Volume 63 — California Reports

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>Defendant raised a crop of grain on land held by him adversely to plaintiff, and mortgaged the growing crop to the intervenor. Plaintiff as owner of the land replevied the crop as soon as harvested. The mortgagee asked leave to intervene. His application was denied and he appealed.</p>

<p>Probate of Will. — Petition to Revoke —LnnTAmra—Poweb of Cottbt.— A petition to revoke the probate of a will, if the parties are under no disability, must be filed within a year after the entry of the decree admitting the will to probate. The clerk of the court is the only person with whom the petition can be filed, and it must be delivered to him before the year expires. Presenting it to the judge out of court for the purpose of having a citation issued upon it is not enough. It must be filed with the clerk, and if not so filed prior to the expiration of the year, the decree becomes conclusive and absolute. An order subsequently made by the court directing the clerk to file it as of a day within the year cannot be sustained.</p>

<p>Ejectment—Evidence—Statute of Limitations—Payment of Taxes.—The plaintiff claimed under a patent from the State. More than five years elapsed between the issuing of the patent and the commencement of the action. The defendant pleaded the Statute of Limitations, and relied upon an adverse possession commencing before the patent issued. It appeared from the evidence that the plaintiff had paid the taxes upon the land. The court instructed the jury as to the proof required to make out an adverse possession, and that in addition to the fact of possession and its adverse character, it was necessary for the defendant to show that the taxes had been paid by him. The jury rendered a verdict in favor of the defendant. Held, (1) that the statute could not commence to run until the issuing of the patent; (2.) that the possession of the defendant, even if sufficient in other respects, was not adverse because of his failure to pay the taxes.</p>

The action was brought by the purchaser from the husband to quiet title. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the county of Yolo, and from an order refusing a new trial.</p> <p>The action was ejectment. The facts are sufficiently stated in the opinion of the court.</p>

The defendants, Romualdo Olivas and Cirildo de Jesus Soso, were jointly informed against for the murder of Estanislaus. The defendants demanded a separate trial, and Olivas was found guilty and sentenced to'imprisonment for life. The information against Soso was dismissed, and he was made a-witness for the prosecution, and the defendant Garcia was convicted and sentenced to be hanged.

<p>Constitutional Law — Delegation of Legislative Power.—The Act of the 4th of March,' 1881, relating to the Board of State Yiticultural Commissioners, and providing that the officer therein mentioned shall have power, subject to the approval of the board, to make and enforce rules and regulations in the nature of quarantine for certain purposes, in so far as it declares that a willful violation of the quarantine regulations of the board shall be a misdemeanor, amounts to a delegation of legislative power, and is unconstitutional. The legislature had no authority to confer upon the officer or board the power -to declare what acts shall constitute a misdemeanor.</p>

<p>Appeal from a judgment of the late District Court in and for the county of Santa Clara.</p>

<p>Murder—Insufficiency of Information—Malice Aforethought. — Malice aforethought is a necessary ingredient in the crime of murder, and should be alleged in the indictment or information, either expressly or by words equivalent in their import.</p>

<p>Appeal from a judgment of the Superior Court of the county of Los Angeles, and from an order refusing a new trial.</p> <p>The facts are sufficiently stated in the opinion of Me. Justice McKee.</p>

<p>Verdict—Immaterial Defect—Vacating Judgment.—In an action against two defendants, the jury returned a general verdict for the defendant, and a judgment for costs was entered thereon in favor of both defendants. The court subsequently vacated the judgment because of the defect in the verdict. Held, that the defect was immaterial, and that the court erred in vacating the judgment.</p>

<p>Conversion__The defendants, who were commission' merchants in San Francisco, sold a quantity of wheat, supposing it to be the property of one Williams, and paid over the proceeds to him. The wheat belonged to the plaintiff, and the action was brought to recover its value. The supposition of the defendants as to the ownership of the wheat grew out of the circumstances under which they received it, but the mistake was not caused by any act of the plaintiff. On a review of the facts, held, (1) that the defendants were not justified in supposing that the wheat belonged to Williams; (2) that even if they were such a supposition does not exempt them from liability to the plaintiff for selling his wheat and paying the proceeds to another.</p>

<p>Appeal from a judgment of the Superior Court of the county of San Diego, and from an order refusing a new trial.</p>

The action was brought to enjoin the sale of certain land under an assessment for State and county taxes for the fiscal year 1881—82. The plaintiff1 ivas the owner of the land, but prior to the assessment he mortgaged it to the regents of the State University to secure the payment of a loan of fifty thousand dollars made by them from the funds appropriated to the support of the university.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The action was ejectment. The plaintiff claimed under the State, and a judgment was rendered in his favor.</p>

<p>Injunction—Disobedience Pending an Appeal—Power op the Court.—An appeal from a judgment granting a perpetual injunction does not suspend the injunction during the pendency of the appeal, nor does it deprive the court in which the judgment was rendered of the power to punish a disobedience of the injunction as a contempt. The existence of the power devolves upon the court the duty to entertain a proper application on the subject, and such an application being made to examine the facts, and render a decision thereon.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Attorneys at Law—Partnebshep—Employment. — The employment of one member of a firm of attorneys is ordinarily an employment of the firm, and the client is not affected by an understanding between the partners, without his assent or knowledge, that each should act and receive compensation separately in the particular business to which the employment relates.</p>

The action was brought under the provisions of the Code relating to forcible entries and forcible and unlawful detainers. The complaint was demurred to, and the demurrer sustained. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of tne Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The action was brought on an undertaking for an injunction. The facts are stated in the opinion of the court.</p>

The action was brought on a promissory note given by the defendants, Abbey and Heffner, to one Hancock. The controversy at the trial was between the plaintiff and Heffner, Abbey having been discharged in bankruptcy. The additional facts are stated in the opinion of the court.

<p>Perjury—Materiality oe Testimony. — Where a witness has given testimony material to the issue, and in answer to a question as to whether he had not previously made a statement different from the testimony then given, he denies having done so, the answer affects his credibility as a witness, and a charge of perjury may he founded upon it.</p> <p>Id.—Erroneous Instruction. — The court charged the jury in effect that if the defendant knowingly, wilfully, intentionally, and falsely testified that it was Y. and not K. who fired the first shot, and did, for the purpose of misleading the jury, give testimony contradictory to statements before made, falsely and wilfully, the accusation was fully made out. Held, that the question as to who did in fact fire the first shot was not the issue before the jury; they were to determine whether' the defendan t testified falsely in denying that he had on a previous occasion stated that K. fired tho first shot; and the charge being calculated to mislead the jury was therefore erroneous.</p>

<p>Pleading—Misjoinder of Parties Defendant.—A complaint against several defendants, some of whom do not appear to be necessary .or proper parties, is demurrable for a misjoinder of parties defendant.</p> <p>Id.—Insufficiency. — In an action by the assignee of an insolvent debtor, the fact of an assignment must be alleged in the complaint. If not so alleged, the complaint will be insufficient.</p>

The action was a summary proceeding for an unlaivful detainer. The answer set up an indebtedness from the plaintiff to the defendant Teague as a counter-claim. The additional facts are stated in the opinion of the court.

<p>Contbact—Liability of Agents.—A contract was entered into between J. 0. Merrill & Co., the assignors of the plaintiff, and the defendants, as agents for the ship Tartar, in relation to certain money in the hands of one Perris, on which a lien was claimed in favor of the owners of the ship. The existence of this lien was disputed by J. C. Merrill & Co., who also asserted a claim to the money, and the contract provided in substance that in case of a determination adverse to the lien, the money should be paid over to them in part satisfaction of any judgment they might recover in a particular action then pending. Their right to the money being established in the mode contemplated by the contract this action was brought on the theory that the contract bound the defendants personally for its payment. Meld, that the defendants are not liable, that they contracted merely as agents, and did not assume any personal responsibility for the payment of the money, and that the contract amounted simply to a stipulation on behalf of the owners of the ship to relinquish all claim to the money in ease the lien should not be sustained.</p>

<p>Pleading—Complaint—Inconsistent Allegations—Dejiubbee.—In an action to enforce a lien for lumber and materials, some of the allegations of the complaint were inconsistent with statements contained in the notice of the lien, a copy of which was attached to and made a part of the complaint. The defendants demurred for ambiguity and uncertainty, and the demurrer was sustained. The plaintiff declined to amend, and a judgment was entered against him on the demurrer. Held, that the objection was well founded, and the demurrer properly sustained.</p>

<p>Appeal from a judgment of the Superior Court of the county of Trinity, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing to discharge an attachment.</p> <p>The action was brought on two promissory notes executed by the defendant to the plaintiff. At the commencement of the action an attachment was issued against the property of the defendant. The following is a copy of the affidavit on which the attachment issued:—</p> <p>“ [Title of Court and Cause.]</p> <p>“State of California, City and County of San Francisco.</p> <p>“ E. A. S. Page, being duly sworn, says: That she is a plaintiff in the above entitled action; that the said defendant is indebted to her in the sum of fifty-one hundred and ninety-seven dollars in gold coin, over and above all legal set-offs and counter-claims, upon certain express and implied contracts for the direct payment of money, to wit: upon two promissory notes dated November 16, 1871, for fourteen hundred dollars each and interest thereon, made by defendant to said plaintiff, and the subsequent acknowledgment in writing, and promise of said defendant to pay the said notes and the interest thereon; that such contracts were made and are payable in this State, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge upon personal property; that originally, at the time of the making of said notes, the said defendant executed and delivered to one N. Page a mortgage upon real property purporting to secure the payment of said two notes and the interest, but that said 2ST. Page was not then nor has he since been the holder or the owner of said notes, or either of them, and that said mortgage has become valueless without any fault of this plaintiff, or of the said N. Page, by reason of the lapse of time.</p> <p>“ That the said attachment is not sought, and the said action is not prosecuted to binder, delay, or defraud any creditor or creditors of the said defendant.</p> <p>“ E. A. S. Page.</p> <p>“ Subscribed and sworn to before me this 29th day of March, A. D. 1880.</p> <p>“Sam’l S. Mueeey, Notary Public.”</p> <p>The defendant moved to discharge the attachment on the ground that the affidavit was insufficient. The court denied the motion.</p>

<p>Husband and Wife—Divobce—CoamuNirr Pbopebty.—When a divorce is granted on the ground of adultery or extreme cruelty the division of the community property between the parties will not be disturbed on appeal, unless the discretion of the court in that respect appears to have been abused.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The agreement on which the action was based will be found in the report of the case on the former appeal — 54 Cal. 58.</p>

<p>Evidence — Order of Probate Court—Presumption. —An order of the late probate of the county of San Bernardino, removing a former guardian and appointing his successor was given in evidence on behalf of the plaintiff Its admission was objected to on the ground that no notice or citation had been served on the former guardian to show cause why he should not bo removed, but it did not appear from the transcript that there was any foundation for the objection in point of fact. Held, that in the absence of a showing to tlie contrary, the court must be presumed to have acted correctly.</p>

<p>Ejectment—Mining Claim—Findings — Sufficiency of the Evidence.—The action was brought to recover possession of a mining claim, and was tried by the court without a jury. Findings were filed, and a judgment entered thereon in favor of the defendants. The plaintiffs moved for a new trial, which was denied. One of the grounds of the motion was insufficiency in the evidence. Held, on a review of the evidence, that it was insufficient to support the findings, and that a new trial should have been granted.</p>

<p>Appeal from an order of the Superior Court of the county of Nevada.</p> <p>The dismissal was set aside on the ground of mistake, inadvertence, and excusable neglect.</p>

<p>Guardian ad Litem—Power to Contract—Compensation of attorney—Jurisdiction of the Court.—A guardian ad litem was appointed to bring an action on behalf of certain infants and an insane person. The guardian employed an attorney to prosecute the action, and made a contract with him as to the compensation he should receive. The action was successful, and resulted in a judgment for several thousand dollars. The judgment Was afterwards paid, and the money went into the hands of the attorney. The court thereupon made an order fixing the compensation of the attorney without regard to the contract, and requiring him .to pay into court the residue of the money. Held, that the guardian ad litem had no power to make the contract, and that the order was not in excess of the jurisdiction of the court.</p>

<p>Negligence—Masteb and Sebvant.—A railroad company is liable to an employee for an injury received by him in consequence of the unskillful, improper, and negligent manner in which the company constructed its road. In such a case, the rule exempting the master from liability for an injury to a servant caused by the negligence of a fellow-servant has no application.</p>

<p>Mechanic's Lien—Sufficiency of Gmm__The action was brought to enforce a mechanic’s lein. The claim filed was objected to on the ground that it did not state the time given as required by the statute. It purported, however, to state the terms and conditions of the contract, and it did not appear that there was any express agreement as to time. Held', that the objection could not be sustained.</p>

<p>Mortgage Foreclosure—Default — Judgment.—A judgment by default in a foreclosure suit cannot be entered for a larger amount than the complaint shows to be due.</p> <p>Interest—Compounding.—• Compound interest can only be allowed as provided for by § 1919 of the Civil Code.</p>

<p>Appeal from an order of the Superior Court of the county of Yolo directing a partial distribution.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment cf the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts not stated in the syllabus appear in the opinion of the court. .</p>

<p>Ejectment—Statute of Limitations — Offer to Purchase.—The action was ejectment. The plaintiff claimed under a patent from the United States. The defendant relied on the Statute of Limitations. Evidence was given at the trial tending to show that the defendant had offered to purchase the land of the plaintiff within five years before the commencement of the action. In submitting the case to the jury the court directed them to disregard this evidence. A verdict was rendered in favor of the defendant. The plaintiff moved for a new trial, which was granted. Held, that the offer to purchase, if made, was a recognition of the title of the plaintiff, and an answer to the claim of adverse possession on the part of the defendant, and that a new trial was, therefore; properly granted.</p>

The action was brought to foreclose a mortgage executed to secure the payment of a promissory note. The facts bearing upon the points decided appear in the opinion of the court.

The petitioner prayed for a writ of mandate to compel the defendants, as members of the board of election commissioners of the city and county of San Francisco, to provide for, call, and hold a special election for the purpose of submitting to the qualified electors of that city and county the question of ratifying a charter for its government, prepared and proposed by a board of fifteen freeholders, as provided by art. 11, § 8, of the Constitution.

<p>Appeal from, a judgment of the Superior Court of the county of Yolo.</p> <p>The action was ejectment. One of the defendants was sued by a fictitious name, and the complaint was afterwards amended and the true name inserted. The defendants demurred separately to the amended complaint on the ground that the action was barred by the Statute of Limitations. The demurrers were sustained, and the plaintiffs declined to amend.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p>

<p>Appeal from a judgment of the Superior Court of Placer County.</p> <p>The plaintiff and defendant are corporations. The action was brought in the Superior Court of Placer County. The defendant demurred to the complaint, and the plaintiff confessed the demurrer, and obtained leave to amend within twenty days. An amended complaint was filed accordingly, with an affidavit attached showing an attempted service by mail. A judgment by default was entered against the defendant for failing to answer the amended complaint. The additional facts appear in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Tuolumne County.</p> <p>The facts appear in the opinion of the court.</p>

The action was ejectment against a landlord and his tenant, and the judgment was in their favor. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Tuolumne County.</p> <p>The facts are stated in the opinion of the court.</p>

The action was brought against Fannie P. Lawrence and Edwin A. Lawrence on a promissory note for money loaned, and to enforce a lien for the payment thereof arising from certain conveyances of real estate absolute on their face, but intended as security. A judgment was rendered on the note against Edwin A. Lawrence. The additional facts are stated in the opinion of the court, and the dissenting opinion of Mr. Justice McKee.

<p>Appeal from a judgment of the Superior Court of the county of Sacramento, and from an order refusing a new. trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Ejectment—Askeement to Convey—FraniNa—Deed.—The plaintiff claimed title to the land in controversy under a conveyance from one Bugbey, which, though absolute on its face, was intended as a mortgage, and had been foreclosed against Bugbey. This conveyance was recorded at the time of its execution, but prior thereto Bugbey had made an agreement in writing with the defendant to convey the land to him. The agreement was not recorded, but the defendant had possession of the land when the agreement was made, and remained in possession continuously thereafter. Subsequent to the conveyance to the plaintiff, Bugbey conveyed the land to the defendant in pursuance of the agreement. The court below found that the plaintiff never was the owner, or entitled to the possession of any part of the land. Held, that the fact of notice to the plaintiff of the agreement was included in this finding, and that the deed made by Bugbey to the defendant related back to the agreement, and vested the title in the defendant as against the plaintiff.</p>

<p>Injunction—Dissolution—Action on Undertaking. — One Orondona brought an injunction suit against John D. Bennett, the plaintiff herein. An undertaking was given, and a preliminary injunction issued as prayed for in the complaint. Bennett moved to dissolve the injunction on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the motion was granted. He also demurred to the complaint on the same ground, and the demurrer was sustained, and notice thereof duly given. Twenty-one days after the service of the notice, the complaint not having heen amended, and nothing further done in the case, an action was commenced on the undertaking. The defendants objected that the action was prematurely brought. Held, that the proceedings in the injunction suit amounted to a final determinar tian that Grondona was not entitled to the injunction, and that the objection made by the defendants was untenable.</p> <p>Findings—Judgment.—If findings are not waived it is error to enter judgment without them.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p>

<p>Pabtners—Joutt Liability—Release.—Partners are jointly liable for the debts of the partnership, but one of several joint debtors is not discharged from liability by a release to the others; and where it is expressly agreed that the release shall not operate in his favor, the liability continues independent of section 1543 of the Civil Code.</p>

<p>Mobtgage Fobeclosube—Tax Title—Judgment__In an action to foreclose a mortgage, the mortgagors and one Samuel Kay were made defendants. The complaint alleged that Kay had or claimed some interest in the premises subsequent and subject to the mortgage. Kay answered denying that the interest claimed by him was subsequent or subject to the mortgage. It appeared from the evidence that Ms claim was founded upon a deed executed on a sale for taxes made after the mortgage was given. The court found that the claim was invalid, that Kay had no interest in the premises, and that the allegations of the complaint were true. A judgment was rendered accordingly. Held, that the judgment was erroneous, that the title claimed by Kay was adverse, and not subject to the mortgage; that its validity could not be determined in such an action, and that the judgment should have been without prejudice to the rights of Kay under the tax deed.</p> <p>Id. — Oboss-Oomplaint to Quiet Title.—In addition to the answer, Kay filed a cross-complaint against the plaintiffs, alleging that he was the owner of the premises, and praying that his title be quieted. Held, that the cross-complaint was not a proper proceeding, and should have been dismissed.</p>

The action was unlawful detainer. The defendant Beardslee was a tenant of the plaintiff, and sublet to defendants McCarthy and Warren. Moses G. Cobb as attorney for all the defendants entered into a stipulation that judgment be entered against them for the amount of the rent due, and for restitution of the premises, in consideration of which plaintiff granted a stay of proceedings, and waived its right to have the damages trebled.

<p>Appeal from, a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</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. Beldeít, J.</p> <p>The facte are stated in the opinion of the court.</p>

<p>Evidence—Examination of a Child—Irregularity.—A child nine years of age was examined as a witness on the part of the prosecution. His testimony was taken without a preliminary examination as to his competency, but at the close of his testimony, and before he left the witness stand, the court examined him in the presence of the defendant, and the jury touching his competency, and found him to be competent. On a previous trial of the case the witness had been examined, and his competency established before he was permitted to testify. Held, that no error prejudicial to the defendant had been committed.</p> <p>Id.—Conduct Indicating a Guilty Intent.—Evidence was given at the trial of the escape, recapture, and conduct of the defendant immediately after his arrest. Meld, that the evidence was admissible as indicating a guilty intent.</p>

<p>Appeal from a judgment of the Superior Court of Lake County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court</p>

Action upon an undertaking for an injunction. The complaint was filed March 19, 1879. The action in which the injunction was obtained was commenced in 1870, and on the 1st of October, 1870, the court vacated the order previously made granting an injunction. The cause was afterwards tried, and on the 12th of March, 1877, a final judgment was entered therein in favor of the defendant—the plaintiff in this action— from which no appeal was taken.

<p>Office—Incumbent—Summary Proceeding to Recover Books and Paters. — Under sections 1015 and 1016 of the Political Code, the actual incumbent of an office may maintain a summary proceeding by petition to recover the books and papers pertaining to the office, and the court may order their delivery, and enforce the order by attachment or warrant. His right to the office can only be called in question by an information against him in the nature of a quo warranta.</p> <p>Id.—Qualification of Incumbent—Insufficiency of Bond as Matter of Defense.—The fact of the incumbency being established, an objection to the qualification of the incumbent on the ground that the penalty of the bond given by him was less than the law required, is not available as a defense to the proceeding. (McKee, J., and Ross, J.)</p> <p>Id.—Classification of Counties—Census.—Where a county of the third class is found by a new census to have the requisite population for a county of the second class, it may be organized by the board of supervisors as a county of the latter class, but until such organization it remains a county of the third class, and the provisions of the statute fixing the penalty of official bonds in counties of the second class have no application. (McKinstry, J.)</p>

<p>Prohibition—Court — Officer.—Prohibition does not lie to prevent a court from recognizing and taking judicial notice of the acts of a ministerial officer either defacto or dejure, nor to set aside judicial acts already done.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>Pleating—Gabbler—Contributory Negligence.—A complaint which alleges that the plaintiff took passage on defendant’s steamer and delivered his baggage to defendant, and that shortly before the arrival of the steamer at its destination, he went down on the main deck to look for his baggage—no check therefor having been given him—and while so doing fell down the main hatchway which had been left open negligently and carelessly, with no light placed near it to warn passengers of danger, and sustained injuries thereby, is not demurrable, on the ground that it shows contributory negligence on the part of the plaintiff.</p>

<p>Attachment—Contbact—Tobt.—Plaintiffs sued on a contract, by the terms of which they promised to sell, and defendant promised to buy and pay for, certain personal property at a stipulated price. The breach alleged was that the defendant refused to receive and pay for the property as provided by the terms of the contract, whereby the plaintiffs sustained the damage sued for. An attachment was issued, and the defendant moved to discharge the same on the ground that the action was founded in tori and not in contract. Held, that the action was founded in contract, and the motion was properly denied.</p>

The defendants were directors of the Henrietta Gravel Mining Company, a corporation organized for mining purposes, and the plaintiff was a stockholder. The act under which the suit was brought will be found in the Statutes of 1880, p. 400.

<p>Specific Performance—Written Contract—Subsequent Parol Agreement.— The action was brought to specifically enforce a written contract to convey real estate. At the trial the defendant was allowed to show that by a subsequent paroi agreement he was to retain the title until certain money loaned by him to the plaintiff, and not named in the original contract, should be repaid. Held, that the evidence was competent.</p>

<p>Appealable Obdeb—Judgement. —An order for judgment is not a final judgment, and an order subsequently made cannot be treated as an order made after “final judgment” and appealable as such.</p>

<p>Appeal from a judgment of the Superior Court of Yolo County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Application for a mandamus. The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts, except as to the matters involved in the demurrer, sufficiently appear in the opinion of the court.</p>

<p>Mortgage Fobeclosure—Complaint—• Judgment. — Action to foreclose a mortgage. The appeal was heard on the judgment roll. The appellant objected that the judgment was in excess of the amount due as shown hy the complaint. After examining the allegations of the complaint, held, that the objection was not well founded.</p> <p>Parties—Substitution. —Where a third person, during the pendency of an action, succeeds to the rights of the plaintiff, the court has power to substitute such person as plaintiff in the action, and notice of the substitution need not be given to a defendant whose default has been entered for failing to appear.</p>

The parties to the contract were Jerome B. Cox, Thomas J. Arnold, and Jackson It. Myers, known by the firm name of Cox, Myers & Co., of the first part, and Charles McLaughlin, of the second part. After the work was commenced Myers assigned his interest in the contract to Cox and Arnold, and the work from that time was carried on by them. The action was brought by Cox and Arnold, but Arnold subsequently died, and the action was continued in the name of Cox.

<p>Ejectment—Congeessional Gbant—Patent.—In an action of ejectment based on a patent purporting to have been issued in pursuance of a grant by Congress, it is competent for the defendant to attack the validity of the patent on the ground that the land was excepted from the grant.</p>

<p>Former Acquittal — Judsment on Demurrer to Information. — Pending a demurrer to an information, a new information was filed, and afterwards the demurrer to the former information was sustained, but no order was made or requested permitting anew information to be filed, nor was any opinion expressed that the objection raised could be avoided by anew information as provided for in section 1008, Penal Code. Held, the judgment on demurrer to the first information was a bar to another prosecution.</p>

<p>Wbit of Possession— Husband and Wife__It is the duty of the sheriff, under a writ of possession against the husband, to dispossess the wife found in possession, notwithstanding she may have instituted divorce proceedings prior to the commencement of the action for possession, if her only claim to the property is such as she has by reason of her marital relations.</p> <p>Pbactice—New Tbial—Notice of Motion—Presumption.—Respondent objected on appeal to the consideration of the statement on motion for new trial, because no notice of intention to move for new trial was filed or served. The transcript contained a stipulation giving plain tiff further time within which to serve his statement, aud when it was served on defendant’s attorney, the latter, in acknowledging its receipt, reserved the right to object that it was not served in time, but at no time in the court below objected to its settlement or consideration on the ground that proper notice of intention to move for a new trial had not been given. The court below, in denying the motion, did not proceed upon the supposed want of notice of intention, but upon the determination of the question presented by the motion itself. Held, that it would be presumed the court below found that proper notice was given, or that defendant had waived the objection.</p>

<p>Appeal from a judgment of the Superior Court of the county of Yolo, and from an order refusing a new trial.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a 'new trial.</p> <p>Action to quiet title. The facts are stated in the opinion of the court.</p>

<p>Appeal from two orders of the Superior Court of the city and county of San Francisco.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Motion nob New Tbial—Statement—Findings.—Where amotion is made for a new trial on the ground that the findings are not sustained by the evidence, the statement must specify the particulars in which the evidence is insufficient.</p> <p>Subpbise and Newly Discovebed Evidence.—A motion for a new trial on the ground of surprise or newly discovered evidence must he supported by affidavit.</p> <p>Findings—Motion to Amend and Make Additional.—It is not error to refuse to amend the findings or to make additional findings after a judgment has been entered and a motion for a new trial denied.</p>

<p>Replevin—Money—Seizube Under Execution.—The action was replevin to recover money seized by the defendant as sheriff of the city and county of San Francisco under an execution against one Little. The money was drawn by Little from the Bank of California on a check signed by one Dobinson in the name of the plaintiff, and at the time of the seizure it was sealed up in a canvas bag marked with a tag on which was written the name of Little, and deposited in one of the vaults of the Safe Deposit Company. Little was an agent or employee of the plaintiff, and the money was furnished to pay taxes due from the latter. Held, that the authority of Dobinson to sign the check was an immaterial matter, that the money belonged to the plaintiff, and that replevin was a proper remedy to recover it.</p> <p>Id.—Demand.—No demand was necessary before commencing the action.</p>

The action was brought by the plaintiff as a stockholder of the Equitable Tunnel and Mining Company, a corporation, to enjoin a sale of his stock under an assessment levied by the directors, and to declare certain shares of stock claimed by one of the defendants to be the property of the corporation, and to enjoin the sale thereof and their transfer on the books of the company. An injunction was granted in accordance with the prayer of the complaint.

<p>Petition for writ of review.</p>

<p>New Trial—Conflicting Evidence.—Where the evidence is substantially conflicting, an order refusing a new trial will not he reversed for insufficiency in the evidence.</p> <p>Trial—Error—Exception—Review on Appeal. — A ruling of the court at the trial, to which no exception is taken, cannot be reviewed on appeal.</p> <p>Id.—Irregularities as Grounds for a New Trial.—The action was tried by the court without a jury. The decision was against the plaintiff, who moved for a new trial, and relied in part upon irregularities in the proceedings of the court. The irregularities consisted in certain remarks made by the judge during the progress of the trial in regard to the nature and effect of the evidence. Held, that the irregularities were not such as to prevent the plaintiff from having a fair trial.</p>

The action was replevin to recover certain goods and chattels alleged to be the property of the plaintiffs as partners doing business under the fictitious' name of H. Keller & Co. The goods were seized by the defendant under an execution against one Cadman, through whom the plaintiffs derived their title.

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mandamus—Public Land—Purchase fbom the State—Failube of Title — Eight of the Pubchaseb to Belief.—Mandamus will not lie to compel the register of the State land office to issue a certificate under section 3571 of the Political Code to a purchaser of land from the State, who has paid the purchase money and received a patent, although the land may not have been the property of the State, such purchaser having acquired the title of the United States to the land by availing himself of the provisions of the Act of Congress of the 1st of March, 1877, entitled “ an act relating to indemnity school selections in California.”</p>

<p>Appeal from a judgment of the Superior Court of Yolo County, and from an order refusing a new trial.</p> <p>The action was ejectment. The remaining facts are stated in the opinion of the court.</p>

<p>Boabd of Public Officebs—Majobity of Quobum May Act.—The majority of a quorum of a board of supervisors, a quorum being present, can perform any act which a majority of the board could perform if all were present.</p> <p>Office—Behoval—Vacancy—Pbacticinq Physician Tuba County Hospital.— The office of “ practicing physician of the Yuba County Hospital” is a county office, and a vacancy therein cannot be filled by the board of supervisors except upon petition signed by at least thirty qualified electors.</p>

The action was ejectment. The remaining facts are stated in the opinion of the court., and in the dissenting opinion of Mb. Justice McKee.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Practice—Insolvency — Judgment Against Attached Property ■—Appeal.— After the commencement of the action the defendants were adjudged insolvent debtors, and all proceedings against them stayed. The answer set up no other defense than the adjudication in insolvency. The plaintiffs moved for a judgment on the pleadings, to he enforced only against certain attached property, on the ground that an attachment had been issued in the case, and property attached more than thirty days prior to the initiation of the insolvency proceedings. The court granted the motion and defendants appealed. The transcript on appeal did not show what papers were before the court upon the hearing of the motion. Held, that the judgment should he affirmed, it being incumbent on a party who alleges error to make it apparent by the record.</p>

<p>Appeal—Serving and Filing Notice.—Under section 940 of the Code of Civil Procedure, the notice of appeal may be filed on a day subsequent to that upon which the service upon the adverse party is made.</p>

The administratrix filed her annual account, and written objections thereto were interposed by the creditors. Among the items objected to were certain credits for money purporting to have been paid to the attorney representing the administratrix for his services. The witnesses testified that the services were worth the amount paid, but the court thought otherwise, and reduced the credits from five thousand and seventy-five dollars to one thousand dollars.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The plaintiff, several years ago, recovered a judgment against Lewis Martin for one thousand two hundred and twenty-seven dollars and costs. Martin appealed and filed an undertaking to stay execution as provided by the statute, with J. W. Hager and John T. Hill as sureties.</p> <p>The judgment was affirmed, and upon the coming down of the remittitur the plaintiff moved the court upon affidavits setting out the above facts, for an order that J. W. Hager and John T. Hill appear and show cause why judgment should not be entered against them as sureties for the amount of the judgment recovered against Martin. Hager moved to dismiss the proceedings on the ground that Hill had not appeared to answer the order, nor had he been served with notice. The court found that there had been an unsuccessful attempt to serve Hill, denied the motion, and after a trial upon an answer setting up several defenses rendered judgment against Hager.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.</p> <p>The action ivas brought to foreclose a mortgage made by defendant Anna Ainsworth, wife of defendant A. G. Ainsworth, upon her separate property, given to secure the payment of their joint note.</p> <p>The certificate of acknowledgment attached to the mortgage was as follows: —</p> <p>“State of California, County of Alameda.}ss.</p> <p>“ On this third day of September, A. D. one thousand eight hundred and seventy-eight, personally appeared before me, Will. H. Burrall, a notary public in and for said county, Anna Ainsworth, described as a married woman and the wife of A. G. Ainsworth, whose name is subscribed to the annexed instrument as a party thereto, and who is personally known to me to be the person whose name is subscribed to the said annexed instrument as a party thereto; and she, having been by me first made acquainted with the contents of said instrument acknowledged to me on examination, apart from and without the hearing of her said husband, that she executed the same, and that she does not wish to retract the execution of the same.</p> <p>“In Avitness Avhereof I have hereunto set my hand and affixed my official seal the day and year in this certificate first above Avritten.</p> <p>“ [notarial seal.]</p> <p>Will. H. Burrall,</p> <p>“Notary Public.”</p> <p>The defendants objected to the introduction of the mortgage on the ground of insufficiency of the acknowledgment, and the court sustained the objection. The plaintiff then moved to amend the complaint, and be allowed to prove that the acknowledgment was taken in exact conformity to the requirements of the Code, and for a judgment reforming the certificate. This motion the court denied, and gave judgment for plaintiff for the amount of the note, but denied the prayer for a foreclosure of the mortgage.</p>

<p>Homicide—Evidence — Confession by Wife of Adulteby—Insanity.—Defendant was found guilty of murder in the first degree. The wife of defendant testified, on bis behalf, that she confessed to him, prior to the killing, she had been guilty of adultery with the deceased, and that the confession was followed by great anger, weeping, and mental depression on the part of defendant. Defendant, having introduced evidence that a certain house in Sacramento was a house of ill-fame, offered to prove by a witness the independent fact that deceased had heen seen entering the house in company with the defendant’s wife. The wife’s testimony had not been impeached. Held, that the court rightly excluded the testimony. It was her statement which could be claimed to be the cause, or one of the causes, which deprived him of his reason, not the truth of her statement, with respect to which he had no personal knowledge.</p> <p>Id. — Manslaughter—Passion—Provocation.—If a defendant charged with murder is so far in possession of his mental faculties as to be capable of knowing ■ that the act of killing was wrong, any partial defect of understanding which might cause him more readily to give way to passion than a man ordinarily reasonable, cannot be considered for any purpose. To reduce the offense to manslaughter, the provocation must at least be such as would stir the resentment of a reasonable man.</p> <p>Id. — Charge. — The charge of the trial court must be taken together, and if, without straining any portion of the language, it harmonizes as a whole, and fairly and correctly presents the law bearing on the issues tried, the appellate court will not disturb the judgment because a separate instruction does not contain all the conditions and limitations which are to be gathered from the entire text.</p> <p>Id. —Threats.—The defendant asked the court to charge, “If the defendant had been told of threats made by deceased against him, .... then defendant had a right to arm himself,” etc.' The court refused to so instruct. Held, not error; it was for the jury to determine from the evidence whether the defendant was justified in arming himself and in using arms.</p> <p>Id.—Deposition—Constitution. — Section 13, article 1, of the present Constitution is no prohibition upon the power of the legislature to authorize the taking of depositions by the defendant in every class of criminal cases.</p> <p>Id.—Evidence—Statements.—A witness, Morrison, testified that he told defendant of a conversation he had with his (defendant’s) wife, in which she promised she would he good and do what was right. Defendant then asked the witness to state any conversation he had with her in which she made any admission of her adultery with Estuardo, the deceased. The court sustained an objection by the prosecution. Held, not error; it is manifest that any statement the wife may have made to the witness Morrison not made known to the defendant could not have had any tendency to overthrow' his reason.</p> <p>Id.—Instruction—Assuming Pacts not Proved—Seduction The court refused the following instruction: “It is proper for the jury to take into consideration the statements made to him of the seduction of his wife by deceased, as proper for you to consider in arriving at a conclusion as to whether he understood and was legally responsible for the killing; also, to aid you in arriving at the "conclusion as to whether the act was premeditated or done with malice.” Held, not error; the instruction assumes that statements were made to defendant “ of the seduction of his wife by deceased.” Seduction implies more than illicit intercourse.</p> <p>Id.—Degrees of Murder—Punishment.—The court refused the following instruction: “If you believe the defendant, in truth and in fact, when he killed deceased believed deceased liad seduced his wife, while it is in itself no excuse or sufficient provocation to excuse murder if you believe he wholly understood and could control his act at the time of the homicide, yet it is proper for you to take into consideration in arriving at the degree of murder, if any, of which he may be guilty; also it is proper for you to take such testimony into consideration in fixing the punishment if you should find him guilty of murder in the first degree.” Held, not error; the belief by defendant that deceased had seduced his wife could not of itself tend to reduce the crime to murder of the second degree</p>

<p>Sacramento — Charter of—Power of Taxation Under. — The several acts of the legislature subsequent to the original charter of the city of Sacramento gives authority for the levy and collection of taxes in addition to those specified in such charter, and constitutes an enlargement of the taxing power conferred by the charter.</p>

<p>The facts arc stated in the opinion of the court.</p>

<p>Promissory Note—Indorser—Pleadinq—Demurrer In an action' against the maker and indorser of a promissory note, the complaint alleged in substance among other things that the note was presented at maturity to the maker for payment, but was not paid, whereof the indorser had due notice. The indorser demurred on the ground of the insufficiency of this allegation, and the demurrer was overruled. Held, that the allegation was sufficient, and that the demurrer was properly overruled.</p> <p>Id.—Answer—Denial. — The answer of the indorser denied that he had due or legal notice of the presentment of the note for payment, or the non-payment thereof. JETeld, that no issue of fact was raised by this denial.</p> <p>Id. — Accommodation Indorser—Tender.—-An alleged tender by the indorser held to be bad because the amount tendered was less than the sum due by the terms of the note, although he was an accommodation' indorser, and the plaintiff had purchased the note of the maker at a discount.</p> <p>Attachment—Fees of Sheriff. — Where an attachment is levied on separate pieces of real estate, the sheriff is entitled to fees for each levy.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco striking out a cost bill.</p> <p>The facts are stated in the opinion of the court</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The facts sufficiently appear in the head notes and opinion of the court.</p>

<p>Appeal—Dismissal—Entby and Cobbection of Deobee, —Where a decree of foreclosure is entered and subsequently, by order of the court, corrected as to a clerical error in the amounts, an appeal taken more than one year after the entry of the decree, but less than one year after the order correcting it, will be dismissed.</p>

<p>Pleadings—Defective Allegations and Denials—Objections on Appeal.— Certain defective allegations and denials, not objected to in the court below, sustained on appeal, and the objections to them overruled.</p> <p>Mortgage Foreclosure—Two Mortgages on the Sams Day—Recording—Evidence—Presumption. — Where two mortgages are executed and delivered on the same day, but recorded on different days, no presumption arises from the mere fact of recording as to their priority, nor does this fact tend to prove that the one first recorded was executed and delivered before the other.</p> <p>Id. — Findings—Conclusion of Law.—A finding as to the priority of the mortgages, stated as a conclusion of law, and based upon facts previously found, but not justified thereby, Zteld, to be merely a conclusion of law, and not a finding of fact.</p>

Respondent moved to dismiss the appeal on the ground that no proper service of the notice of appeal had been made. The facts are stated in the opinion of the court.

<p>Ejectment by Lessees—Exhbation of Lease Pending Action. — Lessees in the actual possession of land from which they are ousted by an intruder, without title or color of right, may recover the possession in an action commenced during the continuance of the lease, though not tried until after its expiration.</p>

<p>Judgment—Jurisdiction—Appeal. — Where an appeal from a judgment is heard on the judgment roll, and it appears that the court had jurisdiction of the subject-matter, and of the parties to the action, and the judgment roll fails to disclose any error, the judgment must be affirmed.</p> <p>Id. — Motion to Vacate—Affidavit of Mebits.—An affidavit of merits is indispensable as the basis of a motion to vacate a judgment.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insolvency—Assignee — Creditor— Fraud— Opposition.—Under the insolvent law of 1852, it was competent for the regularly elected assignee, being a schedule creditor, to file a written opposition to the insolvent’s discharge on the ground of fraud in wilfully and knowingly omitting property from the schedule and executing sham deeds with intent to defraud creditors. Such an opposition having been stricken out by the court, held, error.</p>

<p>Chattel Hobtgage Upon Upholsteby and Fdbnitube in Hotel to Seodee Pubchase Honey.—The action was brought to foreclose a chattel mortgage upon the furniture, carpets, beds, and bedding, and all belongings of whatever nature in and to the Brooklyn Hotel in the city and county of San Francisco, and upon the unexpired term of the lease of the hotel premises, good will, and everything appertaining to the hotel, given to secure the payment of the purchase money of all the property included in the mortgage. Held, that the mortgage being made to secure the purchase money of other property than the furniture and upholstery used in the hotel it is void.</p>

The respondent Blanding was on the 4th day of March, 1878, by the governor nominated as a member of the State board of harbor commissioners, on the 6th day of March was confirmed by the Senate, and on the 8th day of March was commissioned to hold for the term of four years. A special session of the legislature, commencing April 4th, was held in the year 1881, pursuant to a proclamation of the governor.

<p>Appeal from an order of the late District Court of the Nineteenth Judicial District, granting a new trial.</p> <p>The facts necessary to be stated appear in the head notes and opinion of the court.</p>

<p>New Trial—Peesumptiox—Appeal,—Every intendment prevails in favor of the correctness of an order granting a new trial although made by another judge than the one who tried the cause, and such intendments must be overcome by affirmatively showing error.</p> <p>Id. — Finding— Documentary Evidence—Depositions.—Where a finding has been made upon a conflict of evidence, or contrary tó evidence, or without evidence, the appellate court will not interfere with the action of the trial court in granting a new trial, although the evidence upon which it acted consists of depositions and documentary and oral evidence.</p>

<p>Conveusiost—Warehouseman,—The plaintiff intrusted certain property to the Ten Cent Parcel Company, a corporation, to be stored. The company stored the property with warehousemen—to whose rights and duties the defendants succeeded—taking a receipt therefor. The defendants had notice that the plaintiff was the owner of the property. She tendered them the amount of the storage charges, seventy-eight dollars, and demanded the property, but did not present the warehouse receipt. Defendants refused to deliver it on the sole ground that it had been sold for the storage charges, but offered to deliver it for two hundred dollars. The court found that the property had not been sold, but was at the time of the tender and refusal in the possession of defendants. Held, that the refusal amounted a conversion, and that the failure to produce the receipt constituted no defense, as the refusal was placed on the mere ground that the property had been sold.</p>

<p>Appeal from an order of the Superior Court of Kern County, discharging defendant and dismissing the action against him.</p> <p>The facts are stated in the opinion of the .court.</p>

The decree directing the sale was not appealed from, but treated as void. The additional facts sufficiently appear in the opinion of the court.

<p>Administrator.—Final Account—Vouchers—Proof.—An order settling- the final account of an administrator reversed for want of proper vouchers, and because the proof as to the correctness of the account was too general and indefinite.</p>

<p>Divobce—Enromas—Peaotice.—In an action by the husband for a divorce on the grounds of habitual intemperance and extreme cruelty, the wife denied the allegations of the complaint, and set up as a separate defense extreme cruelty on the part of the husband. The court found in substance that the material allegations of the complaint were true, and rendered a judgment in favor of the husband. There was no finding upon the issue tendered by the wife as to the cruelty of the husband. Held, 1. That the finding was not sufficient to support the judgment. 2. That it was competent for the wife to plead the cruelty of the husband in defense of the action, and that the judgment could not be sustained in the absence of a finding on the subject.</p> <p>Pleadings—Complaint—Deitobbeb.—Where a complaint contains two counts, one of which is good, a general demurrer to the whole complaint must be overruled.</p>

<p>Stbeet Assessment.—An assessment was made for the grading of Leavenworth Street from Green to Union Street in the city and county of San Francisco. Between Green and Union Streets there was a small street thirty-five feet in width, terminating at one end in Leavenworth Street, and known as Lincoln Street. The cost of the work in front of Lincoln Street was assessed against the lots fronting on that street. In the assessment, Lincoln Street is designated by its name, but it is also numbered and referred to as a lot having a frontage of thirty-five feet on Leavenworth Street, and chargeable with a certain amount as its proportion of the cost of the work. On the diagram attached to the assessment there is a space marked Lincoln Street with a number upon it corresponding to the number in the assessment. Held, that the assessment was properly made, that Lincoln Street is not to be regarded as one of the lots assessed, and that the reference to it was merely for the purpose of a distribution of the cost of the work as between the lots liable therefor.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of Mb. Justice McKinstby.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The case came rip on the judgment roll. No motion was made for a new trial, and the evidence was not before the court. The following is a copy of the agreement on which the questions in the case arose: —</p> <p>San Francisco, Cal., November 20, 1876.</p> <p>MEMORANDUM OP AGREEMENT.</p> <p>H. B. Congdon sells to W. S. Chapman thirty thousand shares of the capital stock of the Erie Consolidated Mining Company, at the price of ten cents per share. Said Chapman agrees to said purchase, and to pay for said stock in gold coin, from the first moneys which can be realized from the sale of any stock of said company owned or controlled by him. Said Chapman agrees to purchase from said Congdon such further quantities of said stock as he may supply within thirty days, at the same price and on the same terms. Said Chapman acknowledges the receipt of said thirty thousand shares of said stock this day delivered to him by said Congdon, and said Chapman agrees to use all reasonable efforts to realize on the stock of said company owned or controlled by him without unnecessary delay, to the end that said payment may be made to said Congdon.</p> <p>Wm. S. Chapman,</p> <p>H. B. Congdon.</p> <p>Witness, Ford H. Rogers.</p> <p>More than three years elapsed between the date of the agreement and the commencement of the action.</p>

The stock in question was transferred to the plaintiff by one Fowler as security for the payment of a debt previously contracted, the time of payment being extended in consideration of the transfer. The stock was represented by a certificate issued to Fowler as the owner thereof, and the transfer to the plaintiff was regularly made by assignment and delivery of the certificate.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

The note in question was secured by a mortgage on real and personal property. The action was brought on the note alone, the complaint being silent as to the mortgage. The existence of the mortgage was set forth in the answer as matter in abatement of the action. The court below found that the security was of no value, and rendered judgment for the plaintiff.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from, an order refusing a new trial.</p> <p>The note in controversy was payable sixty days after date, and the plaintiff purchased it before maturity at a discount of seventy-five dollars, the note being for seven hundred and fifty dollars, with interest at the rate of one per cent per month. After the commencement of the action, the indorser tendered to the plaintiff an amount equal to the sum he paid for the note and the interest and costs which had then accrued, but the plaintiff refused to accept it. The action was brought against the maker and indorser, but the only defense was by the indorser.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

The action was brought to recover certain personal property or its value, and the sum of one hundred and fifty dollars as damages for the detention. There was no evidence upon the question of damages caused by the detention, but the court gave judgment for a return of the property with legal interest on its value from the wrongful taking, or if not returned, for the value of the property with legal interest thereon as damages for the detention from the date of the seizure.

The action was brought against three persons as partners, but was afterwards dismissed as to two of them without prejudice to the right of the plaintiffs to proceed against the remaining defendant as a member of the firm. The facts are sufficiently stated in the opinion of Mb. Justice McKee.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p>

<p>Attachment—Pbefebbed Claims—Constitutional Law.—In an attachment suit certain laborers gave notice of preferred claims under section 1206 of the Code of Civil Procedure, and on the recovery of a j udgment in that suit, the attached property having been previously sold under a stipulation between the parties, and the preferred claims having also been prosecuted to judgment, the court ordered that the latter judgment he first paid out of the proceeds of the sale. On appeal from this order, the section of the Code creating the preference was objected to as being unconstitutional, and it was further objected that the preference was lost by the sale of the property under the stipulation instead of an execution. Held, that neither of these objections was well taken.</p> <p>Id.-—Assignment of the Claims.—In such a case the preference given is not affected by an assignment of the claims after the service of the notice.</p> <p>Id. — Sufficiency of Notice.—The notice was served on the day succeeding the levy of the attachment, and contained a statement that the claims were “ for work and labor done for the defendant during the past sixty days.” Held, that the notice was sufficient to show that the claims were for services rendered within sixty days prior to the levy.</p>

<p>Appeal—Dismissal oe—Undebtaking. — The defendants appealed from an order dismissing a motion for a new trial by serving and filing a notice and giving the undertaking required by section 941 of the Code of Civil Procedure. Subsequently they served and filed a notice of appeal from the judgment and filed the undertaking required by section 942 of that Code. The plaintiff moved to dismiss the appeal from the judgment, because the undertaking required by section 941 had not been given. Hdd, 1. That the appeal from the judgment is ineffectual for want of the undertaking required by section 941 — the undertaking on appeal from the order dismissing the motion for a new trial being inapplicable to the appeal from the judgment. 2. That the attempted appeal from the judgment failing, there is no such appeal pending, and the motion to dismiss must be denied on that ground, this course being regarded as the better practice in such a case.</p>

<p>Summons—Sbbtioe—’Motion to Dismiss.—In an action on a promissory note given by the deceased, and to foreclose a mortgage executed to secure its payment, the summons was served on the executrix by publication ten years after the commencement of the action, and the executrix thereupon moved the court to vacate the summons and dismiss the action as to her for want of diligence in its prosecution. It appeared that the deceased had conveyed the mortgaged property to another person, and was not the owner of it at the time of his death. It also appeared that a claim for the payment of the debt had been presented to the executrix in due time, and rejected by her. The court denied the motion on condition that the plaintiff file a stipulation waiving his right to a judgment for any deficiency that might arise on a sale of the mortgaged premises. Held, that under these circumstances the action of the court below should not be disturbed</p>

<p>Husband and Wife—Eabnings of Wife.—Under section 168 of the Civil Code, the earnings of the wife are not liable for the debts of the husband.</p>

<p>Ejectment—Adverse Possession.—A continuous adverse possession of land for five years vests the occupant with title.</p> <p>Id.—Agreed Boundary.—Where the owners of adjacent parcels of land recognize a particular line as the boundary between their respective parcels, and hold possession adversely in conformity to such line for more than five years, each is estopped from afterwards questioning the line so recognized as the true boundary.</p> <p>Id.—Payment of Taxes—The provision of the Code requiring the payment of taxes as an element of adverse possession, has no application where the Statute of Limitations had run prior to the adoption of that provision. A title acquired under the statute cannot be divested by a subsequent enactment.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the head note and opinion of the court.</p>

The action was brought to collect an assessment upon lots fronting on Bay Street, in the city and county of San Francisco, for grading that street under the act of the legislature passed April 1, 1878, entitled “ an act to authorize the board of supervisors of the city and county of San Francisco to order Bay Street graded, and to change its grade.” Section one of the act authorized and empowered the board of supervisors of the city and county of San Francisco to order…

Andres Briswalter, the appellant, was a judgment- creditor of the deceased. The remaining facts sufficiently appear in the opinion of the court.

The action was brought to establish a trust, and for other relief in connection therewith. The additional facts, so far as they bear upon the points decided, appear in the opinion of the court.

<p>Action on Foefeited Bail-Bond.—An action on a forfeited bail-bond may be brought in the name, either of the people or of the county; and the district attorney is authorized to bring the action.</p>

<p>Change of Venue—Residence— Convenience of Witnesses.—In an action commenced in Lake County, the defendant demurred to the complaint, and moved to change the place of trial to Sonoma County where ho resided. The plaintiff opposed the motion on the ground of the convenience of witnesses. No answer having been filed, held, that the motion could not be resisted on that ground.</p> <p>Id. — Order Granting Motion on Payment of Costs.—An order made granting the motion on the payment of costs is a conditional order, and amounts to a denial of the motion if tlic costs are not paid. It is interlocutory in its nature, and contemplates a further order granting or denying the motion absolutely upon the payment or non-payment' of the costs as required. In determining the effect of the order in these respects, the power of the court to impose costs is an immaterial matter.</p>

<p>Succession—Illegitimacy — Sections 1386, 1387, and 1388 oe the Civil Code Constbued__Sabra Magee had two legitimate daughters—Eliza and Susan. The descendants of Eliza were all legitimate, but Susan had two illegitimate daughters—Elizabeth and Suez. Elizabeth died after her mother, leaving one legitimate child—Albert. Suez died subsequently intestate and without issue. The descendants of Eliza claim to succeed to the estate of Suez as against Albert. Held, on a construction of sections 1336, 1387, and 1388 of the Civil Code, that Albert is entitled to succeed to the estate as heir of Susan, the mother of Elizabeth and Suez.</p>

The statement on the motion for a new trial was agreed to by the counsel for the respective parties, and used on the hearing of the motion, but was not certified by the judge. Pending the appeal, the judge certified the statement nunc pro tune as of a day anterior to the hearing of the motion, and by order of the court below the statement was refiled nunc pro tuna as of the same day.

<p>Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order setting aside a default.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing a new trial.</p>

At the time of the alleged injury, the plaintiff was a passenger on a railroad owned and operated by the defendant in the city and county of San Francisco. The plaintiff was examined as a witness, and testified that she stopped the car in which she was riding for the purpose of getting off, and that while she was in the act of alighting, the car started, and she was thrown to the ground and injured.

<p>Prohibition—Appeal ebom Justices’ Court—New Tbial m Superior Court— Jurisdiction__In an action in the Justices’ Court of the city and county of San Francisco, wherein one Wilhelm was plaintiff, and the petitioner herein defendant, a judgment was rendered in favor of plaintiff. The defendant had answered denying all the allegations of the complaint, but failed to appear at the trial, whereupon the court gave judgment without the introduction of any evidence. The defendant appealed on questions of law alone, and the Superior Court reversed the judgment, and ordered a new trial in that court. The petitioner asked that the Superior Court and judge thereof be restrained by prohibition from trying the case. Held, that the new trial was properly ordered to take place in the Superior Court, and that the writ be denied.</p>

<p>Appeal from an order vacating and setting aside a judgment.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

In 1864, the defendant Edward Ellis and his wife filed a declaration of homestead upon the premises in controversy. In 1865, they executed a deed of conveyance of the undivided one half of said premises, in conjunction with other property, to Thomas B. Howard and W. H. Ladd, and Howard and Ladd, at the same time, and as a part of the same transaction, reconveyed to defendant Edward Ellis the same undivided one half.

<p>Appeal from an order of the Superior Court of the city and county of San Francisco vacating and setting aside a default and judgment.</p> <p>Judgment by default was entered against the defendant Catharine Kelleher, and she moved the court to set aside the default and judgment, which motion the court denied. Subsequently she renewed the motion, and the following order was written upon the notice of motion: “ Good cause being shown therefor, on motion of Sullivan and Severance, attorneys for defendant Mrs, C. Kelleher, it is ordered that the time of service be shortened, and that the motion therein specified be heard at the time and place therein named, April 27th, 1880.</p> <p>“M. A. Edmonds, Judge.”</p> <p>This order was made at chambers. The court granted the motion and set aside the default and judgment with leave to answer, and the plaintiff appealed from the order.</p>

<p>Trade Mark—Business Signs__The object of a trade-mark is to indicate by its own meaning, or by association, the origin or ownership of the article to which it is applied. A sign placed over a man’s place of business with a row of beer barrels painted on it, and the letters “P. B.” stamped on the head of the barrels, and the words “Depot of the Celebrated” placed above, and the words “Philadelphia Beer” placed below the barrels, would relate only to the description of the beverage dealt in by him, and cannot be protected as a trade mark.</p>

<p>Street Assessment.—The board of supervisors of San Francisco ordered that the roadway and sidewalks of Greenwich Street from Laguna to Fillmore Street—a distance of three blocks —be macadamized, and that redwood curbs be furnished and laid thereon. In making the assessment, the superintendent of streets separated the roadway and curbing from the sidewalks, and as to the latter, three lots chargeable with their proportion of the cost of the work were omitted from the assessment. Held (1), that the assessment, even if properly made in other respects, was invalid as to the sidewalks by reason of the omission of these lots; (2) that in estimating the cost of the work, and distributing the same over the lots liable therefor, the roadway and curbing could not be separated from the sidewalks, and that the entire assessment was void; (3) that if a separate assessment were required for each kind of work, the assessment here could not be sustained, because the cost of the curbing and the expense of macadamizing the roadway are united.</p> <p>Id.—NuamEiipiG the Lots and Showing Theib Ebontage.—The assessment was also held to be invalid as to one of the lots, for the reason that the provisions of the statute requiring each lot or portion of lot to be numbered, and the frontage shown wore not complied with. The lot was numbered, but portions thereof assessed for work done on the street crossings were not numbered either in the assessment or on the diagram, nor did the diagram show the number of feet frontage of the portions so assessed.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial.</p> <p>The facts are sufficiently stated in the opinion of the court</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial.</p> <p>The action was ejectment. The plaintiff held a certificate of purchase issued by the United States, and which grew out of a controversy before the land department, entitled John D. Osborne v. Cyrus D. Haven & F. M. Haws, involving the west half of a quarter section of government lands. The plaintiff and defendant had filed their declaratory statements to pre-empt the lands, and Osborne, holding a soldier’s certificate, had located it upon the same lands. The contest thus begun resulted in a decision of the secretary of the interior awarding the land to the plaintiff Haven.</p> <p>The defendant answering -averred that he was, at the time plaintiff filed his declaratory statement, and since 1873 had been, in the adverse possession of the land in controversy, and by way of cross-complaint set up all the proceedings and findings of the land department in the contest between Osborne and the plaintiff and defendant, and prayed that the plaintiff be declared a trustee for him, and that all the rights secured by the certificate of purchase be conveyed to .him. The plaintiff* demurred to the cross-complaint, the demurrer was sustained, and the case went to trial upon the answer. On the trial the plaintiff offered in evidence the decision of the secretary of the interior, by virtue of which the certificate was issued. The court refused to admit it, and found that the defendant was, at the time the plaintiff filed his declaratory statement to pre-empt the land, and at the commencement of this action, and has been continuously since 1873, in the adverse possession thereof, and gave judgment for the defendant.</p>

<p>Appeal from an order and judgment of the Superior Court of the city and county of San Francisco sustaining the demurrer to and dismissing the petition to set aside the decree of distribution.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

The decedent died in England, being at that time a resident of that country. He was never a resident of California, but left an estate here consisting of ten thousand dollars, deposited in the Security Savings Bank of San Francisco. The heirs of the decedent were Walter H. Beech, his son, and Mary L. F. Beech and Mrs. Bell, his daughters, all residents of the kingdom of Great Britain. There were no heirs or relatives residing in California.

The action was brought to enjoin the defendant from constructing and operating a steam railroad on Webster Street in the city of Oakland. The city council had passed an ordinance granting to the defendant the right to construct and maintain the road, but the validity of this ordinance was assailed on various grounds. The injunction was denied, and a judgment rendered dismissing the action.

The assignment in question was made by Joseph F. Vorbe to the plaintiff in trust for the creditors of Vorbe. One of the principal objections to the assignment arose on an indebtedness of three thousand five hundred dollars appearing in the inventory as due to Madam M. Grandvoinet. This was originally a bona fide indebtedness, but prior to the assignment, the parties entered into an agreement by which the indebtedness ivas changed to an annuity for life.

The defendant was sheriff of the city and county of San Francisco, and the action was brought to recover the property or its value. The additional facts are sufficiently stated in the opinion of the court.

<p>Taxation—Assessment of Steamebs of Bailboad Cobpobation. — The steamers used by the Central Pacific Railroad Company in transporting its freight cars across the bay of San Francisco, are not included in the property defined by the tenth section of article 13 of the State Constitution—the franchise, roadway, road bed, rails, and rolling stock of railroads operated in more than one county in the State—and should be assessed by the local assessors, not by the State board . of equalization.</p>

<p>Taxation—Stocks. — Shares of stock in a corporation, the tangible property of which is situated in another State, and subject to taxation under the laws thereof, such shares being owned by a resident of this State, are taxable here without regard to the taxes thus imposed upon the corporate property. Section 3610 of the Political Code has reference to corporations whose property is situated in this State. The inhibition against double taxation only applies to such taxation by the same State or government.</p>

Cebtiobabi to the Superior Court of the county of Santa Barbara, to review an order setting aside a decree of the Probate Court in the matter of the estate of H. W. Dean, deceased. This proceeding was instituted by one of the executors of the ' last- will and testament of the deceased. The order in question was made on a petition filed by the residuary legatee more than four years after the decree Avas rendered.

<p>Appeal from a judgment of the District Court of the Twelfth Judicial District, and from an order dismissing a motion for a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Cbiminal Law—Evidence—Pbepondeeance— Reasonable Doubt. — The truth or falsity of the testimony of a witness, on which depends in part the defendant’s guilt, is to be determined by the jury from all -the circumstances bearing upon the question, and a fact tending to prove the one or the other need not be established beyond a reasonable doubt; a preponderance of evidence is sufficient.</p>

<p>Obiminax, Law—Attempt to Stxbobn Pebjtjby—Infobmation. — “Attempting to suborn perjury” is not the generic name of any class of offenses, and where an information charges such an offense in those terms, without anything more, except that the defendant endeavored to procure another person to swear falsely and commit perjury in a specified suit, it is insufficient.</p>

<p>Damages—New Tbial.—In an action for negligence resulting in the death of a human being—nothing appearing to justify merely nominal damages—a verdict assessing the damages at one dollar may be set aside as inadequate, and a new trial granted.</p>

<p>Vessels—Taxation.—A vessel registered out of the State, and never here except transiently in the course of her voyages for the purpose of receiving and discharging cargo, is not subject to assessment for taxes within the State. In such a ease it makes no difference that the vessel is owned in part by residents of the State.</p> <p>Assessment—Not a Judicial Act. — The assessor does not act judicially in making an assessment for taxes.</p>

The attorney-general on behalf of the people, filed with the governor specific charges of misconduct and neglect of duty on the part of the petitioners, composing the State board of prison directors, and asked their removal from office.

<p>Criminad Law—Habeas Corpus—Sentence—Entry oe Judgment.—The petitioner was convicted in the Police Court of the city of Sacramento of the offense of “ attempted extortion.” He was sentenced to imprisonment in the county jail for- six months, and an entry was at once made in the minute or memorandum book kept by the clerk of the court, which showed the offense of which he was convicted, and the sentence of the court. The formal judgment was not entered on the judgment docket for more than twenty days thereafter. Meld, on habeas corpus, that the defendant was not entitled to be discharged.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The action was brought against Robert Taggart, a minor, and against O. M. Slayback, as administrator of the estate of Mary B. Taggart, and as guardian of Robert Taggart, to quiet title to certain lands alleged to have been sold to the plaintiff by Mary B. Taggart. The plaintiff alleged that some time subsequent to the execution and delivery of the deeds to him, by which the lands were conveyed, they were left at the residence of Mrs. Taggart in a tin box, and that after her death it was discovered that the deeds had been abstracted. The defendant denied the execution and delivery. The deeds were not recorded.</p> <p>The other facts appear in the opinion of the court.</p>

<p>Fraudulent Transfer—Void as Against Assignee in Insolvency—A transfer of personal property without an immediate delivery and an actual and continued change of possession is void as against an assignee in insolvency of the vendor.</p> <p>Id.—Delivery and Continued Change of Possession. — The property purchased consisted of loose hay stored in a barn owned by the vendor. The plaintiff examined the hay at the time of the sale, and there was a verbal delivery. A keeper was left in charge of the hay. A portion of it was subsequently removed, but the part in controversy remained in the barn until it was attached by a creditor of the vendor. The period between the sale and attachment was about three months. The barn continued in the possession and under the control of the vendor. The court below found that there was not an immediate delivery and an actual and continued change of possession. Held, that the finding was justified by the evidence.</p> <p>Pkactice on Appeal—Modification of Judgment—De Minimis.—The evidence showed that the value of the property replevied did not exceed three hundred and sixty dollars, but the court found the value to be three hundred and seventy-five dollars. Held, that the judgment cannot be modified here so as to conform to the evidence, for it would then have no finding to support it; and further, that considering the amount involved the judgment ought not to be affirmed upon the maxim de minimis, etc.</p>

<p>Appeal from an order of the Superior Court of San Diego County denying a motion for an order on the sheriff directing the application of the proceeds of a sale of attached property, and from an order refusing a new trial of such motion.</p> <p>On September 13th the sheriff attached the property of the defendant McCleary, in an action against him by one Valentine. The following day te levied another attachment on. the same property, in an action by the appellant, “ subject to a prior levy in favor of Valentine.” The property was subsequently sold, and the proceeds being insufficient to pay more than Valentine’s claim, the appellant moved the court to direct the sheriff to apply the proceeds to the satisfaction of his claim, on the ground that the attachment was void. The court denied the motion, and the appellant moved for a new trial, which was refused.</p>

The action was brought to enjoin the defendant from draining his lands in such a manner as to discharge the water on the lands of plaintiff, and for damages caused plaintiff thereby. Specific issues were submitted to a jury and findings were made by them. The court found differently upon the same issues. The answers to the questions asked Moore and Ricketts tended to show that the acts complained of by the plaintiff produced benefits rather than injuries.

Plaintiff, as a broker, brought this action to recover an unpaid balance of the purchase money advanced by him to purchase wheat for the defendants, and for his broker’s fees. The defendants demurred to the complaint, and at the same time filed an affidavit of merits and a written demand for a change of venue, and moved the court to transfer the cause to the Superior Court of the city and county of San Francisco.

judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The facts are sufficiently stated in the opinion of the court.

The action was brought to recover a sum of money with interest alleged to be due from the defendant to the plaintiff as a balance unpaid on a certain contract stated in the complaint. When the money became due, the rate of interest was seven per cent per annum, but the statute was afterwards changed, and the rate increased to ten per cent per annum. The court allowed seven per cent until the change in the statute, and ten per cent thereafter.

<p>Pbactioe—Inteelocütoby Decebes.—There is nothing in the judicial system of this State to prevent the courts from making interlocutory decrees in equity cases, and such decrees are valid and binding until vacated by some appropriate proceeding. They cannot he set aside on the theory that the courts have no power to make them.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

The action was for the recovery of the possession of the west half of a certain quarter section of land. The plaintiff held a certificate of purchase from the United States which grew out of a contest between one Osborne who held a soldier’s certificate and had located the same land, and the plaintiff and the defendant who had each filed a declaratory statement to pre-empt. The Secretary of the Interior decided the contest in favor of the plaintiff herein.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

The action was brought to recover State and city and county taxes for the fiscal year 1877-78 upon an assessment of “capital” six million dollars; and for the fiscal year 1878-79 upon an assessment of “capital stock” six million dollars. The case was tried upon an agreed statement of facts, sufficiently set forth in the opinion.

<p>Findings. — Judgment and order refusing a new trial reversed for want of a finding on one of the issues presented by the pleadings.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Cbiminal Law — Jdsthtable Homicide.—A person who nos sought a combat for the purpose of taking advantage of another, may afterwards endeavor to decline any further struggle, and if he really and in good faith does so before killing the person with whom he sought the combat, he may justify the killing on the same grounds as he might if he had not originally sought the combat for such purpose.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing to direct the satisfaction of a judgment.</p> <p>The facts are sufficiently stated in the opinion of Mr. Justice Myriok.</p>

<p>Policy of Insbbaftce—Fobfeitdbe.—A policy of insurance issued to one of its members by a mutual insurance company having authority to levy assessments upon the members for their proportion of the losses and expenses of the company, is not forfeited or suspended by the failure of the insured to pay an assessment thus levied, unless such forfeiture or suspension is provided for as a part of the contract of insurance. If the obligation to pay arises from an independent contract, its violation does not affect the policy.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of Santa Barbara County changing the place of trial to the city and county of San Francisco.</p> <p>The facts appear sufficiently in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

The action was brought to abate a nuisance as well as for the damages resulting from the breach of the agreement in question, but the judgment rendered was for damages only.

The action was brought to recover of the defendant Bacon certain money alleged to have been received by him in the capacity of agent, and fraudulently appropriated to his own use.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Application for writ of mandate.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Constitutional Law—Statute—Mandamus.—On the authority of Fraser v. Freelon, 53 Cal. Old, held, that the constitutionality of the act creating the municipal court of appeals in San Francisco cannot be determined in a proceeding by mandamus, the present Supreme Court being governed, in regard to the construction and effect of the former Constitution, and the mode in which such questions may be presented, by the decisions of the Supreme Court created and existing under that instrument.</p> <p>Municipal Coubt of Appeals—Teansfee of Causes fboiu County Coubt— JunisniCTlON. — The municipal court of appeals acquired jurisdiction of causes, pending in the county court, by operation of the statute creating the municipal court of appeals. An order transferring them was unnecessary.</p>

<p>Appeal—Jurisdiction — Municipal Court of Appeals.—In an action pending on appeal in the county court of the city and county of San Francisco at the time of the passage of the act creating the municipal court of appeals, no order transferring the action to the latter court was required to give that court jurisdiction to hear and determine the same. The transfer was made by operation of the act itself.</p> <p>Id.—Undertaking- on Appeal.—In such a case, the undertaking on appeal to the county court is as effectual to bind the sureties as if the action had not been transferred.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Corporation—Money Lost by Theft—Liability of Officer.—The secretary of a corporation, whose duty it is to receive all moneys due the corporation, and pay the same over to the treasurer, must exercise reasonable diligence in paying over any moneys received by him, and if he fail to do so, and the moneys are stolen from him, he is liable therefor.</p> <p>Id.—Bond—Liability of Sureties. — The sureties on a bond given by the secretary to the corporation, conditioned for the faithful performance of his duties, are also liable for moneys stolen under such circumstances. The violation of duty on his part in failing to pay the moneys over constitutes a breach of the bond.</p>

<p>Application for a writ of prohibition. The facts are stated in the opinion of the court.</p>

<p>Cbhedtal Law—Bubqlaby—Sufficiency of Infobmation. — The defendant was accused of the crime of burglary. The information charged that he feloniously and burglariously entered a certain house with intent to commit a rape, but did not state under which set of circumstances, specified in section 261 of the Penal Code, the crime was committed. Held, that the information was sufficient.</p> <p>Id.—Chabge.—Where the court, in a charge to the jury, reads the whole of a section of the Code, a part only being relevant, the judgment will not be disturbed if it is not apparent that some substantial right of the accused was affected.</p>

<p>Appeal from a judgment of the Superior Court of El Dorado County.</p> <p>The facts are stated in the opinion of Department Two, adopted by the court in Bank.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco making distribution of the estate of the deceased.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Law of the Case.—A decision on appeal, based upon a particular state of facts, is not binding in respect to questions arising on a second appeal, and depending for their solution upon facts essentially different.</p> <p>Mobtoage Poreolosure—Pleading—Cross-Complaint—Demurrer. — On the 1st of July, 1864, T. W. Sigourney brought an action to foreclose a mortgage against the property of a corporation known as the Eureka Lake Company. Marks Zellerbach and certain other persons, alleged to be subsequent encumbrancers, were made defendants. Zellerbach afterwards succeeded to the rights of the company, and was the only one of the original defendants who appeared in the action. On the 23d of August, 1863, Sigourney and Zellerbach made the agreement referred to in the opinion of the court The Eureka Lake and Yuba Canal Company Consolidated was organized in pursuance of that agreement, and intervened in the action, which was then tried, and resulted in the recovery of a judgment by Sigourney. This judgment was reversed on appeal, and before any other proceedings were taken Sigourney died, and his administrator was substituted as plaintiff. A supplemental complaint was afterwards filed, sotting up the agreement, alleging its non-performance by Zellerbach, and making the Eureka Lake and Yuba Canal Company Consolidated a defendant. Zellerbach answered, and the Eureka Lake and Yuba Canal Company Consolidated withdrew its intervention, and filed an answer, and also a cross-complaint claiming affirmative relief against Zellerbach and the plaintiff. Zellerbach demurred to the cross-complaint, and the demurrer was sustained. The action was again tried, and from the judgment rendí red, separate appeals were taken by Zeller bach and the Eureka Lake and Yuba Canal Company Consolidated. After an extended examination oí the case as presented by the two appeals, held, that the demurrer was improperly sustained, and that the court below proceeded on an erroneous view of the rights of the parties.</p>