Volume 61 — California Reports

<p>Appeal by defendant from an order 'in favor of plaintiff setting aside certain satisfactions of judgment in the Fifteenth District Court of the City and County of San Francisco. Dwinelle, J. -</p>

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

<p>Water Companies—:Free Water—Constitütio sal Law.—The provision of the Act of April 22,1858 “ for the incorporation of Water Companies,” requiring them to furnish water free of charge to cities and counties, cities or towns, for certain purposes, was abrogated by the new Constitution (Art. xi., § 19 and Art, xiv., § 1); and such companies are now relieved from any such obligation.</p> <p>Id.—Id.—Id.—Duty of Board of Supervisors to Establish Water Bates—Mandamus.—By § 1, Art. xiv. of the Constitution, the duty of fixing the rates for the use of water supplied to any city and county, or city or town or the inhabitants thereof is imposed upon the Board of Supervisors or other governing body of such city and county, city or town, and the provision is both mandatory and self-executing ; but, if legislation upon the subject were necessary, it is found in the Act of March 7, 1881. Accordingly, writ of mandamus granted commanding the defendant to proceed to fix the rates, or compensation to be collected for the use of all water supplied by the plaintiff to the City and County of San Francisco as well as the inhabitants thereof. (McKinstry, Thornton, and McKee, JJ., dissenting.)</p>

<p>Appeal from a judgment for the defendant on demurrer in the Superior Court of the County of Kern. Brundage, J.</p>

<p>Appeal from a judgment for defendant in the Superior Court of the County of Santa Barbara. Hatch, J.</p>

<p>New Trial—Accident—Surprise—Newly Discovered Evidence.—An order denying a motion for a new trial on the above grounds affirmed.</p>

<p>Action to Enforce Penalty for Violation of Ordinance of Municipal Corporation—Civil Action—Penal Action.—In an action in the Police Court of the City of Santa Barbara the complaint, after alleging • the enactment of an ordinance and its violation by the defendants, demanded that they should be adjudged guilty of violating the ordinance and punished by fine and imprisonment.</p> <p>Held: The action is in no sense a civil action. If it be an action it is criminal, and should have been prosecuted in the name of the people.</p>

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

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

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

<p>Change of Place of Trial—Action for Recovery of Real Property-Constitutional Law—Disqualification of Judge.—Section 5, Art. vi. of the Constitution, does not provide that the actions referred to must be tried, but simply that they must be commenced in the county in which the land is situated. Section 397, C. C. P., therefore, which authorizes a change of place of trial when the judge of the Court in which the action is brought is disqualified to try the case is not unconstitutional.</p>

Appeal by the administrator from an order in the Superior Court of the County of Nevada. Caldwell, J. The order directed the payment of fifty per cent, of the allowed claims of the estate which aggregated six thousand and eighty-one dollars and fifty-one cents. There were two suits against the estate involving the aggregate sum of one hundred and twelve thousand dollars.

<p>Appeal from an order denying defendant a change of place of trial in the Superior Court of the County of Colusa. Hatch, J.</p>

Appeal by the plaintiff for a judgment for the plaintiff and and an order denying a new trial in the Superior Court of Yentura County.

Bolee, J. The land was described in the deed referred to in the opinion as the “Sylvester Bryant Tract of the Museupiabe Banch.” It was objected to the deed when offered in evidence that the words “ and to all owners and claimants known and unknown” were erased in two places and also the words “two dollars,” but these words do not appear in the copy of the deed in the bill of exceptions.

<p>Eminent Domain—Railroad—City.—In a proceeding to condemn land including certain streets in the City of San Diego for the use of the plaintiff’s railroad, it was objected on demurrer that the complaint did not allege that the authorities of the city had granted plaintiff the right to use the streets in question. Held : The demurrer was properly overruled. Id.—Id.—Id.—Conceding that the streets of a city can not be used by a railroad company until the right to use the same has been granted by the city as prescribed in § 470 of the Civil Code it is not necessary that such grant shall first be obtained in order to maintain an action to condemn the rights of adjacent land owners in such streets.</p> <p>Id.—Value op Property—Constitutional Law.—Section 1249 C. C. P.— which provides that, for the purpose of assessing compensation and damages in cases like this, the right thereto shall he deemed to have accrued at the date of the summons—is not inconsistent with § 14 of Article i. of the Constitution.</p>

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

Hatch, J. Action to recover money paid under protest uport-an-alleged void assessment. The complaint alleges: That the Assessor of the said County of Santa Barbara for the fiscal year 1880-1, did list to the plaintiff herein, upon the assessment roll of said county for said year, with other property, solvent credits in amount twenty thousand dollars, and did assess the same for twenty thousand dollars.

Ketser, J. The action was brought to recover an alleged assessment made by the plaintiff upon certain lands for reclamation purposes, amounting in the aggregate to the sum of three hundred and thirty-two thousand and forty-six dollars.

<p>Keeper’s Fees—Sheriff—Kern County.—Under Section 9, of the Act of March 5, 1870, entitled “ An Act to regulate fees of office,” etc., the Sheriff of Kern County is not entitled to be paid for his trouble and expense in taking and keeping possession of and preserving property under attachment or execution or other process, until - the 'allowance for the same is fixed or taxed by the Court.</p>

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

<p>Contempt of Court.—The employment of language by counsel in this court manifestly disrespectful towards a Judge of the Superior Court, constitutes contempt of this Court.</p> <p>Trial—Cross-Complaint—Continuance.—In an action to foreclose a mortgage the defendant, in his answer, pleaded certain matters by way of cross-complaint, and before the cross-complaint was answered or demurred to, or the time for answering or demurring had expired, the cause was called for trial, a motion for continuance by defendant denied, a trial had, and judgment rendered for the plaintiff.</p> <p>Held: The action was not in a condition to be tried. It is not necessary to decide whether the insufficiency of a pleading can in any case be considered upon a motion for a postponement of the trial; it is enough to say that this ought not to be done, unless the pleading totally fails to set forth the cause of, action or defense. In this case, as the cross-complaint was not so totally defective as that ic could have been stricken out on motion, or as that it was subject to a general demurrer; and as it was neither answered nor stricken out, nor demurred to, generally or specifically, but remained one of the pleadings on which the case was to be tried, the Court below was not authorized to disregard its allegations, nor to proceed to a trial of the action before the issues were fully made up.</p>

<p>Verdict—Jurisdiction.—In an action npon a promissory note for the sum of one hundred and thirty-one dollars and fifty cents, with interest and reasonable attorney’s fees, the defense was, “ that the note was made by the defendant without consideration, the same having been executed in accordance with and to carry out an illegal agreement.” The verdict of the jury was: “We, the jury, find verdict for plaintiff;” and thereupon judgment was entered for the plaintiff for the principal of the note, costs, aud fifty dollars attorney’s fees.</p> <p>J-Ield: Taken together, the record and verdict showed the exact sum which the jury meant to find for the plaintiff, and the judgment is not void.</p> <p>Id.—Id.—Certiorari.—Having jurisdiction, an error committed by the court in the exercise of its jurisdiction is not re viewable by certiorari.</p>

<p>Application for writ of habeas corpus. The petitioner was held under a commitment for contempt by the Superior Court of the City and County of San Francisco (Ferral, J.), for refusing to serve as a juror.</p>

<p>Accusation against Attorney.</p>

<p>Accusation against attorney.</p>

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

<p>Invobmation Chabginq- Two Ozfenses—Labceny—Embezzlement.—The defendant was charged in one count of the information with larceny and in another count with embezzlement of the same property, and, a demurrer to the information having been overruled, was found guilty upon both counts.</p> <p>Held: The information in this case charges two separate and distinct crimes, one of which could have been made out by evidence insufficient to sustain the other. The Court should have sustained the demurrer to the information.</p>

<p>Peremptory Challenges—Charge of Second Offense—Robbery—Penalty.—Upon prosecution for robbery, where the information charges, that the defendant had been previously convicted of a similar crime, the offense charged is punishable under Section 667, Penal Code, by imprisonment for life in the State Prison, and the defendant is therefore entitled to twenty peremptory challenges.</p>

<p>Plea of not Guilty—Locus Delicti.—The plea of not guilty puts in issue all the material averments in the indictment, including that of the locus delicti.</p> <p>Evidence—Conspiracy—Declarations of Confederate.—It is a clear violation of the rules of evidence to admit against the accused the confession of a confederate made after the act was fully accomplished.</p>

<p>Variance—New Information—Appeal.—It is within the power, and it is the duty of the court, where the accused has been acquitted on the ground of variance, to order his detention and to direct a new information; but as a new information can be filed without the order of the Court, there is no practical utility in an appeal from an order refusing to detain the prisoner, and an appeal therefore will not be entertained.</p>

<p>Appeal from a judgment of conviction in the Superior Court of Nevada. Caldwell, J.</p>

<p>Evidence—Conspiracy—Declarations of Confederate.</p>

<p>Murder—Instruction—Justification—Record.—The Court refused to instruct the jury at the request of the defendant as follows: “If the accused was defending himself from an attack of the deceased that rendered it necessary for the protection of his own life that he should kill him, though he resolved to kill him before the fatal shot was fired, the killing was not murder.”</p> <p>Held: As the transcript does not contain the evidence, it is not apparent that the Court erred in refusing this instruction.</p> <p>Id.—Id.—Presumption—Character.—The Court also refused to instruct the jury at the request of the defendant that where no evidence of the character of the deceased is introduced his character is presumed to be of ordinary fairness in the traits involved in the crime with which he is charged; and that it is a fact to be considered by them in arriving at their verdict, in connection with all the other facts in the case.</p> <p>Held: that there was no error—two of the justices putting the ruling on the ground that the instruction is substantially covered by another instruction given; and another on the ground that the instruction was erroneous.</p>

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

<p>Appeal from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of the County of Los Angeles. Howard, J.</p> <p>The action was brought to recover personal property, and the defendant justified as Sheriff under an execution against the plaintiff’s vendor. The motions to strike out testimony referred to in the opinion involve the same points as were made in the objection to the testimony referred to in the opinion.</p>

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

<p>Creditor’s Action to Set Aside Fraudulent Conveyance—Action against Administrator.—The creditors of the insolvent estate of a deceased person can not maintain an action against the administrator and others to compel him and them to transfer to the estate real property to which he has for himself and them obtained the legal title in such a way as to raise a constructive trust in favor of the estate.</p> <p>Id.—Id.—Joinder of Parties—Capacity to Sue.—The defendant, who was an administrator, was made defendant in the same action in his representative capacity upon a rejected claim against the estate, and personally with others, to compel him and them to transfer to the estate property to which they had procured the legal title through fraud.</p> <p>Held: Two causes of action are improperly united in the complaint; as to one of which, there is a misjoinder of parties defendant, and as to the other, a failure to state facts sufficient to constitute a cause of action, coupled with an incapacity to sue.</p>

<p>Certificate of Partnership—Action for Tort.—Section 2468 C. C. forbidding the maintenance of actions by partners who have failed to file the certificate required by that section does not apply to actions for torts.</p> <p>Title to Personal Property—Lease—Fraud as to Creditors—Sufficiency of Evidence to Sustain Verdict.—F., being in possession of a tract of land and without means to cultivate it, leased the same to the plaintiffs agreeing to put in and cultivate a crop of barley for them— they furnishing the seed and paying him for his labor an agreed price, and agreeing to pay him something more (the amount to be left to them) if the crop turned out well. The defendant, as constable, seized the property under execution at the suit of creditors of F. and plaintiff brought this action for conversion.</p> <p>Held: The effect of the evidence on the part of the plaintiffs (which must be accepted here as true in view of the verdict of the jury in their favor) is that the barley in question was theirs from the beginning. The fact that plaintiffs leased the land from F., and that he was employed by them did not operate to subject their grain to the payment of his debts.</p>

<p>Estates op Deceased Persons—Appeal—Order Directing Conveyance op Real Estate—Appealable Order.—An order directing or refusing to direct a conveyance of real estate by an executor or administrator under Sections 1597 et seq., C. C. P., is appealable.</p> <p>Id.—Id.—Executor or Administrator—Undertaking.—Upon an appeal by an executor or administrator (who has given an official undertaking) from an order made in the administration of the estate an undertaking on appeal is unnecessary.</p> <p>Id.—Id.—Bill or Exceptions—Record.—Appeal (taken November 24, 1879), from an order of the Probate Court directing a conveyance of real estate. Held: The case was properly brought up by bill of exceptions. Id.—Conveyance or Real Estate—Specific Performance.—A proceeding under Sections 1597 et seq,, C. C. P., to compel a conveyance of real estate a is one for the specific performance of a contract in the Probate Court.</p> <p>Id.—Id.—Id.—Parties.—It was not the intention of the statute to vest in the Probate Court more extensive power than was administered by a Court of Equity; and therefore where it appears in such a proceeding that there are third parties interested in the controversy and who, were the proceeding in equity, would be necessary parties, the petition should be dismissed. So held in a case where the petition showed that the administrator had conveyed the premises to a third person under an order of Court before the petition -was filed.</p>

<p>Murder—Dying Declamation.—The rule is settled in this State that dying declarations, in order to be admissible, must have been made when an undoubting belief existed in the mind of the declarant that the finger of death was upon him, and all hope of recovery was gone. If it appears in any mode that there was a hope of recovery, however faint, still existing in the mind of the declarant, the declaration is not admissible.</p> <p>Id.—Id.—Evidence.—As to the proof of the "existence of the sense of impending death, it may be gathered from any circumstance or from all the circumstances of the case. It need not be proved by the express statements of the declarant that such belief exists.</p> <p>Id.—Id.—Id.—In this case, held, under the rule above stated, that the dying declarations of the deceased, admitted in evidence, were properly admitted.</p> <p>Misconduct of Jury—Affidavit of Juror.—An affidavit of a juror is not admissible to impeach a verdict.</p> <p>Id.—Id.—New Triad.—During the trial, large amounts of beer, wine, and whisky were procured, at their own expense, and consumed by the jury, without the permission of the Court, or the consent of the defendant, and without the knowledge of either of them.</p> <p>Held: This was such improper conduct upon the part of the jury as to require a new trial.</p>

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

<p>Appeal—Motion fob. New Tbial.—After an adverse decision of a motion for a new trial the moving party has no right to file another motion.</p> <p>Id.—Id.—When a party gives notice of an intention to move for a new trial, and fails to prosecute his motion in the Court below, in consequence of which his motion is dismissed or denied, he can not be heard to complain of the order on appeal.</p> <p>Id.—Id.—Statement—Record.—On appeal from such an order, in the absence from the record of an engrossed statement on motion for a new trial, signed and certified hy the Judge, there are no questions of fact to be reviewed.</p> <p>Id.—Record—Notice—Undertaking.—An appeal can not he taken from parts of two judgments, and from a special order made after judgment, hy one notice of appeal, and on one undertaking on appeal.</p> <p>Id.—Id—Id.—Id.—Transcript.—An appeal was taken by one notice and undertaking from parts of two judgments and an order made subsequent to judgment, and another appeal, by the same parties, and by another notice and undertaking, from an order denying a new trial, and an order striking from the files a notice of intention to move for a new trial subsequently filed; and there was but one transcript for all the appeals.</p> <p>Held: Separate and distinct appeals can not be brought to this Court in that way.</p>

Appeal .from a judgment for the plaintiff in the Superior Court of the County of Los Angeles. _ Howard, J. « The defendant was elected Recorder of Los Angeles County on September 3, 1879, and went into office on the first day of March, 1880. The action was brought for the recovery of the fees of office collected by the defendant.

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

The action was to recover an assessment for reclamation purposes levied in the year 1876 under the Act referred to in the opinion, in a swamp land district formed before the Codes were enacted. A petition for rehearing in bank was filed after judgment and denied.

<p>Separate Counts in Complaint—Pleading.—In an action for work and labor the complaint contained two counts, one upon an agreement to pay an agreed price and the other upon the quantum meruit; and—the plaintiffs ’ counsel having stated that the work mentioned in both counts was the same—the defendants moved the Court to require the plaintiffs to elect on which count they would proceed to trial; and the Court denied the motion. Held: There was no error.</p> <p>Id.—Id.—Under our Code which provides that the complaint must contain “a statement of the facts constituting a cause of action in ordinary and concise language ” the plaintiff may set them out in two separate forms when there is a fair and reasonable doubt of his ability to safely plead them in one mode only.</p>

<p>Statute of Limitations—Action against Shebiee on his Official Bond— Construction of Statute.—An action against a sheriff and his sureties upon his official bond for the seizure of property by the Sheriff under attachment comes within the provisions of the second subdivision of § 339 C. C. P. and must be brought within two years from the time the action accrues.</p>

<p>Appeal from an order in the Superior Court of the City and County of San Francisco and from an order denying the motion to change the place of trial in the Superior Court of Merced County. Corcoran, J.</p>

), and from an order denying a new trial in said Superior Court of the City and County of San Francisco. Hayne, J. A petition for hearing in hank was filed in this case after judgment and denied.

Dwinelle, J. The main facts of the case are stated in the report of the former appeal.

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

<p>Action fob Services as Attorney—Agent—Sufficiency of Evidence— Findings.</p>

<p>Vendor and Vendee—Breach or Contract to Purchase Land.—A vendor of land, though in law the owner of the legal title, holds it simply as a trustee for his vendee, and therefore can not turn his beneficiary out of possession so long as the latter is willing to perform or offers to perform or if he has performed the contract; but if the purchaser refuses to complete the contract the vendor has the right to treat him as a trespasser or as a tenant at will at his election.</p> <p>Id.—Id.—Ejectment.—In an action of ejectment, by the vendors of land against defaulting vendees, the plaintiffs proved the tender of a deed and a demand and refusal to pay the balance of the purchase money; and also offered to prove a demand and refusal of possession, but were not permitted to do so. The plaintiffs were nonsuited.</p> <p>. Held: The plaintiffs were entitled to prove the demand and refusal of possession, and to recover in the action, subject of course to any equitable relief to which the defendants might be entitled under any equitable defense to the action.</p> <p>Id.—Id.—Id.—Cross-Complaint—Practice.—In an action of ejectment where a cross-eomplaint is filed, the issues arising on the cross-complaint should first be disposed of.</p>

<p>Action to Bevtew an Order in Insolvency Proceedings—Equity.—Action to compel the assignee of an insolvent to include the claim of the plaintiff among the list of claims against the estate, and for judgment against Mm for the amount due the plaintiff upon a pro rata distribution of the assets. The action of the assignee in excluding the claim of the plaintiff from his statement of the claims against the estate had, after a contest been approved by an order of the insolvency Court.</p> <p>Held: If the order of the County Court was erroneous, the proper mode to obtain relief therefrom was by appeal; and there is no sufficient ground shown by the complaint for the Mterposition of a Court of equity.</p>

<p>Homicide—Evidence as to Previous Conduct of Defendant.— Upon a trial for murder a witness for the prosecution was permitted to testify, over the objection of the defendant, in effect, that the deceased,who had been living with the defendant as his wife, about a month before her death came toher house, which was next door to the house of defendant greatly excited, and stayed all night, and that when she came the witness heard the defendant swearing and breaking the doors and windows and things in his own house, etc.</p> <p>Held : The evidence was admissible. It tended to show the state of the defendant’s feelings towards the woman and his treatment of her, and in some degree to show a motive for taking her life.</p>

<p>Appeal from a judgment of conviction and from an order denying a new trial in the Superior Court.</p> <p>The Court instructed the jury as stated in the last paragraph of the syllabus.</p>

Appeal by the People of the State of California, by the Attorney General, from a judgment for the plaintiff, and from an order denying a motion to set aside the judgment in the Superior Court of the County of Sacramento.

Howe, J. Action for the diversion of water from the plaintiff’s ditch, and for an injunction. The complaint alleged the appropriation of the water by the plaintiff’s grantors. The answer, besides denying the allegations of the complainant, alleged, in effect, that one Himes was equally interested in the land and water right described in the complaint, and in the relief sought, and that he should have been joined as plaintiff.

<p>Appeal from a judgment for the defendant in the Superior Court of the County of Sacramento. Denson, J.</p> <p>A petition for rehearing was filed in this case after judgment-and denied.</p>

<p>Appeal from a judgment and an .order refusing to set aside the same, in the Superior Court of the County of Placer. Myers, J.</p>

Hundley, J. The complaint, in effect, alleged that in an action by the plaintiff against Boyles & Evans, who were indebted to them in a certain sum, an attachment was issued, and a copy of the same, with the notice of garnishment, was served upon the defendants in this action, who, it was alleged, had in their possession and under their control certain moneys and other property of the attachment debtors; that judgment was after-wards entered in favor of the plaintiffs…

Judgment was entered for defendant on demurrer. The complaint was as follows: “ Plaintiff complaining alleges that the defendant is now, and for more than three years last past has been, a municipal corporation, duly incorporated and acting as such under the laws of and in the said State and County. 2.

<p>Application for writ of mandamus to the defendant, as Superintendent of Public Streets, requiring him to sign and enter into a contract for street improvements awarded to the plaintiff.</p>

Mayhew, J. On the trial the defendants offered to prove by the Clerk of the Court that the judgment in the case of Campbell v. Eby was docketed in the month of May or June, 1880, but the Court excluded the evidence,

Rooney, J. The complaint prayed judgment for two hundred and seventy dollars damages, for the restitution of the land, and for an injunction, and the Court decreed accordingly. A petition for rehearing in Bank was filed in this case, after judgment, and denied.

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

<p>Appeal from a judgment for the defendant in the Superior Court of the County of Amador. Moore, J.</p> <p>The complaint and answer were as follows:</p> <p>The above named plaintiff complains against the above named defendant, and alleges:</p> <p>“ 1. That heretofore, to wit, on the first day of November, A. D. 1879, the plaintiff and defendant mutually settled and accounted together of, and concerning certain business and transactions theretofore had and transpired between them, and upon said settlement and accounting, the defendant was found to be indebted to the plaintiff in the sum of one thousand five hundred and ninety-nine dollars and forty-five cents, and the defendant, with the intention of making and delivering to the plaintiff his promissory note for the said sum one thousand five hundred and ninety-nine dollars and forty-five cents, payable one day thereafter, with interest at the rate of one per cent, per month, made and delivered to the plaintiff his certain promissory note and instrument in writing, in the words and figures following, to wit:</p> <p>“$1599.45.</p> <p>“ Tone City, November 1, 1879.</p> <p>“ One day after date, for value received, I promise to pay the sum of one thousand five hundred and ninety-nine dollars and forty-five cents, with interest at the rate of one per cent, per month, until paid. L. Nixon.</p> <p>“And thereby intended to promise to pay to the plaintiff, and did promise to pay to the plaintiff, the sum of one thousand five hundred and ninety-nine dollars and forty-five cents, in one day thereafter, with interest at the rate of one per cent, per month until paid.</p> <p>“ 2. That no part of said sum of one thousand five hundred and ninety-nine dollars and forty-five cents, nor of the interest thereon, has been paid, apd that the whole thereof—both the said principal sum of one thousand five hundred and ninety-nine dollars and forty-five cents, and the interest thereon from the first day of November, 1879, are now due to the plaintiff, and unpaid.</p> <p>“ 3. That by mistake and inadvertence, the name of the plaintiff was not written in said promissory note as payee, as it should have been, and as both the plaintiff and the defendant believed it had been therein written at the time of the making and delivery thereof to the plaintiff, as aforesaid.</p> <p>“ Wherefore the plaintiff prays judgment: That the said promissory note be reformed and corrected according to the intention of the parties thereto, by writing therein the words ‘to Dwight Younglove’ (the plaintiff), after the word ‘pay.’</p> <p>“That the plaintiff have and recover of and from the defendant the said sum of one thousand five hundred and ninety-nine dollars and forty-five cents, together with the interest thereon from the first day of November, 1879, at the rate of one per cent, per month.”</p> <p>“Now comes the defendant, Lyman Nixon, and answers the complaint of the plaintiff, filed herein, and for a first defense to the said cause of action denies:</p> <p>“ 1. That on the first day of November, 1879, or at any other time, the plaintiff and defendant mutually settled and accounted together concerning their previous business transactions, or made, or had made any settlement or accounting whatever, more than a casual looking over at the time for certain purposes. Denies that upon said settlement and accounting, the defendant was found to be indebted to the plaintiff in the sum of one thousand five hundred and ninety-nine dollars and forty-five cents, or in any other amount or sum whatever. Denies that there was ever any intention on the part of the defendant to make and deliver to the plaintiff said promissory note, or any other note for the sum of one thousand five hundred and ninety-nine dollars and forty-five cents, or any other sum whatever, for the use and purpose set forth in said complaint, or otherwise. Denies that he made, executed, and delivered to plaintiff any promissory note, as mentioned in the first subdivision of said complaint. Denies that said note was ever made or intended for the use and benefit of the plaintiff, as alleged in said complaint or otherwise. Denies that he ever intended or ever did promise to pay plaintiff one thousand five hundred and ninety-nine dollars and forty-five cents, or any other amount or sum what-. ever, one day after date, or any other time, with or without interest at One per cent or otherwise.</p> <p>“ Further answering—denies and avers that he has no information or belief upon the subject of the allegations of said complaint, contained in the second subdivision thereof, sufficient to enable him to answer the same; and putting his denials upon that ground, he denies that no part of said sum of one thousand five hundred and ninety-nine dollars and forty-five cents, nor the interest thereon, has been paid, and denies that the said sum of one thousand five hundred and ninety-nine dollars and forty-five cents, or any other sum, with or without interest, is now due the plaintiff from this defendant.</p> <p>“ The defendant denies the allegations in the third subdivision of plaintiff's complaint. Denies that by mistake and inadvertence the name of plaintiff was left out as payee in said note. Denies that the name had ever ought to have been written in said note. Denies that either plaintiff or defendant, at any time or place, believed' that the plaintiffs name had been written as payee in said note at the time of making thereof, or at any other time, and defendant avers, on information and belief, that the name of the payee was omitted in said note purposely and with the full understanding, knowledge, and intention of the plaintiff at the time for other purposes then understood by both parties.</p> <p>“ Defendant further answering, and for a cause of defense and counter-claim alleges: 1. That between the first day of</p> <p>November, 1879 and February 1, 1881, the plaintiff received from Hugh Masterson, on promissory note, principal and interest, one hundred and fifteen dollars; from Samuel Prouty, on promissory note and interest, principal and -interest, four hundred and thirty-three dollars and twenty cents; money received from Alex. Thompson, sixty-two dollars and sixty-two cents; money received from John Dillian, seventeen dollars and fifty cents; making the total amount of six hundred and thirty-two dollars and thirty-two cents, plaintiff has received for the use of this defendant. That he has not paid the same nor any part thereof.</p> <p>“ 2. Defendant for a further counter-claim avers that plaintiff is indebted to him in the sum of seventy-seven dollars and fifty-two cents, for thirteen head of hogs—one thousand nine hundred and thirty-eight pounds at four cents per pound, seventy-seven dollars and fifty-two cents—delivered at his request about November 23,1879. That he has not paid the same.</p> <p>“ 3. Defendant for another and further counter-claim avers: That between November 1, 1879, and November 23,1880, he has paid, laid out, and expended large amounts of money for the use and benefit of said plaintiff and at his instance and request, to wit: the sum of one thousand two hundred and ninety-seven dollars and seventy-three cents. That he has not paid the same.</p> <p>“ Wherefore, defendant demands judgment against said plaintiff for the sum of two thousand seven hundred and fifty-seven dollars and fifty-seven cents and cost.</p> <p>“ Duly verified.”</p>

<p>Action for Diversion of Water—Relief—Remission of Excess in "Verdict.—In an action to recover damages for the diversion of water, and for an injunction, the complaint alleged that the plaintiff was entitled to • the use of five hundred inches, measured under a four-inch pressure of the waters of the creek in question; and the jury found that the plaintiff was entitled to eight hundred inches under a four-inch pressure, and that lie had been damaged in the sum of one thousand dollars by the diversion of the said waters. The plaintiff was permitted by the Court below to" remit the excess of three hundred inches, and judgment was entered accordingly.</p> <p>Held: The judgment as entered can not stand. If the nature of the case admitted of the remitting by the plaintiff of a portion of the water awarded him by the jury, he was not entitled to judgment for one thousand dollars damages.</p> <p>,Id.—Id.—Id —Sufficiency of Evidence.—The evidence was not sufficient to sustain a verdict, or the judgment for five hundred inches .of the water in dispute.</p>

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

The prayer of the petition was that a writ of mandate issue out of this Court directed to said Board of Election Commissioners of said City and County of San Francisco, and the members thereof, commanding them to proceed in compliance with the requirements of the Constitution and the laws to make suitable and legal preparation for the election on the seventh day of November, 1882, of the following municipal officers for the City and County of San Francisco, viz.: Mayor,…

Denson, J. The instructions referred to in the opinion are inserted in the syllabus. A petition for hearing in bank was filed in this case after judgment, and denied.

Appeal^ from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of the County of Trinity. Jomes, J. A petition for hearing in bank was filed in this case after judgment and denied.

<p>Deed Intended as Mortgage.—The I. O. 0. F. of Red Bluff, a corporation, loaned to the defendant seven hundred dollars, for the purpose of redeeming certain real estate, the property of one B. for the benefit of the plaintiffs who were his children—the property being subject to a deed of trust made by B. to secure a debt. The property was redeemed by defendant pursuant to this understanding and reconveyed to B. by the Trustees, who thereafter conveyed the same in pursuance of the above arrangement to defendant by deed absolute in form for the consideration expressed in seven hundred dollars. Afterwards the defendant sold the land for twelve hundred dollars; and this action is brought to recover the difference of five hundred dollars. Held: The transaction constituted a mortgage.</p> <p>Id.—Action by Beneficiary of Trust.—The action was properly brought in the names of the beneficiaries of the trust.</p> <p>Sufficiency of Evidence—Appeal.—The sufficiency of the evidence to justify the findings can not be reviewed upon an appeal from the judgment not taken within sixty days after the judgment was rendered.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Superior Court of Sacramento County. Clark, J.</p> <p>The facts are substantially as stated in the syllabus. A petition for hearing in bank was filed in this case after judgment and denied.</p>

<p>Application for writ of prohibition.</p> <p>The facts with regard to the justification of sureties were, substantially, as stated in the syllabus.</p>

Appeal by plaintiff from the judgment in the Superior Court of the County of Tuba. Keyser, J. Action of account. The facts are stated in the opinion of the Court.

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

<p>Gift—Causa Moktis—Note Ratable to Obdeb.—A promissory note payable to order and not indorsed is the subject of a gift causa mortis; and such a gift carries with it the mortgage by which it is secured.</p>

<p>Appeal from a judgment for plaintiffs, and from an order denying a new trial, in the Superior Court of the County of Sierra. Howe, J.</p> <p>A motion for nonsuit was made on the ground of variance.</p>

Denson, J. The notices of lien referred to in the opinion, were as follows: “Notice is hereby given that the Sacramento Lumber Company, a corporation doing business as lumber dealers in the County of Sacramento, State of California, under the corporate name of Sacramento Lumber Company, claim a lien by virtue of the laws of this State on the brick building and appurtenances, and the land on which the same is situate, described as follows: The south sixty-one feet of Lots…

<p>Capacity of Aliens to Hold Title to Real Estate—Title to Minino Claim.—A bona Jide resident of the State, though not a citizen of the United States, or having declared his intention to become such, may by conveyance acquire and hold the title of the locators of an unpatented mining claim acquired under Sections 2319 and 2322 of the U. S. Revised Statutes; and has a full and complete right to convey the same.</p> <p>Id.—Inquest of Office.—An alien may purchase land or take it by devise, and his claim will be good against every person but the State.</p>

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

<p>Mining Claim—Fobjtbitübe—Ejectment—Pleading—Finding.—Judgment reversed for failure to find upon.material issue.</p>

<p>Interest—Counsel Eee—Judgment.—.Upon an appeal by the plaintiff from a judgment of foreclosure the judgment was reversed and the cause remanded with directions to enter judgment for a larger amount.</p> <p>Held: The plaintiff was entitled to interest upon the mortgage up to the date of the entry of the judgment upon the remittitur; and also to a counsel fee for prosecuting the appeal to the Supreme Court.</p>

judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of the County-of San Diego. McNealy, J. The facts are stated in the syllabus.'

<p>Parties—Intervention—Mining Claim.—In an action brought under Section 2326 IT. S. Revised Statutes, to determine the right of possession to a mining claim, those only who have filed claims to the land in the United States Land Office can properly be made parties to the action; and such parties only are entitled to intervene.</p>

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

<p>Appeal from a judgment of conviction and answer denying a new trial in the Superior Court of the County of Tehama. Mathew, J.</p>

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

<p>Ordinance—Misdemeanor—Constitutional Law—Liquor License.—The petitioner was convicted in the Police Judge’s Court of misdemeanor in violating Section 39 of Order No. 1,589, of the City and Comity of San Francisco, which was passed July 28,1880, and prohibits the sale of spirituous liquors, etc., without a license.</p> <p>Held: The power to pass this ordinance was ample under the fourth subdivision of the first section of the Act of April 25, 1863 (Stats. 1863, page 540), and the third section of the Act of March 30, 1872 (Stats. 1871-2, page 737). Conceding that these Acts were repealed by the Act of 1878 (Stats. 1877-8, page 444), the power existed, under the section of the Constitution which per se confers the power on the Board of Supervisors of the City and County of San Francisco, to pass the section of the Order above mentioned.</p> <p>Id.—Id.—Id.—Id.—Police Regulation.—The Order in question is a police regulation and is not in conflict with any general law.</p>

<p>Assault -with Deadly Weapon—New Trial—Newly Discovered Evidence.—The defendant was convicted of an assault with a deadly weapon, and moved for a new trial on the ground of newly discovered evidence. The affidavit of the proposed witness, was: “Two China-men came behind Lee Wing (the prosecutor); one pulled him down, and the other struck him. * * * Affiant is positive Chin Ah Hong, the defendant, is not the mqn who struck Lee Wing.</p> <p>Held: The affidavit does not distinctly state that the defendant took no part in the assault.</p>

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

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

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

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

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

<p>Waiver of Right to Marshal Securities.—P., to secure his note for fifteen thousand dollars, made a deed of trust to the C. Bank of a tract of land, and also assigned to it a promissory note and mortgage which he held against C.;,and afterwards, to secure his note of about forty thousand dollars, executed to the O. P. S. & C. Bank another deed of trust upon the same land and other property. After the execution of the last note, P. sold and assigned to his wife his interest in the 0. note. Subsequently, the notes of P. to the C. Bank and to the 0. P. S. & C. Bank, with their respective securities, vested in the defendant by assignment; and the defendant being thus the owner and holder of the two notes and securities, caused the trust land to be sold under the first deed of trust, and became the purchaser, for the sum of ten thousand one hundred and twenty-five dollars—leaving a balance on the first note, and the second note wholly unsatisfied. It then sold the land and its interest in the note to C.</p> <p>Héld, that Mrs. P., as the assignee of P., was entitled to the surplus due upon the C. note after satisfying the balance due on the note of P. to the C. Bank.</p>

Appeal by intervenor from a part of a judgment in her favor, and from an order denying a new trial, in the Superior Court of the County of Sacramento. Clark, J.

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

Appeal by defendant from a judgment for the plaintiff in the District Court of the Fourth Judicial District of the State of California, in and for the City and-County of San Francisco, and from an order of the Superior Court of the same city and county denying a motion for a new trial. Evans, J. Action in the nature of trover for the conversion of wheat. The facts are stated in the opinion of the Court.

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

<p>Peremptory Challenges—Charge op Second Offense—Penalty.—The defendant was charged with the crime of robbery and with having been previously convicted of the crime of petty larceny, and his plea confessed the previous conviction of petty larceny, but was not guilty to the charge of robbery.</p> <p>Held: Under Secs. 0G7 to 671 of the Penal Code, the only punishment that could be imposed on the defendant upon his conviction was imprisonment for life; and he was therefore entitled to twenty peremptory challenges.</p>

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

Appeal by contestants from the judgment of the County Court of the County of Alameda. Redman, J. Proceeding for the condemnation of land for opening and extension of a street in the City of Oakland.

Appeal by the Santa Rosa Bank, a creditor of the plaintiff from a judgment in the Superior Court of the County of Mendocino. McGarvey, J. Proceeding in insolvency. The facts are stated in the opinion of the Court.

<p>Service by Mail—Notice of Appeal—Partition—Jurisdiction—Parties—Parties in Partition.—In an action for partition, all of the parties are-actors, each against each, and all others.</p> <p>Service of Notice of Appeal in Partition Suit.—In an action for partition, the notice of appeal must be served upon all the parties respondent.</p> <p>Service by Mail.—At the date of the notice of appeal the attorney of the appellant resided in San Rafael, in Marin County; of the attorneys for the respondents some resided in San Francisco, Los Angeles, San José, San Diego, Redwood City, and one in Plattsburg, in the State of Missouri. Between San Rafael and each of those places there was at the time a regular communication by mail.</p> <p>Held: 1. The situation was therefore such that the attorney for defendant could haye served the notice of appeal by mail, by following the provisions of Section 1013, C. O. P.; 2. The conditions involved in the fact, of service by mail are, that the person making the service, and the person on whom it is to be made, reside or have their offices in different places, and that there shall be a regular mail communication between the places.</p> <p>Id.—The attorney for the appellant caused a copy of the notice of appeal, properly directed, etc., to be mailed at San José, where he neither resided nor had an office, and did not mail it at San Rafael, where he did reside.</p> <p>Held: Although there was a regular mail communication between San José and the several places of residence of the respondents’ attorneys, the provisions of the Code, which must be strictly followed, were not complied with, and the service was not sufficient.</p> <p>Dismissal of Appeal for Failure to Serve Notice of Appeal.—In order to give jurisdiction to the appellate Court, of an appeal, the notice of appeal must be properly served, and if not; properly served, the appeal will be dismissed.</p>

Appeal, by George Babcock as executor, and Mary Ann Babcock as devisee, from judgment of the Superior Court of the County of Alameda. Crane and Greene, JJ. Proceedings for the revocation of the probate of a,will. Cyrus A. Pomeroy, as an heir at law on the twenty-ninth day of September, 1881, filed a petition for the revocation of the probate, on the ground that the paper was not the olographic will of the deceased.

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

<p>Abduction of Female Child—Instruction.—Upon the trial of an information for taking away a female under the age of eighteen years from her father, the Court instructed the jury to the effect that the father has by nature and by the law the legal charge of the persons of his children until they arrive at the age of majority, and that, if the defendant took the girl from such charge, for the purpose of prostitution, it was immaterial whether the defendant knew that she had a father living, and equally immaterial whether the act was done with or without her consent.</p> <p>Held: This was correct. When taken the girl was, in contemplation of law, in the charge of her father. (McKinstry and Sharpstein, JJ., dissented.)</p>

Appeal by defendants from the judgment of the Superior-Court of the City and County of San Francisco. Daingerfield, J. Action to quiet title. The facts are stated in the opinion of the Court. After decision in department, a petition for rehearing in bank was presented and denied.

<p>Assault—Indictment.—The indictment, charged, in effect, that the defendants unlawfully, and with force and violence, did seize and throw out of an attic window, in the third story of a building, one Ah Wee, and did thereby with force aud violence cause the said Ah Wee to fall from said window to the ground—a distance of twenty-five feet—whereby he was greatly injured, and became sick and sore therefrom.</p> <p>Held: The indictment is good, under Section 245 of the Penal Code. The facts charged amount to a felony, and if proved as laid, would justify a verdict of guilty under the foregoing section.</p>

<p>Application for writ of prohibition to the Superior Court of the City and County of San Francisco. Halsey, J.</p>

Appeal by defendant from a judgment of the Twelfth District Court, City and County of San Francisco, and from an order denying a motion for a new trial. Daingerfield, J. Action brought by plaintiff against defendant for services as Secretary of defendant. The services were alleged to have been performed between March 7, 1873, and November 26, 1875.

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

Appeal by defendants from the judgment of the Superior Court of the City and County of San Francisco, and from an order denying a motion for a new trial. SULLIVAN, J. Action in ejectment by plaintiff as tenant in common to be let into the possession with the defendants of a lot of land in the City and County of San Francisco. The following are the facts: It was conceded that Joseph Galloway, on the twentieth of November, 1852, was seised in fee of the demanded premises.

Appeal by defendant from the judgment of the Superior Court of the County of Sonoma. Pressley, J. Action for the abatement of nuisance in a public highway. The plaintiff had judgment in the Court below and moved in this Court to dismiss the appeal, on the ground that it did not appear that the notice of appeal had ever been served. The other facts are stated in the opinion of the Court.

Appeal by defendant from the judgment of the Superior Court of the County of Napa, and from an order denying a motion for a new trial. Wallace, J. Action to enforce a street assessment. The facts are stated in the opinion of the Court. After the decision a petition for a rehearing was presented and denied.

Appeal by defendants from order granting injunction in the Superior Court of the City and County of San Francisco. Hayne, J. Injunction against the defendants Isaac S. Kalloch, John L. Murphy, and John P. Dunn, as members of the Board of New City Hall Commissioners, and Charles H. Carter, a contractor in the construction of the hall.

<p>Tax Deed Void.—{Per Myrick, McKinstby, and Boss, JJ., concnrring.) Action to obtain an injunction restraining the -defendants from selling certain real property under an execution. The plaintiff claimed under a tax sale and deed; the defendants were proceeding to sell under an execution against the prior owners. The defendants demurred, the demurrer being sustained, and no amendment made, judgment went for defendants. A preliminary injunction having been issued, the same was dissolved.</p> <p>Held: The tax deed is void, it being therein recited that the property was assessed to “ California Consolidated Mining Company, and to all owners and claimants known and unknown. ”</p> <p>Id.—Pleading to Show Party Entitled to Injunction.—The complaint alleges an assessment of the property to the California Consolidated Mining Company, omitting the objectionable addition expressed in the deed.</p> <p>Held: It may admitted that if the plaintiff holds a valid certificate of sale for non-payment of taxes, he may have the sale under execution enjoined, on the ground that such subsequent sale would be a cloud upon his title or his right to have title. But, in endeavoring to have the sale enjoined, he must aver and show that he has full right to protection; in other words, that everything has occurred which" would be necessary to occur, in order to vest in him the right claimed.</p> <p>Id.—Certificate, of Tax Sale as Evidence.—The allegation in the complaint as to the tax sale is, that the property “was duly sold to satisfy the aforesaid taxes, at public auction, by the Tax Collector of the said County of El Dorado, to A. Mierson, to whom a certificate of said sale was delivered by said Tax Collector.” There is no allegation that either of the steps referred to by Sections 3766, 3767, or 3768, Political Code, had been taken. Section 3776 declares that the certificate of the sale shall state certain matters. There is no allegation that the certificate stated either of those matters. The allegation in the complaint is, that “ a certificate of said sale was delivered,” etc.</p> <p>Held: The certificate of tax sale is not evidence of any matters not therein recited, nor of any matter necessarily preceding its valid existence.</p> <p>Id.—Id.—McKee, Thobnton, and Shakpstein, JJ., concurred on the ground that the plaintiff has an adequate remedy at law.</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>

Appeal by the plaintiff from a judgment in the District Court of the Fifteenth Judicial District of the State of California, in and for the City and County of San Francisco, and from an order denying a motion for a new trial Dwiselle, J. Action upon a bond. The facts are stated in the opinion of the Court.

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

<p>Judgment—Entry op Judgment Nunc pro Tunc—New Trial.—After the conviction of the defendant of the crime of murder in the first degree, through some inadvertence in the Court below, the judgment was not entered in the minutes of the Court; and upon a former appeal from the judgment and the order denying a new trial, the appeal from the judgment was dismissed on that ground, and the order denying a new trial affirmed on the merits. Upon the filing of the remittitur, the Court made a nunc pro tunc order, directing the judgment to be entered in the minutes as of the date of its rendition; and after a refusal by the Court to permit the defendant to move for a new trial, on the ground that such a motion had already been made and determined, it was so entered.</p> <p>Held: There was no error in refusing to entertain a second motion for new trial.</p> <p>Id.—Order for Execution—Presence of Defendant—Presumption.— A defendant convicted of murder in the first degree is entitled to be present when the eider for his execution is made; but unless the contrary appears from the record, it will be presumed that he was present.</p> <p>Id.—Id.—Order to Show Cause.—The purpose of Section 1227, Penal Code, is in the nature of an order to show cause; and where no reason exists why the judgment of the Court should not be executed, it is the duty of the defendant, when brought into Court, to present it.</p>

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

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

<p>Challenge to Juror.—Held: The challenge to the juror C. was properly allowed by the Court.</p> <p>Id.—Denial—Exception.—(McKee, J.) Where a challenge is taken to a juror, and there is no denial of the facts upon which it is made, and no exception, the decision of the Court is not open to review.</p> <p>Id.—Unqualified Opinion—Implied Bias.—The having formed an unqualified opinion is no longer a cause of challenge for implied bias.</p> <p>Id.—Id.—Actual Bias.—The fact that a juror has formed or expressed such an opinion may be proved as tending to establish the state of mind of the juror, but it is the duty of the trial Court, in such case, to find against the challenge for actual bias, if satisfied that the juror’s opinion is founded upon common rumor, etc.; and that, notwithstanding his opinion, he can and will act impartially upon the matters submitted to him.</p> <p>Id.—Id.—Id.—Appeal.—There is no way in which the findings of the trial Court, upon the issue of the fact of the presence or absence "of actual bias, can be reviewed here.</p> <p>Instructions.-—The Court is not bound to repeat itself at the request of " counsel. After it has already given an instruction, which substantially covers a question involved in the ease, all other instructions on the same subject may well be refused.</p> <p>Id.—Relevancy of Instruction—Material Error.—If an instruction in a case is asked which refers to facts, which there is no evidence to prove, it is not error to refuse to give it; and if given, although in fact erroneous in the abstract, it will not be regarded as an error for which the judgment will be reversed, unless it be manifest that the jury were misled by it, to the prejudice of the defendant. • Presumptively, however, an erroneous proposition of law, referring in no way to the evidence of the case submitted to the jury, has not prejudiced the defendant.</p> <p>Jury—Papers—Diagram—Trial.—There was no error in denying the request made by the attorney of the defendant to let the jury, upon retiring for deliberation, take with them a diagram which had been used in the trial of the cause in the examination of some of the witnesses.</p>

<p>New Trial—Appeal—Circumstantial Evidence.—Held: The evidence was not so clearly insufficient to justify the verdict, as to justify this Court in reversing the order denying a motion for a new trial on that ground.</p> <p>Jury—Challenge To Panel.—It is not error to disallow a challenge to a panel of jurors composed of persons summoned by order of the Court from the bystanders, where the challenge is not based upon any of the grounds specified in the Code.</p> <p>Deputy op District Attorney—Inpormation—Signature.—It is sufficient if the name of the District Attorney be subscribed to the information by his deputy.</p> <p>Swearing op Juror—Presumption in Pavor op Regularity.—It will be presumed that a juror was duly sworn, where it does not appear from the record to the contrary.</p>

<p>IifTEEVEimos-—Jurisdiction—Prohibition.—After the case in the lower Court was called for trial, an application was made by one D. for leave to intervene; and upon leave granted, the complaint in intervention was filed, but not served upon either of the original parties. Thereupon the trial proceeded as to the original issues, resulting in a verdict in favor of the plaintiff against the defendant; and afterwards this application was made to restrain the Court from proceeding further with the intervention.</p> <p>Held-. The Court below acquired jurisdiction by the order permitting intervener to become a party. When the complaint in intervention is filed (by leave of the Court), a trial before its service on the adverse party is premature, but an erroneous procedure in that regard does not affect the question of jurisdiction.</p>

Appeals by defendants from the judgments of the Twentieth District Court in and for the County of Santa Clara, from an order denying a motion for a new trial, from an order amending the findings of the Court, and from an order refusing to correct the findings. Belden, J. Action in ejectment. The plaintiff was born February 26, 1859. As to the defense of the Statute of Limitations relied on by the defendants; the other facts are stated in the opinion of the Court.

Appeal by the defendants, J. D. R. Stewart and James Morgan, from an order granting a new trial in the Fifteenth District Court, in and- for the City and County of San Francisco. Dwinelle, J.

Appeal by defendant from a judgment in the District Court of the Fifteenth Judicial District, of the State of California, in and for the City and County of San Francisco. Dwinelle, J. Also, appeal from an order of the Superior Court of the same city and county, denying a motion for .a new trial. Hunt, J. Action in the nature of indebitatus .assumpsit, to recover for goods, wares, and merchandise, sold and delivered, and materials furnished.

Appeal by defendant from a judgment in the Superior Court of the City and County of San Francisco, and from an order denying a motion for a new trial. Hunt, J. Action upon contract in writing.

<p>Appeal by defendant from orders of the Superior Court of the City and County of San Francisco, vacating and setting aside a judgment, and reinstating case on the calendar for trial. Evans, J.</p> <p>The facts are stated in the opinion of the Court. Subsequent to the decision in department, a petition for hearing in ’ bank was presented and denied.</p>

<p>Idle Recitals in Assessment Roll—Tax—Revenue—Assessment Roll.— Action to recover a personal property tax. The assessment was made to defendant by name.</p> <p>Held: A recital in the assessment book under the head “Description of Property,” that “the property is assessed to parties listed, and to all owners and claimants known or unknown,” was an idle recital, and did not vitiate the assessment.</p> <p>Id.—Cases Distinguished.—This case differs in principle- from the case of Hearst v. Eyglestone, 55 Cal. 365, and the cases therein referred to. Evidence—Finding.—In making the duplicate assessment roll or a certified copy prima fade evidence of a right to recover, the statute makes the roll or the copy some evidence that the ¡person named did own the property specified.</p> <p>Held: Therefore, notwithstanding the testimony of the defendant that he did not have any money at the time of the assessment, the finding of.the Court below on this point against the defendant will be sustained.</p>

Appeal by defendant from a judgment of the Superior Court of the County of Alameda. Crane, J. Action on a promissory note. The facts are stated in the opinion of the Court.

<p>Once in Jeopabdy—Formeb Acquittal—Assault with Deadly Weapon —Battery—Appeal.—Upon the trial of an information for assault with a deadly weapon with intent to commit bodily injury, the defendant was convicted of battery, and upon appeal the judgment was reversed and cause remanded for a new trial. At the second trial the defendant pleaded, in addition to his plea of not guilty, the pleas of former acquittal of the offense charged, and twice in jeopardy for the same offense, and these pleas were found against him by the jury, under the instructions of the Court.</p> <p>Held: Battery includes assault, but assault does not include battery, and the defendant therefore could not be convicted of the latter offense under the information; and such a conviction, especially when set aside on the motion of the defendant himself, constituted no ■ bar to a second trial, upon the same indictment or information.</p>

Appeal by plaintiff from a judgment of the Superior Court of the County of Siskiyou, and from an order denying a motion for new trial. Steele, J. Action to recover specific personal property or its value and damages, for the detention. The facts are stated in the opinion of the Court.

Appeal by plaintiff from an order of the Superior Court of the City and County of Sam Francisco, dismissing a writ of review and affirming a judgment of' the Municipal Court of Appeals. Wilson, J. On the twenty-third day of November, 1878, judgment was recovered in the Justice’s Court of the City and County of San Francisco, by one Lacy against G. Onesti, who, on the twentieth day of December, 1878, appealed to the County Court.

Appeal by defendant from the judgment of the Superior Court of the City and County of Saii Francisco, and from an order denying a motion for a new trial. Hunt, Jr., J. Action for tho conversion of personal property. The trial was before the Court below, April 13, 1880, without a jury.

<p>Mechanic’s Lien—Claim of Lien.—The claim of lien in this case, in stating the terms, time given, and conditions of the contract, used the words ‘ ‘ cash upon demand, in gold coin of the United States.” Held: A substantial compliance with the requirements of the statute.</p> <p>Id.— Id.— Case Distinguished.—Hooper v. Flood, 54 Cal. 221, distinguished.</p>

Appeal Tby the defendant from a judgment of the Twenty-third District Court, in and for the City and County of San Francisco, and from an order of the Superior Court of said city and county, denying a motion for a new trial. Thornton, J., of the District Court; Wilson, J., of the Superior Court. Action for the recovery of .personal property or its value, and of damages for its detention. The facts are stated in the opinion of the Court.

<p>Conversion or Promissory Notes by Pledgee—Pledge—Assignment— Account.—Action for the conversion, by defendant’s testator, of three promissory notes secured by mortgage, which were pledged to the testator by one Hammell, to secure a note of Hammell to the testator for seven thousand dollars and interest. Hammell subsequently transferred to one Hayman his interest in the three notes, to secure Hayman against liability as joint maker on two other notes of Hammell to one Sheffield, and also for contemplated advances, Hayman agreeing to account to Hammell for any balance realized. Hayman sold and assigned to the plaintiff the three notes then still in the possession of testator. The Court below found that the testator converted the notes. The sum claimed is the excess due on the three notes which were pledged, over and above the amount due the testator by the pledgor Hammell.</p> <p>Held: It was intended the interest of Hammell in the notes pledged should pass to Hayman, Hammell relying upon the promise of Hayman that he would properly account, and that this promise maybe enforced when the plaintiff (assignee of Hayman) shall have recovered judgment in the present action.</p>