaintiff and defendant, as a mortgage of said real property by plaintiff to defendant to secure him as aforesaid, and his becoming surety on said note was the only consideration therefor. * * * That defendant paid the interest on, and principal of, said note.” That the plaintiff had sold the property to innocent purchasers for seven hundred and ninety-one dollars, etc.</p> <p>The appeal was on the judgment roll and there was no bill of exceptions or statement.</p>

<p>Estates of Deceased Persons—Proceeding for Sale of Beal Estate— Statute of Limitations.—On the tenth day of April, 1878, an order for the sale of real estate was duly made by the Probate Court; but the property was not sold. On the eleventh day of April, 1881, the administrator filed another petition for the sale of the same property referring to the former order and stating that no sale had been made. An opposition was filed by the heirs on the ground that more than four years had elapsed after the claims (except three) were allowed before the filing of the petition; and that the application was barred by § 343 C. C. P.</p> <p>Held: It is unnecessary in this case to decide the point suggested. The proceedings for subjecting property to sale for the payment of debts were commenced upon the filing of the first petition. There has been no revocation of the order made thereon; there is no statute requiring the sale to be made within any given time after the order, and the petition filed on this application, and the orders made thereon may be considered as in effect a continuation of the first application and of the proceeding then instituted.</p> <p>Id.—Id.—Under the Code there is no privity in the sale of property for the payment o£ debts as between real and personal.</p>

<p>Appeal from an order discontinuing family allowance, in the Superior' Court of Tehama County. Mayhew, J.</p>

Howard, J. The Court below found “that plaintiff’s action herein is not barred by either Sections 337, 338, or 378, C. C. P.;” but also specifically found the date of the conveyance, and the date on which the indebtedness secured thereby became due; from it it appeared that prior to the commencement of the suit the time prescribed by the sections referred to had elapsed.

<p>Jurisdiction of Supreme Court—Constitutional Law—Trespass.—In an | action for trespass on land in which the title of the plaintiff to the locus in quo was admitted, the amount alleged as damages and demanded in the prayer of the complaint was nine hundred dollars, and the verdict and judgment were for two hundred dollars.</p> <p>Held: This Court has appellate jurisdiction of the case. [Morrison, C. J., dissenting.]</p> <p>Id.—Id.—Jurisdiction of Superior Court.—The settled rule is that the amount sued for exclusive of interest is the test of jurisdiction in this Court (as also in the Superior Court) in all eases where actions are brought to recover money. [Morrison, C. J., dissenting.]</p> <p>Id.—Id.—Id.—Cases Distinguished : Gordon v. Boss, 2 Cal. 156; Doyle v. Seawall, 12 id. 280; Votan v. Reese, 20 id. 90; Dunphy v. Guindan, 13 id. 28; ZdbrisTáe v. Torrey, 20 id. 173; Meeker v. Harris, 23 id. 286; Mel-son v. Melson, 2 Munf. 542; Tipton v. Ohajñbers, 1 Mete. 565; Walker v. U. S., 4 Wall. 163; distingished.</p>