Volume 64 — California Reports

<p>Mandamus—Tax Deed.—Mandamus will not lie to compel a sheriff to issue a certificate and'deed to a purchaser at a sale for taxes under an invalid assessment, nor where the petition does not aver that there was an assessment and levy for taxes, and that the same were unpaid.</p> <p>assessment Boll—Defective. Assessment.— An assessment for taxes held not to he vitiated by the words “ to all owners and claimants known and unknown,” appearing in the general heading to the assessment roll; but in the tabular part of the roll, under the heading “ taxpayer’s name,” were the words, “ Place, Wilson, Newman, and others.” Held, that the assessment was invalid.</p>

<p>New Trial—Amending Statement. — The specifications in a statement on motion for a new trial may be amended by the moving party on the hearing of the motion, if the adverse party will not be injured by the amendment.</p> <p>Id. — Order Granting a New Trial—Review on Appeal. — Where a new trial is granted on the ground of the insufficiency of the evidence to establish a material fact, the order will not be reversed if the evidence on the subject is conflicting.</p>

<p>Appeal from a judgment of the District Court of the Twelfth Judicial District, and from an order refusing a new trial.</p> <p>The facts sufficiently appear in tlie opinion of the court.</p>

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

<p>Letters of Administration — Seal of the Court__It is not necessary or material that the seal of the court to letters of administration should be affixed at the particular place indicated in the form prescribed by section 1362 of the Code of Civil Procedure.</p>

<p>Jurisdiction of Supreme Court. —An action was brought in a Justice’s Court to recover one hundred dollars damages for cutting timber. Both plaintiff and defendant claimed title to the land from which the timber was cut, and thereupon the case was transferred to the Superior Court. There the plaintiff amended his complaint alleging ownership of certain described lands, and demanded two hundred and ninety-nine dollars damages for cutting timber therefrom. To this amended complaint defendant neither demurred nor answered. Judgment by default was entered and an execution issued, and from an order recalling the execution the plaintiff appealed. Meld, that it does not appear that the case made by the amended complaint is the case transferred from the Justice’s Court, and as it involves no question of title, and the amount in controversy is less than three hundred dollars, neither the judgment nor any order made after judgment can be reviewed on appeal to the Supreme Court,</p>

The judgment of the county court referred to in the opinion was a judgment in favor of the defendant herein in an action of forcible detainer brought by the plaintiffs for the restitution and possession of the same premises in controversy in this action. The other facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the county of San Diego, and from an order refusing a new trial.</p> <p>The agreement of September 10, 1879, referred to in the opinion of the court, was to the effect that plaintiff agreed to sell to the defendant Lovell and one Wheeler a certain parcel of land for the sum of fifteen hundred dollars to be paid in wheat, the purchasers agreeing to go into possession, plant and cultivate the land, and deliver annually to the grantor one half of all the wheat raised thereon at a stipulated price until the purchase money ivas paid. The agreement of March 1,1880, was for the sale of another parcel of land for one thousand dollars upon similar terms and conditions. The remaining facts are stated in the opinion of the court.</p>

<p>Appeal from the Superior Court, county of Santa Barbara.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the county of Santa Barbara.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

The information alleged that the property stolen was “a certain hog, said hog being then and there the property and chattel of one Albert Long.” It was contended by defendant that the indictment should have stated the color, kind, name, weight, mark, or. brand, or some kind of description by which the property could be identified. The remaining facts are stated in the opinion of the court.

<p>Habeas Cobpus—Paedoh.—Where a prisoner has been granted a pardon by the governor on condition that he forthwith leave the State and never return to it, he is not entitled to a discharge from rearrest on habeas corpus, it appearing that he did not accept the pardon in good faith, and that after his release from prison, and before his rearrest, ample opportunity was given him to leave the State, of which he did not avail himself.</p>

<p>Deed—Descbiption Construed. —F. B. and A. 0. Larkin, the owners of a certain quarter section of land, conveyed to one Campbell a small portion of it— twenty-two and twenty-nine hundredths acres—taken from the southeasterly part of the quarter section. They afterwards conveyed to plaintiff’s grantor “the east one hundred acres of the quarter section, commencing on the west bank of the Feather Biver, and running back to the westward far enough so as to contain one hundred acres, and so as to comprise the east one hundred acres of the quarter section, excepting therefrom a small piece of land sold by F. B. and A. 0. Larkin to A. W. Campbell.” Held, that the deed conveyed seventy-seven and seventy-one hundredths acres only.</p>

<p>Involuntary Insolvency—Adjudication—Notice to Creditors.—The court; may adjudge a party insolvent in an involuntary proceeding upon the return day of the order to show cause why he should, not be adjudged insolvent, without waiting for a meeting of creditors.</p>

<p>Administration—Liability of Sureties on Administrator’s Bond.—An administrator’s bond given pursuant to an order of the court requiring e( further and additional security,” is cumulative. The purpose of requiring it is to strengthen the security previously given, and the sureties on such bond are responsible for the faithful execution by the administrator of the duties of bis 0 trust without regard to the time of the execution of the bond.</p>

This was a bill to quiet title. On the 21st of October, 1878, the Bakersfield Town Hall Association commenced an action of ejectment in the district court against one Julius Chester to recover possession of a lot of land, of which the premises now iu controversy are a part. The respondent George H. Chester then held the legal title to the property, and was not made a party to the action.

<p>Application for a mandamus to compel the respondent, surveyor-general of California, to approve certain applications of the petitioners to purchase school lands from the State.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Bindings—Contradictory and Uncertain.—Judgment and order refusing a new trial reversed because the findings were contradictory and uncertain.</p>

This was a proceeding by the people to have it determined that the defendants had usurped, intruded into, and wrongfully hold and exercise a corporate franchise, and that they he restrained from exercising the same. The complaint sets forth in haeo verba, a copy of a document purporting to be “Articles of Incorporation of the California Farmers’ Mutual Fire Insurance Association,” dated May 27, 1874.

<p>CBnmfAi, Law—Indictment—Defects of Poem.—The indictment charged the defendant with grand larceny, and then alleged a previous conviction of a similar offense, concluding with the words “ contrary to the form, force, and effect of the statute,” etc. Defendant urged that there was a material departure from the form prescribed by the Code in this, that the concluding phrase followed the allegation of prior conviction and not the charge of grand larceny. Held, that the defect was a matter of form not prejudicial to any substantial right of the defendant, and did not affect the indictment or conviction.</p>

<p>Findings—General Verdict—Practice.—In an equity case, where issues are submitted to a jury, their verdict is merely advisory to the court. The adoption of a verdict is equivalent to a finding by the court to the extent to which the verdict covers the issues made by the pleadings. It is the duty of the court, when it adopts a verdict, to find upon all the issues not covered by it unless such findings are waived.</p> <p>Id. — Special Issues.—The court should direct proper issues to be framed upon the pleadings, and submitted to the jury, who should respond to all the issues submitted to them. A general verdict should he disregarded.</p>

<p>Appeal from a judgment of tho Superior Court of the county of Sau Bernardino, 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 county of Colusa, 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 enjoin the defendant from constructing a tunnel through a lot owned by the plaintiff in the city of Nevada. The construction of the tunnel was in progress at the commencement of the action, and extended about fifteen feet into the lot. It was twenty feet below the surface, and would pass when completed one hundred and fifty feet through the lot.

The complaint was demurred to and the demurrer sustained, and a final judgment was thereupon entered in favor of the defendant. The facts stated in the complaint, so far as it is necessary to give them, appear in the opinion.

<p>Appeal from a judgment of the Superior Court of Plumas County.</p> <p>The act in question provided, among other things, that the office of county recorder in Plumas County should be separated from the office of county clerk, and that a county recorder should be elected at the general election in 1879, and every two years thereafter. These provisions took effect immediately, and under them the defendant was elected county recorder at the general election in 1882, the time for holding the election having been changed by the Constitution. The relator was county clerk, and claimed to be ex-officio county recorder under the provisions of section 4105 of the Political Code, which was adopted prior to the passage of .the act above referred to. The suit was brought to oust the defendant from the office, and to put the</p> <p>relator in' possession thereof. A judgment was rendered on demurrer in favor of the relator.</p>

<p>Appeal from a judgment of the Superior Court of Trinity County refusing a mandamus, and from an order denying 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 county of Sacramento.</p> <p>Action to quiet title to a city lot. The defendant relied upon estoppel by a former judgment, in an action of ejectment between the same parties. After the commencemént of the action of ejectment, and prior to the judgment therein, the plaintiffs acquired by purchase the title relied upon by them in this action.</p>

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

<p>Agency—Middleman—Compensation—Public Policy.—A person who merely brings two parties together for the purpose of contracting for themselves, may properly receive compensation from each.</p> <p>Contract—Maturity.—A contract to pay money upon the happening of a given event matures on the instant the event happens.</p>

<p>Homestead—Mortgage—Probate Court. — In probate proceedings to set apart to a widow a homestead created by declaration during the lifetime of the husband, the court cannot pass upon the validity of mortgages upon the homestead property. That question must be tested by proceedings for foreclosure.</p> <p>Id.—Decree__A decree declaring the homestead as set apart subject to the liens of the mortgages is unauthorized.</p>

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

This was an action of ejectment. The land in controversy was a part of the Rancho de Bartolo Viejo, a Mexican grant, which was patented to Pio Pico, by the United States, August 5, .1881. Both parties claim under executory contracts of purchase, made by Pico prior to the issuance of the patent to him. The other facts are stated hi the opinion.

<p>Contract—Beneficiary — Bight of Action—A. conveys lands to B., in consideration oi'B.’s agreement to pay anote made by A. to a third party, and secured by mortgage upon tlnTland. B. conveys to C. ill consideration of C.’s agreement to pay the note of A. Upon payment of the note by A. a cause of action for the amount arises in liis favor against 0.</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>Classification of Counties—Census. — The census referred to in section 4007 of the Political Code, by which the counties of the State are classified, is that taken by the United States.</p> <p>Id.—Evidence—Certificate of Superintendent.—A copy of the census returns certified by the superintendent is admissible to show the census results. Id.—Judicial Notice.—The courts will take judicial notice of census returns.</p> <p>COXSOHDATIOH OF COUNTY OFFICES—PCBMCATION BY SnPEKYISOBS__To effect a consolidation of county offices, the order of the board of supervisors passed for such purpose must be published lry order of the hoard. A publication in a newspaper of the proceedings of the board in which such order appeared is not sufficient.</p>

<p>Appeal—Simon—Bill of Exceptions.—On an appeal from a - judgment, the appellate court will not consider an error not appearing upon the judgment roll, unless it is made a'part of the record by a bill of exceptions.</p> <p>Id.—Opinion. — The opinion of the judge of the trial court is not apart of the record.</p> <p>Practice—Trial by Court—Bequest for Bindings of Law.—In a trial by a court without a jury, a party desiring a particular application of a principle of law to facts established, or sought to be established, should present his proposition to the court, and request a finding in accordance with his desire.. If refused he may have the refusal noted in a bill of exceptions.</p>

The plaintiff contested the election of defendant to the office of supervisor of Sacramento County. At the trial plaintiff offered to prove that defendant aided and abetted the deputy county clerk in making a false return of an affidavit, upon which a voter was registered. This evidence was refused.

<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>Conveyance—Fraud—Undue Influence. — A conveyance of land, made by a young girl to lier grandparents, with whom she has resided from infancy, and who have had entire control of her person and property, and have purposely kept her in ignorance of her rights, is fraudulent and will be set aside by a court of equity.</p>

<p>Abbzzration—Awabd—Notice op Heabibg,—The validity of an award by arbitrators depends not only upon their due and proper appointment, but upon the regularity of their proceedings. An award is invalid and void, unless both of the parties have notice of the time and place of the meeting of the arbitrators, and an opportunity to be heard.</p>

and county of San Francisco, from an order refusing a new trial, and from an order denying a motion in arrest of judgment. The facts are stated in the opinion of the court.

A. Harris. At the time of the sale the vendor was paralyzed, and mentally incapable of contracting. Afterward E. A. Harris sold the horses to the defendants Moulton and Myers, who were innocent purchasers, and entirely ignorant of any defect in the title of their vendor. The court gave judgment in favor of defendants Myers and Moulton, and a judgment against defendant E. A. Harris for costs. The other facts appear in the opinion of the court.

<p>Eminent Domain—Private Roads—Condemnation.—In proceedings to condemn lauds for the use of a private road, the court must find separately the value of the land sought to he condemned and the improvements thereon, the damages to the remaining land hy reason of the severance, and the benefits which will accrue to the remaining portion of the land by the opening of the road. Without such adjudication the judgment of condemnation is void.</p> <p>Damages—Fencing—No Fence Law.—If it appears that a necessity of fencing land will arise from the construction of the road, the cost of fencing is an element of damage, although the law applicable to the locality may not require the construction of a fence.</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 defendant was charged with the crime of burglary committed on the 19th day of November, 1882, at the city and county of San Francisco, and at the room and building of one Frank Scott. Frank Scott testified that on the 19th day of November, in the night time, a clock, a suit of clothes, a razor, and a few other things, were taken from his room, and gave evidence tending to connect the defendant with the larceny. Mrs. Louisa Scott, wife of Frank Scott, testified that certain jewelry belonging to her was stolen from her room on the 12th day of December, 1882.</p>

On the 1st day of March, 1875, the plaintiff was a depositor in a savings bank styled Odd Fellows’ Bank of Savings. On that day this bank entered into an agreement with another corporation styled the Odd Fellows’ Savings and Commercial Bank, by the terms of which the former corporation transferred all of its assets to the latter, in consideration that the latter should assume the payment of all existing debts and liabilities.

<p>Eminent Domain—Water Companies.—A corporation having a franchise to furnish a supply of water for the use of the inhabitants of a city has the capacity to procure the appropriation of private property for that purpose by condemnation. But this capacity is limited to the real necessity which exists for the appropriation.</p> <p>Necessity—Convenience—Enhancement of Value.—The mere facts that the acquisition of certain lands by a water company would be a great convenience to it, and would enhance the value of the property of the corporation, and secure a fuller water supply to the inhabitants of the city, do not constitute the degree of necessity required by the act providing for the taking of private property for public use.</p>

<p>Tenants in Common of a Mine—Waste—Damages—Injunction. — One of several tenants in common of a mine, who does not exclude his co-tenants, may work the mine in the usual way, and extract ore therefrom, without being chargeable with waste, or liable to the other co-tenants for damages, and an injunction will not be granted at their instance to prevent the working of the mine.</p> <p>Id.—Accounting.—If the tenant doing the work can be required to account to his co-tenants for a share of the profits, this can only be done in an action brought for the purpose of an accounting, and in taking the account, an allowance must be made for all proper expenditures in working and developing the mine and to protect the common estate. An action for damages on the ground1 of waste is not a proper action for an accounting.</p>

The court below found that the defendant John J. Corbett, being insolvent, conveyed the real property in question by a deed of gift to his wife, Margaret A. Corbett, a co-defendant; that the deed was made “ with intent and for the purpose of hindering, delaying, and defrauding his creditors, and particularly the plaintiff’s assignor, E. M. Heistand, and with the intent and for the purpose of hindering, delaying, and preventing the said E. M. Heistand; the plaintiff’s…

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

The information referred to in the opinion is as follows: “Peter Boyle is accused, by the district attorney of Yolo County, by this information, of the crime of felony committed as follows: The said Peter Boyle on the 21st day of May, A. D. 1883, at the county of Yolo, in the State of California, did, feloniously, unlawfully, and wilfully assault one Albert Lemay, with intent then and there to rob the said Albert Lemay.

The petitioner, having been adjudged guilty of contempt of court, was sentenced to pay a fine and to be imprisoned until the fine should be paid. On habeas corpus before the judge of the Superior Court of another county he was discharged from custody. The other facts appear in the opinion.

<p>Criminal Law—Practice—Demurrer.—A demurrer will not lie to an information oh the ground that it is uncertain.</p> <p>Id.—Bribe—Police Officer.—A police officer who receives money in consideration of his promise not to arrest any one of a class of offenders against the criminal laws, is guilty of receiving a bribe, and it is not necessary to allege in the information, or prove at the trial, that the crime was subsequently committed, and that the officer failed to make an arrest.</p> <p>Id. — Evidence — Impeachment of Witness.—When it is sought to impeach a witness by attacking his reputation for truth, honesty, and integrity, the inquiry and answer must be as to his general reputation.</p> <p>Id.—Arrest of Judgment—Appealable Order. — An order denying a motion in arrest of judgment is not appealable.</p>

Application , for a writ of mandamus to compel the defendant, as controller of State, to issue a warrant for the salary of plaintiff, as reporter of the decisions of the Supreme Court. The facts appear in the opinion of the court.

<p>Peactioe—Ppeading — Fictitious Names—Eminent Domain—Constitutional Law.—An action against Parks, Davis, Perdue, Van Arsdale, Santee, Ohyler. Leary, John Doe, and Richard Roe. to enjoin them from further maintaining a dam constructed in Colusa County, and for damages. The dam was first built by defendant Parks, under a contract awarded to him by the board of supervisors of Sutter County, and under the plans of the Engineers of Levee District No. 5, created under the provisions of the act of the legislature of March 25, 1868. Defendants Perdue, Van Arsdale, and Davis were members of the board of supervisors, and participated in these proceedings. Perdue and Van Arsdale signed the contract with Parks. After the commencement of this action the dam was swept away. The court found that subsequently Swamp Land Reclamation District No. 226 was created under the Act of March 28, 1868. The defendant Parks was made a trustee of the district. The defendants Davis, Ohyler, and Leary were members of the board of supervisors of Sutter County when the district was organized. After the commencement of the suit the dam was rebuilt under the direction of the trustees of the reclamation district, and was being maintained when the suit was tried and determined. The court below granted an injunction to prevent the maintainance of the dam, and awarded costs against all of the defendants. Meld, 1. When it appears from the complaint that certain of several defendants have been sued by fictitious names, and no substitution of the true names has been made, a general appearance for defendants is an appearance for only those who were sued and served by their proper names. 2. No judgment should have been rendered against the defendants Ohyler and Leary because they had no connection with the erection or maintainance of the dam prior to the commencement of the action. If the subsequent rebuilding connected them with the original unlawful act, there should have been a supplemental pleading setting forth the facts. 3. The finding that Davis was a member of “the board of supervisors” and participated in “the proceedings” which resulted in the unlawful contract, does not fix upon him a liab'lity for resulting damages, libra constat, that he favored the unlawful contract. 4. The hoard of supervisors of Sutter County had no power, by virtue of the Act of March 25, 1868, to establish a levee district or cause levees to be constructed in the county of Colusa. 5. The Act of March 25, 1868, is unconstitutional.</p>

<p>Watee Riqhts—Riparian Owners—Grant.—A grant made by the owner of land of a right to divert and use the water of a stream bordering upon Ms land, cannot affect in any way the rights of an adjacent proprietor to the use of his due proportion of the water. The vendor can grant only the right to the use of such proportion of the water as pertains to his own land.</p> <p>Prescription—Adverse Use. —In order to constitute a right by prescription, there must have been such an invasion of the rights of the party against whom it is claimed, that he would have had a ground of action against the intruder.</p> <p>Id__The mere use of the water of a stream, during a season of abundance, and without objection by a proprietor, is not an adverse use upon which a prescription can be founded.</p> <p>Id.—Estoppel.—No estoppel can arise from the neglect of a riparian proprietor to object to the use of the water of a stream, by another proprietor, during such time as there is an abundant supply of water for the use of all.</p>

<p>Appeal from a judgment of the Superior Court of the county of Plumas.1</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal from a judgment of the Superior Court of the county of Kern.</p> <p>Action by a swamp land district to enforce against lands of the defendant the lien of an assessment levied by the plaintiff for purposes of reclamation. It appeared from the complaint that the swamp land district was organized under the Act of March 28, 1868, and that all its proceedings in relation to the levy of the assessment were had pursuant to the provisions of the Political Code. A general demurrer was interposed to the complaint and sustained by the court. The plaintiff having failed to amend, defendant had 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>Criminad Law—Commitment—Infobmation.—Before the information chai-ging defendant with murder was filed, an examination had been had and a commitment made by a magistrate, the order of commitment, proper in form, being indorsed on the complaint. Held, sufficient.</p> <p>Id. — Self-Defense— Justification—Evidence.—The killing of the deceased by the defendant having been admitted, whether or net the act was done in self-defense, or under circumstances of justification, was for the jury to determine.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The complaint contained three counts. It was alleged in the first count that the plaintiff was treasurer of the city and county of San Francisco, from the 6th day of December, 1875, continuously, and by successive elections in pursuance of law, until the date of the commencement of the action, September 24, 1879-; that in pursuance of law he appointed one William Cassebohm, chief deputy in his office, and required of him a bond in the sum of fifty thousand dollars; that on the 9th day of December, 1875, a bond was executed by Cassebohm as principal, and the defendant and others as sureties, in the sum of fifty thousand dollars, whereby after reciting that, “whereas, William Cassebohm has been appointed by Charles Hubert, treasurer elect, in and for the city and county of San Francisco, State of California, chief deputy in said office, and whereas, the said William Cassebohm is required to file a bond previous to entering upon the duties of chief deputy in said office, and whereas," the amount of such bond has been fixed at fifty thousand ($50,000) dollars,” it was conditioned that “if the above, bounden William Cassebohm shall well and truly, honestly and faithfully, perform and execute the duties of chief deputy in the office of treasurer of the city and county of San Francisco, as required by law, as well those which may be required of him by any law now existing as those which may be required of him by any law enacted subsequently to the execution of this bond, then this obligation to be void, otherwise to be and remain in full force and effect.”</p> <p>It was then averred that Cassebohm entered upon the duties of his office, and was chief deputy from December 9, 1875, until the day of his death, April 29, 1879, and that he fraudulently took and converted moneys from the treasury of the city and county. It is not alleged in either the first or the second count that the defalcation occurred during the two years succeeding December 6, 1875, which constituted the first term of office of the plaintiff.</p> <p>The third count contained substantially the same averments as the first two, but charged the defalcation of Cassebolim as having- occurred during the plaintiff’s first term of office.</p> <p>The defendant interposed a separate demurrer to each of the counts, and also a demurrer to the entire complaint.</p> <p>The demurrer was sustained in the court below, and plaintiff having declined to amend, judgment went against him.</p>

<p>Public Administrator—Riqht to Letters—Preference to Creditors.— Under section 1365, Code of Civil Procedure, the public administrator is entitled to letters of administration in preference to creditors.</p> <p>ID,—Waiver of Riqht—Second Application.—A public administrator who applies for letters in his individual capacity as a creditor of the deceased, does not thereby waive his right to make a subsequent application in his official capacity.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County granting letters of administration.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Summons—Service — State Lands—Certificate of Purchase. — In an action to annul a certificate of purchase of school lands for non-payment of interest, the service of summons by publication must be made in accordance with the provisions of the Code of Civil Procedure.</p>

<p>Application for a mandamus to compel the judge of the Superior Court of Solano County to settle a statement on motion for a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Undebtakinq—Mobioaoe—Fobeclosube.— On appeal from a judgment for foreclosure of a mortgage upon personal property, an undertaking in the sum of three hundred dollars is sufficient to stay the execution of the judgment pending the appeal.</p>

<p>Insolvency—Disohahse—Feaud—Evidence.—Action on a promissory note. The defendant pleaded a discharge in insolvency. Meld, that the plaintiff might show in answer to the plea that the defendant had intentionally omitted certain real property owned by him from the schedule annexed to his petition.</p>

The petitioner was treasurer of the city and county of San Francisco, and was adjudged guilty and imprisoned for contempt of court for a refusal to pay, upon the order of the Superior Court, the compensation of the phonographic reporter of one of the departments of the court for taking and transcribing the testimony in certain criminal cases. The remaining facts are stated in the opinion.

<p>Evidence — Admissions.—Upon the trial of an issue to determine whether a deed absolute upon its face was intended as a mortgage, the declarations of a party to the deed and to the suit, made after the execution of the deed, are competent as evidence against himself.</p>

<p>Appeal from a judgment of the -late District Court of the Twelfth Judicial District, 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 county of Stanislaus. 0</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>Estates oe Deceased Persons — Pbovision fob Support of Family—Mortgage.—An order of a Superior Court setting aside a parcel of land for the support of minor children of a decedent under the provisions of section 1469 of the Code of Civil Procedure, does not divest the lien of a mortgage given by the decedent to secure the payment of the purchase money of the land.</p>

<p>Application for writ of habeas corpus. The facts appear 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 defendant and one Brandon were charged, by separate informations, Avith the same offense—burglary. The wife of Brandon was called as a witness for defendant and the testimony sought to be established by her tended to implicate her husband and establish the innocence of the defendant, but the court would not permit her to testify to any matters implicating her husband in the crime. The remaining facts are set forth in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Butte 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 Alameda County, and from an order refusing a new trial.</p> <p>Action to set aside a deed upon the ground that it was fraudulently obtained. The complaint contained no averment of the delivery of the deed.</p> <p>Proof of service of summons was made by affidavit. The affidavit was made March 7, 1879, and in it the affiant states, “that I am over the age of eighteen” and “ that I did, on the sixth day of March, 1879, personally serve the defendant,” etc.</p>

<p>Divorce—Triad by Jury—Constitutional Law.—In a suit for divorce, a trial by jury cannot be demanded as a matter of right under the Constitution.</p>

<p>Ortmtktati Law—Pebjuby—Notaby Public—Evidence—Habeas Cokpus.—The petitioner appeared before a notary public to acknowledge the execution of a deed signed by one Bouchard as grantor. The notary having no personal knowledge of the petitioner, administered to him an oath, as a witness in his own behalf, for the purpose of determining whether he was the person who had signed the deed, and the petitioner testified that he was Bouchard, the person named in and who executed the deed. The petitioner having been committed by a magistrate to answer a charge of perjury in having falsely testified, seeks a discharge on habeas corpus. Meld, that the notary had power to administer the oath to the petitioner as a witness in his own behalf, and his testimony being material and false, he is not entitled to a discharge, there being probable cause for holding him to answer.</p>

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

<p>Counter-Claim—Peaotice—Foreclosure.—In an action to foreclose a mortgage upon land, a sum of money due to the defendant from the plaintiff is a valid counter-claim under the provisions of subdivision two of section 438 of the Code of Civil Procedure.</p> <p>Satisfaction of Mortgage—Forfeit—Demand.—A demand for an acknowledgment of satisfaction óf a mortgage must be made before a party is liable for a forfeit under the provisions of section 2951 of the Civil Code.</p>

<p>Appeal from an order of the Superior Court of the county of Kern refusing a new trial, and from so much of the decree as gave judgment in favor of the defendant L. L. Robinson for his costs.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Mechanic’s’ Leen—Contractor—Lien of Material Man.—Where a building is constructed under a contract, no lien exists in favor of one who furnishes materials to a sub-contractor, beyond the amount due from the owner to the original contractor,</p>

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

The action was against the appellants and eight others to recover several judgments for proportionate amounts of a debt due plaintiff from the Livermore Coal Mining Company, a corporation of which the defendants were stockholders. Only the defendants Thomas and Stevens appeal. The amount claimed against Thomas was three hundred and ninety-three dollars; that against Stevens was two hundred and eighty dollars.

The complaint was in the ordinary form for the recovery of two horses. The answer justifies the taking by the defendant, as sheriff, under writs of attachment followed by judgments. Plaintiff claimed the property as exempt under section 690, subd. 6, Code of Civil Procedure, and introduced evidence tending to show that he was a peddler or truckster, and habitually made his living as such.

<p>Application for writ of habeas corpus.</p> <p>The board of supervisors of the county of San Bernardino met on May 7, 1883, at its usual place, and after transacting some business, adjourned from day to day until and including the 16th day of May, at which time the ordinance referred to in the opinion of the court was passed. The ordinance provided among other things for a license tax of twenty-five dollars per month, for the sale of spirituous liquors, and malt or fermented' liquors, and wines in quantities less than one quart. The other facts are stated in the opinion of the court.</p>

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

In an action by the plaintiff against one Logan, an attachment was issued and levied by Foster, sheriff, upon the land of Logan, who appeared in the action, but did not except to the regularity of any of the attachment proceedings. The plaintiff recovered judgment. Kraft held a mortgage upon the land prior to the attachment, and also an unsecured note against Logan for four thousand dollars.

<p>Application for a writ of mandate to compel the judge or the Superior Court of Kern County to transfer the cause to another court.</p> <p>The action sought to be transferred was upon a promissory note given by the respondent to the petitioner. The other facts are stated in the opinion of the court.</p>

Petition for a writ of mandate to compel the respondent, treasurer of Santa Cruz County, to pay the coupons of certain railroad bonds issued by the county. The facts are stated in the opinion of the court.

The appellant, Jacob Z. Davis, intervened in the proceeding, claiming an interest in a certain portion of the real estate, by virtue of the lien of a judgment against Mrs. Fannie M. Samson. The other facts are stated in the opinion of the court.

<p>Will — Degree oe Distribution—Effect of Decree Annullinq A Will— Purchaser. —A decree annulling a will, made after the distribution of the estate, upon the application of one of several heirs, does not render the decree of distribution void. It is valid and binding as to subsequent bona fide purchasers from the distributee.</p> <p>Id.—Remedy of Heir__When the probate of a will has been annulled upon a contest initiated by an heir subsequent to the entry of a decree of distribution, the heir may pursue the property in the hands of the distributee, but not in the hands of a purchaser in good faith and for value from the distributee, prior to the revocation, and at a time when the proceedings were valid and binding.</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>Criminaii Law—Prior Conviction—Practice.—Where a person who has been convicted of a public offense, punishable by imprisonment in the State prison, commits another offense after such conviction, it is necessary, since the repeal of sections 969 and 1025 of the Penal Code, in proceeding against him by indictment or information, not only to charge the facts of the previous conviction and the subsequent offense, but also prove them. The defendant must plead to both charges, and upon the issues raised by his plea, both must be proved on the trial and passed upon by the jury. The admission by the defendant of a previous conviction is not sufficient.</p>

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

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

Petition for a writ of prohibition. An action had been brought and was pending in the Superior Court of San Francisco, by the heirs of Micholas A. Den, deceased, against the trustees under his will, to remove them for certain alleged failure of duty under the trust, and praying for the appointment of a receiver pending the suit. A receiver was appointed. The trust property consisted of certain real estate in the county of Santa Barbara.

<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>Peobiissoey ' Note—Coeeobation.—A promissory note was signed as follows: G. A. Colby, Prest. Pacific Peat Coal Co. —D. K. Tripp, Sec. pro tern. It was indorsed by H. H. Hnbbard, G. A, Colby, E. B. Dean, E. Tripp, and J. H. L. Tuck. Held, that it was the note of the Pacific Peat Coal Company.</p>

Suit to foreclose a mortgage given to secure the payment of a promissory note. The note fell due June 25, 1875. The complaint was filed March 22, 1881. It was averred in the complaint that on October 22, 1878, Bartolo Brizzolara, the mortgagor and one of the defendants, sold the property to his co-defendant, Austin Eoberts.

<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>CnnimUi Law — Murder — Instructions — Discretion — Punishment. — The court instructed the jury that “you can find the defendant guilty of murder in the first degree, or guilty of murder in the second degree, or guilty of manslaughter, or you may render a verdict of not guilty; and it is for you to decide which one of these verdicts you may render, but if you do find the defendant guilty of murder in the first degree, you have the discretion to ^determine the nature of his punishment; and if in your sound discretion and judgment there is any fact or circumstance in the case which ought to mitigate the extreme penalty of death, you will by your verdict indicate the same; but if you find no such mitigation in the facts of the case, and think the death penalty should be inflicted, you will simply find him guilty of murder in the first degree.” Held, 1, that the language of the instruction does not assume that defendant was guilty of murder in the first degree; and 2, that the jury were not improperly restricted in the exercise of their discretion to determine the punishment to be inflicted.</p> <p>Id. — Words of Reproach — Degree — Manslaughter. —No words of reproach, however grievous, are sufficient provocation to reduce the offense of an •intentional homicide with a deadly weapon from murder to manslaughter.</p> <p>Id. — Pronouncing Judgment—Clerical Mistake in Entry. —A statement by the court of the nature of the charge made against a defendant, and of which he had been convicted, although necessary as preliminary to pronouncing judgment, is no part of the judgment, and a mistake made by the clerk in the entry of the statement on the minutes of the court does not invalidate the judgment; and the power of the court to correct the mistake is not suspended by an appeal. Id.—Where the mistake js merely clerical, and in no manner prejudicial to any substantia] right of the defendant, the judgment would not he reversed on appeal even if the error had not been corrected.</p>

<p>Obbtiobabi—Lapse of Time. — Where the time to appeal from a judgment or order has elapsed, the remedy by certiorari is also barred, unless circumstances of an extraordinary character have intervened, and the excuse for the delay is shown by the application.</p>

<p>Street Assessment—Jurisdiction op Board of Supervisors.—When the grade and width of a street in San Prancisco have been officially established, it is competent for the board of supervisors to order the street to be planked although it may not have been graded.</p> <p>Pleading— Bindings. —A failure to find on an immaterial issue tendered by the pleadings is not error.</p>

<p>' Petition for a writ of mandate, commanding the respond-, ents, as judges of the Superior Court of the city and counity of San Francisco, to appoint a board of police commissioners for the city. ..</p> <p>The facts are sufficiently stated in the opinion of the. court.</p>

<p>Appeal from a decree of the Superior Court of the county of Tulare, denying an application to set aside a homestead.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Application by J. L. King to set aside an order of sale made by the Superior Court of the city and county of San Francisco on a foreclosure of mortgage.</p> <p>A judgment had been rendered against one Wilkins for the sale of certain premises mortgaged by him, and for payment of any deficiency arising upon the sale. King was a purchaser from Wilkins and a defendant in the foreclosure suit, and was in possession of the property at the date of the decree, and his appeal therefrom to the Supreme Oourt. On appeal, he filed an undertaking in the sum of three hundred dollars as rec1uired by section 941 of the Code of Civil Procedure, and also an undertaking to cover waste and the value of the use and occupation, but gave no undertaking for deficiency.</p>

<p>Appeal from a judgment of the Superior Court of Fresno County, and from an order refusing a new trial.</p> <p>The defendants were charged with murder. At the trial certain admissions of the defendants, made in conversations between themselves, and overheard by the witnesses for the prosecution who had been so placed that they could overhear what was said, were admitted in evidence, and the court refused to strike them out. In instructing the jury the court charged them against attaching too much importance to certain cases- which were called to their attention by counsel for the defendants showing in how many instances innocent persons had been convicted upon circumstantial evidence. The remaining facts appear in the opinion of the court.</p>

PETITIOS for a writ of certiorari to review the action of the Superior Court of the city and county of San Francisco. The facts sufficienfly appear in the opinion of the court.

The action was brought on a promissory note against J. A. Robinson, the maker, and J. A. Ledden and S. P. Taylor, indorsers. Taylor filed an answer denying the allegations of the complaint, and setting up as an affirmative defense that he was merely a surety upon the note, that an attachment had been issued in the action and levied upon sufficient property of Robinson to satisfy the debt, and that the plaintiff had released the attachment without his consent.

<p>Corporation—Stolen Certificates—Bona Bide Purchaser.—A bona fide purchaser of stolen certificates of stock of a corporation which stands upon the books of the company in the name of one person, but owned by another, acquires no title as against the true owner, notwithstanding the certificates were regularly indorsed by the person in whose name they stood, if they were stolen without the fault or negligence of the owner.</p> <p>Id.—Negotiable Instruments.—A certificate of stock of a corporation is not a negotiable instrument within the definition of the Civil Code.</p> <p>Id. — Estoppel.—A bona fide purchaser of certificates of stock from one who has no title and no authority to sell, cannot rely for his protection upon the negligence of the owner, unless he shows that he was misled by such negligence.</p>

<p>Insolvency—Eight of Opposing Creditor to Withdraw Opposition.—Any creditor of an insolvent may file his opposition to the debtor’s discharge, and may withdraw the same at his pleasure, without tho consent of the other creditors.</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 Justice McKee.</p>

<p>Deposition—Subpoena—Motion to Quash.—In a proceeding to take depositions on affidavit and notice, the subpoenas to the "witnesses cannot he quashed by the court, although the affidavit may be insufficient.</p>

The defendant was indicted for grand larceny, and charged with a previous conviction of a like offense. When instructing the jury the court said: “ In this case there is a charge of previous conviction, I will give you two forms of verdict, instructing you, however, as to other forms.

<p>Pbohissoby Note — Pbesentment and Demand—When Excused. — One of the joint makers of a promissory note executed in this State resided in Kentucky at the time of the execution and maturity of the note, his name being signed thereto by the other joint maker under a power of attorney. The note was duly presented to the resident maker at maturity, and payment thereof demanded. The action was against an indorser upon the note who defended on the ground that the note had not been presented to tlio non-resident maker, and payment demanded of him. Held, that such presentment and demand were not required to charge the indorser,</p> <p>.—Indobsement — Consideration—Pbesuhbtion. — In the absence of evidence on the subject, the presumption is that the note was indorsed for a valuable consideration before maturity.</p>

Application to the Supreme Court for an order staying the operation of an injunction granted by the lower court in an action between the respondent and applicant restraining the diversion of the waters of a certain creek, from which judgment the applicant appealed.

<p>Cbtmtnal Law—Embezzlement—Infobmation.—An information which charges the crime of embezzlement by alleging that the defendant was intrusted with the possession of certain property as bailee accommodatmn, etc., is not subject to demurrer on account of the word accomm,odatum. Such word is useless in connection with the charge, and its insertion in the information does not prejudice the defendant in any substantial right.</p>

<p>Olographic Will — Validity. —A paper offered for probate as an olographic will, held, to be invalid because a portion of the date was printed.</p>

<p>Appeal from an order of the Superior Court of San Diego County, setting apart a homestead to the widow of H. S. Burton, deceased, and from an order refusing a new trial.</p> <p>The appellants, W. Leach and John G. Capron, opposed the application of Maria A. Burton, widow of deceased, for an order setting apart to her a parcel of land as a homestead, upon the ground that they were the owners of the property.</p>

<p>Appeal from an order of the Superior Court of the county of Los Angeles, setting aside a default and judgment in favor of the respondent, and allowing Martha Brown and C. E. Thom to defend as successors in interest of the defendant and to conduct all proceedings in his name.</p> <p>Action to have a trust in certain lands declared in favor of the plaintiff, and to enforce a conveyance of the legal title. The defendant John A. Brown suffered a default, and judgment was rendered against him. After the commencement of the suit Martha Brown and C. E. Thom acquired the interest of the defendant John A. Brown in the land in controversy. They moved to set aside the default and vacate the judgment. This appeal is from the order granting this motion. The other facts appear in the opinion.</p>

<p>Cbquxal Law—Extradition of Fugitives from Justice—Jurisdiction of State Courts—Habeas Corpus—Contempt. — The Superior Courts of this State have power to issue writs of habeas corpus commanding the production of the body of a prisoner held under authority of a warrant for his arrest issued by the governor of this State, upon the requisition of a governor of another State, that the causes of his detention may be inquired into ; and the refusal of the custodian to obey the writ is a contempt of court.</p>

<p>Application for a writ of habeas corpus. The facts are 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 facts appear in the opinion of the court.</p>

<p>Pleading—Complaint—Demurrer.—The action was brought to compel a reconveyance of trust property, and to obtain possession thereof, and for an account of the rents and profits, and an injunction restraining the defendants from asserting any claim to the property. The defendant Lynch was the trustee, and the complaint alleged that the defendants Lincoln, Sherburn, and Casselman were in possession of portions of the trust property without title, and merely as tenants at will of the trustee, the property being real estate. The complaint further alleged that Sherburn joined in the execution of the trust deed, and that Lincoln and Casselman had acquired the interest of others who also joined in its execution, but there was no allegation that they asserted any claim to the property by reason of such joinder. Held, that a demurrer to the complaint for want of such an allegation was properly sustained.</p>

Action against the administrator and heirs of Thomas Hepburn, deceased, to enforce the specific performance of a contract for the sale of land made by the decedent. A petition had been presented to the Superior Court for an order compelling the administrator to convey, which was dismissed without prejudice to the rights of the petitioner under the provisions of section 1602 of the Code of Civil Procedure.

<p>Constable—Execution—Sale of Pbopeetv.—A constable is liable to the owner of personal property for the seizure and sale thereof under an execution against a third person, and he is not relieved from liability by professing to sell merely the interest of the execution debtor.</p>

<p>Appeal from a judgment of the Superior Court of the county of Alameda, and from an order denying a new trial.</p> <p>Action to foreclose a mortgage upon lots in the city of Oakland. The facts sufficiently appear in the opinion.</p>

Action against the defendant as sheriff to recover possession of certain personal property taken and sold by him under an execution against one Phillips. The defendant claimed that the sale was void, because unaccompanied by an actual delivery and change of possession.

<p>Ejectment—Possession—Whit of Destitution. — The wife of a defendant in an action of ejectment, against whom a judgment has been rendered, who was in possession of the premises at the date of the commencement of the action, will be presumed to be in possession under her husband, and may be evicted under the judgment against him.</p> <p>Id. — Pbesuhption—Advebse Holding. — Prima facie, all persons who come into possession of lands after an action of ejectment is brought, come in under the defendant, and may be ejected under a writ issued upon a judgment against him. This prima facie case may be rebutted by showing that the possession is held under an adverse title.</p> <p>Mortgagee—Gbowing Oboes.—One who takes a mortgage of growing crops during the pendency of an action of ejectment is bound by the judgment against the mortgagor, and may be evicted -under the writ issued on such judgment. As between him and the successful plaintiff such growing crops arc part of the realty and pass to the plaintiff, and the mortgagee is not entitled to possession of the premises for the purpose of harvesting such crops.</p>

<p>Appeal from a judgment of the Superior Court oí the county of Colusa.</p> <p>The facts sufficiently appear in the head note and the opinion of the court.</p>

<p>Law of the Case.—A decision on appeal holding that a tax deed was not invalid for want of a sufficient description of the property, no other question as to the validity of the deed beingpresented, does not become the law of the case in respect to its sufficiency in other particulars.</p> <p>Tax Deed—BeoitaIíS.—The omission from a tax deed of a recital in the certificate of sale as to the time at which the purchaser would be entitled to a deed, is fatal to its validity.</p>

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

<p>Appeal from a judgment of the Superior Court of the county of Merced, 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 county of Tulare, and from an order refusing a new trial.</p> <p>Action by the owner of land to restrain the defendants from maintaining a dam in a stream running through the land, and from interfering with the flow of water. The defendants admitted the construction of a dam, but denied that the channel was a natural water course, and alleged that the water was conducted into the channel by them from a foreign source. The court found that the stream was a natural water course, and granted a perpetual injunction.</p>

<p>Pbactice—Motion fob New Tbial—Pbescmption. — Where it does not appear from the transcript that an objection was made in the lower court to the hearing of a motion for a new trial, on the ground that it was not made within the time fixed by statute, the appellate court will presume that the time was extended by consent of parties.</p>

<p>Bailroad—Injury to Passenger—Contributory Negligence—Nonsuit.—The plaintiff, an infant about three years of age, travelling under the care of her mother, as a passenger on a railroad train, was injured by the starting of the „ train while she and her mother were in the act of alighting therefrom. The accident occurred at a regular station on the road where the train had stopped for the purpose of receiving and letting off passengers. On one side of the track there was a platform about one hundred feet in length and six feet in width for the use of passengers in entering and leaving the cars. The train was longer than the platform, but the car in which the plaintiff and her mother were riding was alongside the platform when the train stopped. The mother was well acquainted with the locality and the existence and purpose of the platform, but in attempting to get off, she proceeded with the plaintiff to the other side of the train, and was in the act of alighting therefrom when the train started, and the plaintiff was thrown underneath the cars, and received the injury complained of. A lookout was kept on the side of the train next to the platform, but not on the other, and the persons in charge of the train were not aware of the movements of the plaintiff and her mother in attempting to get off, or of their desire to do so. The evidence was conflicting as to the length of time the train stopped, and there was some evidence that access to the platform from the end of the car where the plaintiff and her mother attempted to get off was partially obstructed by other passengers. The defendant moved for a nonsuit on the ground of contributory negligence on the part of the mother in attempting to get off on the wrong side of the train, but the court overruled the motion. Meld, that the motion, was properly denied,</p> <p>Id.—Ikstbüoitos-.—The court instructed the jury in substance that contributory negligence of the mother in attempting to get off on the side of the train away from the platform was no defense to the action, unless the train stopped long enough to enable her to land with the plaintiff on the platform. Held, that the instruction was erroneous.</p>

The defendant was convicted of the murder of one Maggie O’Brien.

<p>Co~TaaoT - CouwlY PlmsvfleG - DEun~qwss~T T~x LIST- Supxxvisons. - The board of supervisors of Alameda County, after advertising for bids for publishing for one year "the proceedings of the board of supervisors, the quarterly reports of the auditor and treasurer, all notices required to be published by the board, and all notices that are required to be published by any county or township officer, that may be ordered published by the board," awarded a contract to the plaintiff for a stipulated price per square. In pursuance of the contract the plaintiff published the delinquent tax list for that year. The board did not order its publication and refused to make payment therefor. Reid, first, that a publication of such list is a phrt of the county printing for which the board are authorized to contract; ~eeond, that the terms of the contract embrace such list, though it is not specifically enumerated; and third, that no order of the board was necessary to make the publication a charge against the county enforcible according to the terms of the contract.</p>

<p>Findings—Equitable Action—Injunction—General "Verdict.—An action to restrain the continuance or repetition of a trespass of a character to produce irreparable injury, and for damages already suffered, is an equitable action, and the issues of fact raised by the pleadings should be tried by the court, unless submitted by the court to a jury. A judgment in such a case based upon a general verdict of a jury cannot stand.</p>

<p>Mandamus—Appellate Jurisdiction of Supreme Court—Undertaking. — The Supreme Court has appellate jurisdiction in cases of mandamus, and an undertaking in the sum of three hundred dollars, executed according to the provisions of section 941 of the Code of Civil Procedure, stays the execution of a judgment granting a writ of mandate, pending the appeal.</p>

<p>Injunction—Jurisdiction.—The prosecution of a suit in one court cannot be enjoined by another court of co-ordinate jurisdiction. k</p>

11 Action to recover damages for alleged wrongful acts of defendants in tearing up and destroying a water ditch constructed by the plaintiff for irrigating purposes, and to obtain a decree declaring that the plaintiff held a right of way for two ditches over the land of defendant Baldwin, and a right to the use of one half of the waters of a certain stream, and for an injunction. The facts sufficiently appear in the opinion of the court.

<p>Taxation—Money of an Estate on Deposit—Situs.—For the purpose of taxation, the situs of money belonging to the estate of a decedent person is in the county where the decedent resided at the time of his death, and the situs is not changed by placing the money on general deposit in a bank in another county.</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 head note and the opinion of the court.</p>

The action was originally brought by one Tyson, to enforce an alleged vendor’s lien upon lands conveyed by him to the defendant, and for which the latter gave the notes referred to in the opinion. The defendant offered to prove at the trial that +he conveyance was made in consideration of his agreement to support Tyson during his life, and that he had fully performed the promise. This evidence was excluded.

<p>Evidence—Deuveby of Instbument.—Parol evidence is admissible to show that a promissory note was delivered at a date other than that which it bears upon its face, but a case will not be reversed for a refusal to admit such evidence when the date of delivery is immaterial to any issue made in the case.</p> <p>Id.—Witness—Eefbeshing Memoby fbom Memobandum.—A witness may refresh his memory by reference to a memorandum, although it was not made by him, nor at the time the occurrences took place, if made under his directions at any time when the fact was fresh in his memory.</p> <p>Id.—Oounteb-Cdaim.—Items of a counter-claim accruing after the commencement of the action cannot be given in evidence.</p> <p>Id.—Composition—Pebfobmance of Agbeement.—A creditor who has joined in a composition agreement cannot object that the sum due him has not been paid in accordance with its exact terms, if he afterwards agrees to different terms, and receives payment accordingly.</p>

<p>Appeal from an order of the Superior Court of Alameda County dismissing the petition of respondent’s creditors to ive him adjudged insolvent.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Partition—Mexican Grant—Court of First Instance.—The decree of a court of first instance by which certain lands claimed under a Mexican grant were partitioned between the grantees, who took and held possession in accordance with the decree, is no defense to an action for the partition of a portion of the lands subsequently confirmed and patented to the grantees as tenants in common.</p>

<p>Navigable Waters—State Control. — Subject to such restrictions as Congress may impose in the exercise of its power over commerce, the State has the right to control and regulate the use of navigable waters within its boundaries.</p> <p>Id. — Such Bight not Surrendered to the City and County of San Fbanoiscg in Respect to Channel Street. — The several acts of the legislature in relation to water property in San Francisco, and the establishment of Channel Street as a public highway, cited and discussed by the court, and held not to be a surrender of such right of control on the part of the State to the city and county of San Francisco as to a portion of Channel Street covered by the navigable waters of the bay.</p> <p>Id.—Dedication of Channel Street.—The Act of April 1, 1882, in regard to the dedication of a portion of Channel Street to the use of the city as a canal for drainage and navigation, and requiring certain improvements to be made and maintained by the city, did not operate per se as a dedication. It was merely an offer to dedicate upon the making of the improvements, and as the city did not accept the offer and make the improvements, the dedication was never completed.</p> <p>Id.—Wharf—Board of State Harbor Commissioners.—The action was brought to determine whether a wharf erected on Channel Street, and being the property of the State, was subject to the control of the board of State harbor commissioners, or of the city and county of San Francisco. Held, that the control of the wharf was vested in the board and not in the city.</p>

<p>Municipal Cokpobation—Damases fob Defective Sewebs.—The city and county of San Francisco has such proprietorship of the city and county hospital as renders it liable for damages caused by its failure to abate a nuisance created by defective and improper sewerage of the hospital.</p> <p>Id. — Pbesenting Demand to Supebvisobs—A claim for damages arising from such cause need not be presented to the board of supervisors for payment before an action can be maintained.</p>

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

<p>Tax Deed—Certificate of Sale—Becitali.—A certificate issued on a sale for taxes, reciting that the property was assessed to ‘ G. A. Hemenway and to all claimants known and unknown,” shows an invalid assessment, and may he given in evidence to defeat a deed founded thereon, though regular on its face.</p>

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

The action was ejectment. Plaintiff claimed under a patent of the United States issued in 1876 in pursuance of the withdrawal from sale of the lands in controversy on April 13, 1871, under an act of Congress to aid in the construction of its railroad.

The act of the legislature of April 1, 1876, referred to in the opinion, declared that the cost of the bridge which it authorized to be constructed should be assessed upon certain specified land declared by the act to be benefited thereby, in proportion to such benefits, and commissioners were to be appointed to make the apportionment of the cost to the lots designated by the act.

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

<p>Contempt—Gband Jubob—Setting Aside Indictment.—On a motion to set aside an indictment, a grand juror cannot Tie required to answer a question as to how he voted upon the finding of the indictment,, and his refusal to do so is not a contempt of court.</p>

The action was for the partition of the “Bancho San Pablo,” being seventeen thousand nine hundred and thirty-eight and fifty-nine one-hundredths acres of land in the county of Contra Costa. The defendants were several hundred in number, and comprised many minors. The action was commenced in November, 1867. The interlocutory judgment was rendered on the 15th day of July, 1878.