Volume 62 — California Reports

<p>Change of Conclusions of Law before Entry of Judgment.—The declaration of the general conclusion of law from the facts found is the rendition of the judgment in so far that when entered the judgment entered may relate to such rendition for certain purposes; but this does not make the conclusions of law first announced final and beyond the reach of the Court so as to preclude the Court from changing the conclusions of law at any time before the judgment is entered.</p> <p>Judgment, When Einal.—A judgment is not final until it is recorded. Beal Estate Broker—Commissions—Estoppel.—A real estate broker is not estopped from claiming his commissions because the memorandum of agreement between himself and the defendant describes the defendant as owner of the property to be sold.</p>

<p>Appeal by plaintiffs from the judgment in the Twelfth District Court, City and County of San Francisco, in favor of the defendant Charles Hubert, and from the order denying plaintiff’s motion for a new trial. Appeal by defendant David Hunter from the judgment in said Court against him in favor of the plaintiffs, and from the judgment in favor of the defendants Charles Hubert and Thomas H. Reynolds, and also , from the order denying a motion for a new trial. DainGEEFIELD, J.</p> <p>This is an action brought by plaintiffs to have determined the respective interests of the plaintiffs and the defendant David Hunter in a warrant, No. 114, drawn by the Board of Dupont Street Commissioners in the City and County of San Francisco upon the City and County Treasurer to pay the damages assessed under the Act of March 23, 1876, (Stats. 1875-6 p. 438), and deposited with the defendants Thomas H. Reynolds, as Clerk of the City and County, under the provisions of Section 15 of the Act.</p> <p>The Court below gave judgment in favor of the plaintiffs against the defendant David Hunter for the sum of one thousand six hundred and fifty dollars as damages; and judgment in favor of the defendants Charles Hubert and Thomas H. Reynolds as against both plaintiffs and the defendant Hunter.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Eoboible Entry—Possession.'—Plaintiff was in possession, through his servant and employee, of the premises in question, when the defendants, after entering peaceably thereon, forcibly ejected the servant therefrom.</p> <p>Held: It was not necessary that plaintiff should be there in person; the employee’s possession was that of the employer; it does not require the actual personal presence of the employer to constitute possession in him.</p>

Appeal by defendant from the judgment of the District Court of the Eighth Judicial District, in and for the County of Del Norte. Haynes, J. Action to foreclose a mortgage. The facts' are stated in the opinion of the Court. After the decision in bank, a petition for rehearing was presented and denied.

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

Appeal by Isaac S. Van Winkle, an opposing creditor, from an order dismissing bis opposition to the discharge of the plaintiff, and also from the order of final discharge of the insolvent. ' Halsey, J. Proceeding in insolvency. The judgment against the insolvent referred to in the opinion was recovered after the commencement of the insolvency proceedings. The other facts are stated in the opinion of the Court.

Appeal by the plaintiff from the judgment of 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. Action on contract. The facts are stated in the opinion of the Court. After decision by Department No. 1, a petition for hearing in bank was filed and denied.

<p>Dismissal op Appeal—Appidavit—Verbal Stipulation.</p> <p>Appeal from Superior Court of Butte County. Motion to dismiss appeal on ground of failure to file transcript. Affidavits were filed by the appellant tending to show a verbal stipulation, extending the time within which the transcript might be filed. Counter-affidavits were filed by the respondents.</p>

<p>Mandamus—Certiorari—Prohibition—Prerogative—Writ—Res Adjudicata.—When, upon issue of law or fact joined, a Superior Court has adjudicated the merits of an application for mandamus or other prerogative writ, such adjudication is as conclusive (except on appeal) upon this Court as it is "upon another Superior Court.</p> <p>Id.— Id.— Id. — Id.— Id.— Appeal.— In issuing such writs the Supreme Court and the several Superior Courts are peers—each having original jurisdiction; whether the judgment of each is final, it is not necessary in this case to decide.</p> <p>Semble: An appeal will lie in such cases from the judgment of the Superior Court.</p>

<p>Appeal by the defendant from the judgment of the Twenty-third District Court of 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 District Court; Wilson, J., of Superior Court.</p> <p>Action upon contract to recover judgment against the City and County of San Francisco for street improvements made on a portion of one of its accepted streets.</p> <p>Section 22 of Chapter iv. of Order 697, referred to in the opinion, is as follows: “No street or portion of a street shall be accepted by the Board of Supervisors except upon the report of the Superintendent of Public Streets and Highways and the committee of the Board of Supervisors on streets, wharves, grades, and squares, showing that such street or portion of a street is sewered with brick and paved and curbed with stone; and no street-crossing shall be accepted except on like report showing that such crossing is so sewered, curbed, and paved with stone, and sidewalks and angular corners thereof, and suitable crosswalks, manhole and cover, cesspools, and culverts constructed. The acceptance of a street, part or portion of a street, or street-crossing, shall be by resolution.”</p> <p>After the work was performed the Board of Supervisors duly accepted it. The other facts are stated in the opinion.</p>

<p>Appeal Tby Donnelly, Dunne & Co., opposing creditors, from the judgment of the Superior Court of the City and County of San Francisco granting a discharge. Halsey, J.</p> <p>Proceeding in insolvency. On the seventeenth of March, 1880, the respondent Strueven filed his petition in the Superior Court asking a discharge from his debts. On the fifth of May, 1880, A. J. Donnelly and others, creditors appealing, filed their opposition in writing, alleging divers frauds, committed by petitioner, for which they claimed he should be denied his discharge. This opposition was verified. On May 14, 1880, the petitioner filed an answer to the opposition consisting of a general denial not verified, which appellants moved to strike out, and afterwards, on the twenty-second of July, the petitioner elected to file an amended answer to the opposition. This answer was not under oath.</p> <p>On the twenty-sixth of July, 1880, the opposing creditors gave notice of motion to strike out this last answer, because it was not verified, and to dismiss the petition for want of answer, and on the sixteenth of August, 1880, the Court denied the motion to strike out the amended answer, to which the opposing creditors took their bill of exceptions, which sets forth the foregoing facts. On the twentieth of August, 1880, the Court entered an order discharging the petitioner from his debts, and from this order an appeal is taken.</p>

<p>Settlement of Statement on Motion fob New Tbial.—Mandamus to a Superior Judge to compel Mm to settle plaintiffs statement on motion for new trial. The statement did not set forth any of the evidence, but simply referred to the reporter’s notes and directed that they should be inserted in full.</p> <p>Hdd: Such a statement is not a proper one, and the Court may disregard it.</p>

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

<p>Appeal from a judgment in favor of the defendants 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.</p> <p>Action for a statement of partnership accounts. The facts are stated in the opinion of the Court.</p>

Halsey, J. The decree discharging the administrator was dated December 24, 1877. The petition of Valentine was filed February 11, 1881, and prayed that a citation should issue to the administrator to show cause why the proceedings in the matter of his estate should not be set aside and annulled.

Appeal by plaintiff from an order of the Superior Court of the County of Kern, granting a new trial. Brundage, J. Action to recover the possession of a quantity of wheat in sacks, or the value thereof and damages and costs. The facts are stated in the opinion.

Howard, J. The lease from Mary L. Gould referred to in the opinion was offered “for the purpose of showing the good faith of the entry of ” the defendant.

Appeal by plaintiff from the judgment of the Superior Court of the City and County of San Francisco. Allen, J. Application for writ of review. The facts are stated in the opinion of the Court. • After the decision, a petition for rehearing was presented by the plaintiff.

Appeal by the plaintiff from the judgment of the Superior Court of the City and County of San Francisco. Allen, J. Application for a writ of review. The facts in this case are in all material respects similar to the case of Spring Valley Water Works v. Schottler et al., ante, 69. The proceedings before the Board of Equalization, in both cases, were heard together. After the decision a petition for a rehearing was presented and denied.

. 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. Ferral, J.

<p>Appeal from a judgment for the defendant in the Superior ■ Court of the County of San Diego, McNeally, J., and from an order denying a new trial in the same Court. Sepulveda, J.</p>

Appeal by the defendant, the Santa Rosa Bank, from the judgment of the Superior Court of the County of Sonoma. Temple, J. Action to foreclose a mortgage, made by one of the defendants, C. F. Jouilliard. Defendants Jouilliard and wife filed a cross-complaint claiming a homestead in the premises, and alleged they had filed a declaration in which they estimated the homestead premises to be of the value of eight thousand dollars.

<p>Embezzlement—Larceny—Definition—Bailment.—The defendant was charged and convicted of embezzlement of a horse, hired to him by another. Upon appeal it was claimed that the conviction was erroneous, because the offense committed, if any, was larceny, not embezzlement.</p> <p>Held: When the act of taking co-exists with a felonious intent to deprive the owner of his property, the offense is complete. Hence, if at the time of receiving the horse from its owner the defendant had the fraudulent intent to take it and convert it to his own use and to deprive the owner of it, and did in fact obtain the possession for that purpose, he would have been guilty of larceny, because a fraudulent receipt of the property of another amounts, in law, to a taking without bis consent; but in this case there was no charge against the defendant, and no proof that the original taking was felonious; and the offense, therefore, constituted embezzlement, and not larceny.</p> <p>Id.—Id.—Misdemeanor—Felony—.Value of Property.—Under Section 514, Penal Code, the embezzlement of a horse or other of the animals specified in Section 487, Subdivision 3, of that Code, is felony, without regard to the value of the property.</p> <p>Id.—Id.—Venue—Irrelevant Instruction. —The defendant asked the Court to instruct the jury, that if the defendant, at the time of receiving the horse from its owner in the County of San Benito, intended to feloniously steal, convert, or appropriate it, they should acquit; and also the following instruction: “If you believe, from the evidence, that the horse was given into the hands of the defendant by the complaining witness in the County of San Benito, and that it was afterwards taken by defendant into the counties of Merced, Fresno, or any other county than the County of San Benito, and by him in such county lost or converted to his own use, you can not convict;” and the Court refused to grant the first instruction, and qualified the second instruction by adding: “Unless you also find that defendant, at the time of receiving the horse, intended to feloniously appropriate it to his own use.”</p> <p>Held: The first of these instructions was properly refused, because there was no evidence tending to show an appropriation by the defendant at the time of receiving the horse.</p> <p>The second instruction as originally presented was not correct, because the fact that the horse might have been taken by defendant and feloniously converted to his own use in any one of the counties specified in the instruction, within five hundred yards of the county of San Benito, was ignored.</p> <p>In modifying it, the Court, by its words of qualification, must have referred either to the appropriation of the horse within the five hundred yards belt between the County of San. Benito and any of the outside counties, or to the original taking in the County of San Benito. If to the former, the instruction as qualified was not erroneous. If to the latter, it was, like the preceding instruction which the Court refused to give, inapplicable to the evidence in the case; and for that reason, even if erroneous, not calculated to mislead the jury.</p> <p>Id. — Id. —• Id. — Deposition before Committing Magistrate — Objection.—The District Attorney having offered to prove statements of the defendant when testifying as a witness in his own behalf, at his preliminary examination before the examining magistrate, the defendant objected on the ground that the deposition had been reduced to writing and that it was the best evidence; and thereupon the deposition was produced and read in evidence without objection.</p> <p>Held : An objection to the admission of evidence can not be made in this Court for the first time. It is a general principle running through all the cases, that a party must object at the time the act is done or ruling made by the Court. If he does not, he will not be heard afterwards to complain.</p> <p>Id.—Impeachment of Witness—Immaterial Error.—A question was asked the defendant, for the purpose of impeachment, as to a declaration previously made by him; hut neither time, nor place, nor person present was indicated by the question.</p> <p>Held: The objection to the question was properly sustained, and, even if the ruling was erroneous, it was error without injury, because the witness did subsequently answer a like question without objection.</p>

Appear by defendant Specht 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. Hunt, J. Action on promissory note.

Appeal by the-plaintiff from the judgment-of the Superior Court of the City and County of San Francisco. Latimer, J. Action of foreclosure of mechanic’s lien.

Appeal by the plaintiff from a judgment in the Superior Court of the City and County of San Francisco. Hunt, J. Action to declare and enforce a trust as against the defendants James Kelly and Mary Kelly, his wife.

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

Breen, J. Action against the defendant as warehouseman for negligence. On the thirty-first day of October, 1875, the plaintiff owned and stored with the defendant, in its warehouse at Hollister, in the County of San Benito, sixty-four bales of wool, weighing in the aggregate twenty-two thousand two hundred and seventy-five pounds.

Appeal by the defendant, D. G. Dunn, from a judgment in the Superior Court of the County of Placer. Myers, J. Action against the defendant, D. G. Dunn, for a divorce on the ground of habitual intemperance. The answer of the defendant denied all of the allegations of the complaint relating to intemperance. The case in the Court below was tried before a jury, and upon the question of intemperance two special .issues were submitted by the Court to the jury— •that is to say: 1.

<p>Appeal from a judgment for the defendant, on demurrer, in the Twentieth District Court, County of Santa Cruz. Belden, J.</p> <p>The action was brought to recover damages alleged to have been suffered by reason of the delay of the Board of Supervisors of the County of Santa Cruz in issuing to the plaintiff certain bonds, to which the plaintiff was entitled under the contracts and laws referred to in the case of Santa Cruz Railroad Company v. The Board of Supervisors of the Coumty of Santa Cruz, 8 P. C. L. J. 809.</p>

<p>Dismissal or Appeal—Damages.—On dismissal of appeal for failure to file transcript, damages can not be imposed.</p>

Appeal by the defendant from a judgment in bis favor, and from an order denying a new trial, in the Seventh District Court of the County of Napa. Wallace, J.

<p>Estates oe Deceased Persons—Contest oe Claim—Settlement oe Final Account—Application to Supreme Court to Prove Bill oe Exceptions.—An allowed claim may be contested at the settlement of the final account of the administrator, if such claim has not already been passed upon, and a party contesting such claim is entitled to an exception to any adverse ruling of the Court, and in case of the refusal of the Court to allow the exception, may apply to the Supreme Court under § 652, C. C. N-, to prove the same.</p>

<p>Bill of Particulars—Account—Evidence—Practice.—After the plaintiff had on the demand of the defendants served a bill of particulars, and under an order of the Court had furnished the defendants a further account in writing of the items of the plaintiff’s claim, the defendants, without asking an order for a still further account, moved the Court for an order that the plaintiff be precluded from giving any evidence in support of his complaint, which motion was denied.</p> <p>Held: An order precluding a party from giving evidence in support of his claim is proper only where such party .has failed or refused to deliver to the adverse party on demand a copy of his account; and that the motion in this case was properly denied.</p>

<p>Finding—Substantial Conflict in Evidence.—Action commenced by George W. Gridley in his life-time, prosecuted by plaintiff, appellant, as the administratrix of his estate, to obtain a decree setting aside a deed made by him September 4,1879, to certain of the defendants (John Boggs, E. D. Pond, and C. W. Clarke), and also an accompanying contract executed by them declaring trusts in favor of named creditors of said George W. Gridley and one D. M. Reavis. The fraud charged upon the defendants especially named is, that taking advantage of the weak, feeble, and diseased condition of the mind of George W. Gridley, and of his consequent incapacity to protect his own interests, they induced him, by false representations, to execute the deed, and enter into the contract sought to be annulled. Tl)e representations were made concerning matters in respect to which Gridley was fully informed, and must have acted responsibly, provided he was a person of sound mind, on which question the Court below found in favor of the defendants on evidence in which there was a substantial conflict.</p> <p>Cross-examination of Witness.—An expert witness, called on behalf of the plaintiff, had testified that he had made a post mortem, examination of the body of George W. Gridley, and as to the condition of the brain, pelvic viscera, and particularly the kidneys and bladder, and the prostate gland and the urethra; that he had found nitrate of urea in crystals in washing the membranes of the brain, and crystals of urea in the arachnoid sac, etc.; that the kidneys were apparently in the normal state, except that they were engorged with blood; that the membranes of the brain, the pia mater, the arachnoid and dura mater were “thickened, discolored, adherent, and matted together;” that the prostate gland was enlarged, thickened, and indurated, and its walls pressed together. In his opinion, the deceased must have been of unsound mind for five or six years prior to his death, by reason of the facts that the condition of the prostate gland had obstructed the elimination of urea, causing it to enter in the circulation, and poisoning the branial membranes, and that the patient died of uraemic convulsions, thus produced; that the thickened condition of the brain coverings established insanity, and that the thickening produced by the chronic ursematic poisoning must have been gradual, continuing several years. One B., called as an expert witness by the defendant, after stating that he had been a practicing physician and surgeon since 1864, that he was a graduate of certain medical schools, and that he had been superintendent for about two years of an insane asylum in Lancashire, England, proceeded to testify, in effect, that he had never known crystals of urea to be found in the brain or any of its surroundings; that nitrate of urea is perfectly soluble in water; that uric and urea are specifically different. He added, that taking the condition of the coverings of the brain and the brain itself, and of the kidneys, the bladder, the prostate gland, and the urethra, as described by M. (and Dr. 0., who assisted at the post-mortem), he could not understand how any such condition of his brain or its membranes could be attributed to uraemic poisoning, without disease of the kidneys antedating it, and declared that disease or unsoundness of mind could not be predicated on the condition of the coverings of the brain as described by Messrs. M. and C. On cross-examination of B., the plaintiff wished to put to him a hypothetical question, in all respects similar to such questions propounded to plaintiff’s witnesses on direct examination.</p> <p>Held: Since the testimony of B. on direct examination was confined to a contradiction of the theory of M. as to the mental unsoundness of Gridley produced by slow uremic poisoning, the question was not proper cross-examination, as the answer of the witness thereto, if it sustained the plaintiff’s views, would have constituted part of the plaintiff’s case, which should have been made out before she rested. Nor was the question proper as testing the capacity of B.; for if the answer of B. had been the same as that given by the plaintiffs experts it would have strengthened the plaintiff’s affirmative case, if different it would have tended no more to prove the incompetency of B. than it would have done to prove the incompetency of the plaintiff’s experts.</p> <p>Evidence—Judgment Refusing Probate of Will—How Far Conclusive.—The plaintiff in the Court below offered to introduce in evidence a document filed in the Superior Court on the fourteenth day of March, 1881, purporting to be the last will and testament of George W. Gridley, deceased, together with the objections to the probate of the same by Charles W. Gridley and Flora D. Harris, and the Court’s findings of fact and conclusions of law thereon, and the decree of said Court thereon rejecting said will “ and deciding that said George W. Gridley was unsound in mind, and incompetent by reason thereof to make a will at the date of the execution thereof, to wit, March 26, 1879.” Upon the objection of the defendants the documents offered were excluded.</p> <p>Held: The ruling was proper. The judgment of the Superior Court determined that a certain instrument, purporting to be the last will and testament of Geooge W. Gridley, was not his last will and testament. The proceeding was not a special inquiry to determine his status as to sanity or insanity. The finding of insanity was of a probative fact upon which the Court held the will to be invalid, as it might have held it to be invalid upon proof of duress or undue influence.</p>

<p>Assault to Commit Murder,—Meretricious Union—Instruction.—The defendant was charged with an assault upon Chung Tan, with intent to commit murder. On the trial the Court instructed the jury that if they found that the defendant and one Toy Ping were living together as man and wife, in meretricious union, that such union, as a matter of law, would not be sufficient to give the defendant the right or power to control or restrain the acts and liberty or power of locomotion of said Toy Ping; that in such union either the man or woman has perfect right to go and come as he or she pleases, unrestrained by the other; and it was claimed on appeal, that there was no evidence that the defendant and said Toy Ping were living together in meretricious union, and therefore that it was error for the Court to state what their relative rights would be in such a case.</p> <p>Held: That the instruction was as to an irrelevant and immaterial fact and could have had no tendency to prejudice the defendant.</p> <p>Id.—Definition—Instructions.—The Court charged the jury that the Supreme Court of this State had said that assault to commit murder is the attempt to kill a person, coupled with the present ability to do so, but, in another instruction, given at the request of the defendant, gave a correct and full definition of the crime.</p> <p>Held: The first instruction was erroneous, in not containing a full definition of the crime, but that it was supplemented by the latter and the ■'error cured.</p> <p>Id.—Id.—Question oe Law.—The Court instructed the jury that a conflict of testimony on immaterial questions should not be considered by them, without telling the jury what questions were immaterial; and it was objected on appeal that the instruction left to the jury the question as to what was or was not an immaterial issue or question; it was a question of law for the Court and not for the jury to determine.</p> <p>Held: Conceding the question was one of law the Court is not prepared to say that it was submitted by the instruction to the jury.</p> <p>Id.—Id.—The Court, upon the request of the defendant, instructed the jury: “Before you can find the defendant guilty of the charge laid in the information, you must be convinced beyond a reasonable doubt by the evidence produced on the part of the prosecution, that the defendant in this case, with premeditation and malice aforethought, made the assault upon Chung Tan with the intention then and there to murder him;” and then added the following: “Two elements for your consideration on this point are the character of the weapon and the nature of the wound.” Held: There was no error in the additional clause.</p> <p>Id.—Id.—Justification.—The Court refused to instruct the jury at the request of the defendant as follows: “ If you believe from all the evidence that the circumstances were such as to excite the fears of a reasonable man, and the defendant in this action acted under such fears when he made the assault upon Chung Tan, even though the defendant was mistaken in the circumstances and they turned out to be false, you will acquit him.”</p> <p>Held: In order to justify homicide under the circumstances stated, the circumstances must not only be sufficient to excite the fears of a reasonable person, but the party killing must have acted under the impulse of such fears alone.</p> <p>Id.—Id.—Flight.—The Court instructed the jury: “If you believe from the testimony that defendant had sufficient cause, from the conduct of Chung Tan, to believe that he, the defendant, was in imminent danger of his life or of great bodily harm from Chung Tan, then the defendant had a right to use all lawful means to secure his own safety; bul if the testimony shows that the defendant could have more readily avoided danger to himself by flight than in any other way, then an assault by him is not justifiable.</p> <p>Held: The exception of the defendant to the portion of the instruction italicized is well taken.</p> <p>Id.—Id.—Id.—Felonious Assault.—Where an attack is made with murderous intent, the person attacked is under no obligation to flee. He may stand his ground, and, if necessary, kill his adversary. It is otherwise in cases of mere assault and in cases of mutual quarrel, where the attacking parly has not the purpose of murder in his heart.</p>

Appeal by the plaintiff from a judgment in favor of the defendants in the Superior Court of the County of Yolo, and from an order denying plaintiff’s motion for a new trial, and also from an order made after judgment.

Appeal by defendant from the judgment of the District Court of the Twentieth Judicial District in and for the County of Santa Cruz, and from an order denying a motion for a new trial. Belden, J. Application for a writ of mandate. The Court below found the following facts: 1.

Appeal by defendant from the judgment of the District Court of the Seventh Judicial District in and for the County of Solano, and from an order denying a motion for a new trial. Wallace, J. Action of ejectment. The evidence as to the house claimed to have been reserved in the deed, and from one Brown to the plaintiff, was as follows: Testimony of C. K. Marshall: “Question. You know the end of the house that extends over into the swamp land? “Answer.

Appeal by defendant, J. Sweeney, from order of the Superior Court of the City and County of San Francisco, granting a new trial. Wilson, J. Action on promissory note. The facts are stated in the opinion of the Court. After the decision in department, a petition for hearing in bank was denied.

<p>Appeal by-plaintiff from the judgment of the Superior Court of the County of Sacramento. Denson, J.</p> <p>Action on promissory note. The note was given for the sum of five hundred dollars, with interest at one and one fourth per cent, per month, from February 24, 1876, until paid. The complaint admitted the payment of the interest to May 24, 1876, and also a payment of two hundred and five dollars and fifty cents, on September 10, 1878. The prayer of the complaint was for judgment for the sum of four hundred and sixty-six dollars and thirty-seven cents, and interest thereon, from September 10,1878, according to the terms of the note, and for costs. The amount claimed at the time to be due and for which the plaintiff moved the Court to give judgment was the sum of seven hundred and ten dollars. After the denial of his motion plaintiff filed a bill of exceptions and took this appeal. The other facts are stated in the opinion of the Court.</p>

Appeal by contestants from an order of the Superior Court, of the City and County of San Francisco, setting apart a homestead to the insolvent debtor. Halsey, J. Proceeding in insolvency.

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

<p>Commitment—Setting Aside Information—People v. Smith, 59 Cal. 365, affirmed on these points.</p> <p>Burglary—Misconduct of Jury.-—The bare fact of a juror having visited during the trial, the premises where it was alleged that the defendant had committed the crime of burglary, is not sufficient ground for discharging the jury.</p> <p>Burglary—Instruments of Crime—Evidence.—The defendant was charged with burglary for entering the house, room, shop, warehouse, store, and building of S., with intent then and there to commit larceny, and was convicted of attempting to commit the crime. It appeared that S. owned the building, and that he occupied the first floor as a banking office and rented the second and third floors to tenants; that in consequence of the discovery of supposed indications of a design on the part of some person or persons to force an opening into the vault of the bank located in said building, certain police officers had been stationed where they could readily detect any one entering the building on the night of the arrest of the defendant, and that the. defendant entered the building and was arrested on the second floor in a closet; and from an inspection of the premises, it appeared that in a closet over the bank vault a trapdoor about two feet wide and two and a half feet long had been sawed out of the floor and then fastened down with screws, so that it might be opened without making much, if any, noise; and under the trap-door and on top of the vault there was found a large quantity of burglar’s tools and a hole in the vault of the depth of two feet; and other tools, of a similar character, were found in the defendant’s trunk in a room occupied by him in San Francisco.</p> <p>Held: The tools found in the excavation over the vault and also those found in the appellant’s trunk were admissible in evidence.</p> <p>Id.—Id.—Id.—The Court, over the objection of the defendant, permitted a witness to exhibit in the presence of the jury a cylindrical steel bar about half an inch in diameter and about eight inches long, which he (the witness) said he had made for the purpose of screwing upon it the said coupling or sockets, one of which was found in the hole over the bank vault and the other in the trunk of the defendant; but the bar referred to, had not previously been offered in evidence, and the counsel for the prosecution stated that they did not intend to offer it.</p> <p>Held: The object of screwing “said coupling or sockets” upon the bar is not stated, nor to us apparent; still, in support of the correctness of the ruling of the Court below, we are bound to presume, unless the contrary appears, that the object was a legitimate one.</p> <p>Id.—Evidence.—A witness was permitted to testify over the objection of the defendant, that a short time prior to the date of the alleged offense the defendant called himself by an alias name. Held: The objection to the testimony was properly overruled.</p> <p>Id.—Instructions.—It is not error for the Court to refuse an instruction which, in effect, it has already given or afterwards gives.</p> <p>Id,—Id.—Attempt.—The Court instructed the jury: “If the jury find from the evidence beyond a reasonable doubt, that the defendant did at the time charged in the information intend and attempt to enter the house, room, apartment, building, etc., described in the information, of said 0. S., then in his occupancy, with the intent to commit larceny therein, and did some act to carry out said attempt, but was anticipated in his said attempt, and before the alleged entry was completed or consummated, and before said larcenous attempt was carried out, and was interrupted, prevented, and anticipated in said attempt, while in or about the act of carrying it out, by outside agencies, and against his will and consent, and if you find that he had not alone made preparations for said attempt, but was directly, at the time of said prevention, engaged in making movements towards consummating such an attempt, then, and in such case only, you can find the defendant guilty of an attempt to commit burglary in the first degree, if the attempt was made between sunset and sunrise ; of burglary in the second degree if it were made between the hours of sunrise and sunset. * * * * * If you find that he had not alone made preparations for said attempt, but was directly, at the time of said prevention, engaged in making movements toward consummating such an attempt, then, and in such case only, you can find the defendant guilty of an attempt to commit burglary.”</p> <p>Held: It is difficult to uphold such an instruction as this, and if the evidence in regard to the acts of the defendant was of a character to render it doubtful whether he was making preparations for an attempt to commit burglary, the difficulty would be greatly enhanced, if not quite insurmountable. As it is, the jury could not have been misled by the instruction to the prejudice of the defendant.</p> <p>Id.—Id.—The Court instructed the jury: “If you believe from the evidence, beyond a reasonable doubt, that the stairs, hall-way, privy-room and water-closet, and closet under the stairs, spoken of in the evidence, were at the time of the alleged entry in the occupancy of S. named in the information, and that the defendant entered in and upon such occupancy, as charged in the information, with intent to commit larceny in any part of the house or building of saidS., then in his occupancy, then it is your duty to find the defendant guilty.” And on appeal it was urged, that the exception to this instruction should have been sustained on the ground that there was no internal communication between the part of the building entered and that in which it was alleged that the defendant intended to commit larceny.”</p> <p>Held: In order to justify the verdict, it is not necessary that the evidence should show that the defendant effected an entrance into any part of the building; proof of an attempt is sufficient; but, were it otherwise, there would be no difficulty in holding that an entrance effected through a trap-door leading from the second floor of the building to the vault located in the banking-office of S. would constitute an entry into the occupation of S.</p> <p>Id.—Id.—Assumption op Fact.—The instruction does not assume that S. was in the occupancy of any part of the building.</p> <p>Id.—Id.—Possession of Burglars’ Tools.—There was not error in the Court’s refusing to give the instruction which it was asked to give in regard to the weight which the jury might attach to the circumstance of burglars’ tools having been foimd in the defendant’s possession at or about the time of the alleged commission of the crime with which he was charged. The instruction refused did not accord to the circumstance, when considered in connection with the other circumstances of the case, all the weight to which it was entitled.</p>

Appeal by plaintiff from an. order of the Superior Court of the City and County of San Francisco granting a new trial. Hunt, J. Action on contract. The complaint in this action, filed June 2, 1881, contains two counts.

<p>Homicide—Justification—'Threats.—On the trial of the defendant for murder, the Court instructed the jury: 1 ‘Past threats or conduct of the deceased, bow violent soever, will not excuse a homicide without sufficient present demonstration to authorize the belief that the deadly purpose then exists and the fear that it will then be executed. ” “ The danger</p> <p>must be present, apparent, and imminent, and the killing must be done under a well-founded belief that it was absolutely necessary for the defendant to kill the deceased at that time to save himself from great bodily harm.” Held: The instructions were correct.</p> <p>Id.—Id.—Case Distinguished.—The People v. Mahave, 58 Cal. 249, distinguished.</p> <p>Id.—Id.—Case Criticised.—The Court instructed the jury: “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 the defendant was wholly without fault imputable to him by law in bringing about or commencing the difficulty in which the mortal wound was given.”</p> <p>Held: The instruction is taken literally from the decision of the late Supreme Court in People v. Lamb, 17 Cal. 323, which has since been followed and approved by this Court in People v. Travis, 56 id. 254. It is true that in People v. Simons, 60 Cal. 72, the doctrine enunciated in those cases seems to have been questioned, but it was not questioned by a majority of the Judges who concurred in that decision, and the case is not entitled to be considered as an authoritative overruling of the former cases. It is not to be doubted that a person accused of crime may show in justification that although he brought upon himself an imminent danger, he, in the presence of that necessity, changed his mind and conduct and honestly endeavored to escape from it, but could not without striking the mortal blow. But that is not the present case. (Sharpstein, J., dissenting.)</p> <p>■ Id.—Id.—Hypothetical Instruction.—The Court, in effect, instructed the jury that if they were satisfied beyond a reasonable doubt, from all the facts and circumstances in the case, of the existence of the facts which he stated to them and which the evidence tended to prove, then the defendant would be guilty of murder or manslaughter, as they might determine.</p> <p>Held: It is allowable for a Court to give a hypothetical instruction to the jury, provided the province of the jury be not invaded. Ho invasion took place in this instance. The jury were left entirely free in the exercise of their functions to find the facts stated to them, and were cautioned that the facts must be found by them from the evidencCTftyond a reasonable doubt.</p> <p>Id.—Beserved Buling as to the Admissibility of Evidence.—Where the ruling upon an objection to a question is reserved by the Court, and the defendant does not afterwards ask for or make any effort to obtain a ruling upon the objection, or move to strike out the answer to the question, the ruling upon which has been reserved, the legal presumption is that a ruling has been waived.</p> <p>Id.—Medical Expert—Evidence.—An objection was sustained to the following question, asked of a medical witness who had made a post-mortem examination of the body of the deceased: “State, from the examination you gave the wound, the course of the ball and the condition of the deceased, whether, if he were moving in a north-westerly direction, or standing facing a north-west direction, he could have received that wound from the pistol-shot fired by a person standing north of him and facing south.”</p> <p>Held: Whether the wound of which the witness died could have been inflieted by a pistol-shot fired by the defendant from a certain direction, was a fact to be found by the jury from the evidence of the circumstances under which the homicide was committed, or by inference, from the relative position of the parties at the time the shot was fired. It was not such a matter of science or skill as required the opinion of an expert.</p> <p>Id.—Declaration of Deceased after the Killing—Bes Gestae.—Declarations of a person who has been shot, made a half an hour after the shooting, as to what he intends to do to the man who shot him, are not part of the res gestee of the shooting.</p> <p>Id.—Exclusion of Evidence—Uncontradictbd Testimony—Immaterial Error.—The exclusion of the testimony of one witness as to a fact which has been proved by the uncontradicted testimony of another witness, is not a prejudicial error; for the direct evidence of one witness who is entitled to full credit, is sufficient for proof of any fact except perjury and treason.</p>

<p>Appeal by the defendants, Joseph H. Cole and George M. Cole, from an order of the Superior Court of the City and County of San Francisco, denying their motion for a change of the place of trial. Edmonds, J.</p> <p>Action on a bond. The action was commenced September 29, 1877, in the Fifteenth District Court. The complaint is as follows:</p> <p>The Remington Sewing Machine Company, hereinafter styled plaintiff, complains of Joseph H. Cole, George N. Cole, O. H. Jewell, and A. Showers, defendants herein, and for cause of action alleges:</p> <p>1. That plaintiff is, and at all the times hereinafter mentioned was, a corporation organized under the laws of the State of Mew York, and is and was engaged in the manufacture and sale of the Remington sewing machines, so called.</p> <p>2. That on or about the first day of January, A. D. 1875, the defendants, A. Showers, 0. H. Jewell, and George M. Cole, entered into and formed a copartnership under the style of Showers, Jewell & Cole, for the purpose of buying and selling the aforesaid Remington sewing machines in-the State of California and elsewhere.</p> <p>3. That after the formation of such copartnership the plaintiff entered into an agreement with the said Showers, Jewell & Cole, as partners as aforesaid, whereby the plaintiff agreed among other things to sell to said firm only in the States of California and Oregon its said Remington sewing machines, at certain agreed rates, and upon certain conditions, and the said firm of Showers, Jewell & Cole did agree with the plaintiff among other things to maintain and keep open a store in San Francisco, California, for the sale of said machines, and to pay the plaintiff certain agreed rates for all such machines sold and delivered to them by the plaintiff.</p> <p>4. That as a condition precedent to the aforesaid agreement between plaintiff and the said firm of Showers, Jewell & Cole, the plaintiff did require and exact from each and every member of said firm a bond in the sum of ten thousand dollars, with good and sufficient surety, and conditioned that if said Showers, Jewell & Cole should from time to time, and at all times, as the same should become due and payable, pay and satisfy all dues, demands, or any balances, which, under their aforesaid agreement, might become due to the plaintiff, or in default thereof, that said member would pay to the plaintiff his one third part or proportion of any such indebtedness, then the obligation to be void, otherwise in full force and effect.</p> <p>5. That pursuant to such condition the said defendant, George N. Cole, as one of the-said firm of Showers, Jewell & Cole, did, on the tenth day of February, A. D. 1875, make, execute, and deliver to plaintiff his certain bond in the sum of ten thousand dollars, with the defendant, Joseph H. Cole, as surety thereon, and of which the following is a copy, to wit: “Know all men by these presents, that I, George N. Cole, of Stockton, in California, as principal, and Joseph H. Cole, of O’Neal Township, California, as surety, are firmly bound and obliged unto E. Remington & Sons, of Illion, New York, a firm duly established and doing business under said name, in the full and just sum of ten thousand dollars, the which sum, well and truly to be paid to them, said E. Remington & Sons, or the survivor or survivors of them or their assigns, or representatives of them, we jointly and severally bind and oblige ourselves, and our several heirs, representatives, and assigns, firmly by these presents. Sealed with our seals, and dated this tenth day of February, A. D. 1875. The condition of this obligation is such that, whereas, on the first day of January, 1875, the said George N. Cole became an equal copartner with A. Showers and O. H. Jewell in the business of selling and dealing in the sale and disposition of the Remington sewing machines, a machine, the patent of which is owned by E. Remington & Sons, and transacting .said business under the firm name of Showers, Jewell & Cole, which said firm have entered into-an arrangement or agreement to and with said E. Remington & Sons for the supplying of said sewing machines to said firm, for the purpose of sale and the carrying on of their said business. Now, therefore, if the said Showers, Jewell & Cole shall from time to time, and at all times, as the same shall become due and payable, pay and satisfy all dues, demands, or any balances, which, under their said arrangement, agreement, or understanding, as to the terms of dealing, may be or become due, owing, and payable to said E. Remington & Sons for supplies and machines as aforesaid, or in default thereof, the said George N. Cole shall well and truly pay or cause to be paid or settled to the satisfaction of said E. Remington & Sons his one third part or proportion of any such due, indebtedness, or balance, then this obligation shall be void and of no effect, otherwise be and remain in full force and virtue. Sealed with our seals, and delivered in presence of William Graham. George N. Cole, J. H. Cole.”</p> <p>6. That, by mistake and inadvertence, the name of E. Remington & Sons was inserted in said bond instead of that of the Remington Sewing Machine Company, though the said bond was given, and intended to be given, by said defendants, George N. Cole and J. H. Cole, to said Remington Sewing Machine Company, the plaintiff herein, and was by them to this plaintiff delivered, and the plaintiff accepted the same without noticing said mistake; and the said defendants, George N. Cole and Joseph H. Cole, thereby covenanted with the plaintiff, under their hands and seals, to pay to the plaintiff the sum of ten thousand dollars upon the conditions therein mentioned; that in order to make said bond conform to the actual intentions of the parties thereto, it is necessary that the name of “ E. Remington & Sons,” wherever occurring therein, should be changed to the words “The Remington Sewing Machine Company;” and also the words “of Ilion, New York, a firm duly established and doing business under said name,” after the words “ E. Remington & Sons,” first occurring in said bond, be changed to “of Ilion, New York, a corporation duly established and doing business under said name.”</p> <p>7. That on or about the-day of May, A. D. 1876, the ,said firm of Showers, Jewell & Cole was dissolved by mutual, consent; and upon a settlement thereafter had by said firm and the members thereof with the plaintiff, it was found that the said firm was indebted to plaintiff in the sum total of nine thousand seven hundred and one dollars and fifty-five cents, of which amount, by the terms and conditions of said bond, the defendant, Joseph H. Cole, became and was liable to pay to plaintiff the full sum of three thousand two hundred and thirty-three dollars and eighty-five cents; that since said settlement the defendants, Showers and Jewell, have paid to plaintiff on account of said indebtedness the sum of six thousand five hundred and eight dollars and thirty-four cents, and there is now owing and unpaid to plaintiff thereon the sum of three thousand one hundred and ninety-three dollars and twenty-one cents. That the defendants, George N. Cole and Joseph H. Cole, have paid no part of said sum of nine thousand seven hundred and one dollars and fifty-five cents, nor has either of them; and there is now owing to plaintiff from said George 1ST. Cole and Joseph H. Cole, on account of said indebtedness and said bond, the sum of three thousand one hundred and ninty-three dollars and twenty-one cents, which became due and payable on August 1,1877. That the plaintiff has demanded payment of said sum of three thousand one hundred and ninety-three dollars and twenty-one cents from each and all of said defendants, but they have each and all neglected and refused to pay the same.</p> <p>Wherefore plaintiff prays the judgment of this Court: 1. That the bond set forth in count fifth of this complaint herein may be reformed in the particulars set forth in said complaint, and so it may be taken and construed to run to the Remington Sewing Machine Company, the plaintiff' herein. 2. That plaintiff have and recover from the defendants herein the-sum of three thousand one hundred and ninety-three dollars and twenty-one cents, with interest thereon from August 1,1877, at the rate of ten per cent, per annum, and costs of suits, and for such other and further relief herein as the plaintiff may be entitled to.</p> <p>The defendants Showers and Jewell demurred to the complaint.</p> <p>The defendants Joseph H. Cole and George 3ST. Cole also demurred, and moved a change of the place of trial, which was denied, August 80,1878, by the District Court. Afterwards the demurrer of the defendants Joseph H. Cole and George 1ST. Cole was overruled, and the action was dismissed by the plaintiff as to the defendants Showers and J ewell. The defendants Joseph H. and George N. Cole thereafter answered the complaint. On the fourteenth day of January, A. D. 1880, the defendants Joseph H. Cole and George 1ST. Cole, without previously asking leave of the Court so to do, made a second motion for change of the place of trial, which was heard and denied by the Superior Court. Both motions were made upon the ground that the defendants Joseph H. Cole and George 1ST. Cole were residents of the County of San Joaquin. A bill of exceptions was filed, and this appeal taken.</p>

Appeal by defendant from the judgment of the Superior Court of the County of Alameda. Greene, J. Action for damages caused through' the negligence of the defendant. Upon the conclusion of the plaintiff’s testimony in the Court below the defendant moved for a nonsuit, which was denied. The defendant offered no testimony. The jury returned a verdict for the plaintiff in the sum of ten thousand eight hundred dollars.

<p>Appeal by plaintiffs from an order of the District Court of the Fourth Judicial District of the State of California, in and for the City and County of San Francisco, denying a motion for a new trial. Morrison, J.</p> <p>Action to declare a trust in real estate to compel conveyances, etc. The action was originally brought August 21, 1866, and upon the trial had, judgment was rendered for the plaintiffs. The defendants appealed to the former Supreme Court of this State, and at the January term, 1872, thereof, the judgment was reversed, and cause remanded for a new trial. (See Morenhaut et al. v. Barron, 42 Cal. 591.) The pleadings having been amended, the case was again tried in the Court below, and judgment entered April 19, 1878, in favor of the defendants. The plaintiffs moved for a new trial, and this motion having been denied, they took this appeal on the twenty-sixth day of June, 1879. After the decision in bank, a petition for rehearing was presented by the appellants and denied by the Court.</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. WlLSON, J. Action on contract. The Court below found that the contract was executed by the defendants, as heirs of the estate, and not in any representative capacity, and that it was so understood and agreed at the time of its execution.

<p>Appeal by plaintiff from an order of the Superior Court of the County of Los Angeles granting a new trial. Howard, J.</p> <p>Action on account stated. On the trial the plaintiff testified that before the commencement of the action, one A. S. Frank, an agent of the defendants, presented to him at Los Angeles an account stated between the defendants and the plaintiff showing an indebtedness from defendants to him, the plaintiff, and then and there promised that the defendants would pay it. A. S. Frank at the time of the trial was absent from the State. Judgment was given in favor of the plaintiff. Defendants moved for a new trial on, among other grounds, “surprise which ordinary prudence could not have guarded against.” On the hearing of the motion the affidavit of A. S. Frank was offered and considered. In it he denied that the account was ever intended as an account stated, or that he ever promised the plaintiff that the defendants would pay the plaintiff any sum whatever, and deposed that instead of the defendants owing the plaintiff, he, the plaintiff, owed the defendants a large balance, and at the time referred to the plaintiff promised and endeavored to close the account by giving his note with other security to the defendants. The Court below granted the motion of defendants for a new trial, basing its action on the ground of the surprise claimed. This case on appeal was first heard in Department Two of this Court. As the decision of the Department is referred to in the opinion of the Court in bank, the opinion in Department is here given “in extenso.”</p> <p>“In this cause judgment passed for plaintiff. Defendants moved for a new trial on several grounds, among which was surprise which ordinary prudence could not have guarded against, insufficiency of the evidence to justify the decision, and errors of law, occurring at the trial and excepted to by the defendants. This motion was granted on the ground of surprise. The plaintiff appeals from this order.</p> <p>“We have examined the questions as to surprise, and are of opinion that there was no surprise in its legal meaning. The Court was not then justified in the exercise of a proper discretion in granting a new trial.</p> <p>“If the order could he sustained on any of the other grounds on which defendants moved, we would affirm it. We have examined them, and do not think they justify an affirmance of the order. It is proper to add that as to the failure of the Court below to rule on the admissibility of certain' correspondence offered by defendants and objected to by plaintiff, the ruling on which was reserved by the Court until the evidence was closed, we are of opinion that the point is not before us for decision. This was an irregularity in the proceedings of the Court, and the defendants did not move on that ground. It seems to have been treated as an error of law. If it is an error of law it could only be brought before the Court on affidavit. (C. 0. P., § 658.) It was not, however, an error of law occurring at the trial and excepted to by the moving party, for the record shows no exception.</p> <p>“The order is reversed and the cause remanded.”</p>

Appeal by the defendant from the judgment of the District Court of the Nineteenth Judicial District of the State of California in and for the City and County of. San Francisco. Wheeler, J. Action on promissory note, and on account of moneys laid out and advanced for benefit of defendant. The complaint was filed February 25, 1876.

Appeal by defendant from the judgment of the Superior Court of the County of Sacramento and from an order denying a motion for a new trial. Clark, J. Action in ejectment. The facts are stated in the opinion of the Court. After the decision in department, a petition for a hearing in bank was presented, and denied.

<p>Examination of Juros—Challenge—Actual Bias.—Upon the examination of a juror, who has stated that he has formed a qualified opinion as to the guilt or innocence of the defendant, the juror can not, in the absence of a challenge for actual bias, be asked whether he believes the defendant to be guilty or not guilty.</p> <p>Id.—Id.—Id.—Upon a challenge for actual bias such a question might properly be asked, as tending to show an existence of actual bias.</p> <p>Id,—Id.—Id.—Case Distinguished.—What is said in People v. Williams, 6 Cal. 206, with reference to the impropriety of permitting the inquiry on which side an opinion has been expressed, was not called for in the case. But treating the case as correctly deciding, that, upon the issue of “implied bias,” which, as the law then stood, was established by showing that a juryman “had formed or expressed an unqualified opinion,” etc., it was immaterial to know, and therefore (in view of the possible effect upon other persons summoned as jurors and awaiting examination) improper to inquire, whether the “unqualified opinion” was for or against the prisoner; such an issue can no longer be raised, since “the having formed or expressed an unqualified opinion as to the guilt or innocence of the accused” is no longer a cause of challenge for implied bias. (Penal Code, 1074.)</p> <p>Id.—Id.—Id.—Case Explained.—The language of the Court in People v. Backus, 5 Cal. 277, is not to be construed as holding that a defendant need not interpose a challenge, as for implied or actual bias, until he has proved that it ought to be allowed, or that he can complain of any ruling with reference to a question he may ask, without challenging the juror, but only that it is the better practice to permit preliminary inquiries, which, if answered satisfactorily to defendant, may relieve Mm of the necessity of challenging. But, if it be admitted to be the rule, that the examination may be exhaustive before the challenge, the examination, or any ruling during its continuance, can not be made the foundation for alleged error, unless the challenge is taken at some stage of the proceedings in the Court below.</p> <p>Id.—Id.—Peremptory Challenge—Oases Explained and Limited.— After a trial of an issue as to the existence of actual bias in the mind of the juror, and a finding against the challenging party, it would appear that he should be sufficiently informed to exercise his right of peremptory challenge. The law gives him the advantage of any knowledge he may thus acquire, but does not afford him an opportunity to examine a juror for the avowed object of determining whether he will challenge him peremptorily. Watson v. Whitney (23 Cal. 379) and Peoples. Car Soy (57 id. 102) explained, and the dicía on this point disapproved.</p> <p>Insanity—Reasonable Doubt—Burden of Proof—Satisfactory Proof— Definition—Case Explained and Limited.—The Court below charged the jury as follows: “Where insanity is relied upon as a defense, the burden of proof is on the defendant; and that the proof must be such in amount that if the single issue of sanity or insanity of the defendant should be submitted to the jury in a civil case, they must find that he was insane. That the insanity must be clearly established by satisfactory proof.”</p> <p>Held: In the connection in which the words are used, to say that insanity must be “clearly established,” is not to say that the evidence must more than preponderate, but only that the preponderance must be plainly apparent. Such must be the case in every instance where the affirmative of an issue is sought to be established and a peculiar presumption be overcome. There may be a greater or less degree of lucidity, but the preponderance must be distinctly perceptible. It is in this sense that the expression is often used by Courts and law writers in speaking of the degree of evidence necessary to overcome a presumption greater than that which arises, that a particular fact—as probably existing as non-existing—exists—e. g., as when it is said that fraud must be clearly proved. In civil cases fraud is proved by a preponderance of the evidence, yet, inasmuch as the law, to the credit of human nature, presumes that men are of tener honest than dishonest, the preponderance must clearly appear. Thus only can the fact of fraud or insanity be 1 ‘satisfactorily proved. ” The majority opinion in People v. Wreden (59 Cal. 392) on this point disapproved.</p>

Appeal by defendants from the judgment of the Superior Court of the County of Colusa. Blanchard,-J. Action of foreclosure of mortgage. The facts are stated in the opinion of the Court.

<p>Construction of By-law of Corporation—Contract—Penalty—Forfeiture— Mortgage—Foreclosure.—Action to foreclose mortgage, etc. The defendants, S. and wife, owners of stock in the plaintiff corporation, a building and loan association, borrowed money from the plaintiff, and executed their promissory notes to it. To secure the payment of the notes, they mortgaged certain real estate, and hypothecated their stock to the plaintiff. The ninth by-law of the plaintiff is as follows: “Every stockholder for every share of stock shall pay to the Secretary, on the second Wednesday in every month, the sum of one dollar in gold. ” The eleventh by-law of the plaintiff is in the following words: “Any stockholder failing to pay his or her monthly installments or interest shall pay a fine of ten per cent, per month upon the amount of the indebtedness. This fine shall be charged by the Secretary, and collected with the delinquent’s monthly dues; and in case any stockholder shall neglect or refuse to pay the monthly dues or fines for the space of six months, the Secretary shall tender to the delinquent the amount actually paid in, deducting all fines and forfeitures that may be charged against him or her, and from that time he or she shall cease to be a member of the association.”</p> <p>Held: 1. By-law xi. in no way affects or changes the terms of any contract of loan between the association and a stockholder; 2. The word “interest ” in by-law xi. does not refer to interest due upon any loan from the corporation to a stockholder; 3. Penalties and forfeitures are not to be favored, but must be created by unambiguous language.</p>

Appeal by defendant 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. Daingeefield, J. Action for the conversion of personal property.

<p>Appeal by defendant from the judgment of the Superior Court of the County of Yolo. Bush, J.</p> <p>Action to recover a lot of wheat, or the value thereof. The plaintiff was a married woman, the wife of Cornelius Horgan. The defendant, a constable, justified under writs of attachment against the husband of plaintiff. A bill of exceptions shows that the action was determined in the Court below on the following agreed statements of facts:</p> <p>1. That the wheat described in the complaint was raised by the husband of plaintiff, upon the premises in said complaint described; plaintiff at that time residing with her husband and doing the household work.</p> <p>2. That the seed from which said wheat was raised was sowed partly in the month of September, 1880, and partly in the month of January, 1881.</p> <p>3. That at the time of the filing of the declaration of homestead in said complaint mentioned, all of said grain was growing and above the ground, but the same was not cut until more than one month after the filing of said declaration.</p> <p>4. That said wheat was taken by defendant on the said premises, on the same day that the same was threshed.</p> <p>5. That the value of said wheat was and is the sum of five hundred and fifty-one dollars and sixty-six cents.</p> <p>6. That the allegations in the answer concerning the issuance and levy of the writs of attachment therein mentioned, and concerning the actions in which said writs were issued, are true.</p> <p>After the decision in department, a petition for hearing in bank was presented and denied.</p>

Appeal by plaintiff from judgment of the Superior Court of the County of San Joaquin. Paterson, J. Petition for writ of prohibition. The petition shows: The petitioner is a corporation engaged in the warehouse business at Stockton, in this State.

<p>Trial—Statement cot Evidence by Counsel—Irregularity.—In his closing argument to the jury the District Attorney was permitted by the Court, notwithstanding the objection and exception of defendant, to aver, and argue from, the existence of facts as to which no evidence had been offered or introduced.</p> <p>Held: For counsel to state facts not proven or sought to be proven is, in effect, to place unsworn evidence before the jury, and when improper evidence is admitted without objection on one side, this will not authorize improper evidence on the other. It is error sufficient to reverse a judgment for counsel, against objection, to state facts pertinent to the issue and not in evidence, or to assume, arguendo, such facts to be in the case when they are not.</p> <p>Id.—Id.—Id.—Case Distinguished.—People v. Barnhart, 59 Cal. 381, has no bearing upon the question now involved.</p>

Appear by the claimant, John Ziegenbein, from the order or judgment of the Superior Court of the County of Placer, disallowing his claim, and also from the order of said Court denying a motion for a new trial. Myres, J. Contest of a claim on settlement of account of executor. The facts are stated in the opinion of the Court.

Appeal by defendant from the judgment of the Superior Court of the City and County of San Francisco. DaingerFIELD, J. Action for injunction. The Court below, after trial, made the following findings of fact: 1. That the said Mechanics’ Foundry of San Francisco is a corporation duly incorporated under the laws of the State of California. 2.

Appeal by plaintiff from an order of the Superior Court of the County of Sacramento denying motion for a new trial Denson, J. Action on a joint and several promissory note.

Appeal by the defendant from the judgment of 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. Dwinelle, J. Action for the conversion of a lot of mining stock and jewelry.

Appeal by plaintiffs from the judgment of the Superior Court of the County of Colusa. Hatch, J. ■ Action on promissory notes. This action was brought by • plaintiffs, M. C. Hawley & Co., to recover of the defendants, Campbell & Spurgeon, $3,700 and interest on two several promissory notes, executed by them as partners, to plaintiffs, on October 1, 1878.

Appeal by the plaintiff from the judgment of the District Court of the Fourth Judicial District of the State of California in and for the City and County of San Francisco. Morrison, J. Action in equity to compel the defendants, as stockholders in insolvent commercial corporation, to pay in for benefit of plaintiff amount of stock contracted for by them. The facts, are stated in the opinion of the Court.

<p>Police Court No. 2 os San Francisco—Constitutional Law—Local or Special Jurisdiction.—The Act of March 7, 1881, creating an additional Court in the City and County of San Francisco, known as Police Judge’s Court No. 2, is not in contravention of Art. iv., Sec. 25, Subds. 1, 2, 3, and 4, or Subds. 28 and 29 of the Constitution.</p>

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

<p>Murder—JusTnTCATiow—Threats.—Threats made by the deceased against a defendant charged with homicide are admissible for the purpose of illustrating or determining the question as to who was the assailant in the fatal encounter, and are also admissible when they have been communicated to the defendant, for the purpose of determining whether the threats, in connection with the other facts and circumstances of the case, were sufficient to excite reasonable fears in the mind of the defendant. The previous threats alone, however, unless coupled at the time with an apparent design then and there to carry them into effect, will not justify a deadly assault by the other party. There must be such a demonstration of an immediate intention to execute the threat as to induce a reasonable belief that the party threatened will lose his life or'suffer serious bodily injury unless he immediately defends himself against the attack of his adversary.</p> <p>Id.—Id.—Id.—On a trial for murder the facts of the homicide were thus stated by one witness, whose testimony was substantially corroborated by the others: “Tamkin (the defendant) and I were walking down the street, when McClellan (the deceased) hailed Tamkin from behind; we turned around and McClellan stood there, facing us; he said to Tamkin, ‘I suppose you are as well heeled as you were last night;’ Tamkin replied, ‘I am not heeled;’ McClellan then said, ‘Go and heel yourself, for I am fixed;’ Tamkin said, ‘Where shall I go to get fixed?’ McClellan said, ‘Go where you d-d please, it makes no difference to me; what did you do to me last night?’ Tamkinsaid, ‘ I really don’t know;’ McClellan raised his hat and showed a scar, and said, ‘That is what you did, you d-d son of a-;’ Tamkin replied, ‘ I am very sorry for it;’ McClellan said, ‘Yes, I guess you are; lean lick you anyplace in the world, you d-d son of a-, go and heel yourself; I don’t want to take any advantage of you;’ he turned and walked away, I should judge, fifteen feet from Tamkin, when Tamkin drew a pistol from his right-hand pocket and said, ‘Yes, I am heeled, you d-d son of a-; what do you want?’ and fired his pistol.” Other shots were fired by both parties; but the evidence shows that it was the first shot that inflicted the mortal wound.</p> <p>Held: There is no principle of the law that will justify a homicide committed under such circumstances.</p> <p>Id.—Id.—The Court instructed the jury: “ If the killing was intentional it was unlawful, and there was no justification, unless the killing was in necessary self-defense, as defined in these instructions.”</p> <p>Held : The Court elsewhere correctly charged the jury upon the law of self-defense, and, taking the charge as a whole, the law upon this branch of the case was correctly given, conceding (which is not conceded) that the evidence tended to make out a case of self-defense or justifiable homicide.</p> <p>Id.—Id.—Threats.—The Court instructed the jury: “If the question as to who commenced or brought on the conflict in which the deceased lost his life is in doubt, threats made by the deceased against the defendant are admitted in evidence solely to enable the jury to determine as to who was the aggressor in the fatal encounter.”</p> <p>Held: The objection as to the word “ solely” in the foregoing instruction, admitting that the instruction in a proper case should not contain such a limitation, the evidence having failed to show a case of self-defense, no injury could have resulted to the defendant from the instruction as given.</p> <p>Id.—Id.—Insulting Language.—The Court refused to permit the defendant to ask a witness the question, if such language as was used by the deceased to the defendant the night before the homicide “ was not considered fighting language at Truckee?” Held; The objection was properly sustained.</p>

<p>Appeal from an order of the Fifteenth District Court in and for the County of Contra Costa. Dwinelle, J.</p>

<p>Appeal from a judgment of conviction in the Superior Court of San Luis Obispo County. McMuetry, J.</p>

<p>Appeal from a judgment for the plaintiff in the Eighth District Court in and for the County of Humboldt. Haines, J.</p>

<p>Promissory Note—Indorsement by Third Person before Delivery.— Under Section 3117, Civil Code, a person not a party to a note, who indorses the same in blank before delivery, is to be regarded not as a guarantor, but as an indorser, and as such is entitled to notice of nonpayment before he can be charged.</p>

<p>Fraud—Ejectment—Patent.—R. being in possession of land under a State patent, mortgaged the same, but afterwards delivered possession to his son, who, after the commencement of an action to foreclose (to which he was not made a party), abandoned the possession to the defendant, who proceeded to enter the land under the homestead laws of the United States.</p> <p>Held; Courts would cease to be courts of justice if such proceedings were countenanced. The defendant is not entitled to withhold the possession from the plaintiff.</p>

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

<p>Appeal from a judgment for the plaintiff in the First District Court in and for the County of Ventura, Fawcett, J.; and from an order denying a new trial in the Superior Court of said county. 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 Sonoma. Pressley, J.</p>

<p>Delivery of Note—Escrow.—The delivery of an instrument in escrow-during the life-time of a party becomes absolute upon the happening of the condition after his death.</p> <p>Joint Promissory Note—Joinder of Parties.—An action is maintainable in this State upon a joint promissory note against a surviving maker and the personal representative of a deceased maker.</p> <p>Amendment of Record—Clerical Error.-—A judgment may be amended after the adjournment of the term, where the record furnishes the data.</p> <p>Foreclosure of Mortgage—-Note Coming Due after Commencement of Suit.—In a suit for the foreclosure of a mortgage given to secure several promissory notes, some of which were not due at the commencement of the suit, the Court has jurisdiction—under § 728, C. C. P.—to decree a foreclosure of the mortgage to satisfy all of them.</p>

<p>Murder—Cause of Death—Evidence—Instruction. —Upon the trial of an indictment for murder, the evidence showed that the deceased was shot and cut by some sharp instrument upon a bridge crossing the Truckee River, and thrown into the river; and a physician testified that certain of the wounds would necessarily produce death; but whether the deceased was dead when he was thrown into the river, or that his death was not caused by drowning, he could not state. Upon this evidence the Court instructed the jury, that “if from the evidence the jury find that the mediate cause of the death of Ah Cow was the wounds inflicted upon him by the defendants, then the fact that he was thrown into the water after the infliction of such wounds is of no consequence;” and it was claimed that this instruction conflicted with other instructions given to the jury, to the effect that if the jury were in doubt as to whether the death was caused by the wounds, or by injuries received in the fall from the bridge, or by drowning, they should acquit; that to convict, even if the wounds inflicted while on the bridge were mortal, they must still be satisfied beyond all doubt that his death was not caused either by drowning or by the fall from the bridge; and unless so satisfied they should acquit.</p> <p>Meld: The evidence justified the jury in finding the defendants guilty as charged; and there was no substantial conflict in the instructions to their prejudice, whatever criticism may arise from the use of the word “mediate.”</p>

<p>Mandamus—Default—Commissioners of Transportation—Abatement of Action.—In a proceeding for mandamus to compel the defendant, under the Act of April 3, 1876 (Stats. 1875-6, p. 783), to furnish to the Commissioners of Transportation, created by that Act, certain information, the default of the defendant was entered, and a peremptory writ issued.</p> <p>Held: The writ of mandamus can not be granted by default; and held, further, the Act having been repealed, that the proceeding should be dismissed.</p>

<p>Criminal Complaint.—The petitioner was convicted under Section 415 of the Penal Code, upon a complaint charging that at a time and place specified “the said T. K. Foley * * * did use vulgar and indecent language within the hearing of children, in a loud and boisterous manner, willfully and unlawfully, all of which is contrary to the form of the statute,” etc.; and upon an application for a discharge upon habeas corpus, it was urged that the judgment was void, because the language alleged to be profane and obscene was not recited in the complaint, and also that the offense which the complaint attempts to charge can only be committed on the public streets of an “unincorporated town.” Held: That neither objection was tenable.</p>

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

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

<p>Vacation of Judgment—Jubisdiction.—An order vacating a judgment entered more than three years previously reversed on the authority of Bell v. Thompson, 19 Cal. 706, and other cases.</p>

<p>Appeal—How Taken.—A notice of appeal from a judgment entered May 6, 1880, and a subsequent order denying a new trial, was served on respondent August 30th, and filed September 18th, and the undertaking on appeal was filed September 4th.</p> <p>Held (under § 940, O. O. P.), that the appeal was well taken.</p>

<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.</p> <p>A petition for hearing in Bank was filed in this-case-after judgment, and denied.</p>

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

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

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

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

<p>Ordinance oe Municipal Corporation—Police Power—Nuisance.— The petitioner was convicted of a violation of Section 47 of an order of the Board of Supervisors of the City and County of San Francisco, passed July 18, 1880, which reads as follows: “No person shall throw into or deposit upon any public street, highway, or grounds, or upon any private premises, or anywhere except in such place as may be designated for that purpose by the Superintendent of Public Streets and Highways, any glass, broken ware, dirt, rubbish, garbage, or filth.” The complaint charged that the petitioner “did willfully and unlawfully throw into and deposit upon certain lands at Channel and Fifth Streets, in said city and county, a large quantity of broken ware, dirt, rubbish, garbage, and filth; the said place where the same was thrown and deposited not being a place designated for that purpose by the Superintendent of Public Streets and Highways.”</p> <p>Held: The authority to pass the order now under consideration was vested in the Board of Supervisors by the Act of April 25, 1863; but if there were any room for doubt, the power is clearly conferred by Section 11, Article xi., Constitution; and,</p> <p>Held, further, that the complaint was sufficient.</p>

<p>Appeal from an order sustaining defendant’s demurrer to an indictment in the Superior Court of the County of Colusa. Hatch, J.</p>

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

<p>Application for writ of certiora/ri to the Superior Court of the City and County of San Francisco.</p>

<p>Appeal from a judgment for defendants in the Tenth District Court in and for the County of Sutter. Keyser, J.</p>

The validity of the respective titles involved in this case were before the Court in The People ex rel. Hastings v. Jackson et al., 24 Cal. 630; Hastings v. Devlin, 40 id. 358; and Hastings v. Jackson, 46 id. 234. The present case is an action to set aside the patent issued to Jackson, and judgment went for the defendant on a demurrer to the complaint.

<p>Appeal from a judgment for the defendant in the Superior Court of the County of Sacramento.</p> <p>The action in the Court below was brought to determine the title to the office of Police Judge of the City of Sacramento. The relator claimed the office by virtue of an election held in November, 1880; the defendant, by virtue of an election in September, 1879.</p>

Denson, J. A petition for hearing in Bank was filed in this case after judgment, and denied. The facts were as stated in the opinion and in the syllabus.

<p>Dismissal of Appeal for. Failure to File Transcript—Certificate of Clerk.—Upon a motion to dismiss an appeal for failure to file transcript the Clerk’s certificate must show service of the appeal.</p>

<p>Larceny—Evidence of Previous Offense.—Upon the trial of a person charged with larceny, it is error to permit evidence to be introduced tending to show that the defendant had at another time stolen other property than that described in the indictment.</p>

<p>Application for writ of manda/rrms.</p>

<p>Destruction op Property under Urgent Necessity.—In an action to recover damages for the destruction of crops, etc., caused by defendants cutting a levee or embankment across Wilkin’s Slough, the defendants justified under an alleged urgent necessity to save life and property from destruction; and the evidence tended to show that such necessity existed, under the stress of which they acted. The Court, in effect, instructed the jury, that if the levee or embankment was coustructed in pursuance of plans reported to the Board of Supervisors of Colusa County, etc., then the act of the defendants was unlawful, and they were responsible in damages for any injury sustained by the plaintiffs.</p> <p>Held: This instruction took from the jury the defense set up, and in effect directed them to disregard it; for this error, judgment reversed. (My-rick and McKee, JJ., dissenting.)</p>

<p>Municipal Corporation—Contract for Supply of Gas—Power of Supervisors to Provide for Lighting Streets—Delegation of Legislative Power.—A contract was entered into between the City and County of San Francisco, May 24, 1869, containing the following provision: “Upon the expiration of the term of five years, hereinbefore limited, the party of the first part (unless it shall elect and notify the party of the second part of its election to advertise for proposals, as hereinafter provided) shall purchase and take from the party of the second part all the gas required for lighting said City as aforesaid for another term of five years, dating from the expiration of the term, hereinbefore limited, and pay therefor at such rates as shall be agreed upon by a majority of a commission to be constituted: one commissioner to be appointed by the party of the first part, one by the party of the second part, and one by the two appointed. The contract was renewed under this provision in 1869; and afterwards, in 1879, after the taking of the appropriate steps, the following resolution was passed, on the seventh day of July of that year, by the Board of Supervisors: Resolved, that the rates to be charged for gas to be supplied to the City and County of San Francisco, by the San Francisco Gas Light Company, during the term of five years from the nineteenth day of May, 1879, as fixed by the commission, composed of J. 0. Rountree, J. B. Haggin, and J. 0. Eldridge, appointed and acting under and in pursuance of the contract existing between said City and County and said company, be and are hereby accepted, adopted, and approved, and the report of said commission was hereby adopted, ratified, and confirmed.” In November, 1879, a claim for the amount due for the preceding month was presented by the plaintiff, and approved by the Board of Supervisors, and afterwards, having been presented to the defendant, and he having refused to audit the same, an appeal was taken to the Board of Supervisors, who finally approved and allowed the said demand; but notwithstanding such allowance, the defendant still refused to audit the same; and thepetitioner applied for a writ of mandate.</p> <p>Held: The Board of Supervisors had no lawful authority to delegate to persons not members of that Board the power to fix and determine upon the amounts to be paid by the City and County for gas, or to alienate from the Board its power of final determination with regard to such amounts; and the provision of the contract of May 24, 1869, for the renewal of that contract, was therefore void.</p> <p>The resolution of July 7,1879, is, however, to be read as if the report referred to were incorporated in it; and thus read, it fixes the rates which the city and county agreed to pay. Thus read, the final determination with respect to the rates to be paid was exercised by the Board of Supervisors, and not by the commission.</p> <p>In the absence of an express limitation as to the period of time for which a contract may be made by the Board of Supervisors, the Court is not prepared to declare that such a contract for five years would be unreasonable. It may therefore be assumed, for the purposes of this decision, that the contract of 1879 is valid as an independent contract, unless prohibited by express statutory provision.</p> <p>The proviso of the first section of the Act of April 3, 1876 (Stats. 1875-6, p. 854), prohibits the making of any contract for any purpose “binding said city for a longer period than two years;” and unless this proviso was repealed by the subsequent Act of February 25, 1878 (Stats. 1877-8, p. Ill), the contract of 1874 was one which the Supervisors were not empowered to make, and any claim based upon such contract one which they had no authority to allow. It is, however, unnecessary to decide in this case whether or not the proviso was repealed.</p> <p>The order allowing the plaintiff’s demand was regularly published and passed, and was an action of the Board which they were empowered to take by sections 71 and 74 of the Consolidation Act. They were not legally bound to allow the claim by reason of the contract of 1869 or of any renewal of that contract. But the gas had been furnished the city, and they were fully empowered to provide for its payment such sum as it was worth.</p>

<p>Appeal by the intervenor from the judgment of the Superior Court of the County of Butte, and from an order denying a motion for a new trial. T. B. Reardon, J.</p>

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

Appeal by defendant Luther C. Tibbetts from an order of the Superior Court of the County of San Bernardino denying motion for j udgment by default on cross-complaint. Rolfe, J. Action of foreclosure of mortgage. The action was brought against defendant Luther C. Tibbetts and Eliza M., his wife.

<p>Receives oe Railroad—Foreclosure oe Mortgage—Remedy—Mandamus.—Application for a writ of mandamus to compel the receiver of a railroad appointed in a foreclosure suit to operate the road.</p> <p>Hdd: There is a plain, speedy, and adequate remedy, if the plaintiff is entitled to any, in the cause and court in which the defendant was appointed receiver.</p>

<p>Damages fob Frivolous Appeal.</p>

<p>Action to Recover Personal Property—Crop Growing on Land Held Adversely.—An action can not be maintained to recover grain sown and harvested by defendant upon lands to which he claimed title, and of which he had the actual adverse and exclusive possession.</p> <p>Id.—Id.—Cases Distinguished.—Hailed; v. Mixer, 16 Cal. 574; Harlan v. Harlan, 15 Pa. St. 513; Elliott v. Powell, 10 Watts, 453; Mather v. Trinity Ohurch, 3 Serg. &R. 509; S. C., 8 Am. Dec. 663; Kimball v. Lohmas, 31 Cal. 159; Atherton v. Eowler, 96 U. S. 515, distinguished.</p> <p>Leave to Amend—Discretion oe Court.—It can not be held that it is an abuse of discretion for the Court to refuse to allow an amendment to the complaint, where it does not appear from the transcript that any.proposed amendment was served or presented, or that the notice of motion pointed out the precise amendment which the plaintiff would ask leave to make.</p>

<p>Removal or Cases to Federal Court—Jurisdiction—Prohibition.— In an action to recover State and county taxes, defendant answered and also fi]|d a bond and petition for a removal of the cause to the Circuit Court of the United States, on the ground that the suit was one arising under the constitutional laws of the United States, and the petition being denied, applied to this Court for a writ of prohibition. Writ denied.</p>

<p>Foreclosure—Mortgage—Promissory Note—Interest—Default—^Premature Commencement of Action.—When the interest on a promissory note is made payable monthly, and the note contains the additional clause following: “ Any interest remaining due and unpaid shall be added monthly to the principal, and bear interest at the same rate;” and where the mortgage securing said note provides that in case default shall be made in the payment of the principal sum, or the interest thereon, or any part thereof, according to the terms of the note, the mortgagee is empowered to proceed to sell the mortgaged premises in the manner prescribed by law; and further, that out of the proceeds of such sale the mortgagee shall retain the principal sum, with interest, costs, and charges of sale, and attorney’s fees; and further, where a subsequent mortgage, between the same parties, contained the stipulation that all arrearages of monthly interest then existing, or thereafter to accrue upon the prior note, shall bear interest from the date respectively at which they have accrued, or shall accrue, at a higher rate than that expressed in the note—</p> <p>Held: Taking the terms of said note and mortgage together, the mortgagee has the right, on default in the monthly payment of the interest, to commence an action to foreclose.</p> <p>Id.—Sale.—Held, further, the power given in the mortgage “to proceed to sell in the manner prescribed by law,” is in substance the same as a power to proceed to sell by means of an action to foreclose.</p> <p>Mortgage—Construction.—The clause in the mortgage, giving the right to sell in case of default, refers to a default in the payment of interest, not to a default in adding it, when unpaid, to the principal; the right to dispose of the interest due and unpaid, in'the mode prescribed in the note, was given to the mortgagee, not to the mortgagors; the mortgagee might delay it, or waive it, but a delay in exercising this right could not be construed as depriving him of it.</p> <p>Case Distinguished.—The clause in the mortgage, above quoted, is entirely unlike that in Bank of San Luis Obispo v. Johnson, 53 Cal. 99.</p> <p>Mortgage—Construction.—The stipulation contained in the subsequent mortgage aforesaid merely refers to the rate of interest which the arrearages of interest referred to in it are to bear, increasing the rate, and nothing more. The clauses in the mortgages and note are to be construed together.</p> <p>Id,—Taxes—Default.—Where a mortgage contains the covenants, that the mortgagors shall pay all taxes upon, the mortgaged premises, and that, in default thereof by them, the mortgagee shall be empowered to sell, such default gives the mortgagee the right to proceed to foreclose, if there is no other. It makes no difference that the mortgagee has the right to pay the taxes and charge them to the mortgagors, the same *to become part of the mortgage lien. The right to foreclose is not waived or lost, or the default condoned by the mortgagee on his paying the taxes and charging the mortgagor.</p> <p>Id.—Id.—Id.—Case Criticised and Distinguished.—Williams v. Townsend, 31N. Y. 411.</p> <p>Consideration.—In drawing instruments of any kind where a consideration is essential, it is not necessary, nor is it the practice, to repeat the consideration upon the insertion of every several promise or covenant. Where a sufficient consideration is expressed, none can be implied.</p> <p>Contract of Married Woman.—Section 167 of the Civil Code, under which a married woman was unable to make a contract for the payment of money, was changed by the Legislature of 1873-4, taking effect July 1, 1874, so that a married woman could make such contract, and bind herself by note and mortgage. A mortgage executed by a married woman June 1, 1874, was binding upon her.</p> <p>Jury.—The point whether the recognition by a married woman of an obligation for the payment of money, void when made, after the disability"to so contract had been removed, did not make the obligation binding upon her, noticed but not decided.</p>

<p>Application for writ of mandamus to Henry Brickwedel, Auditor of the City and County of San Francisco, to compel him to audit certain demands for gas furnished to said city and county.</p>