Volume 65 — California Reports

In 1874, the defendant Maclay made his promissory note to E. E. De Celis, who was the administrator of the estate of E. De Celis, for $37,500., and executed a mortgage to secure the same upon certain real estate awarded to the estate under a decree of partition in an action by the San Fernando Farm and Homestead Association. The note and mortgage was given for the balance of the purchase money under a sale of the property in pursuance of an order of the Probate Court.

<p>State Lands—Purchase of—Constitutional Law__An application to purchase State lands suitable for cultivation, made prior to the adoption of the new Constitution, by one not an actual settler, and who had made no payment thereon, conferred no right to purchase such lands after the adoption of the Constitution. Such application and all rights under it are made nugatory by section 3, article xvii., of the Constitution.</p> <p>Id.—Where a controversy arises before the surveyor-general of the State as to conflicting claims regarding the purchase of State lands, and is referred to the court for determination, the validity of a certificate of purchase issued to the defendant will not he adjudicated when the State is not a party to the proceeding and the plaintiff fails to show any right in himself.</p>

<p>Omman Law—Guard Labcent—Stealino of Cattle.—Under section 487 of the Penal Code, the larceny of a bull, cow, steer, or calf is grand larceny, irrespective of the value of the property stolen.</p> <p>Id. — Complaint—Bail Bond.—An averment in a complaint charging a defendant with the larceny of “ two head of cattle of the value of twenty-five dollars each,” the same being “the property of Page Bros.,” is a sufficient charge of the offense of grand larceny, and a bail bond given for the release of the defendant is not void, on the ground that no offense was alleged, or that the names of the owners of the property, were not stated.</p>

<p>Appeal from an order of the Superior Court of Placer County, denying a motion to set aside a sale under execution.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Evidence — Mental Capacity of Testator — Family Differences. — In passing upon the mental condition of a testator, family differences should not be considered by the jury except as they may bear upon the testator’s mental capacity at the time of the execution of the will.</p> <p>Evidence — Declarations of a Person of Unsound Hind.—The declarations of a testator, while of unsound mind, to the effect that he was of unsound mind, and under undue influence at the time of the execution of a will, does not prove or tend to prove the truth of the matters declared by him.</p> <p>Presumption—Drunkenness—Mental Incapacity. — No presumption arises that a man is of unsound mind from the fact that he is a drunkard.</p> <p>Revocation of Will—Intent.—Where a testator who tears his name from a will is of unsound mind at the time, the intent with which the act was performed does not constitute an element of revocation.</p>

<p>Appeal from a judgment of the Superior Court of the county of Placer, and from an order denying a motion to set aside a default and judgment.</p>

<p>Appeal from, a judgment of the Superior Court of the county of Solano.</p> <p>The appeal is from that portion of a decree of final distribution which allowed the respondent interest upon his legacy after the expiration of one year from the death of the testatrix. The other facts appear in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the county of Sierra.</p> <p>This was an action to foreclose a mortgage upon certain mining claims, and also to foreclose a lien upon certain shares of stock pledged by the defendant to the plaintiffs as additional security for the payment of the mortgage debt. The court found that in an action in another court between the same parties the sale of the stock had been restrained by injunction, and that the injunction was still in force, and a decree was rendered ordering the sale of the mining claims, and an application of the proceeds to the payment of the debt,' and further providing that if the proceeds should be insufficient to pay the debt, the plaintiff might apply to the court upon notice to the defendant, for an order directing the sale of the stock to satisfy the deficiency, and that until such order no process issue for the sale of the stock.</p> <p>The other facts appear in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Placer County.</p> <p>This was an action to recover an unpaid balance of a judgment against the defendants. They pleaded a discharge in insolvency. The court found for defendants on this issue and plaintiffs appeal.</p> <p>The further facts appear in the opinion of the court.</p>

Petition for a writ of prohibition. The petitioner alleges that a judgment was rendered against him by the Superior Court of the city and county of San Francisco, adjudging him guilty of contempt, and that he pay a fine of five hundred dollars, and stand committed to the county jail until the fine be paid, in the proportion of one day for every two dollars thereof] that he thereafter prepared a bill of exceptions, which was settled by the court, and served and filed a notice…

<p>Constitutional Law — Launbiíies—Police and Sanitabv Regulations.—An ordinance of the city and county of San Francisco, approved June 25, 1883, declared it to be unlawful for any person to establish, maintain, or carry on the business of a public laundry or wash-house where articles are cleansed for re, within certain named limits, without first obtaining a certificate from the health officer that the premises are sufficiently drained, and that the business can be carried on without injury to the sanitary condition of the neighborhood, and a certificate from the hoard of fire wardens, that the heating appliances are in good condition, and that their use is not dangerous to the surrounding property. It further provided that no person or persons owning or employed in such laundries or wash-houses shall wash or iron clothes between the hours of ten o’clock p. 11. and six o’clock A. 21., nor upon any portion of the day known as Sunday. Held, that these are police or sanitary regulations, and are not in conflict with the fourteenth amendment of the Constitution of the United States, nor with sections 1, 11, or 24, of article i. of the Constitution of Cali-0 fornia.</p>

McIntosh, an insolvent debtor, made an assignment of his property to one Burroughs, in trust, for the satisfaction of his creditors under the provisions of title 3, part 2, of the Civil Code. Burroughs accepted the trust and received an assignment of the property. This suit was brought by the appellant, who was assignee of certain creditors of McIntosh, to compel an accounting by the trustee, and an execution of the trust. The other facts appear in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the county of Alameda, and from an order refusing a new trial.</p> <p>The action was against the sureties upon an undertaking given under the provisions of section 540 of the Code of Civil Procedure. The plaintiff’s intestate, Robert McCutcheon, brought an action against F. E. Weston and H. Leslie, and caused an attachment to be issued and levied upon their property. The appellants executed the undertaking referred to in the opinion, in the sum of $1,500, which recited the issuance of the writ of attachment, and that the bond was given to prevent the levy of attachment, and was conditioned that if the plaintiff Robert McCutcheon should recover judgment in the action, they would pay to him, on demand, the amount of the judgment and costs, not to exceed the penalty of the undertaking. The plaintiff recovered judgment against defendant Leslie for the sum of $1,049.70, upon which execution was issued and returned unsatisfied. The other facts appear in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the county of Sierra.</p> <p>The facts are stated in the opinion of Me. Justice Myrick, in department.</p>

<p>Equity — Legal Holiday.—A court of equity will not set aside a judgment of a court of law on the ground that the complaint was filed on a legal holiday, when there is no averment in the bill and nothing in the record to indicate that the debt for which the judgment was given was not justly due, and when it appears that the applicant for equitable relief had ample opportunity in that action, and negligently omitted to make the point now relied upon by him.</p> <p>Justices’ Court—Order — Presume.tion—Appeal.—An order of a justice of the peace refusing to set aside a sale of property under execution, will be presumed to have been correct unless the contrary appears. The party aggrieved could have the action of the justice reviewed by the Superior Court on appeal.</p>

• Appeal from a judgment of the Superior Court of the county of El Dorado. The facts are stated in the opinion of the court.

Action to recover possession of certain wheat which plaintiff claimed as purchaser from one Mitchell. The defendant justified the taking under a writ of attachment issued to him as sheriff, at the suit of one Dicus against Mitchell. On the trial the plaintiff introduced evidence to sustain the allegations of her complaint. The defendant then introduced evidence showing that there had been no actual and continued change of possession of the wheat.

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

<p>Mortgage—Foreclosure—Decree—Motion to Modify.—A decree of foreclosure should direct a sale of the particular estate or interest of the mortgagor in the mortgaged premises, as the same has heen described in the mortgage. A decree of sale of a greater or lesser estatejs erroneous, and should he corrected on motion.</p> <p>Id.—Mortgage of Undivided Interest.—When the estate mortgaged is described as an “undivided fourth interest, being all the interest which the mortgagor owns,” a decree is erroneous which directs the sale of all the interest which the mortgagor had in the premises at the time the mortgage was given.</p>

<p>Appeal from a judgment of the Superior Court of the county of Tehama, 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 Yolo, and from an order refusing a new trial.</p> <p>This was a proceeding before the Superior Court for a mandamus to compel the appellant J. W. Tutt, as justice of the peace, to issue an execution upon a judgment recovered by the petitioner in his court. The appeal is taken from a judgment of the Superior Court awarding the writ.</p> <p>The other facts appear in the opinion of the court.</p>

<p>Office—Contested Election—Evidence—Bubden of Pboof. — In an action to contest the right of a party to an office to which he has been declared elected, the returns of the election boards should be received as prima facie true. In order to overcome this evidence by a recount of the ballots cast at the election, the contestant must affirmatively prove that the ballots have not been tampered with, and that they remained in the same condition as they were when delivered to the proper custody by the judges of election. If it appear to the satisfaction of the court that the ballots have not been tampered with, it should adopt the result as shown by the recount, and not as returned by the election board.</p> <p>Findings—Ultimate Facts.—Findings should be of the ultimate facts put in issue by the pleadings, and should not be argumentative.</p>

<p>Judgment—When Finad—Motion fob New Tbiad—Arpead.—While proceedings are pending for the review of a judgment, either on appeal or motion for a new trial, the judgment is not a final determination of the rights of the parties, although it may have become final for the purpose of an appeal.</p> <p>Id.—Judgment on Stipulation—Pbematube Entey.—A judgment pursuant to a stipulation authorizing its entry upon a final judgment being obtained in another action, cannot be entered during the pendency of a motion for a new trial in the latter action.</p> <p>Tbial on the Mebits—Motion fob Judgment on Stipulation—New Tbial.— A motion for a judgment pursuant to a stipulation is not a trial of the case upon the merits. If a party to such stipulation is entitled to judgment, it is upon the stipulation, and not upon a trial of the cause. A motion for new trial in such case is irregular, and should be dismissed.</p>

<p>Appeal from a judgment of the Superior Court of the county of Sacramento.</p> <p>The judgment was upon demurrer to the appellant’s petition for a writ of mandate.</p> <p>The facts arc stated in the opinion of the court.</p>

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

<p>Deed — Consideration—Pbesumbmon—Parol Evidence. — The presumption is that the consideration of a deed of conveyance was paid by the grantee named in the deed. This presumption, and the express declarations of the deed in that respect, may be overcome by parol proof, but to have that effect the evidence must be full, clear, and satisfactory,</p> <p>Estoppel—Executor—Petition—Inventory.—An executor who represents in his petition for letters testamentary that certain property belonged to the estate of the decedent, and files an inventory including such property, is not 'thereby estopped from afterwards claiming the property as his own.</p> <p>Evidence—Becord of a Deed—Authenticated Copy.—An authenticated copy of the record oí a deed is prima facie evidence of the genuineness, due execution, and delivery of the original deed.</p>

<p>Criminal Law—Setting Aside Information—Assault with Intent to Commit Murder.—An examination and commitment by a magistrate is sufficient to authorize a proceeding by information for the crime of an assault with a deadly weapon with intent to commit murder.</p> <p>Id.—Summoning Jury.—An order of the court directing the clerk “to draw the names of thirty-five good and lawful men,” to be summoned from the body of the county, is a substantial compliance with the statute.</p> <p>Id.—The district attorney, during the argument, addressed the defendant personally, advanced towards him and pointed his finger at him, saying, “you sought this trouble with him [referring to the prosecuting witness] and made a cowardly attack upon him.” Beld, that this does not justify a reversal of the judgment against the defendant.</p> <p>Id.—Insanity—Instructions.—Where there was no evidence that defendant was insane, instructions upon the subject of insanity will not he reviewed.</p> <p>Id.—Instructions—Defendant as a Witness in His Own Behalf.—Where a defendant is a witness in his own behalf, it is not error for the court to instruct the jury that in weighing his evidence they must consider the circumstances under which he testified, being the defendant in the case and having such important interests dependent upon the result.</p> <p>Id. —Unimportant errors will not warrant a reversal of the judgment.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco dismissing an information for libel.</p> <p>The information charged the defendant with the publication of a libel with malicious intent to injure one Hale. The defendant moved for a dismissal of the action on the ground that it had not been tried in sixty days. The court ordered a dismissal for want of prosecution.</p>

<p>Equitable Assignment—Satisfaction of Judgment—Subsequent Pubchaseb. —The payment of a judgment of foreclosure of a mortgage may operate as an equitable assignment to the person who makes the payment, although the mortgagee enters satisfaction of the judgment upon the record. But the lien of the judgment will not be kept alive to the prejudice of a subsequent bona fide purchaser of the land, who had no notice of the equities of the person who made the payment, and who purchased while it appeared of record that the judgment had been satisfied and discharged.</p>

<p>Mobtgage—Equitable Assignment—Pbiobitt of Lien__A purchaser of land subject to a mortgage agreed with the owner and the mortgagee to pay off the mortgage debt as part consideration for the purchase. The mortgage debt was paid by the purchaser to the mortgagee, and the remainder of the purchase money to the owner, who thereupon conveyed the land to the purchaser. The mortgagee entered satisfaction of the mortgage debt upon the record. Held, that the transaction operated as an equitable assignment of the mortgage to the purchaser, and was a lien prior and Superior to that of a judgment against the mortgagor procured and entered after the date of the execution of the mortgage, and before the entry of satisfaction of the mortgage debt.</p> <p>Homestead—Obdeb Setting Apaet to Insolvent. — When no valid declaration of homestead has been filed, an order of court setting apart a homestead to an insolvent is a nullity.</p>

<p>Appeal from an order settling the first annual account of an administratrix, and from an order refusing to set aside an order allowing the widow of deceased five thousand dollars in lieu of a homestead, and in refusing to charge her with that sum in settlement of her account. The facts are stated in the opinion of the court.</p>

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

The action was trespass to recover damages for the diversion of waters of China Davine, and for an injunction. The plaintiff claimed a right to the use of the water by appropriation, and that defendant had constructed a dam in the ravine above the head of plaintiff’s ditch, and diverted the water from the ravine. The defendant denied plaintiff’s ownership of the right to the use of the waters of the ravine, and averred ownership in himself.

<p>Practice — Eqüitarijü Action—Partnership Accountins. — The relief awarded to a plaintiff must be consistent with the case made by his complaint. In an equitable action to reopen a settlement and sale between partners, and to obtain an accounting of partnership affairs, on the ground of fraud alleged to have been practiced by the defendant, the court, if it finds for the plaintiff, should set aside the sale and settlement and take an accounting. Without this it cannot render judgment against the defendant for a specific sum.</p>

The action was brought upon a contest originating in the State land office, concerning the rights of the parties to purchase a tract of swamp and overflowed land, and which was referred by the register of that office to the Superior Court for determination, under the provisions of section 3414 of the Political Code.

<p>Homestead—Probate Proceedings—Notice—Mortgage. — One Alhoff occupied a small tract of unsurveyed government land upon which he resided with his family until his death. Upon his death the land was set apart by the Probate Court as a homestead to the family, which consisted of his widow and two sons. Subsequently the widow married one Chalmers, who filed a pre-emption claim upon certain lands, including a portion of the homestead lot, and obtained a United States patent. He afterwards mortgaged the land to a person who had no knowledge of any claim of the children to the land. Held, (1) that the order setting apart the homestead operated only upon the interest which Alhoff had in the premises at the time of his death. (2) That the probate proceedings were not notice sufficient to put a bona fide purchaser from the holder of the legal title upon inquiry as to any equitable claim of the children to the land.</p>

<p>Petition for a writ of mandate to compel the judge of a Superior Court to proceed to hear and determine a cause.</p> <p>The facts are stated in the opinion of the court.</p>

The action was to recover a lot of cattle claimed to be the property of plaintiff, and to have been wrongfully taken by defendant. The summons was regular in all respects except that the name of the plaintiff’s attorney was not indorsed upon it. The defendant moved to dismiss, vacate, and set aside the service on the ground that the summons, was not indorsed as required by section 407 of the Code of Civil Procedure.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The defendant was notified and commanded by the proper authorities of the city and county of San Francisco, to construct a sewer along the streets upon which certain lots, the property of defendant, fronted, and upon a refusal to comply with the order, was convicted in the police court of a misdemeanor and fined fifty dollars. The remaining facts are stated in the opinion of the court.</p>

<p>Criminal Law—Appeal—Former Conviction.-An appeal will not lie from judgment on a plea of former conviction. Such judgment is not a final judgment.</p> <p>Id. —Arrest oe Judgment. — An order denying a motion in arrest of judgment on a plea of former conviction is not appealable.</p> <p>Id.—New Trial.—The statute does not contemplate a motion for a new trial until all the issues of fact have been tried. A motion for a new trial upon a plea of former conviction is not authorized, and there can be no appeal from an order refusing such motion.</p>

The defendant was charged with murder, and convicted of manslaughter. The remaining facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Fresno County.</p> <p>The defendant was charged with the larceny of a gold watch and chain of the value of one hundred and twenty-five dollars, and ten dollars in silver coin. There was stolen at the same time several packages of cigarettes, and they were found in the possession of the defendant. The defendant objected to the introduction of any evidence regarding the cigarettes. The court overruled the objection.</p> <p>The remaining 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>It was averred in the complaint that the plaintiffs were ware-housemen in the city of San Francisco; that on the 5th of March, 1883, they had on storage in their several warehouses large quantities of goods in unbroken and unopened packages, many of which were consigned from foreign countries to citizens of San Francisco, and of which the plaintiffs were mere depositaries for hire, and for which they had issued receipts which were negotiable and assignable, and that they were unable to state the names of the owners of the property. They refused to answer the following question of the assessor: “ What property have you on storage in your warehouses, or either of them, belonging to persons other than yourselves, and what are the names of such persons, and describe the property belonging to such persons?” The assessor then threatened to note the refusal upon the assessment book, and estimate the value and assess it to the plaintiffs. This suit is for an injunction to prevent these threatened acts of the assessor. A general demurrer to the complaint was sustained and judgment rendered for defendant.</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>Mandamus—Death of a Pasty—Adhinstibatob—Substitution.—A judgment rendered against a party to an action after his death is not void on its face. Proceedings must be taken to set aside the judgment before an application for a mandamus can be made by the administrator of the decedent to compel the court to substitute him as a party to the action.</p>

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

<p>Cotnm Glebe—Sefabatioh of Offices—Salary.—On February 28, 1876, the offices of county clerk, auditor, and recorder of Humboldt County were united in the same person. On that day the legislature passed an act fixing the annual salary of the clerk for all services required of him in these several offices at 85,000. Subsequently, by an act of the legislature, Humboldt County was constituted a county of the second class, and the board of supervisors separated the offices of auditor and recorder from that of county clerk, and fixed the salary of the latter at 82,700. Held, that the act was intended to fix the salary for the several offices while they were united in the same person, and that when the offices were separated, the clerk was not entitled to receive the salary intended for all; and that as the act did not determine how much should be paid on account of each of the offices, it became inoperative when the separation occurred.</p> <p>Id.—Boabd of Supervisobs.—In the absence of any law fixing the compensation of the county clerk, the board of supervisors had authority to fix it.</p>

<p>Ejectment—Adverse Possession—Color oe Title,—A defendant in ejectment, who claims under color of title a large tract of land, including a smaller tract for which plaintiff sues, and to which he shows title in fee, cannot establish an adverse possession of the land of plaintiff by proving actual possession of a portion of the larger tract not extending, to any of the land claimed by the plaintiff.</p> <p>Enromas—Waiver—Presumption.—In support of the presumption that the trial court has performed its duty, this court will presume that findings were waived when none appear in the transcript. But this presumption has no force when a writing clearly intended to be a finding upon a material issue appears to have been filed by the judge of the court below.</p>

Appeal froin an order of the Superior Court of the city and county of San Francisco granting a new trial. The facts are stated in the opinion of the court.

The action was to recover an amount claimed for official services rendered by the plaintiff as constable, during the months of May and June, 1883.

<p>Criminal Law—Pbactice—Private Counsel.—It is not error to permit private counsel to assist the district attorney in the prosecution of criminal cases.</p> <p>Id.—Irrelevant Testimony.—The defendant was charged with murder, and in the opening statement defendant’s counsel placed the defense upon the ground that at the time of the killing the deceased indicated by his movements an intention to draw a pistol from his pocket, and that defendant believing his life to be in danger, killed the deceased. Certain evidence was given during the progress of the trial regarding a shot-gun concealed in and subsequently taken from the yard of the residence of the deceased, just after the homicide, when the court, of its own motiou, refused to allow its admission, unless it could be shown to be relevant. The defendant took an exception, but made no effort to show the relevancy; held, that the action of the court was not erroneous.</p> <p>Id.—Instructions — Charge—Conflicting Sentences.—The sentences or separate parts of a charge should be read in connection with the context, and the instructions as a whole, and if when so read it appears that the jury was correctly instructed, the judgment will not be reversed because there is an apparent conflict between certain isolated sentences.</p> <p>Id.—This rule applied to certain instructions regarding the character or degreS of evidence necessary to warrant a conviction of murder.</p> <p>Id.—It is not error to refuse an instruction which is not applicable to the facts of the case.</p>

<p>Criminal Law—Murder — Justification—Conflicting Instructions__A defendant may justify a killing, although he was the assailant, if he, in good faith, endeavors to decline any further struggle before the act of homicide is committed; and it is no answer to an objection that a different instruction was given, to show that in another part of the charge the law was correctly stated.</p> <p>Id— Evidence— Good Character of Witness.—Evidence of the good character of a witness cannot be given until his character has been attacked by evidence that his reputation for truth, honesty, and integrity is bad.</p>

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

<p>CBmrau, Law—Robbery—Instructions.—The defendant was charged with the crime of robbery, and the court instructed the jury as follows: “You may find a verdict against the defendant, guilty as charged in the indictment, of the crime of robbery, or you may find a verdict of grand larceny, or you may find a verdict of acquittal, as you may deem proper under the instructions which I have given.” The jury were not told that they could not find any other verdict, and the court was not requested to instruct them that they could. Held, that the instruction was not erroneous.</p> <p>Id.—Ibkegulabities. — When the jury were leaving the court-room for consultation, the clerk, without the knowledge of the court, or consent of the defendant, handed them three forms of verdict corresponding to those mentioned in the instructions, and they returned one of them —finding the defendant guilty of grand larceny; held, not erroneous or irregular.</p>

<p>Criminal Law—Murder—Jeopardy—Killing Two Persons by Same Act.—The murder of two persons by the same act constitutes two offenses for each of which a separate prosecution will lie, and a conviction or acquittal in one case does not bar a prosecution in the other.</p> <p>Id__Change of Venue—CouNTEB-ApziDAvrrs.—Upon an application by a defendant in a criminal case for a change of the place of trial, counter-affidavits may be filed by the prosecution controverting defendant’s statements.</p> <p>Id.—Trial for Murder While Under Sentence of Life Imprisonment.—A person may be tried for the crime of murder, notwithstanding he is at the time serving a sentence of life imprisonment for another offense.</p> <p>In.—Plea of Bobher Conviction—New Trial—Appeal.—An appeal does not lie from an order of the Superior Court refusing a new trial on a plea of former conviction, and it is within the power of the court to proceed with the trial of a case where such attempted appeal has been taken and is still pending in the appellate court.</p> <p>In Impaneling Jury—Scruples Against Death Penalty — Peremptory Ghal■lenge.—Subdivision 8 of section 1074 of the Penal Code, which provides for the peremptory challenge of jurors who entertain such conscientious opinions as would preclude their finding a defendant guilty of an offense punishable with death, applies to all prose-cutions for murder, although the crime of murder is not necessarily punishable by death.</p> <p>In.—Where the prosecution in a criminal case passes the jury to the defendant, declining to exercise any challenge, and the defendant exercises his right of peremptory challenge by objecting to one juror, the action of the court in subsequently permitting the prosecution to peremptorily challenge a juror is at most an irregularity not affecting any substantial right of the defendant.</p> <p>Id.—Evidence—EesGestsi.—In a prosecution for murder the condition in which the body and clothing of the deceased were found is properly admissible in evidence. The surrounding circumstances may always be shown as a part of the res gestm.</p> <p>Id. — Conversations Between Conspirators.—All conversations between conspirators had at the time the main subject of the conspiracy was discussed are admissible in evidence.</p> <p>Id. — Striking out Evidence.—Where evidence is stricken out on motion of the defendant, and the jury are instructed to disregard it, the error in its admission is cured.</p>

The plaintiffs were the widow and an infant child of William E. Leahy. . The action was for damages for the death of Leahy, alleged to have been caused by the negligence of defendant. When the case was called for trial, it appeared that the names of the jurors in attendance had not been drawn from the jury box, and that the jury had been summoned by the sheriff under an order of the court. The defendant asked that a jury for the trial of the cause be drawn from the jury box.

<p>Criminal Law—Habeas Corpus—Battery—Punishment—Jurisdiction.— The petitioner was convicted of Battery By a justice of the peace for the township of Los Angeles, and adjudged to pay a fine of six hundred and fifty dollars, or be imprisoned in the county jail until the fine Be paid in the proportion of one day’s imprisonment for every dollar of the fine, and that while so imprisoned he perform labor on the streets or other public works of the city of Los Angeles. Held, that the portion of the judgment requiring the performance of labor on the streets or other public works of the city of Los Angeles was beyond the jurisdiction of the justice, and therefore void.</p> <p>Id. — Judgment Void in Part. — On an application for a writ of habeas corpus, the judgment under which the prisoner is held is a unit, and if one portion of it is without the jurisdiction of the court which made it, the whole is void.</p> <p>Id.—Charter of Los Angeles. — The sixth sectioh of the Act of 1872, amending the charter of the city of Los Angeles, has reference only to cases where the penalty is solitary confinement in the county jail.</p>

On September 10, 1878, Muth leased to the plaintiff Schluter and one Jens certain fanning lands for a term commencing September 10, 1878, and ending September 1, 1882. By the terms of the lease, the lessees were to pay to the lessor or his assigns, a yearly rent of one thousand five hundred and fifty dollars, the first payment to be made September 1, 1879, and thereafter one payment on September 1st of each year.

<p>Appeal from a judgment of the Superior Court of the county of Sacramento.</p> <p>Henry Hebb, an owner of lands included in an organized swamp land district, applied to the supervisors to have his land segregated and made a new and independent district, under the provisions of the Act of April 15, 1880, amendatory of section 3484 of the Political Code. A protest was filed by Williams, the respondent, who was a land owner in the district. The board granted the petition of Hebb. Williams procured a writ of review from the Superior Court, and upon a hearing the action of the board was annulled. The appeal is from this judgment. " -</p>

Ejectment to recover possession of lands in San Joaquin County. The complaint, in addition to the demand for possession, averred that the rents and profits of the premises during the time of the withholding were worth $1,500, and “that by reason of said withholding plaintiff has been damaged in the sum of $1,500.” The prayer was for restoration of possession and $1,500 damages.

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

<p>Application for writ of habeas corpus. The petitioner was convicted of battery by a Justice’s Court and sentenced to fifty days’ imprisonment. He appealed from the judgment to the Superior Court, and was released from custody pending the appeal. The Superior Court dismissed the appeal, and an order was made recommitting him to prison. The fifty days expired during the pendency of the appeal, and a discharge from imprisonment under the order was asked on the ground that the appeal did not stay the execution because there was no certificate of probable cause.</p>

<p>Pleading—Replevin — Claim fob Affirmative Belief.—The action was to recover possession of certain grain and hogs of which plaintiff claimed ownership. The defendant, a sheriff, denied the ownership of the plaintiff, and justified his possession under certain writs of attachment. He also alleged that after his levy under these writs, the plaintiff took the property from his possession by a writ of replevin, and he asked for its return. At the trial, the court permitted the plaintiff to amend his complaint by striking out all allegations in relation to the hogs, upon the oral statement of his counsel that the hogs had not been levied upon by the defendant, and also struck out from the answer all reference thereto. Held, that this was error, for if the averments of the answer were true, the effect of the action of the court would be to give possession of the hogs to the plaintiff, without affording the defendant an opportunity to try the question of his right to their return.</p> <p>Attachment—Landlord and Tenant.—A crop raised by a tenant of land, who holds under a lease containing a covenant that the entire crop shall be the property of the landlord until all advances made by him to the tenant shall be paid, is not subject to attachment by a creditor of the tenant while such advances remain unpaid.</p>

The defendant was sentenced October 27, 1888, and subsequently, November 13, 1883, re-sentenced. The remaining facts appear in the opinion of the court.

<p>Ejectment—Evidence.—Where a plaintiff in ejectment, claiming as assignee of a lease, has made prima facie proof of his right to recover the demanded premises, a defendant claiming under a mortgage foreclosure sale must show affirmatively that the plaintiff or his assignee was barred by the decree of foreclosure.</p> <p>Lease—Assignment—Mortgage Priority__Where a lease for a term of years has been duly recorded, and afterwards assigned, it has priority over a mortgage executed subsequent to the recording of the lease, although the assignment was made after a decree foreclosing the mortgage.</p> <p>Writ of Assistance.—The legal or equitable rights o. persons not parties to a foreclosure suit cannot be adjudicated upon application for a writ of assistance.</p>

The action was to restrain the transfer by defendant of a promissory note made to him for a part of the purchase price of two newspaper establishments and other personal property sold to the plaintiff. The injunction was asked on the ground of alleged fraud and misrepresentation by the defendant.

<p>Appeal from a judgment of the Superior Court of the county of Sacramento.</p> <p>The judgment was upon a general demurrer to the complaint.</p> <p>The facts are stated in the opinion.</p>

<p>' Weit of Beview—Ex Paete Oedee foe Injunction. —As an appeal lies from an order granting an injunction, such an order made without due notice of the application therefor, cannot he annulled in a proceeding for a writ of review.</p> <p>Id.—Suspension of Business of Ooepobation. —Where the general and ordinary business of a corporation is “buying and selling mining claims or in working them,” an injunction which restrains the mining operations of the corporation in a particular manner, alleged to he to the injury of others, does not suspend the general and ordinary business of the corporation within the meaning of section 531 of the Code of Civil Procedure.</p> <p>Id. —Seevice of Injunction. —An affidavit of service of an injunction which states that the same was personally served upon the superintendent and managing agent of the corporation, is prima facie evidence of a valid service, although affiant further stated that he was “informed and believes” that the person served was such superintendent and managing agent.</p> <p>Id.—Beview of Evidence of Seevioe—Jjjbisdiction. —Without deciding that the court will review the evidence as to the service of an injunction when the jurisdiction of the court to.which the writ issues depends upon such evidence, held, that where the evidence is conflicting, and there is evidence tending to prove the fact on which the jurisdiction depends, the determination of the lower court will not he questioned.</p> <p>Id.—Hotioe. —When the officers and agents of a corporation have actual notice of an injunction against the corporation, they are hound by it, although it was not served.</p> <p>Id. —Service—Sheriff. —An injunction may be served by any person authorized to serve a summons. Subdivision 8 of section 4176 of the Political Code, which provides that “ the sheriff must serve all process and notices in the manner prescribed .by law,” does not give to or impose upon the sheriff exclusively the duty of serving all process and notices, but requires of him to serve such as are placed in Ms hands, wMch the law commands Mm to serve when addressed or handed to him.</p> <p>Corporation—Contempt.—A corporation can be punished for contempt in disobeying an injunction.</p> <p>Id.—Affidavits—Jurisdiction.—The jurisdiction of a court to adjudge a contempt committed out of its presence does not depend upon the form of the affidavit wMch sets the proceeding in motion. When the order to show cause is served, the defendant can appear and answer any contempt alleged against him. The commitment is not based upon the affidavits, but upon evidence introduced on the return day of the order to show cause; and a finding that a contempt was committed will not be reviewed on certiorari.</p> <p>Id.—Service of Order to Show Cause.—When the officers of a corporation charged with contempt in disobeying a legal order wilfully conceal themselves to avoid service of an order to show cause why it should not be adjudged guilty of a contempt, the court may order that service be made upon its attorney in the action.</p> <p>Id.—The service upon'an attorney who had not been formally substituted for the attorneys of record, but who had repeatedly appeared as one of the attorneys of the corporation, is sufficient.</p> <p>Id.—Separate Contempts.—Each act violative of an injunction is a separate contempt.</p>

<p>Corporation—Assessment—Paid up Stock. — Corporations formed and existing under the laws of this State may levy and collect assessments for corporate purposes on shares of stock upon which the subscriptions have been fully paid.</p> <p>Id. —Advances by a Director—Money advanced to a corporation by a director, in good faith, and which is received and used for necessary corporate purposes, is a valid claim against the corporation.</p>

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

<p>Cbihinal Law—Habeas Costos—Commitment and Examination by Justice of the Peace.—Where one charged with murder has been arrested and taken before the magistrate who issued the warrant, and by him committed for examination, he may be examined and held to answer by another magistrate of the same county, without a second warrant of arrest, although it does not appear why the prisoner was not examined before the magistrate issuing the warrant.</p> <p>Id.—Süffioienoy of Commitment.—The justice of the peace before whom the prisoner was examined made the following order: “It appears to me that the offense of manslaughter has been committed, and that there is sufficient cause to believe the within-named Edward Moan guilty thereof; I order that he be held to answer to the same, and that he be admitted to bail in the sum of two thousand five hundred dollars.” Held, that the commitment was sufficient under section 872 of the Penal Code.'</p> <p>Id.—Setting Aside Infobmation.—Where a defendant was arraigned and pleaded not guilty, and did not move to set aside the information, he is precluded from afterwards taking the objection that he had not been examined and committed as required by law, and is not entitled to a discharge on habeas corpus, after trial and conviction, even if he had not been legally committed.</p> <p>Id.—Infobmation—Effect of Dismissal of Bill by Gband Jüby.—The examination and dismissal of a bill by the grand jury does not take away the right of the district attorney to file an information for the same offense within the statutory time.</p>

<p>Application for the issuance of a writ of mandate according to the previous judgment of the court, notwithstanding the filing of a writ of error and bond.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Dismissal op Appeal—Service op Notice op Appeal—Undertaking.—When service of a notice of appeal is made by mail, it is complete at the time of the deposit of a copy in the postoffice, and the undertaking on appeal must be filed within five days after such deposit. Section 1013 of the Code of Civil Procedure, extending the time in which acts may be done in certain cases, has no application to the service of a notice of appeal.</p>

<p>Criminal Law— Constitutional Constbuction—Excluding Persons from Coubt-Boom—Public Tbial__The provision of the Constitution, article i., section 13, which guarantees to every person accused of a crime the right to a public trial, is not violated by an order of court excluding all persons from the court-room except the judge, jurors, witnesses, and persons connected with the case, during the trial of a criminal charge. The word public in that clause of the Constitution is used in opposition to secret.</p> <p>Id, — Presumption—Assent.—In the absence of any showing as to what took place when the court made an order, the appellate court will presume, in support of the action of the court below, that the defendant assented to the order.</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>

A general demurrer was interposed to the complaint, and sustained by the court. The plaintiff failed to amend, and judgment for defendant was rendered. The case is fully stated in the opinion of the court.

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

<p>STREET IMPROVEMENTS, LIABILITY OF ClTY FOB BePAIBDTS SIDEWALKS. — When a street has been accepted by the board of supervisors of the city and county of San Francisco, the expense of constructing and repairing the sidewalks must be paid by the city and county.</p>

<p>Appeal from a judgment of the Superior Court of Butte County, and from an order refusing a new trial.</p> <p>The defendant was convicted of murder of the second degree. The facts are stated in the opinion of the court.</p>

<p>Motion to dismiss appeal. The facts are stated in the opinion of the court.</p>

<p>Replevin—Finding Value of Each Artiole—Judgment.—A defendant who recovers a judgment in an action of replevin, where the property has been delivered to the plaintiff, is entitled to a judgment for a return of all the property, and if it cannot be returned, then to a judgment for the value of the whole. It is not necessary to the validity of the judgment that the separate value of each article sued for be found by the court.</p> <p>In.—Jurisdiction—Finding—Judgment.—A finding that an action was commenced, and that a judgment therein was duly given and made, includes a finding of all the facts necessary to give the court jurisdiction.</p>

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

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

<p>Practice and Pleading—Liability of Sureties to Undertaking—Demand.— Where a demand is necessary to fix the liability of sureties to an undertaking, it is part of the contract, and must be made before the commencement of an action for the breach of the undertaking, and averred in the complaint. It cannot be made after the commencement of _the action except as the basis of a new action.</p>

<p>Jubisdiotion—Dismissal as to a Pabty. —The court has no jurisdiction to render judgment against a party as to whom the action has been dismissed until the order of dismissal is vacated.</p> <p>Conteact—Conditional Sale—Title.—Where a party delivers possession of personal property to another under an agreement to sell ih consideration of a cash payment and other deferred payments, time being of the essence of the agreement, the contract is executory, and no title passes until the deferred payments are made; and a failure to make them according to the terms of the agreement entitles the vendor to the possession of the property.</p>

The action was brought by the bank against the cashier to recover the amount of a loss alleged to have been sustained by reason of certain loans, and also a further amount alleged to have been overdrawn by the cashier on account of his salary. The remaining facts appear in the opinion.

<p>Appeal from a judgment of the Superior Court of Humboldt 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 Santa Barbara 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 Santa Clara County.</p> <p>Action of ejectment to recover an undivided one half of certain described premises. In 1851, one Lewis, without title, conveyed the premises to one Joseph Evans, who went into possession. In 1854, Evans conveyed them to respondent Rego and one Hammond, and Hammond went into possession. In 1857, Hammond conveyed all his right and title to appellant Van Pelt, who went into possession. At the time of the conveyance from Evans to Hammond and Rego, Rego was only four or five years old, and resided out of the State until a short time before the commencement of the action.</p>

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

<p>New Tbiai,—Appeal.—Where the trial court grants a new trial for the reason that the evidence did not justify the verdict, and there was a substantial conflict of testimony, no question arises on an appeal from such order as to the improper admission of evidence.</p>

<p>New Trial—Practice — Vacating Judgment.—Proceedings for a new trial cannot be initiated by a notice of motion to vacate and set aside the judgment, on the ground of insufficiency of the evidence to justify the judgment; nor can such motion be based on the ground that the judgment is against law. The motion should be directed at the decision.</p> <p>Id.—Statement—Certificate of Judge.—A statement on motion for new trial, not signed nor certified by the judge of the court below, will not be considered by the appellate court.</p>

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

The object of the action was to remove the defendants, Barney and McLane, from the office of trustees of an alleged trust. The plaintiff averred that he was the holder of certain bonds of the defendant, the Placerville and - Sacramento Valley Eailroad, secured by a mortgage of the property of the corporation to Barney and McLane, as trustees for the bondholders, and that they had failed to discharge the duties of the trust.

<p>Ckdunal Law—Homicide—Immatebial Evidence—Ebbob Without Pbejudice. —The defendant was charged with murder, and during the trial the court permitted the introduction of evidence on behalf of the prosecution, against the objections of the defendant, respecting the habit of the deceased in walking with his hands in his pockets. Subsequently the defendant attempted to prove that when he shot, deceased had his hands in his pocket, with the intention, as defendant supposed, of drawing a deadly weapon. Held, that the admission of evidence as to the habit of deceased in walking with his hands in his pockets was not prejudicial to defendant.</p> <p>Id.—Receiving 'Vbbdiot—Polling Juby in Absence of Defendant’s Attobney. —The defendant’s attorney was informed that the jury had come into court with a verdict, and after waiting a sufficient length of time for the attorney to arrive, the court received the verdict, polled the jury, and discharged it in his absence. Meld, that the defendant was not prejudiced.</p>

<p>Begulating Sale op Spirituous Liquobs—License—Constitutional LawThe board of supervisors of a county has power, by section 11 of article xi. .of the Constitution, to regulate the sale of spirituous liquors within the county, by imposing a license tax.</p>

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

<p>Appeal from a judgment of the Superior Court of the county of Marin, and from an order refusing a new trial.</p> <p>The complaint was in assumpsit for the price and value of goods sold and delivered. The answer contained two defenses : First, a general denial. Secondly, averments that the plaintiff agreed to sell and deliver at defendant’s brick yard a “lot of wood proper and suitable for the purpose of properly and successfully burning his (defendant’s) brides,” etc. That the wood was wet and soaky, and of inferior quality, and unfit for the required purpose; that in consequence more wood was used than if it had been of. the quality contracted for, and injury resulted from the imperfect burning of bricks; -that the wood was many miles away from the brick yard, and, before delivery, was inaccessible to examination by the defendant; that the defendant ordered the wood for that particular purpose, and plaintiff agreed to supply him with proper and suitable wood, and that defendant had suffered damages by his failure, in the sum of fifteen hundred dollars. He aslced judgment against the plaintiff for that sum.</p> <p>Verdict for the plaintiff for the value of the wood.</p> <p>The other facts appear in the opinion of the court.</p>

<p>CRIMINAL Law—Forgery—Drunkenness as a Defense.—In a prosecution for forgery, evidence is admissible, on the question of intent, to show that in consequence of protracted intemperance defendant’s mental faculties had been impaired to such an extent as to deprive him of the capacity to distinguish between right and wrong, and that he did not know what he was doing at the time of the commission of the act.</p>

The plaintiff agreed to convey to the defendant certain real estate upon the payment of seven thousand dollars, and interest at the rate of one per cent per month. When the agreement was reduced to writing and the note was executed the rate of interest was stated to be one per cent per annum. The action was brought to reform the agreement. The remaining facts are stated in the opinion of the court. ,

<p>Delinquent Taxes—Institution as Suit by District Attorney.—The district attorney is not authorized to institute an action for the collection of delinquent taxes before the certification of the delinquent list.</p>

<p>Pleading—Condemnation of Land—Municipal Cobpoeation. — A petition by the city of Los Angeles for the condemnation of certain land for a street, recited that the city council “ duly passed and adopted an ordinance in writing ” directing the proceeding, and “ that it is now necessary to condemn said land for public use, agreeebly to the provisions of said ordinance.” Held, that this was a sufficient allegation of the necessity of taking the land for public use.</p> <p>Id.—An averment that an ordinance “was duly passed and adopted,” is a sufficient statement that everything necessary to be done by the city council to give it legal effect had been done.</p> <p>Obdinance—Besolution.— When the charter of a municipal corporation requires it to do certain acts by resolution, it may do the same acts by ordinance.</p>

<p>Contested Election—Tie Vote—Costs.—In a contested election case, where it is determined that there was a tie vote, neither of the parties can recover costs.</p>

The appellant Wilkinson was executor of the estate of Marrey, and was also a legatee under the will. He filed a petition for a settlement of his final account, and for distribution of the estate and discharge. Other legatees opposed the petition upon the ground that the amount claimed by the appellant as his proportion under the will was excessive. The Superior Court reduced the amount claimed by appellant.

<p>Taxation—License Tax—Gonstitotionai, Law—Powebs of Boakd of Sttpebyisobs.—The power conferred upon the boards of supervisors of the several counties of the State, by the act entitled “ an act to establish a uniform system of county and township governments,” approved March 14,1883, to impose a license tax and to provide for its collection, includes the power to create the office of license tax collector and appoint a suitable person to perform the duties. The exercise of such power is not in conflict with section 5 of article xi. of the Constitution.</p>

<p>Injunction—Eobeclosdbe—Júeisdiction.—Where the parties to a suit to foreclose a mortgage enter into a stipulation respecting the time and manner of the enforcement of the decree, an injunction will not lie to restrain a sale of the property contrary to the stipulation. The court granting the decree has control of its execution, and relief must be obtained in the foreclosure suit.</p>

<p>Appeal from an order of the Superior Court of San Diego County releasing a levy, recalling an execution, and granting leave to file an amended bond.</p> <p>The facts appear in the opinion of the court and in the head-notes.</p>

<p>Eminent Domain—Appeal — Order Refusing to Set Aside Condemnation Proceedings.—No appeal can be taken from an order refusing to set aside a final order for the condemnation of lands. The appeal should be taken from the original decision.</p>

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

<p>Cnnnmii Law—Bübglabv—Pbevious Conviction—Punishment. —A defendant found guilty of burglary in the second degree, and a previous conviction of grand larceny, may be punished by imprisonment in the State prison for a term of ten years.</p>

<p>Appeal from an order of the Superior Court of the county of Santa Clara, directing the clerk to issue execution upon a judgment in favor of the plaintiff.</p> <p>The facts appear in the opinion of the court.</p>

<p>Motion to dismiss appeal. The facts are stated in the opinion of the court.</p>

<p>Cbqiinal Law—Inteepbetotg Evidence—Pbaciioe. — Where tlie court, during the trial of a criminal case, instructs the interpreter that whenever the witness undertakes to state something that somebody else has told him he should inform the court, it would be error warranting a reversal of the judgment if it appear that such instructions were acted upon, and that the interpreter merely reported to the court that the witness had stated something that had been told him by somebody, and the court had acted on the bare statement without requiring the interpreter to repeat what the witness had said; but if it does not so appear, the judgment should not be disturbed.</p>

<p>Appeal from a judgment of-the Superior Court of Amador 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 San Joaquin 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 writ of habeas corpus. The facts are stated in the opinion of the court.</p>

The proceeding was a writ of certiorari to review certain proceedings of the mayor and common council of the city of Santa Barbara in changing, opening, and laying out several streets, and making assessments for these purposes under the provisions of the Act of March 26, 1878. (Stats. 1877-78, p. 777.) The facts sufficiently appear in the opinion of the court.

<p>Bailboad Corporation—Failure to Erect Fences—Personal Injury. — A railroad corporation which fails to erect fences along its track, as required by section 485 of the Civil Code, is liable to a person on horseback who is injured by a passing train in consequence of the horse becoming frightened and unmanageable on the approach of the train and attempting to run across the track immediately in front of the engine, the rider not being guilty of contributory negligence.</p> <p>Id.—Province of the Court and Jury—Instructions.—In view of the circumstances of the case as disclosed by the evidence, held, that the question of negligence on the part of the plaintiff should have been left to the jury to determine, and that the court erred in its instructions which practically took the question from the jury</p>

<p>Injunction—Sake Undeb Execution Ebom Justices’ Court—Insufficiency of Complaint. —In an action to enjoin a sale under am execution issued upon a judgment rendered by a justice of the peace, the complaint must allege that the plaintiff was neither served with the summons nor appeared in the action in which the judgment was rendered; an allegation that he had no knowledge of the judgment for more than thirty days after its rendition is not sufficient.</p>

<p>Change of Place of Trial. —Where the defendant, at the time he demurs demands that the [trial be had in the county of his residence, his motion for a change of the place of trial cannot be postponed by the court until the answer is filed, and leave granted to the plaintiff to make a cross-motion to retain the case on the ground of convenience of witnesses.</p>

<p>Cboss-Demands—Set-oee—Counteb-Claim—Mobtgage.—Cross-demands to be the subject of set-off, under section 438 of the Code of Civil Procedure, must be mutual, and co-exist as separate causes of action at the commencement of the action upon the principal demand; and where an action was brought by an administrator to foreclose a mortgage given to secure a note which matured after the death of the intestate, held, that a promissory note of the deceased, assigned to the mortgagor, and which was due aud payable at the time of the intestate’s death, but was not presented to the administrator for allowance, cannot be set off against the mortgage debt.</p> <p>Id.—Nor can such cross-demand be set off against the mortgage debt if it is barred by the Statute of Limitations at the time of the commencement of the foreclosure suit.</p> <p>Id.—Assignment—PBomssoBr Notes.—Promissory notes assigned before maturity may be pleaded as a counter-claim by the assignee, in an action by an administrator to recover a mortgage debt due the estate from the assignee, although the notes were not presented to the administrator for allowance, if an'aetion could have been maintained upon them at the commencement of the foreclosure suit; but if assigned after maturity, the assignee takes them subject to all existing equities between the maker and payee, and under such circumstances they would not be the subject of a counter-claim, and could not be pleaded as such under section 438 of the Code of Civil Procedure.</p> <p>Id.—Pdeading.—An answer which sets forth facts which show that the defendant came into possession of the notes by assignment before the death of the intestate, but does not state whether before or after maturity of the notes, is insufficient.</p>

<p>Deceit—Pbohissoby Note—Statute op Lmmvnons. — A fraudulent promise made by the maker of a promissory note to the payee, by which the maker gets possession of the note, and retains it until it is barred by the Statute of Limitations, is actionable under sections 1709 and 1710 of the Civil Code.</p>

<p>Deed—Deliveey.—A deed takes effect from its delivery, and if delivery is wanting, it is void ab initio.</p> <p>Id.—Where a deed was executed to a bank, and the notary handed it to one of the directors, who was instructed by the grantor that the deed was not to be delivered to the bank until certain matters in dispute between the grantor and grantee were settled, held that there was no delivery.</p> <p>Id.—Acceptance—Authobity of Dibectobs.—To constitute a delivery of a deed there must be an acceptance by the grantee. Power to make a settlement of a defalcation to a bank, and accept a deed of real estate in satisfaction and release, is a function of the board of directors, and not of any individual director or officer.</p> <p>Id.—Married Woman.—The deed of a married woman has no validity, and is not in a condition to be delivered or accepted until it is acknowledged and certified as required by sections 1186 and 1191 of the Civil Code.</p>

<p>Administration—Revocation of Will—Appeal—Appointment of Special Administbatob—Jurisdiction.—An appeal from an order revolting the pro- - hate of a will does not revive the powers and functions of the former executor, and the court has power to appoint a special administrator to take charge of the estate.</p>

<p>Appeal from a judgment of the late District Court of the Fifth Judicial District, and from an order of the Superior Court of San Joaquin County refusing a new trial.</p> <p>The plaintiff and defendants were riparian proprietors. The defendants owned lands above the lands of the plaintiff, and constructed a dam across the stream to divert the water for the purpose of irrigation, and plaintiff brought this action for damages sustained by reason of an unlawful appropriation of the whole of the water to the entire exclusion of the plaintiff. The remaining facts appear in the opinion.</p>

<p>Pleading—Verieioation of Answer. —Where the affidavit of a defendant to his answer states that the matters set forth in the foregoing answer are true, except as to those matters therein stated on information or belief, and as to those matters that he believes them to be true, it is a sufficient verification ; it is not necessary that the defendant should state in the affidavit that he has heard the answer read, and knows the contents thereof.</p> <p>Replevin—Sheriff—Conversion—Undertaxing__The action was replevin. The answer set forth facts from which it appeared that prior to the commencement of the present action, one Hawley commenced an action against the plaintiff herein, and one Bowler, to recover the identical property described in the complaint herein. That in that action, upon proper affidavit, undertaking, and order of the attorney for plaintiff therein (which were forthwith served on the defendants therein), the present defendant, as sheriff, took said property from the defendants on the 12th day of November, 1881. That on the 17th day of the same November (the day after the present action was commenced) the plaintiff herein made affidavit for claim and delivery and executed bond, which affidavit and bond (together with an order of the attorneys for plaintiff herein) were delivered to an elisor, appointed by the court, by whom the property was taken from the defendant herein, sheriff as aforesaid. That afterwards, on the 22d of November, 1881, defendant gave the undertaking provided for in such case by • the Code, and demanded a return of the property of the elisor, who on the same day delivered the property to the present defendant; that defendant, sheriff, thereupon delivered the properly to Hawley, the plaintiff in the action wherein plaintiff and Fowler were defendants. That afterwards, on the 12th day of December, 1881, the plaintiff herein filed an answer in the action, wherein he and said Fowler were defendants, in which he demanded a return of the property therein and herein sued for. That the action, Hawley v. Fowler and Fleming, came on to be tried on the 21s fc day of January, 1882, and at the conclusion of the evidence on the part of the plaintiff therein, the court, on motion of defendants, ordered a judgment of nonsuit in that action, on the ground that plaintiff had not made out a case sufficient to go to a jury, and thereupon a judgment was entered in favor of defendants therein for their costs. Held, that the facts stated in the answer constituted a defense.</p>

The suit was to foreclose certain mechanic’s liens upon a quartz mining claim. The facts sufficiently appear in the opinion of the court.

<p>Homestead—Deolabation—Statement of Value.—A declaration of homestead stated that the cash value of the premises was three thousand dollars. Held, that this was a sufficient compliance with the provision of the statute requiring that the declaration contain an estimate of the actual cash value.</p> <p>Husband and Wife—Gift—Sepabate Pbopebty. — Where land is conveyed to a wife, with the consent of the husband, in consideration of a debt due from the vendor to the husband, the transaction operates as a gift of the land to her, and it becomes her separate property.</p>

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

<p>CONSTITUTIONAL LAW—CoNSTBUCTIOY BY LATE SUPBEME OOTTET.—Whei'6 the Supreme Court of the State, prior to the adoption of the new Constitution, passed upon the constitutionality of an act of the legislature, the construction will he accepted and followed by the present Supreme Court, without regard to its own views as to the correctness of that construction.</p>

The defendant Kramer was a contractor, and agreed with the defendant, the Benicia Water Co., to construct a reservoir, but before the completion of the contract abandoned the work; Kramer was indebted to the plaintiffs for work done on the reservoir, and each filed a lien on the property of the defendant. The action was brought to enforce' the lien. The remaining facts are stated in the opinion of the court.

<p>CONTBACTS— EbAHDULENT CONSIDEBATION—COLLUSIVE DlVOBOE—EbAUD ON THE Coubts—Public Policy.—Where a husband transferred certain real and personal property to his wife in consideration of promissory notes executed by her to him, secured by mortgage, and a promise by her to abandon her defense in an action of divorce then pending between them, and not resist or prevent or delay him in obtaining a decree of divorce, held, that the agreement of the wife with respect to the divorce proceedings was a fraud upon the court, and as it constituted an essential and inseparable part of the consideration, the entil’d transaction became tainted by fraud, and no action would lie to enforce the payment of the notes.</p>

<p>Gbowinq Chop—Insolvency—Homestead—Beplevin.— An assignment by an insolvent of all Ms real and personal property generally, does not pass to the assignee a crop growing at the time of the assignment, on premises constituting a homestead, and such crop cannot be taken by the assignee after it is harvested.</p>

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

<p>Attachment—Contbact Expbess ob Implied — Statdtoby Liability,—The liability of a tenant in possession to the purchaser ata foreclosure sale, for rents or use and occupation from the day of sale to the expiration of the time for redemption, is a statutory liability, and exists without the assent of the tenant; it is not a liability founded on a contract express or implied, within the meaning of section 537 of the Code of Civil Procedure, authorizing the issuance of an attachment.</p>

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

<p>Insolvency—Effect of Disohabqe on Pbiob Debts.—A discharge under the Insolvency Act of April 16, 1880, bars an action on a judgment rendered in 1876.</p>

The action was brought to set aside a sale, by the defendant Farnham as sheriff, of certain lands claimed by plaintiffs as a homestead, and to enjoin the execution of a deed. The sale was made under an execution issued upon a judgment against the plaintiff George S. Porter, and in favor of defendant Chapman, who became the purchaser at the execution sale.

' The plaintiff sought to set aside a decree of distribution of an estate, made by the Probate Court, upon the ground of fraud on the part of the defendant in procuring the decree. It was found by the Superior Court that the plaintiff was the husband of the decedent. The wife was the owner of real estate in San Francisco which was her separate property. He was a sailor and master of a whaling vessel, and was absent at sea for many years.

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

<p>Wmr of Review—Right of Possession—Condemnation of Lands.—A court in which an action for condemnation of lands has been brought, has jurisdiction, on motion, to prevent the plaintiff from taking possession of the land until an order of the court is made authorizing it. If possession be taken before such order, it may be restored on motion to the court in which the action is pending.</p>

<p>Instructions—Appeal. — On appeal a party will not be heard to object to an alleged error in an instruction given at his own request.</p> <p>Id.—Contradictory Instructions.—A judgment in an action for damages will be reversed where an instruction states contradictory and irreconcilable rules for fixing the amount of damages.</p>

Peter Joseph Dunne, one of the devisees under the will of James Dunne, deceased, petitioned the court for s partial distribution of rents of a rancho devised to him. The executors answered, averring that the rents in their hand ? are necessary for payment of the costs and expenses of admini f oration. The other facts sufficiently appear in the opinion,

<p>Appeal—JmismcnoN—Usubpahox of Fbanchise.—Under the provisions oí article vi., section 4, of the Constitution, this court may review a judgment in proceedings for the usurpation of a franchise, when it appears that the right to the possession of real property is involved in the action.</p> <p>Id.—Geant of Feanchise—Tbansfeb of Feanchise. — An act granting a franchise to a county to collect tolls upon a public road, does not authorize the county to grant the franchise to other persons.</p>

The action was brought to foreclose a mortgage. The mortgage was executed in ¡November, 1879, to secure the payment of a promissory note payable in three years. It contained no special covenants as to payment of taxes. In January, 1883, the mortgagor paid the full amount of the note and interest, less three hundred and ninety-five dollars, which sum he had paid in taxes on the mortgage interest, without being requested to do so by the mortgagee.

<p>Appeal from a judgment of the Superior Court of the county of Santa Cruz.</p> <p>. The action was to recover the possession of personal property. The complaint was in the usual form, alleging ownership and right of possession. The averments of the answer are sufficiently stated in the opinion of the court. A general demurrer to the answer was sustained.</p>

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

The action was brought to recover the amount due on three promissory notes for the respective sums of $100, $159, and $269.97; and also for the sum of $50 due on an account for goods sold and delivered. The complaint contained four counts; each note and the account being alleged as a further and separate cause of action. The prayer of the complaint was for a judgment for $656, the aggregate of all the items, and interest on the notes according to the terms of each.

<p>Reformation of Conveyance—Homestead—Action of Ejectment.—The demanded premises were intended to be, but by mutual mistake were not, included in a conveyance of certain lands executed by the. plaintiff Flavel Hay-ford, to the defendant Catherine Kocher. Afterwards a decree of reformation was made and entered by which the conveyance was made to include the omitted premises. After the execution of the conveyance and before the commencement of the action for its reformation, the plaintiff Lydia A. Hayford, wife of Flavel Hayford, selected the premises as a homestead, knowing at the time that the parties to the conveyance intended that the property should be included, and that it had been omitted by mutual mistake. Held, that no homestead rights attached to the property.</p>

<p>Fobeolosure ob Mortgage—Pbomissoby Note—Option ob Payee. — A promissory noto secured by mortgage provided for payment of the interest monthly, and that in default of such payment, the entire unpaid balance of the principal sum should, at the option of the payee, become due and payable. Eeld, that in case of the failure of the maker to pay the interest as agreed, the option of the payee must be expressed by some notice to the maker before advantage can be taken of the defendant.</p> <p>Id.—Interest—Contract bob Increased Interest aeeeb Maturity ob Note. —Under the provisions of section 1919 of the Civil Code, a note cannot he made to bear interest upon unpaid interest at a greater rate than that agreed upon for the principal debt.</p>

<p>Eminent Domain—Place or Trial—Residence oe Corporations.—The principal place of business of a corporation is not its residence within the meaning of section 395 of the Code of Civil Procedure, regulating the place of trial of actions. There is no law defining its residence, and in an action against a corporation to condemn lands, under the provisions of the Code relating to eminent domain, the place of trial is the county where the lands sought to be condemned are situated.</p>

<p>Judgment—Collateral and Dibeot Attack.—A motion to set aside a judgment in the court in which it was rendered is a direct and not a collateral attack.</p> <p>Summons—Service by Publication—Jurisdiction.—The publication of a summons made without an affidavit and order of court authorizing it, does not confer jurisdiction of the person of the defendant, and a default judgment based upon such service is void.</p> <p>Id.—Bight oj? Third Party to Have a Void Judgment Vacated.—The action was brought against the defendant Mullan to annul a certificate of purchase of State school lands, and judgment was rendered in favor of the plaintiff, and the certificate declared void. After the rendition of the judgment, the Cucamonga Company acquired by purchase all the right, title, and interest of Mullan in the certificate of purchase, and after giving the plaintiff notice, moved the court to set aside the judgment rendered against Mullan, on the ground that it was void, the court having never obtained jurisdiction of the defendant Mullan. The Cucamonga Company was not a party to the action. Held, that it was error to deny the motion."</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>

<p>Pleading—Misjoindeb oe Causes oe Action.—Where a purchaser of real estate at an execution sale brought an action to set aside certain conveyances alleged to have been made by the judgment debtor in fraud of creditors and purchasers, and to recover possession of the property, held, that there was no misjoinder of causes of action.</p> <p>Id.—Misjoindeb oe Parties.—And where it was also sought in the same action to have an adverse claim determined, and the defendants against whom such relief was demanded disclaimed all interest in the property, and the disclaimer was accepted by the plaintiff and acted upon by the court, held, that the judgment should not be reversed by reason of the misjoinder.</p> <p>Id.—Assignee in Insolvency.—In an action by a purchaser at an execution sale, to set aside a conveyance alleged to have been made by the judgment-debtor in fraud of creditors and purchasers, and to recover possession of the property, the assignee in insolvency of the judgment debtor is a proper party defendant.</p> <p>Id.—Pleading—Adverse Claim.—In an action to determine an adverse claim to land, an allegation that the plaintiff is informed and believes that the defendant claims some interest in the land, is insufficient.</p> <p>Jury Trial—Waiver. —If the parties to an action go to trial without demanding a jury, the right to a jury trial is waived.</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>This was an action to quiet title to certain lands. The plaintiff’s title was derived by deed from Maria E. Espinosa, a married woman. The deed was acknowledged before a justice of the peace, and the certificate was in the form of an ordinary ac-. knowledgmeht by an unmarried woman. She afterwards conveyed the property to the defendant, and still later appeared before a notary public, and acknowledged the first conveyance in proper form. The other facts appear in the opinion. .</p>

<p>Appeal from an order of the Superior Court of Santa Barbara County refusing to set aside a homestead.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Eminent Domain — Action to Condemn Lands—Place oe Tbial. — In an action against a corporation to condemn lands for the use of a railroad, the county in which the lands are situated is the proper county for the commencement and trial of the action.</p>

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

<p>CONTBAOT FOB SALE OF LAND — POBFEITTJBE — WAITEB—AdHINISTBATION.— Where by the terms of a contract for the sale of lands the vendor is authorized, upon default in the payment of any installment of the purchase money or interest thereon, to declare the contract forfeited by depositing a written notice to that effect in the office of the county recorder of the county where the lands are situated, and to enter immediately into the possession of the premises, and be restored to his former estate therein, held, the vendor’s right to possession was not lost by mere delay in declaring the forfeiture, nor by the death of the vendee before such declaration, nor by a failure to present a claim to the administrator of the vendee.</p> <p>Apfeal — Contbadictobv Finding. — Where the findings are contradictory, the judgment will be reversed.</p>

Ippeal from a judgment of the Superior Court of the county of Sacramento, and from an order refusing a new trial. The facts appear in the opinion of the court.

<p>Mining Claim—Location—Marking Boundaries. — Merely posting a notice upon a quartz ledge, claiming a certain number of feet along the ledge in both directions from the notice, is not a valid location of a mining claim within the moaning of the act of Congress. The claim must be marked by visible monuments or marks by which the boundaries can be readily traced.</p>

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

<p>Fleadins—Aepointhent oe Assiqnee in Insolvency—Jobisdiotion.—Where an action is brought by an assignee in insolvency, his appointment is sufficiently alleged by an averment that he was appointed by an older of the proper court duly given and made; it is not necessary to allege that notice to creditors was given before the appointment, or that they failed to act, or that the assignee was competent to be appointed.</p> <p>Id.—Demand.—A demand for the repayment of money paid by an insolvent in fraud of Ms creditors need not be made by his assignee before the commencement of an action for its recovery.</p> <p>Id.—Duty of Assionee.—An assignee in insolvency may recover by suit any moneys paid in fraud of creditors, notwithstanding the pendency of bankruptcy proceedings under the laws of the United States, and although no creditors proved their'claims other than such as existed prior to the adjudication in bankruptcy.</p>

<p>Contract — Consideration.—An agreement by a party to a contract for the sale of land, that he will prevent a judgment against the other party in an action brought against him on a guaranty, or protect him against such judgment in case of a recovery, is a sufficient consideration for the contract of sale, although the contract of guaranty may have been invalid.</p> <p>Trust—Pdeadino—Complaint—Demurrer.—The action was brought to establish a trust, and compel a conveyance of tho trust property. The court below sustained a demurrer to the complaint. Held, that no trust was shown by the complaint, and that the demurrer was properly sustained.</p>

<p>Appeal from a judgment of the Superior Court of the county of Sacramento.</p> <p>The plaintiff, while a minor, was under the guardianship of Emily E. Hersperger, who died intestate. The defendant Winn was appointed administrator of her estate in 1877. The plaintiff reached majority in September, 1881. This action was for an accounting as to a fund held by the decedent as guardian, and was commenced in June, 1883. No presentation of the claim Avas ever made to the administrator, and there was evidence shoAving that the trust fund did not come into his hands. A nonsuit was granted.</p>

<p>Appeal from a judgment of the Superior Court of Tuolumne County, 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 order was made subsequent to the decree of foreclosure and the sale of the land. A receiver had been appointed under the provisions of section 564 of the Code of Civil Procedure; upon the petition of the mortgagee showing that the mortgaged land was not sufficient to satisfy the mortgage debt, and that the mortgagor was insolvent. The receiver had harvested and sold a crop grown upon the land, and held the proceeds of the sale.

The action was ejectment for a portion of a public street in the city of Visalia. A demurrer to the complaint was sustained. Plaintiff declined to amend, and judgment was rendered for defendant. The facts appear in the opinion of the court.

<p>Pbomissoey Note—Assignment Afteb Maturity—Bights of Assignee—Liability of Maeeb. —A promissory note assigned after maturity is discharged by payment to the payee before notice to the maker of the assignment.</p>

<p>Appeal from a judgment of the Superior Court of the county of Amador, and from an order refusing a new trial.</p> <p>This was a suit for the foreclosure of a mortgage to secure the payment of a promissory note for four hundred dollars. The defendant, administrator of the estate of Shipman, the mortgagor, admitted the execution of the note and mortgage, but averred that the mortgage was given to secure advances that had been or should thereafter be made by the mortgagee, to provide Shipman with food, care, and attention during a sickness from which he was then suffering, and' to pay his funeral expenses in the event of his death. .It was also averred that the amount expended by the mortgagee for the purposes mentioned, was less than the face of the mortgage. The court gave judgment for the sum of two hundred and thirty-five dollars and sixty-nine cents.</p>

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

<p>Statute of LmiTATtoNS—Adverse Possession—Partition.—Action for partition. The defendant pleaded the Statute of Limitations. The evidence showed that the lands in controversy were patented to Thomas 0. Larkin and John S. Missroon; that Missroon sold his interest to one Whitcomb, the habendum clause of the deed being, “ to have and to hold all and singular the mentioned and described premises; ” that Larkin sold his interest to certain persons through whom the plaintiff claims title, and that subsequent thereto be executed a deed to Whitcomb conveying the same interest and containing a clause of warranty against his acts; that the defendant afterwards entered into possession of the lands under a deed from Whitcomb purporting to convey the whole premises, and that such possession had been continuous for more than five years. Held, that the facts established an adverse possession, within the meaning of section 322 of the Code of Civil Procedure.</p>

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

The plaintiff applied for a writ to compel the defendant, who was assessor of the county of Santa Clara, to desist and refrain from assessing certain fruit trees for the purpose of taxation. A demurrer to the petition was sustained, and the writ denied. The facts are sufficiently stated in the opinions of Judges Spencer and Belden, which were adopted by this court.

<p>Judgment—Subebise—Fraud.—In an action upon a judgment obtained in a sister State, in which the losing party—the defendant—was duly served with summons and appeared by attorney, the judgment cannot be attacked on account of matters of which he might have availed himself in the original action, when there is no proof of fraud or surprise.</p>

<p>Insolvency—Dischaege—Defense—Non-Resident Ckeditob.—A discharge in insolvency is a defense to an action upon a promissory note made to a citizen of this State, hut indorsed and transferred to a citizen of another State subsequent to the discharge.</p>

Court of the county of Santa Barbara. Before the commencement of the action, the right to the office had been judicially determined in favor of the plaintiff. The remaining facts sufficiently appear in the opinion of the court.

<p>Cbhiinal Law—Assault With Deadly Weapon—Jubisdiction oe Sueebiob Ooubt. —A defendant charged with the offense of assault with a deadly weapon may be convicted in the Superior Court of a simple assault, and that court has jurisdiction to pronounce judgment imposing the punishment fixed by law for the offense of which he was convicted.</p>

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

<p>Pleading—Answer—Denial—Practice on Appeal.—A defective denial, to which no objection is taken in the court below, will be treated as sufficient on appeal.</p>

<p>Appeal from a judgment of the Superior Court'of Sacramento County</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 Nevada.</p> <p>The judgment was on demurrer to the complaint. The facts appear in the opinion of the court.</p>

The judgment was upon demurrer to the complaint. The complaint averred in substance that the defendants colluded and confederated together for the purpose of falsely charging the plaintiff with the crime of arson, and maliciously prosecuting him for the supposed crime, and causing him to be convicted and imprisoned therefor; that defendants set fire or caused fire to be set to a barn in furtherance of the conspiracy, and caused the plaintiff to be arrested and tried upon the…

<p>Appeal from a judgment of the Superior Court of the county of San Joaquin.</p> <p>Action to quiet title. The facts appear in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Tulare 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 writ-of review to the Superior Court of the county of San Joaquin.</p> <p>The facts appear in the opinion of the court.</p>

<p>Injunction—Corporation—Agents—Notice of Service of the Writ. — An injunction enjoining a corporation, its officers, agents, and employees, and all persons acting under it, from continuing or maintaining a^ dam, is binding • upon all persons acting as agents of the corporation “with full notice and knowledge of the issuance and service of the injunction ” upon the corporation, although the agents were not personally served.</p> <p>Writ of Review—Satisfied Judgment.—A judgment which has been fully paid and satisfied will not be reviewed upon certiorari.</p>

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

<p>Tins was an application for a writ of review to the Superior Court of Santa Clara County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>OuTunwAt. Law—Bübglaby—Larceny—Dístbvcitons.—Where a defendant is charged with the crime of feloniously entering a dwelling-house with intent to commit larceny, it is error for the court to instruct the jury that they should find him guilty if they believed from the evidence that defendant entered the house with intent to commit larceny or any felony. The crime must be proved as charged.</p>

<p>Corporation—Conveyance—Seal—Evidence.—Where the corporate seal of a corporation, accompanied by the signatures of the proper officers, is affixed to an instrument, the seal is itself prima, facie evidence that it was affixed by proper authority.</p> <p>Id.—Authority of President—The president of a corporation has no authority, by virtue of his office, to purchase or sell real property for the corporation at his discretion. The power can be conferred only by the board of trustees.</p> <p>Id.—Estoppel. A corporation is not estopped to deny the validity of an unauthorized act of an agent when it has not availed itself of any benefit from his act.</p>

<p>Practice—Arbitration—Entry of Submission by Clerk.—A submission to arbitration under section 1283 of the Code of Civil Procedure is invalid if no note of the submission is entered by the clerk in Ms register of actions.</p>

The defendant, a sheriff, seized the property in controversy, a stallion, under an execution against the plaintiff in favor of Nixdorf & Sehroeder. Plaintiff claimed the property as exempt, and brought this action, for its possession. The remaining facts are stated 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 stated in the opinion of the court.</p>

<p>Partnership—Accounting—Partial Settlement by Partners.—In an action to dissolve a partnership, and for a settlement of its affairs, where a partial settlement has already been made between the partners, the accounting should be limited to the unsettled portion of the partnership business.</p>

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

<p>Administbation—Judgment—Pbesentation of Claim.—A party against whom a money judgment had been rendered, moved for a new trial, and died before the motion was determined. His executrix was substituted as defendant, and prosecuted the motion, and obtained an order modifying the judgment, hut no new judgment was entered. Held, that the judgment as modified was a claim against the estate which should he paid in due course of administration, and that no presentation of the claim to the executrix was required.</p>

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

<p>CONTRACT OF SALE — GOVERNMENT LAND — PURCHASER WITH NOTICE — One EUSey, an applicant for the purchase of a tract of government land, made an agreement in writing with the defendant, who was in possession of a part of the land, that Ensey should procure a patent from the United States to the whole tract, and would then convey to the defendant the land possessed by him, on payment of his proportion of the purchase money and expenses. Meld, (1) that the agreement was binding upon Ensey, and any purchaser from him with notice; (2) that it was the duty of Ensey to notify the defendant of the issuance of the patent, and the proportion of the purchase money to be paid by him.</p>

The action was brought for an accounting to ascertain the interest which the defendant had acquired by his purchase at an execution sale of the interest of the plaintiff’s copartner. The remaining facts are stated in the opinion of the court. _

<p>Vebdiotin Equity Case— Findings—Instbuctions.—Where special issues in an equity case are submitted to a jury ,the verdict is only advisory to and not binding upon the court, and erroneous instructions to the jury will not be reviewed on appeal if the court disregards the verdict and finds the facts for itself.</p>

<p>Criminal Law—Evidence—Expert Testimony—The opinion of a witness as to the meaning of an expression used by another person in a conversation between them, is not admissible in evidence. It is for the jury to determine the meaning from the relation of the parties, the language employed, and all the surrounding circumstances.</p> <p>Id.—Homicide—Habits of Deceased—Excessive Intoxication.—In a prosecution for homicide, it is not error for the court to deny the defendant permission to show that the deceased was in the habit of using intoxicating liquors to excess.</p> <p>Id.—Refutation of Defendant. — The refusal of the court to allow a witness to answer a question as to the defendant’s general reputation for peace and quiet is not error if the witness has never heard such reputation discusse'd, or if the good reputation of the defendant has already been established by a great number of other witnesses, and no evidence offered by the prosecution to impeach it.</p> <p>Id.—Recalling Witness—Abuse of Discretion. — The court refused to permit the defendant to recall a witness who had already been on thp stand twice. After considering the circumstances, held, that there was not such an abuse of discretion as warranted a reversal.</p> <p>Id.—Hypothetical Question—Appeal.—Where no objection is made to a hypothetical question in the trial court, it cannot be made on appeal.</p> <p>Id.—Acceleration of Death.—A defendant is criminally liable for a homicide-committed by violence, if it be shown that his act accelerated the death of the person killed, although it may appear that his death would necessarily have soon occurred as the result of an incurable disease.</p>

<p>OuTrrrwAT. Law—Mubdee—Evidence—Dying Decbabahons.—Dying declara, ' tions are admissible only as to those things to which the deceased would have been competent to testify if sworn as a witness in the case. They must relate to facts, and not to mere matters of opinion, and where the declaration was, “I think that this man, Henry Wasson, the defendant, is the man who shot me,” held, that it was the expression of an opinion, and not competent evidence.</p> <p>Id.—Bes Gestsi—Statements oe Deceased. — Statements of the deceased made several days after the shooting form no part of the res gestee, and are not admissible in evidence.</p> <p>Id.—Impeachment oe Witness eob Bias.—It is always competent for the party against whom a witness is called and testifies, to show that the witness entertains feelings of hostility and prejudice towards him.</p>

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

<p>Insolvency—Evidence.—When, on appeal from a judgment in favor of an assignee in involuntary insolvency, in an action to recover moneys due the insolvent, it appears from the transcript that the creditor’s petition was introduced in evidence, but the contents are not stated, the court will not presume that the debts required to be set forth in the petition did not accrue subsequent to the passage of the insolvent act.</p> <p>Id.—Pboof of Notice to Ceeditobs.—The recitals of an order appointing an assignee in insolvency are sufficient proof of publication of notice to creditors.</p> <p>Id.—Pbaudulent Sale—Notice to Pdeohaseb. —The fact that a sale of goods by an insolvent is not made in the usual and ordinary course of business, is sufficient to charge the purchaser with notice of the insolvency of the seller.</p>

<p>Appeal— Confhct of Evidence. —An appellate court will not disturb the verdict of a jury as being contrary to the evidence when there is a substantial conflict of evidence.</p> <p>Evidence—Impeachment of Witness. —For the purpose of impeaching a witness, the inquiry is not confined to his reputation for truth and veracity, but may extend to his general reputation for truth, honesty, and integrity.</p> <p>Id.—Depositions—Subpbise.—When depositions have been taken, the party upon whose application they were taken is not bound to offer them in evidence at the trial, but may resort to other evidence. His failure to use the depositions is not a ground of surprise for which a new trial should he granted.</p>

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

<p>MmN9 Claim—Re-looation—Pebfobhance op Labob.—The failure of a locator of a mining claim to perform the amount of labor required by the laws of the United States, subjects the claim to re-location, and a peaceable entry in good faith may be made for that purpose, although the claim is occupied by the original locator.</p> <p>Id. — The right of the original locator to perform the required amount of work after such failure, and retain the benefit of his location, is dependent upon the performance of the labor before the re-location.</p> <p>Id.—Personal expenses incurred, and the value of the locator’s time in endeavoring to procure water to operate a mill to crush ore from the mine, cannot be considered as work done on the claim.</p> <p>Id.—Location—Maekmo on the Gbound.—The court found that stakes and mounds were placed at each of the four corners of the claim, and were prominent and permanent monuments, by which, together with the descriptions in the notices, the claim could be identified, and found also that the location was distinctly marked on the ground so that the boundaries could be readily traced. Held, that the location was valid, and that whether or not the boundaries could be readily traced from the objects placed at the corners, was a question of fact for the trial court to determine.</p>

<p>Pabtnebship—Sake by One Pabtneb in Ebaud of CoPabtner—Pubchasee in Good Eaith.—Where a partnership is formed for the purpose of dealing in cattle, and one partner sells the whole property of the firm in fraud of the rights of Ms copartner, a purchaser in good faith does not become a tenant in common with the other partner, but acquires title to the whole property.</p>

<p>Dbhnqtjekt Taxes—Tax Collectob’s Fees, —A tax collector of a county is entitled to the commissions or fees allowed by law only for taxes collected by himself. He cannot be allowed commissions for taxes recovered in an action brought by the district attorney on behalf of the county.</p>

<p>Mandamus—Comtutssioneb of Immtbbation—Salary and Office Expenses.— The commissioner of immigration who took office after the passage of the Act of March 15, 1883, relative thereto, can only be paid his salary and office expenses out of the moneys paid into the State treasury subsequent to the enactment of that statute.</p>

<p>CamisAi. Law—Instructions—Degree of Crime. — The defendant was charged with the crime of murder, and convicted of murder of the second degree. The court instructed the jury that “insulting words, gestures, or actions will not reduce an unlawful killing from murder to manslaughter, unless the gestures or actions are such as to reasonably induce the belief of danger to life, or of great bodily harm, in the mind of the party against whom'they are used.” Held, that if the defendant reasonably believed from the “actions used” that he was in danger of losing his life or of receiving great bodily harm, the killing of his assailant was justifiable, and as there was testimony before the jury upon which they might have found a verdict of manslaughter, the instruction was erroneous.</p> <p>Id,—Confession of Demurrer.—An order allowing the prosecution in a trial for murder, to confess a demurrer to the information, followed by a direction that the district attorney file another information, is an order “to the effect” that the demurrer be allowed.</p> <p>Id.—Information—Title of Court—Name of County.—The omission to name the county in the title of an information is a technical defect, not affecting the substantial rights of the defendant when the name of the county appears in the body of the information.</p>

<p>Application for writ of certiorari to review an order adjudging the petitioner guilty of contempt for disobeying an injunction.</p> <p>The remaining facts are stated in the opinion of the court.</p>

The defendant was charged with and convicted of the crime of grand larceny. The remaining facts are stated in the opinion of the court.

<p>Application for a mandamus to compel a Superior Court to proceed with the hearing of a cause.</p>

<p>Estates of Deceased Persons—Settlement of Accounts—Jurisdiction— Equity.—When an executrix, who is also one of the devisees and distributees of an estate, and who has made an assignment of her interest, resigns her trust, and dies without having rendered any account or report, and administrators have been appointed in her stead, the rights of the parties in interest cannot be determined in a proceeding by the administrators for a settlement of them accounts and for distribution. The accounts of the executrix must be adjusted and determined in a court of equity.</p>

<p>Appeal from a judgment of the Superior Court of San Luis Obispo County.</p> <p>Action to foreclose a mortgage. The facts are stated_in the opinion of the court.</p>

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

prepare tally lists, poll lists, returns, etc., for counting and returning the votes for State senator from the ninth senatorial district, at the general election of 1884. The remaining facts are stated in the opinion of the court.

<p>Insolvency—Jurisdichon.—The Superior Court has power to order a party adjudged insolvent to appear and be examined concerning the affairs of the estate, upon the application of a receiver.</p> <p>Id.—Delivery of Property to Assignee.—Where, upon such examination, the insolvent is found to have money in his possession belonging to the estate, the court can order it to he delivered to the assignee.</p>

<p>Criminal Law—Bail.—Under the provisions of section 1281 of the Penal Code, a person charged with a crime cannot be admitted to bail by a magistrate of a county other than the one in which the warrant was issued or the arrest made.</p>

Original application for a mandamus to compel the defendants, trustees of the city of Sacramento, to levy a tax for the payment of certain municipal bonds. A demurrer to the petition was filed. The demurrer was overruled in September, 1883, and leave given to the defendants to answer.

<p>Appeal from an order of the Superior Court of the county of Contra Costa, refusing to dissolve an injunction.</p> <p>The facts are stated in the opinion.</p>

<p>Inheritance—Constitutional Law.—The provisions of section 17, article i., of the Constitution, do not inhibit legislation extending the right of inheritance to non-resident alien heirs.</p> <p>Id.—Distribution op Estate—Non-Besident Aliens,—Under the provisions of the Codes, non-resident alien heirs are entitled to share in the estate of an intestate equally with heirs of the same degree residing in the State.</p>

<p>Vendor and Vendee—Contract oe Sale—Who mat Rescind the Contract.— Under a contract for the sale of land, in which the vendee agrees to pay a balance of the purchase money on or before a certain date, and the vendor agrees to convey upon such payment, and which provides that if the vendee shall fail to make such payment he shall forfeit all right to the land, and the vendor shall be released from all obligations to convey, “and the agreement shall be void,” if the vendee neglects or refuses to pay, the vendor has the option to avoid or enforce the contract, and may, if he so elects» sue and recover the unpaid balance of the purchase money.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco, refusing to change the place of trial' of an action.</p> <p>The facts appear in the opinion of the court.</p>

<p>Statute of Limitations—Municipal Bonds—Interest Coupons,—Where a statute provides fcr the issuing of bonds of a city, with interest coupons payable as fast as money should come into the treasury from special sources designated by the act, the Statute of Limitations does not commence to run against the coupons until the money is received in the treasury in accordance with the terms of the act.</p> <p>Sacramento Bonds—Coupons—Demand.—The interest coupons upon bonds of the city of Sacramento, issued under the Act of April 24, 1858, are not demands which are required to be presented for allowance to the auditor or board of trustees. They are payable on presentation to the treasurer, whenever there are funds in his possession which have been appropriated to the payment of the coupons by the act authorizing the bonds.</p>

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

<p>Sacramento—Construction of Charter.—An ordinance of the city of Sacramento, prohibiting the slaughtering of animals, or the maintenance of slaughterhouses within the city, is valid.</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>Criminal Law—Evidence — Extorted Statements — Confession. — Statements not in themselves involving criminal intent, extorted from a person charged with a crime by means of threats or promises, are not to be rejected merely because they may, when connected with other facts, tend to establish Ms guilt.</p> <p>Id.— Witness—Befreshjng Memory from Memoranda.—A witness called by the prosecution in a criminal case to prove statements made by the defendant, may refresh his memory from written memoranda made by Mm at the time of the statements.</p> <p>Id.—Setting Aside Information—Swearing to Complaint.—A complaint charging a person with the commission of a crime, filed in the Police Court of the city and county of San Francisco, may be sworn to before a justice of the peace.</p> <p>Id.—Name of Defendant.—An information cannot be set aside because the defendant has been designated by different names. When his true name is discovered it may be inserted and continued in the subsequent proceedings.</p>

' Appeal from an order of the Superior Court of the city and county of San Francisco, refusing an injunction. ' The Spring Valley Water Works, a corporation, was organized in 1858, and the proceedings for the increase of stock, mentioned in the opinion of the court, were taken in accordance with the Statute of 1853, which was in force at the date of the incorporation. The other facts are stated in the opinion of the court.

Action for damages caused by negligence of the employees of the defendant, a corporation supplying water to the city of San Francisco, in so repairing its water pipes that a stream of water escaped from defendant’s mains and was thrown upon the roof of plaintiff’s building, and ran down to the rooms below and caused damage to the goods of the plaintiff which were stored therein.

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

<p>Contract of Sale—Breach by Vendor—Measure of Damaqes.—In an action for a failure to deliver goods under a contract of sale, where the goods have n’o market value, the plaintiff may recover as damages the difference between the price to be paid by him and an advanced price, for which he had agree to sell the goods to a third person on the faith of the contract.</p> <p>Id.—Evidence—Statute of Frauds.—It appearing that the goods could have been sold to such third person at the price agreed on, the plaintiff was not required to prove a valid agreement with him under the statute of frauds.</p> <p>Practice — Objection to Evidence.—An objection to evidence, which might have been removed if taken in the court below, cannot be taken for the first time on appeal.</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 mayhem.</p> <p>The facts are stated in the opinion of the court.</p>

Action for damages for injuries caused by the forcible expulsion of plaintiff from a car of defendant. The ground of the expulsion was the refusal of the plaintiff to exhibit a ticket, or pay the full amount of fare required by the regulations of defendant. The plaintiff had entered the car with the design of going from San Jose to San Francisco, but had not purchased a ticket.

The defendants solicited and received subscriptions from-various interested parties to repair a break in a levee on the Sacramento Biver. The moneys obtained were placed in the hands of defendant Bunyon, and he made a verbal contract with Ah Long, a Chinaman, to rebuild the levee.

The deviation from the approved plans referred to in the opinion of the court, consisted in the exclusion from the land to be reclaimed of a narrow strip of about one hundred acres, which had been included in the approved plans. The other facts are stated in the opinion.

<p>Motion to dismiss appeal. The facts are stated in the opinion of the court.</p>