Volume 66 — California Reports

The petitioner had been arrested for a misdemeanor alleged to have been committed within the limits of the city of San Jose. The respondent, a justice of the peace, was about to proceed with the trial. The writ of prohibition was asked, upon the ground that the justice had no jurisdiction of the action. The further facts appear in the opinion of the court.

Action upon a fire insurance policy. The building insured and burned was a frame building used as a tannery. Near this was a shed belonging to the plaintiffs. After the policy was issued, the plaintiff permitted a third party to store hay in the shed. It was claimed that a local agent of the defendant consented to the storage, but it was not shown that there was any written endorsement of consent upon the policy.

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

<p>Crtmtnat. Law—Appeal—Attack on Record.—The verity of a transcript on appeal cannot be attacked by affidavits filed in the Supreme Court in support of a motion to dismiss.</p> <p>Obtaining Monet Under False Pretenses—Sufficienct of Indictment. —The defendant was charged with obtaining money under false pretenses, and the indictment alleged that at a certain time and place the defendant, with intent to defraud one K. of his property, did unlawfully, knowingly, and designedly, falsely pretend and represent to him that certain bonds of a certain railroad were of the market value of six hundred dollars; that any bank in San Francisco would lend that amount on them ; that the road of the company issuing the bonds was in running order and paying expenses ; and that K., believing the false pretenses and representations, was induced by reason thereof to loan and deliver to defendant on the pledge of the bonds the sum of thirteen hundred and sixty-five dollars. It further charged that the money was obtained by the defendant unlawfully, knowingly, and designedly to defraud K. It also negatived the truth of the representations. Held, that the indictment was sufficient.</p>

<p>Justices of the Peace—Term of Office.—Constitutional Construction. —The Act of 1880, fixing the terms of office of justices of the peace at two years, is constitutional.</p>

<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 facts sufficiently appear in the opinion of the court.</p>

from an order refusing a new trial. The- -action was brought by the county of Lake, under the act of April 23, 1880, to recover State and county taxes alleged to be due for the fiscal year 1880-81, with five per cent, penalty and two per cent, monthly interest thereon. The judgment included an allowance to the district attorney of fifteen per cent, upon the amount of the tax recovered. The further facts are sufficiently stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the county of Merced.</p> <p>In 1884, the county of Merced agreed to deliver to the defendant certain county bonds, and afterwards tendered the bonds in accordance with the agreement. The defendant refused to accept them, upon the ground that it was recited upon their face that they were issued under the provisions of section 4048 of the Political Code; and claimed that they should have contained a recital that they were issued under the Act of March 14th, 1883, to establish a uniform system of township and county governments. The other facts appear in the opinion.</p>

Petition for a writ of prohibition to the Superior Court of the city and county of San Francisco and others. The facts are stated in the opinion of the court.

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

<p>Evidence—Market Value op Stock—Reports op Exchange Board.—The published reports of sales by a stock exchange board are not competent evidence to show the market' value of shares of stock at a given time, unless accompanied by evidence showing or tending to show in what manner the reports were made up, where the information they contained was obtained, or whether the quotations of prices were derived from actual sales or otherwise.</p>

<p>¡Practice—Nonsuit—Payment of Jury Ebbs.—Where a nonsuit is granted in a civil case, and the jury discharged, the jury fees must he paid by the plaintiff, and no further proceedings should be allowed in the case until such payment.</p> <p>Id.—Settlement of Bill of Exceptions.—Settlement of a bill of exceptions is a proceeding in an action, within the meaning of the statute.</p>

Action to recover a street assessment. It was averred in the complaint that the defendants were the owners of the property assessed. Defendants McLeran and Porter answered together.

<p>Appeal from certain orders of the Superior Court of the city and county of San Francisco made after final judgment.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Suit for a divorce. The defendant moved for a change of the place of trial to the county of Kern, where he resided. The motion was based upon an affidavit of the defendant, and was made before he had answered or demurred.

<p>Railroad Bonds—Interest Coupons—Liability of the State.—The bonds issued by the Central Pacific Railroad Company, under the Act of April 4, 1864, are valid, and the State is liable upon the interest coupons issued in accordance with the provisions of the act.</p>

Petition for a mandamus to compel the county clerk of the county of Monterey to register the petitioner as a voter. The facts appear in the opinion of the court.

<p>Assignment—Notice—Settlement of Claim—Defense.—A plaintiff in an action on a street assessment assigned his claim to his attorney. The defendant had no notice of the assignment, and settled the matter in suit with the plaintiff, who satisfied the demand, and cancelled the assessment.</p> <p>Seld, that the assignee could not avail himself of the assignment as against the defendant, and that the settlement was a good defense to the action.</p> <p>Attorney—Lien fob Fees and Costs.—An attorney has no lien for fees and. costs upon a judgment in favor of his client.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>Action upon a street assessment. The facts appear in the opinion of the court.</p>

íhe action was brought to rescind the notes and mortgage on the ground of fraud. The loan was for five years, the amount being one hundred and twenty-five thousand dollars, and the rate of interest ten per cent, per annum. The agreement for the loan was made on the 21st of November, 187 8, and evidenced on the part of the corporation by a resolution of its board of directors.

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

The plaintiff, a swamp land reclamation district, organized under the Act of March 28th, 1868, brought this action to recover assessments levied upon the land of defendant included in the district. The facts are sufficiently stated in the opinion of the court.

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

<p>New Tbial— Conflict of Evidence.—A verdict rendered upon substantially conflicting evidence should not be disturbed and a new trial granted, except for errors of law occurring at the trial.</p> <p>Instbuctions.—Instructions not prejudicial to the losing party, although erroneous, are no ground for reversal.</p> <p>Damages—Bbeach of Contbact—Contbibutoey Negligence.—In an action for damages for injuries arising out of contract or tort, a party cannot recover if the injuries were consequent upon his own contributory negligence. Every party to a contract must do all in bis power to prevent loss from a breach of contract by the other party, and if unable to prevent the loss altogether, must use reasonable exertions to make it as light as possible. If he permits the damages to be enhanced by his own wilfulness or negligence, the increased loss will fall upon him.</p> <p>Id.—Pabtial Bbeach of Contbact.—Where there is a partial breach of contract susceptible of more or less performance, the injured party may continue to. carry out the contract, reserving to himself a right of action for such damages as he may have sustained by the partial breach.</p> <p>Id.—Measube of Damages.—The plaintiff contracted to manufacture lumber, and the defendant agreed to purchase all that the plaintiff should manufacture at a stipulated price, and to furnish certain machinery for the work. The machinery proved insufficient and not in accordance with the contract, and the plaintiff was thereby prevented from manufacturing as much lumber as he otherwise would have done. JH'eld, that the measure of damages was the contract price of the lumber which he was so prevented from manufacturing, less the expense he would have incurred in manufacturing it, over and above the amount necessarily expended in manufacturing the. amount actually furnished by him.</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 appear in the opinion of the court.</p>

Various persons, deputies and copyists in the office of the county clerk of the city and county of San Francisco, previous to the month of July, 1881, assigned to Stuart, the county clerk, their several demands upon the treasury, for services to be rendered during that month. These demands were assigned by Stuart to the petitioner prior to July. The respondent refused to audit the demands. The other facts sufficiently appear in the opinion- of the court.

<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 appear in the opinion of the court.</p>

Action for damages arising from the overflow of water upon plaintiff’s land, from a defective sewer.

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

The suit was for an accounting of affairs of a partnership, alleged to have existed between the appellants and William Hillegass, deceased. It was found by the court that the partnership was dissolved more than twenty years prior to the commencement of the suit. The other facts appear in the opinion of the court.

<p>Will—Devise—Construction—Intention of Testator.—When a testator makes a specific devise of a tract of land, and then sells a portion of the tract, and afterwards repurchases that portion, the whole tract will pass to the devisee on the death of the testator, if it is manifest from the terms of the will that it was the intention of the testator to dispose of all the property which he might own at the time of his death.</p>

The action was brought to recover the value of certain real property, which had been devised to plaintiff by the will of her husband, and which she alleged became lost to the estate and to her, through the negligence of the defendant, executor of the will. A nonsuit was granted, which, on motion for a new trial, was set aside, and a new trial ordered. The remaining facts appear in the opinion of the court.

<p>Pleading—Answer.—'Written Release—Admission op Genuineness—Estoppel.—Where a defendant sets forth in his answer a written release as a bar to the plaintiff’s cause of action, and on the trial introduces evidence showing that such release had never been delivered, he is estopped from ■ claiming the benefit of the admission arising out of the plaintiff’s failure to deny by affidavit the genuineness and due execution of the instrument.</p> <p>Written Instrument—Execution—Delivery:—The execution of a written instrument includes its delivery.</p> <p>Instructions—Reversal.—A judgment will not be reversed for an error in the giving or refusing of instructions, if the losing party could not have been prejudiced thereby.</p>

<p>i Contract—Railroad Company—Liability eor Transportation beyond the Terminus or its Road.—Where a railroad company contracts to convey goods over its own and connecting lines, and to deliver them at their destination, at a place beyond its terminus, within a certain time, it is liable to the shipper for losses caused by delays in transportation over the connecting roads.</p> <p>Id.—Evidence—Shipping Receipt.—It is a question of fact for the jury, whether the contract between the company and the shipper provided for transportation over connecting roads. A receipt given by the company to the shipper is not conclusive evidence of the terms of the contract.</p>

<p>Practice—Change of Tenue—Eesidence of Defendants.—The place of trial of an action for damages commenced in a county in which none of the defendants reside will be changed to the proper county, on the application of the defendants who have been served with process.</p> <p>Id.—Disqualification of Judge.—The disqualification of the ,ludge of the proper county in no way affects the right of a defendant to a change of the place of trial.</p> <p>Id.—Affidavit of Merits.—There is no essential difference between an affidavit of merits which states that the defendant “ has fully and fairly stated the case in this action,” and one which states that he “ has fully and fairly stated the facts of the said case.”</p>

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

When the cause was before the appellate court, heretofore (54 Cal. 829), the court reversed the judgment and order denying the motion for a new trial, but did not remand it for further proceedings. Subsequently the plaintiff filed an amended complaint, and the defendant asked that it be stricken from the files; which motion was denied, and the defendant appealed from that order.

<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 San Luis Obispo County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Robbery—Sufficiency of Information.—Where an information for robbery charges “ that the property taken was the personal property in the possession of one Frederick Schwartz, and that it was taken from the person and against the will of Schwartz,” this is a sufficient averment that the property belonged to Schwartz, and that it was taken from him by the 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>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 appear in the opinion of the court.</p>

<p>Evidence—Pleading—Variance.—An alleged cause of action for goods sold and delivered is not sustained by proof of delivery of the goods to the defendant, to be sold on commission.</p> <p>Id.—Corporation—Purchase of Stock of another Corporation.—A corporation is not presumed incapable of purchasing and holding shares of the stock of another. The burden of proof is upon the party who claims that the purchase and ownership of the stock was not within the scope of the powers of the corporation.</p> <p>Id.—Books of a Corporation—Shareholders.—The books of a corporation are competent evidence to prove the number of shares of stock subscribed for and issued, and who were the stockholders at the time an alleged indebtedness accrued.</p> <p>Id.—Articles of Incorporation.—Articles of incorporation are not admissible to show who were the shareholders at a time subsequent to the date of the articles.</p>

<p>Parties—Street Assessment—Executor—Heirs.—An action on a street assessment may be maintained against the executor of an estate, although the heirs of the decedent are in fact the owners of the land assessed. The heirs are not necessary parties, and if originally joined as defendants, the actionmay be dismissed as to them, and judgment rendered against the executor.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The facts are stated in the opinion.</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>Suit in equity. The plaintiff sought a decree, declaring that she was the owner of a policy of insurance upon the life of one Tucker, deceased, and entitled to collect and receive the amount of the insurance. The defendant in his answer claimed that he was the owner of the policy by assignment; that it was assigned to him as collateral security for moneys advanced and to be advanced ; and that the sums advanced by him exceeded the amount of the policy. The amount of the insurance was $10,000. The court found that the policy was assigned to the defendant as collateral security for advances, and that these amounted to $4,071.21. The decree declared that plaintiff was the owner of the policy, and entitled to receive from the insurance company the amount due, and that defendant should receive from the proceeds of the policy, when paid, the amount of his advances. The other facts sufficiently appear in the opinion of the court.</p>

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

<p>Evidence—Sale oe Goods—Declarations of Vendor after Sale.— Statements made by a vendor of personal property after the sale, in regard to its delivery to the vendee, are not admissible as evidence to impeach the sale.</p> <p>Instructions—Befusal to Give.—Instructions asked for, which are partly correct and partly incorrect, may be refused.</p>

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

Action on an assessment for street improvements in San Francisco, made by order of the supervisors. The superintendent of streets included in the assessment, as incidental expenses, an amount for engineering and printing. No appeal was taken to the board of supervisors. The other facts sufficiently appear in the opinion of the court.

<p>Guardian and Ward—Sale of Land by Guardian—Order of Sale—Description.—An order of the probate court for the sale of the land of a minor by his guardian, must contain in itself a definite and certain description of the land to be sold. The description contained in the order cannot be helped out by reference to documents not contained in the order itself.</p>

<p>Petition for a writ of certiorari to review and annul an order of the Superior Court of the city and county of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Public Nuisance—Navigable Streams.—The navigable streams of the State are public Inghways, and are for the use of the people of the State. Any unauthorized obstruction or interference with these streams by a private individual is a public nuisance, which may be enjoined, upon application of the Attorney General in the name of the people of the State.</p> <p>Id.—Custom.—A private individual cannot acquire by '¡ustom a right to discharge debris into a navigable stream, so as to destroy or materially interfere with the use of the stream for purposes of navigation.</p> <p>Id.—Prescription—Continuing Nuisance.—The right to continue a public nuisance cannot be acquired by prescription.</p> <p>Id.—Practice—Parties—Joint and Several Actions.—In an action to abate a public nuisance, all persons engaged in the wrongful acts may be sued jointly or severally.</p> <p>Hydraulic Mining—Debris— Public Nuisance—Parties—Injunction.—The defendant was a ditch and mining corporation, owning water ditches and mines, and working its own mines by the hydraulic process. The effect of its work was to discharge into the American river—an unnavigable stream —large quantities of gravel, sand, and other refuse material. Other mines than those of the defendant were worked by the hydraulic process, and the debris from these mines was also deposited in the American river. All of this refuse material was carried down the stream by the force of the current, and deposited in the Sacramento river, a navigable stream, of which the American river is a tributary. The result was to fill the channel of the Sacramento river so as to materially impede navigation, and to cause overflows and a deposit of debris upon the adjacent lands. Held, (1.) That these acts of the defendant constituted a public nuisance, which may be enjoined in an action instituted by the attorney general in the name of the people of this State. (2.) That the action could be maintained against the defendant, without joining the other persons who contributed to the injury.</p>

of a judgment of the Superior Court of Sacramento county. The defendant also appealed from the judgment in this case, and the decision on that appeal is reported supra, page 138.

The plaintiffs, Mary F. Dunne and Bridget C. Dunne, were legatees under the will of their father, -James Dunne, deceased. The defendant was a devisee of lands of the testator, which were charged by the will with the payment of the legacies.

In this case there are two appeals—one by the defendant from an order of the Superior Court of the county of Sacramento, refusing to dissolve an injunction, and one by the plaintiff from a portion of the same order modifying the injunction. By a stipulation of parties, both appeals were heard together, and upon the same record. The defendant was a mining corporation, owning and working mines in the county of Sacramento by the hydraulic process.

<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 appear in the opinion of the court.</p>

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

<p>Nuisance—Duty of Owner of Proferty.—An owner of property must not use it, even in a lawful business, in such a manner as to interfere with another in the legitimate use of his property.</p> <p>Id.—Cable Railroad—License.—A license granted by a municipality to a railroad company, to run a line of cable cars along the streets of the city, does not authorize the company to construct and operate a stationary engine upon its land, in such a manner as to interfere with the comfortable enjoyment of his premises by an adjoining proprietor.</p> <p>Id.—Damages—Abatement.—In an action to abate a nuisance and for damages, the fact that the defendant remedied the evil complained of after the commencement of the suit does not affect the right of plaintiff to recover damages for injuries sustained prior to that time.</p> <p>Id.—Measure of Damages.—In an action for damages for a nuisance, it is not incumbent upon the plaintiff to prove the loss in value caused by the injury. The jury may fix upon a reasonable sum as a proper compensation.</p>

The action was brought by the plaintiff, a purchaser of lands at an execution sale, against one Felipe Alvarado, to have a certain conveyance of such lands made by the judgment debtor to one Mendilla, and by him conveyed to the defendant, set aside as fraudulent and void against creditors of Alvarado. The further facts are stated in the opinion of the court.

<p>■ Insurance Policy—Application for Insurance.—In an action upon a fire insurance policy, the plaintiff need not allege in his complaint the terms of the application for insurance, when the application was verbal, and was not required by the provisions of the policy to be in writing.</p> <p>Id.—Pleading—Incrkvse of Risk—Defense.—Where a clause of a policy provides that it shall be void, “ if the risk be increased by any means, ” the fact that there was an increase of risk by the act of the assured is an affirmative defense, and must be set up in the answer.</p> <p>Id.—Stipulation against Gunpowder—Eirewoeks.—The plaintiff kept fireworks upon the insured premises; Held, that this was not a violation of a clause of the policy prohibiting the keeping or using of gunpowder upon the premises.</p>

<p>Estates of Deceased Persons—Administrator—Liability for Interest.— An administrator who uses the funds of his decedent’s estate for bis own profit, is liable for interest at the legal rate, with annual rests.</p> <p>Id.—Decree of Distribution—Appeal by Administrator.—No appeal lies by an administrator from a decree of distribution of an estate, where he has no interest as administrator in the matter sought to be reviewed.</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—Sufficiency of Information—Grand Larceny.—An information charging the crime of grand larceny need not allege that the value of the property stolen was in current coin of the United States.</p> <p>Id.—Where the information charges a theft of several articles, of the aggregate value of fifty-seven dollars, and that the offense was committed in a certain county on a certain day, it sufficiently appears that the articles were taken at the same time and place to constitute grand larceny.</p> <p>Id.—Instruction—Witness—False Swearing.—It is not error to instruct the jury that “ if any witness has, in their judgment, sworn falsely in any material respect, he is to be distrusted in all others, and his testimony is not to be accepted and acted on without great caution.”</p> <p>Id.—Degrees op Larceny—Verdict.—A verdict finding the defendant guilty of “larceny in the second degree ” is equivalent to a verdict for petit larceny.</p> <p>Id.—Petit Larceny—Punishment.—Petit larceny is punishable by fine, or imprisonment, or both, and if both fine and imprisonment are imposed, the judgment may also direct that the defendant be imprisoned until the fine be paid, specifying that the imprisonment must not exceed one day for every dollar of fine. Section 1205 of the Penal Code applies to cases of fine, whether or not coupled with a sentence of imprisonment.</p>

<p>Pleading Prior Judgmeni—Rinding.—'Where a prior judgment is pleaded in bar of an action, a finding that a decision had been rendered in favor of the defendants and against the plaintiff, is not a finding that any judgment had been rendered.</p>

The action was in the nature of a creditor’s bill, brought by a judgment creditor of the defendant Ilodgdon, to set aside certain deeds executed by him to the defendant Hildreth, and to subject the premises conveyed to the payment of the plaintiff’s judgment. The further facts are sufficiently stated in the opinion of the court.

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

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The action was brought to recover damages against the defendant for expelling plaintiff from its cars while traveling as a passenger. The ticket issued to plaintiff, and upon which he was traveling at the time he was expelled, read as follows:</p> <p>“Issued by Union Pacific Railroad. One emigrant passage to San Francisco.</p> <p>“ Subject to the following contract:</p> <p>“ In consideration of this ticket being sold by the Union Pacific Railroad Company at less than regular first-class fare, it is understood and agreed by the purchaser that it will not be good for passage after nine (9) days from date of sale, March 12tli, 1874, officially stamped on the back, with the same date in writing on the face. No stop-over check will be issued on this ticket, and the coupons belonging thereto will not be received for passage if detached from the contract.</p> <p>“ I hereby agree to the conditions of the above contract.</p> <p>“ Form N. E. 99. Baggage checked to destination only.</p> <p>“Thos. L. Kimball,</p> <p>“ 555. General Ticket Agent.</p> <p>[Endorsed.] “ City Office, U. P. E. E., 12 Mar., 1874,</p> <p>Omaha.</p> <p>“ U. P. E. E. 2 ; General Ticket Office.” •</p> <p>The plaintiff boarded the train on March 21. The Union Pacific Eailroad accepted the ticket and transported him to Ogden, where its line connects with the line of the defendant’s road. The train arrived at Ogden on March 24th, 1874, and the plaintiff on that day went with the other passengers on board the connecting train of the defendant, and started for San Francisco.</p> <p>After the train left Ogden, the defendant’s conductor came around for tickets, and when the plaintiff presented his ticket, he was informed that the “ time had expired,’’ and upon the refusal of the plaintiff to pay his fare from Ogden to San Francisco, he was expelled from the cars. The defendant’s railroad extends from Ogden to San Francisco. On the trial it was admitted by counsel for the defendant, that between the two companies there has never been any written contract, but a verbal agreement between their respective general passenger and ticket agents, by which they make monthly exchanges, and tickets issued by the Union Pacific are honored by the Central Pacific, but under no express contract whatever. At the end of the month the Central Pacific takes all the tickets from the Union Pacific, and the Union Pacific takes all the tickets from the Central Pacific, and during that month of March this ticket was issued in that general way, and on the 1st of April, in that way, they pro-rated, as between these tickets issued in the month of March, and this toas among that number; but defendant denies the agency, or that the Union Pacific had any contract binding on the Central Pacific. The remaining 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>Jurisdiction—Certain Actions affecting Bear Estate—Constitutional Construction.—The provision of the Constitution of 1879, requiring all actions for the recovery of the possession of, quieting title to, or for the enforcement of liens upon real estate, to be commenced in the county in which the real estate is situated, does not apply to actions pending when the constitution went into effect.</p> <p>Misjoinder of Parties—Error Without Injury.—Where certain persons are made defendants to an action to foreclose a mortgage, because they claim some right or interest in the land subsequent to the mortgage lien, and they demur on the ground of misjoinder of parties plaintiff, an error in overruling the demurrer is not prejudicial to them, when the court finds that they had not acquired any rights in the mortgaged premises.</p> <p>Statute of Limitations—Foreclosure of Mortgage—Absence of Mortgagor from State.—The absence of a mortgagor from the State stops the running of the statute of limitations as to him, but not as to subsequent lien-holders.</p> <p>Attachment—Levy—Posting Notices.—In executing a writ of attachment, the failure of the officer to post upon the land, where it is not occupied, a copy of the description of the land, in connection with a copy of the writ of attachment, and of the notice that the land had been attached, is fatal to the validity of the levy, and no lien is created thereon.</p> <p>Judgment Lien—Equity of Bedemption.—Docketing a judgment against a mortgagor, after he has conveyed his equity of redemption, creates no lien on the property.</p>

<p>Place of Trial—Cobbobation.—An action against a railroad corporation to recover damages for injuries sustained, may be tried in the county where the injury was inflicted, and the defendant corporation has no right to have the place of trial changed to the county where it has its principal place of business.</p> <p>Constitutional Law.—Section 16 of article xii. of the State Constitution is not in conflict with any provision of the fourteenth amendment of the Constitution of the United States.</p>

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

The action was brought to enjoin the defendant, as tax collector, from proceeding to collect the taxes assessed against the plaintiff’s property for the fiscal year 1883-4. The remaining facts are stated in the dissenting opinion of Mr. Justice Ross.

<p>Habeas Corpus—Fraudulently Taking Water from Main—Sufficiency of Complaint.—Where a statute provides that it shall be a misdemeanor for any person to connect any pipe, tube, or other instrument with any water main or pipe for the purpose of fraudulently taking water therefrom, a complaint alleging a connection for such purpose, without charging that the connection was made by means of a pipe, tube, or other instrument, substantially follows the statute, and is sufficient.</p>

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

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

<p>Lease—Death of Joint Lessor—Breach of Covenant—Parties.—After the death of one of two joint lessors, the survivor is the proper party plaintiff in an action to recover for a breach of covenant in the lease. Under such circumstances, no right of action passes to the personalrepresentative of the deceased lessor.</p> <p>Id.—Plaintiffs—Guardian and Ward.—Where the joint lease is executed by the deceased lessor as guardian, the ward, after attaining majority, may be joined as plaintiff with the surviving lessor, in an action to enforce a covenant made for Ms benefit.</p> <p>Id.—Assignment of Term—Privity of Estate.—An assignment of the term by the lessee creates a privity of estate between the lessor and the assignee, after the acceptance of the leasehold estate by the latter.</p> <p>Id.—Covenant to Pay Rent and Taxes.—A covenant in a lease to pay rent and taxes runs with the land, and for a- breach thereof the assignee of the lessee is liable by virtue of his privity of estate. .</p> <p>Taxation—Assessment—Dollar Hark.—The abbreviation “ Dolls.” is equivalent to the word “ dollars ” in an assessment for taxes.</p>

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

<p>Negligence—Street Railroad—Killing Child—Instruction.—The action was for damages for killing a child by running over it with a dummy engine of the defendant. The court instructed the jury that “ the verdict must be for the defendant, unless the evidence establishes that the death of the child was caused by want of ordinary care on the part of the agent of the defendant in the management of the dummy and car, and that the person in whose care the child was placed when the parents left the house took all proper precautions for its safety.” Held, that the instruction was proper.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>Action to foreclose a street assessment lien.</p> <p>The facts appear in the opinion of the court.</p>

<p>o Contract—Breach of Conditions—Release from Obligations.—The plaintiffs were conducting the business of furnishing ice to the public, and entered into an agreement with the defendant, a manufacturer of ice, whereby the latter agreed to sell ice to the former in such quantities as might be demanded at a stipulated price, plaintiffs agreeing not to buy ice from any one else. While the contract was in force, one of the plaintiffs, who owned a hotel, bought six thousand pounds of ice from other parties, for use in the hotel. Held, that such purchase constituted a breach of the contract, and released the defendants from all obligations thereunder.</p>

<p>Change of Plage of Trial—Demand.—The demand íor a change of the place of trial may be signed by an attorney simultaneously with his appear-x, anee.</p> <p>[d.—Affidavit of Merits—Sureties.—Where several defendants are sued as sureties on a bond, an affidavit of merits in support of a motion for a change of the place of trial need not be made by more than one of them.</p> <p>Id.—An affidavit of merits, which recites that the affiant “has fully and fairly stated Ins case and the facts constituting his defense in the action ” to his attorney is insufficient; the affiant should aver that he has fully and fairly stated the case to his attorney.</p>

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

The action was brought to recover for a breach of warranty of certain second-hand gold ore concentrators, which were repaired by the defendant and erected by them in the plaintiffs’ mill. The further facts are sufficiently stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of Kern County, revoking letters of guardianship.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Kern County, settling the accounts of an administrator.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal from a judgment of the Superior Court of Los Angeles 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 an order of the Superior Court of Los Angeles County denying a motion for relief from a foreclosure sale.</p> <p>The facts are stated in the opinion of the court.</p>

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

The defendant had been convicted of the crime of uttering a forged writing—a certified copy of a decree of divorce. The facts are stated in the opinion of the court,

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

<p>Equitable Action — Adverse Claim to Beal Estate— Destitution op Premises.—In an action to determine an adverse claim to real property, brought by a person in possession at the time the action was commenced, but who, during its pendency, is turned out of possession, a judgment in favor of the plaintiff may provide for a restitution of the premises ; and such action is not thereby changed into one for the recovery of the possession of the land, but remains an equitable one.</p> <p>Id.—Use and Occupation.—In such an action it is error for the court to render judgment for the value of the use and occupation of the premises for the time the defendants were in possession.</p> <p>Id.—Jury Trial—Waiver.—Where a case was set down by consent of counsel for trial before the court, and afterwards came on regularly for trial before the court-without a jury, and the trial actually began, it is a waiver of a trial by jury.</p>

<p>Criminal Law—Embezzlement—Extradition.—The crime of embezzlement of public moneys is extradictable, under the treaty between the United States and the Republic of Mexico, of December 11, 1861.</p> <p>In.—Evidence of Similar Acts—Guilty Knowledge—Intent.—In a prosecution for embezzlement of public moneys, evidence of similar acts is admissible to prove a guilty knowledge and a criminal intent in the appropriation of the moneys alleged to have been embezzled.</p> <p>Id.—Instructions.—It would be proper for the court to instruct the jury as to the purposes for which such evidence is admitted, but the failure of the court to do so is not error, unless the instruction is asked for.</p> <p>Id.— Wharfage and Tolls — Property of State.—Moneys collected as wharfage and tolls become the property of the State as soon as collected. It is not necessary that they be first paid into the treasury.</p> <p>Id.—Proof of Amount of Embezzlement.—Proof of the embezzlement of only a part of the amount charged is sufficient to support the information.</p> <p>Id.—Instructions.—It is not error to refuse to give instructions which have already been substantially given.</p> <p>Id.—Section 504, Penal Code.—The facts stated in the information held to be sufficient to bring the case within section 504 of the Penal Code.</p>

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

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

The action was in the nature of quo warranto, brought by the attorney general in the name of the people of the State, claiming that the respondent was usurping the franchise of a municipal corporation. A demurrer to the complaint was sustained, and judgment on demurrer rendered for the defendant. The further facts appear in the opinion of the court.

The action was brought for the foreclosure of a lien upon a mining claim, under the act “ securing liens of mechanics and others on real property.” The work performed by plaintiff consisted in quarrying and extracting quartz rock, and working in stopes and levels for the purpose of taking out rock to be crushed.

<p>Application for a writ of mandate. An appeal to the Superior Court of Yolo County, from a justice’s court, was dismissed, for a supposed insufficiency in the undertaking on appeal. This proceeding was thereupon instituted to compel the hearing of the appeal. The further facts are sufficiently stated in the opinion of the court.</p>

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

<p>Quieting Title—Easement—Ditch over Another’s Land—Evidence.—In an action to quiet title, where the only interest claimed hy the defendants in their answer is an easement to use a ditch for conveying water across the plaintiff’s land to their own land, for the purpose of irrigation and domestic use, the plaintiff may show that the defendants were conveying in the ditch more water than was necessary for such purpose, and the exclusion of evidence showing the amount of water required for irrigation on the defendants’ land, and the carrying capacity of such ditch, is error.</p>

<p>Negligence—Laborer on Railroad—Contributory Negligence.—A laborer on tbe track of a railroad, while acting under the direction of a foreman, is not guilty of contributory negligence in returning from his place of work on a hand-car, although at a later hour than usual.</p> <p>Id.—Train Dispatcher and Laborer—Fellow Employees.—A train dispatcher and material man on a railroad, having authority to employ and discharge men, and direct the movements of trains, is not a fellow employee with an ordinary track laborer.</p>

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

The action was brought to recover forty barrels of whisky or their value. The whisky in question was received in 1878 by E. W. Scott & Co., commission merchants in San Francisco, in the course of their business, on consignment from the plaintiffs, who were the real owners.

<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 sufficiently appear in the opinion of the court, and the dissenting opinion of Mr. Justice Myrick.</p>

The petitioner is a foreign corporation, organized for the sole purpose of mining by the hydraulic process, and of selling water to others to be used for a like purpose.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The action was brought to foreclose a mortgage upon a tract of land known as the Mariposa Estate, executed to the plaintiff on August 2,1875, to secure the payment of six promissory notes made by the defendant, the Mariposa Land and Mining Company of California. The defendants pleaded payment of two of the notes, and that all of the notes were executed by the defendant under a mistake of fact, and in fraud of defendant, and were without consideration. The further facts are sufficiently stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of San Joaquin County refusing distribution of an estate.</p> <p>The testatrix died on December 11,1879. Subsequently, her will, and a codicil thereto, were admitted to probate. The will directed the payment to certain legatees of general pecuniary legacies aggregating $10,500, and disposed of the residue of the estate to the same parties in certain proportions. By the codicil, certain personal property, of the value of $527, and certain real estate were specifically bequeathed and devised to the appellants. It appearing upon final settlement of the estate that there was but $4,873.90 subject to distribution among the general pecuniary legatees, the court ordered that the property specifically devised and bequeathed should be resorted to for the payment of their legacies. The further facts are sufficiently stated in the opinion of the court.</p>

The action was brought to quiet the title to, and compel a conveyance of, the premises in controversy. The further facts are sufficiently stated in the opinion of the court.

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

<p>Practice—Equity—Jury Trial—Statute or Limitations.—A plea of the statute of limitations by a defendant in an action to determine conflicting claims to land, does not convert the action into one at law. It retains its character as an equitable action, and the defendant cannot demand a jury trial.</p>

<p>Libel—Charging Newspaper with Selling Influence.—An article published in a newspaper, falsely charging the publisher of another paper with being a party to a secret conclave, in which he sold the support and advocacy of his paper to certain corporations for a sum of money, is libelous.</p>

The action was brought to recover the sum of $418.87 for goods sold, and delivered. The defendant was the consul of the republic of Paraguay, at the port of San Francisco. This was not pleaded at the trial, but after the appeal was taken the defendant filed a petition stating the fact of his consular appointment, and asking a perpetual stay of proceedings. The other .facts appear in the opinion of the court.

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

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

<p>Mübdeb — Manslaughter—Instructions.—In a prosecution for murder, an erroneous instruction as to what is necessary to reduce an unlawful killing from murder to manslaughter will not warrant a reversal, if the defendant was only convicted of manslaughter. In such case he could not have heen prejudiced hy the instruction.</p>

<p>Practice—Cross-Complaint—Dismissal of Action.—When a cross-complaint lias been stricken from an answer, leaving therein matters of defense only, the plaintiff may dismiss the case at any time before the trial, on payment of. costs.</p>

Mandamus to compel the defendant to settle a statement on motion for a new trial. The facts are sufficiently stated in the opinion of the court.

<p>Evidence—Expert—Handwriting.—A witness called as an expert in handwriting must confine his testimony to facts; he cannot state his inferences deduced from the facts.</p> <p>Id.—Altered Record.—Evidence to Explain—Discretion.—Where a record, after a full inquiry as to its genuineness, is excluded from evidence, on the ground that it had been altered after it was made, the allowance of further evidence in relation to it is within the discretion of the trial court.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The action was brought to enforce a street assessment for work done in the city and county of San Francisco. The contract for the work was taken by the property owners,under the provision of the street law of 1871-2. The defense relied on was that the work was not completed until after the expiration of the extension of time granted on the contract by the Board of Supervisors; and that a further extension of time in which to complete the work was unauthorized. The further facts are stated in the opinion of the court.</p>

<p>Caitobklatioit—Non-Negotiabee Note—Parties Debemdant—Imtermediate Indorsee—Costs.—In an action brought to procure the cancellation of a nonnegotiahle note, on the ground, of fraud, after an assignment to a mala fide purchaser, an intermediate indorser is neither a propernor necessary party, and judgment for costs should not he rendered against him. The holder of the note at the time of the commencement of the action is the only necessary defendant.</p>

<p>Guardian ad Liteii—Insane Person.—A court has- no jurisdiction to appoint a guardian ad litem, for a person alleged to tie insane, who is not made a party to the action.</p>

<p>Fibe Insubanoe—Insubance bt Factoe—Incobbect Statement as to Ownebshib — Estoppel.—The defendant insured against loss by fire a stock of goods, the property of a corporation in which the plaintiffs were stockholders. The plaintiffs held the goods as security for advances made to the corporation. The application of the plaintiffs described the property as their own. The policy referred to the application, and made it a part thereof, and the statements therein warranties, and provided that if the assured was not the sole, absolute, and unconditional owner of the property insured, and such interest were not truly stated in the policy, then the policy should . be void. Held, that the policy was invalid, and that the insurers were not estopped to deny its invalidity, because they did not assert it immediately after the loss, when they discovered the true nature of the plaintiffs’ interest.</p>

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

The defendant was convicted of an assault with a deadly weapon under an information for an assault with intent to murder. The information alleged that the instrument used in the commission of the assault was a tin box filled with gunpowder. The evidence tended to show that the box was placed by the defendant in the stove of the prosecuting witness, where it exploded.

<p>Parent and Child—Torts oh Minor—Father not Liable hor.—A father is not liable in damages for the torts of his minor child, committed without his knowledge, consent, or sanction, and not in the course of his employment of the child.</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, jointly with one Lizzie Crowley, prosecuted by information, and convicted of the crime of grand larceny, in stealing eleven hundred dollars, the property of one William Morrow. On the trial, after the prosecuting witness had testified that the money was stolen from him in defendant’s room in a house of ill-fame, the prosecution offered in evidence certain bank notes of the same denomination as those alleged to have been stolen. It was further shown, that immediately after the commission of the theft, the defendant and Lizzie Crowley went out together in a carriage to a resort known as the Avenue House, and before they reached their destination one of the notes offered was changed by them at a grocery store. The defendant objected to the admission of this evidence, and afterwards moved to strike it out, on the ground that it was incompetent, irrelevant, and immaterial. The objections and motion were overruled, and the defendant excepted. The further 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, from an order refusing a new trial, from a judgment for a deficiency arising from a sale of mortgaged premises, and from an order refusing to set it aside.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Street Assessment—Unverified Answer—Judgment on Pleadings.—Under section 21 of the act of March 27,1872, re-incorporating the city of Stockton, an answer in an action to enforce a street assessment must he verified. If an unverified answer he filed to a complaint which states facts sufficient to constitute a cause of action, and on the trial the defendant introduces no evidence, the plaintiff is entitled to judgment on the pleadings, although the evidence introduced hy him was insufficient to prove all the material allegations of the complaint.</p>

<p>Deed—Description—Uncertainty.—Where, in a deed conveying a given quantity of land, there is not sufficient certainty in the other terms of its description, the number of acres is an essential part of the description.</p> <p>Id.—Stream as Boundary Line—Location in Square.—If a deed conveys a given quantity of land, and describes it as bounded on a stream on one side, starting at a given point and running along the stream, without specifying the length of the line, the required quantity of land is to be located by following the meanderings of the stream from the point named, until, reduced to a straight line, the straight line will be of sufficient length to form a square which would contain the required quantity; and thus, from the ends of this straight line, projecting lines at right angles with the same to such distance as a line drawn from one to the other, parallel with the straight line, will include the required quantity between it and the stream.</p> <p>Id.—Mortgage—Exception—Sufficiency oe Description.—A mortgage of land excepted from the operation thereof a certain tract described as “ two hundred acres at Embarcadero of San Antonio, which are situated as follows : lying on the south side of the creek that empties into the bay at the said Embarcadero, which creek shall be the northerly line of said two hundred acres; and the Bay of San Francisco (the estuary of San Antonio) being the westerly line, and the said two hundred acres to be in a square form. Held, that the description was sufficient for the purpose of location.</p>

<p>Partnership—Accounting— Judgment— Statute or Limitations.—Where, in an action for an accounting and dissolution of a partnership, the judgment provides that the partnership property be sold, and the proceeds applied to the payment of an indebtedness due to one partner, and that a personal judgment for the balance, if any, be entered against certain other partners, the statute of limitations does not commence to run in favor of the latter, until such balance has been ascertained, and judgment rendered therefor. Until that is done the judgment is not final.</p>

On the 19th of July, 1877, H. Rothschild brought an action in the justice’s court of San Francisco against J. Alexander, to recover damages for alleged injuries to real property. From a judgment rendered therein against Alexander, an appeal was taken to the county court on questions of both law and fact. The act establishing the municipal court of appeals was passed April 1, 1878.

<p>Estates of Deceased Persons—Sale of Real Estate—Amendment of Petition.—Where a petition for the sale of real estate of a deceased person is defective in not containing a description of all the real estate of which the decedent died seized, it cannot without further notice he amended at the hearing, so as to validate an order of sale based thereon. After such amendment the petition becomes a new petition, and proceedings de novo must be had.</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 action was brought to procure a divorce. The further ’ facts are sufficiently stated in the opinion of the court.</p>

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

<p>Criminal Law—Setting Aside Information.—An information will not be set aside on the ground that it was not based on any charge for which the defendant had been held to answer, where the record shows that all the preliminary steps were regular, and such as to warrant the district attorney in filing the information.</p> <p>Id.—Assault with a Deadly Weapon with Intent to Murder.—An information which charges an assault by the defendant with a deadly weapon with intent to murder, does not charge two offenses.</p> <p>Id.—Continuance after Commencement of Trial—Absence of Witness.— Where the trial of a criminal case has commenced, the refusal of the court to grant a continuance on account of the absence of a material witness for the defendant, who had been duly subprenaed, is not error, if no cause is shown why the application for continuance was not sooner made.</p> <p>Id.—Assault Committed in Passion—Knowledge that Act was Wrong.— In a prosecution for an assault with a deadly weapon, with intent to commit murder, if the evidence shows that the defendant, at the time of the assault, was so far in possession of his mental faculties as to be capable of knowing that the act constituting the assault was wrong, any particular defect of understanding which might cause him more readily to give way to passion» than a man ordinarily reasonable cannot be considered by the jury for any purpose.</p>

<p>Mandamus—Appeal—Order—Final Judgment.—An order of a Superior Court refusing a writ of mandate is a final judgment, from which an appeal may he taken; and as a right of appeal exists, the Supreme Court will not entertain an original application for the writ.</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 action was brought to recover an amount of money alleged to he due the plaintiff, for services performed by him as president of the defendant. On the trial, the plaintiff introduced in evidence a resolution of the board of directors of the defendant, passed on May 7, 1877, which recited that “ the salaries of the officers of this company be, and the same are hereby, fixed at the rates allowed the past year, namely: president, $150 per month ” * * * The further facts are sufficiently stated in the opinion of the Court,</p>

<p>Attorney—Disbarment yob Conviction oy a Criminal Oyyense—Proceedings Pending Appeal.—An appeal from a judgment of a justice’s court convicting an attorney at law of embezzlement, operates as a suspension of the judgment, and proceedings taken for the disbarment of the attorney, based upon such judgment, and instituted pending the appeal, are premature and should be dismissed.</p>

<p>Pledge—Delivery of Endorsed Stock Certificates—Apparent Ownership.—The owner of stock who voluntarily delivers the endorsed certificates to a third person, allows him to assume the apparent ownership of the stock, and cannot recover the same from a bona fide pledgee of the apparent owner, without payment of the debt for which the pledge was made.</p>

Motion to dismiss an appeal from the Superior Court of Sacramento County. The facts are sufficiently stated in the opinion of the court.

Action for malicious prosecution and false imprisonment against the respondent, and one R. D. Marshall, a police officer. On the trial a nonsuit was granted as to Marshall. A verdict was rendered against the defendant Descalso. A motion for a new trial was subsequently made by him and granted. From this order the plaintiff appeals. The further facts are sufficient' ly stated in the opinion of the court.

<p>Landlord and Tenant—Lease—Covenant Running with Land-Improvements.—A covenant in a lease for the erection, by the lessee, of improvements on the demised premises, and for the purchase thereof by the lessor at the expiration of the term, runs with the land, and is binding on the assignee of the lessor, if such covenant was entered into by the parties to the lease for themselves and their assign?. In such case, the assignee is liable only for breaches of the covenant occurring after he has acquired the estate, and before he has parted with it, or ceased to enjoy its benefits.</p> <p>Id,—Assignment to Lessor—Merged.—Where a lessee, after sub-letting, makes an assignment of the lease to the lessor, who receives and collects, from the sub-lessee the rent reserved in the sub-lease, no merger is created. The lessor comes in as assignee of the reversion, and not as owner of the fee.</p> <p>New Trial — Surprise— Prated—Continuanoe. — Being misled by the prayer of the complaint, conceding it to constitute a surprise, will not warrant a new trial, if the party moving could have relieved himself of' the consequences of the surprise by applying for a continuance, but failed, to make such application.</p>

<p>Criminal Law—Lament and False Pretenses Distinguished.—When by means of fraud, conspiracy, or artifice, possession of property is obtained with felonious intent, and the title still remains in the owner, the crime is larceny; but if the title as well as the possession is parted with, the crime is that of obtaining property by false pretenses.</p> <p>Id.—Held, that the circumstances of this case establish the crime of larceny.</p>

<p>Estate of Decedent—Appeal—Presumptions—Jurisdiction.— On an appeal from a decree of distribution, the jurisdiction of the Probate Court over the subject matter of the controversy will be presumed, when all the parties interested are before the court, and the jurisdiction is assumed by them.</p> <p>Id.—Conflict of Laws—Domicile—Distribution.—In the absence of a statute to the contrary, the distribution of a decedent’s personal estate is governed by the law of his actual domicile at the time of his death. But so far as creditors are concerned, each state will deal with the property of a decedent within its jurisdiction according to its own laws. This rule has not been changed in California.</p> <p>Civil Code—Effect and Construction—Common Law.—The provisions of the Civil Code respecting the subjects to which it relates are controlling, and should be liberally construed ; but where the code is silent, the common law governs.</p> <p>Conflict of Laws—Distribution of Non-Resident’s Estate.— Personal property in California of a testator, dying in Europe, at the time of his death domiciled in Nevada, should be distributed according to the law of Nevada.</p> <p>Id.—Demonstrative Legacies — Abatement.—Por purposes of distribution, demonstrative legacies to kindred are not preferred to like legacies to strangers. All stand upon an equality; and if the fund out of which they are payable be insufficient, all must abate proportionally. It is only in eases where such legacies have to be resorted to for payment of debts, that legacies to kindred are preferred.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The plaintiffs were residents of San Francisco, and the de fendant was a justice of the peace in the city of Los Angeles. In 1882, plaintiffs contracted to deliver to Lamborne and Turn er, in Los Angeles, certain personal property. For a failure to deliver such property, Lamborne and Turner commenced an action against the plaintiffs before the defendant as justice of the peace in Los Angeles. The summons therein was served in the city and county of San Francisco. The present action was brought to prohibit the justice from proceeding to judgment in the action before him.</p>

Action on an undertaking on appeal, given in an action of ejectment, to stay execution of judgment. The facts are sufficiently stated in the opinion of the court.

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

<p>License—Municipal Corporations—Oecy of Oakland.—The act of April 24, 1862, amending the charter of the City of Oakland, empowers the city council to pass an ordinance requiring a license to be obtained by every person, firm, or corporation who, at a fixed place of business, sells any goods, wares, or merchandise, and to prescribe a penalty for a refusal to comply therewith. Such power is also conferred upon the municipality by ^section 11, article xi., of the constitution.</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 in a promissory note. The facts are stated in the opinion of the court.</p>

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

Action to recover the value of certain merchandise, consigned for sale by the appellants, merchants of Buffalo, X. Y., to one J. W. Wyatt, and by him pledged to the respondents. The further facts are sufficiently stated in the opinion of the court.

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

Action to recover damages for the conversion of certain personal property. The facts are sufficiently stated in the opinion ■of the court.

The respondent, through her guardian ad litem, applied to the appellant Hurley, the principal of one-of the public schools of the city and county of San Francisco, for admission therein. The respondent is a Chinese child, and because of this fact Miss Hurley, acting in obedience to a resolution of the board of education of the city and county of San Francisco, refused to admit her as a pupil into the school.

<p>Guaranty—Note Payable out of Particular. Fund—Pleading—Demurrer.—The complaint in an action on a guaranty to pay a note out of a particular fund, after the same has been collected by the guarantor, is sufficient on. demurrer, without an averment that all of the fund has been collected.</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 of ejectment. Mary A. Greenwood was, in her lifetime, the owner of the premises in controversy. In 1861, she gave to the defendant a written lease thereof for five years. The lease provided that upon the expiration thereof, the lessor might have the right to purchase the improvements placed thereon by the lessee at an appraised valuation, or if she did not so purchase, that they might be removed by thelessee. The defendant entered upon the premises under this lease, and occupied them until the commencement of the present action. Upon the expiration of the lease, an agreement was entered into between Brumagim, administrator of Mary A. Greenwood, and the defendant, that the improvements should be considered worth $1200, and that defendant should occupy the premises at a monthly rental of $10, until the amount was paid, and then deliver up possession to the administrator. The further facts are-stated in the opinion of the court.</p>

<p>Pleading—Action against Executor—Allegation oe Representative Character.—Where the complaint in an action against an executor contains several causes of action separately stated, an allegation showing the defendant’s representative character need not be contained in each count. One such allegation at the conclusion of the complaint is sufficient.</p> <p>Ib.—Wife’s Earnings—Husband Must Sue for—Evidence—Wife as Witness.—The husband is the proper plaintiff in an action to recover the proceeds of his wife’s labor, in the absence of an agreement between them making such proceeds her separate property. In such an action against the personal representative of the deceased debtor, the wife is a competent •witness for her husband.</p>

<p>Mortgage—Pledge—Release by Pledgee—Rights oe Pledgor. — The pledgee of a mortgage held by him as security for a debt of the mortgagee, the mortgagor having notice of the transaction, cannot affect the rights of the mortgagee by accepting a conveyance of the mortgaged premises from the mortgagor, and releasing the mortgage. The consent of the mortgagee is necessary to bind him, and M no such consent is given, he may bring an action to set aside the conveyance and release, and to foreclose the mortgage.</p> <p>ib.—Pleading.—The facts entitling the mortgagee to set aside the conveyance and release, and to foreclose the mortgage, constitute but one cause of action.</p>

Appeals from certain orders of the Superior Court of the city and county of San Francisco. The facts are sufficiently stated in the opinion of the court.

<p>Claim and Delivery —Form oe Judgment.—In an action under the code to , recover possession of personal property, the judgment, if in favor of the plaintiff, must he entered in the alternative for the possession of the property, or its value in case a delivery cannot he had.</p>

<p>Appeal from an order of the Superior Court of Santa Clara County admitting a will to probate.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

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

The respondent refused to make the payment, on the ground that, under article 4, section 22, of the constitution, no money can be drawn from the state treasury except in pursuance of an appropriation made by law, and upon a warrant duly drawn thereon by the controller. The further facts are stated in the opinion of the court.

Action to recover damages for personal injuries alleged to have been caused through the negligence of the defendant. The further facts are sufficiently stated in the opinion of the court.

<p>Partnership—Individual Debt oe Partner—Assumption op by Firm—Firm Note.—Where a partnership agreement provides that an existing individual debt of one of the partners shall be assumed and paid by the firm, either of the partners has authority to execute the note of the firm to secure the payment of such indebtedness.</p>

Action to recover damages for a trespass to land. The defendant demurred to the complaint, on the grounds that the action was barred by section 8 of a special trespass law, applicable to Monterey County (Statutes 1878-4, p. 50) ; that the cause of action arose more than sixty days before the action was commenced; and that the complaint did not show that the plaintiff had availed himself of the first seven sections of such act.

<p>Ejectment—Desdas Security—Mortgage Judgment.—In an action of ejectment, where the answer avers that the deed under which the plaintiff deraigns title was intended as a mortgage to secure a debt due to the plaintiff, and seeks a redemption of the premises, the judgment should provide for the payment of the mortgage debt within a designated time, and in default thereof that the property be sold, and the proceeds applied to such payment.</p>

Action to recover damages for malicious prosecution. The case was tried before a jury, and a verdict was rendered in favor of the plaintiff. The defendants were subsequently granted a new trial. The further facts are sufficiently stated in the opinion of the court.

<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 for money had and received. The facts are sufficiently stated in the opinion of the court.</p>

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

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

Appeál from a judgment of the Superior Court of Mendocino County. Action on a promissory note. The facts are sufficiently stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>Action to foreclose a street assessment in the city and county of San Francisco, for work done under the act of April 1,1872. The further facts are stated in the opinion of the court.</p>

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

<p>Building Contract — Delay in Completion—Penalty — Eorfeiture— Liquidated Damages.—A clause in a contract for the erection of a marble tomb, requiring its completion by the contractor within a stated time, under forfeiture of ten dollars per day for each and every day’s delay beyond such time, provides for the payment of a penalty and not liquidated damages.</p>

Action to recover possession of a tract of government land. The defendant claimed to be entitled to the possession, by reason of a homestead entry under the laws of the United States. The further facts are stated in the opinion of the court.

<p>Sale—Change oe Possession—Employment oe Vendob.—The employment hy the vendee of one of the vendors, after a sale of personal property, while tending to show a want of actual and continued change of possession, is not conclusive of the question, hut only an element of proof to he weighed hy the jury,</p> <p>Evidence—Error not Prejediciad.—The erroneous admission of evidence on an immaterial issue is not a prejudicial error justifying a reversal.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The action was brought to- obtain an accounting between partners. The creditors of the partnership filed a complaint of intervention therein, for the purpose of reaching the proceeds resulting from a fraudulent sale of the firm property by the defendant. Judgment was rendered in favor of the intervenors. The further facts are sufficiently stated in the. opinion of the court,</p>

The action was brought to recover possession of certain personal property, which originally came into the possession of the defendant as the agent of the plaintiff. In his answer, the defendant set up his discharge in insolvency from all debts and liabilities incurred prior to Nov. 4th, 1881. The present action was commenced Nov. 1st, 1881. The further facts are sufficiently stated in the opinion of the court.

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

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>Action to recover damages for the breach of a contract of sale. The further facts are sufficiently stated in the opinion of the court.</p>

The action was brought to cancel, as a cloud upon plaintiff’s title, a patent issued by the governor, on November 11, 1867, for 89 120 acres of swamp land in Fresno and Kern counties. Soon after the institution of the action, the legislature passed the act of March 20, 1878, set forth in the opinion of Mr. Justice Thornton.

The action was brought on a promissory note, and the defendant pleaded his discharge under the insolvency act of 1880. The remaining facts are stated in the opinion of the court.

The action was brought to recover on a promissory note executed and delivered by the defendant to the plaintiff on May 8, 1878. On November 6, 1880, the defendant filed a petition in insolvency, under the insolvency act of 1880, which culminated in granting him a discharge from his debts on March 14, 1881.

<p>Malicious Prosecution—Instructions as to Probable Cause.—In an action for malicious prosecution, when the facts in reference to the alleged probable cause are admitted, or established beyond controversy, then the determination of their legal effect is absolute, and the jury are to be told that there was or was not probable cause, as the case may be. When, however, the facts are controverted and the evidence is conflicting, the court should instruct the jury that if they find in a certain way, the facts as found do or do not amount to probable cause; but in neither case are the jury to determine whether or not the established facts amount to probable cause.</p>

<p>Estate of Deceased Person—Maintenance of Widow—Effect of Second Marriage .—When a widow marries again, she is no longer entitled to an allowance for her maintenance out of the estate of her deceased husband, and an order of allowance theretofore made terminates upon her re-marriage without further order of the court.</p>

<p>Partners—Tenants in Common—Right of Possession—Dissolution.—Partners or tenants in common are equally entitled to the possession of the partnership or common property. This equality of right continues after a dissolution of the partnership.</p> <p>Id.—Mining Partnership—Lien of Partner.—The lien of a mining partner, provided for by section 2514 of the Civil Code, does not give to either partner a right of possession of the partnership property to the exclusion of the other. The lien may exist in favor of one partner, although the partnership property is in the actual possession of the other.</p>

<p>Telegraph Companies Not Common Carriers—Degree oe Care Required.— Under the provisions of the Civil Code, telegraph companies are not common carriers, but must use "great care and diligence in the transmission and delivery of messages.’’</p> <p>Id.—Stipulations Limiting their Liability.—A stipulation providing that the liability of the company for any mistake or delay in the transmission or delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated, by sending it back to the office -which first received it, and pays half the regular rate additional, is a reasonable precaution to be taken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence on the part of the company.</p> <p>Id.—Burden oe Prooe.—In an action to recover damages beyond the amount stipulated, the burden of proof is on the plaintiff to show such willful misconduct or gross neglect.</p>

<p>Mandamus—Criminal Law—Preliminary Examination —Justice of the Peace.—A writ of mandate lies to compel a justice of the peace to proceed with the preliminary examination of a person, regularly charged with having committed a public offense, arrested and brought before him. The duty of the preliminary examination is especially enjoined on the justice by sections 858-860 of the Penal Code, and his refusal to proceed with the examination is not justified by the mere statement of the counsel for the defendant that an examination for the same offense had been had before another magistrate, on which the defendant had been held to answer.</p>

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

Action to compel the specific execution of the provisions of a trust mortgage. The facts are sufficiently stated in the opinion of the court.

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

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

On Saturday, the 6th of October, 1883, the board of supervisors of Santa Clara county passed an ordinance imposing county licenses, which provided that it should be unlawful for any person to engage in or carry on the business or occupation of a steam railroad company in such county, without first taking out or procuring a license authorizing him to carry on such business.

April 27, 1885.] Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The facts are stated in the opinion of the court.

<p>Police Commissioners of San Francisco—Term of Office—Vacanct—Appointment bt Governor—Constitutional Construction.—Under the act of April 1, 1878, the respondent and two others were appointed by the district judges named in the act, police commissioners of the city and county of San Francisco. No term of office was fixed by the act. By the constitution of 1879, the district courts were abolished, and a new judicial system established, with no specific provision for the exercise of the powers imposed upon the judges of the district court by the act of 1878. On August 1, 1884, the relator was appointed by the governor to the office of police commissioner in place of the respondent, and instituted this action to try his title under the appointment. Held, that he was not entitled to the office.</p>

Mandamus to compel the treasurer of the city of Sacramento to pay certain coupons on bonds issued under the act of April 24, 1858.

<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 convicted of an attempt to commit robbery.</p> <p>The facts appear in the opinion of the court.</p>