Volume 67 — California Reports

<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 to a lot in the city and county of San Francisco, situated within the limits defined in the Van Hess Ordinance. On January 1, 1855, one J. T. Baxter was in the actual possession and occupancy of the land, claiming to own the same, and remained in possession thereof until September 16, 1862, when he sold and delivered the possession to Sarah McDonald, wife of Charles McDonald. The McDonalds entered and remained in possession until August 13, 1867, when they sold the lot and delivered the possession to the plaintiff who entered and remained in possession until April 6, 1877, when he was dispossessed under a writ of possession issued in the action of MeLeran v. McNamara. On the trial, after the defendants had put in evidence the judgment roll in McLeran v. McNamara, and a deed from MeLeran to one George IC. Porter, under whom they claimed to have derived title by mesne conveyances, the plaintiff offered in evidence the judgment roll in an action of ejectment brought February 18, 1873, by Porter against the plaintiff and others, in which it was adjudged that neither Porter nor any of his predecessors ever had or were entitled to the possession of the premises in controversy. The court excluded the evidence, to which ruling the plaintiff excepted. The further facts are stated in the opinion of the court.</p>

<p>State Lauds—Affidavit fob Ppéchase.—The affidavit accompanying an application for the purchase of State lands, other than a sixteenth or thirty-sixth section, must state the facts required by section 3500 of the Political Code; otherwise the applicant acquires no right to purchase.</p>

<p>Discharge in Insolvency—Citizen of Another State.—An action on a promissory nota which does not specify a place of payment, and which was executed in this State subsequently to the enactment of the insolvent law, in favor of one who was and continued to be a resident and citizen of another State, is not barred by the discharge of the maker from his debts under that law.</p>

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

<p>Evidence—Medicad Wobks.—In an action to recover damages for personal injuries, a medical book, although proved to be of standard authority, is not admissible in evidence to prove the nature and probable effect of the injuries.</p> <p>Id.—'Tho books to which a medical expert refers cannot be resorted to in order to support his testimony, but they may be used to contradict or discredit him.</p>

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

<p>PCEADBtS — ComiT£B-CLA™ — JolNDEE OF CAUSES OF ACTION—DeMCBBEB.— In an action founded on contract, an answer which joins by way of counter-claim, canses of action for goods,wares, and merchandise sold and delivered, for money paid, laid out, and expended, and for money had and received, is not demurrable under the Code, if such pleading would have been sufficient as adeclaration ■ at common law.</p>

The defendant was informed against for the crime of peijury, alleged to have been committed in falsely swearing to the correctness of certain schedules and inventories filed by him in insolvency proceedings instituted under the Insolvent Act of April 16, 1880. The further facts are stated in the opinion of the court.

<p>Divorce—Corroborative Testimony.—In an action for divorce on the ground of extreme cruelty, the complaint alleged that the defendant had been guilty of cruel and inhuman treatment of the plaintiff, in that he had accused her of having committed adultery, and that in consequence of such accusations her mental suffering was so great that she became physically ill, and her health endangered. The only evidence in corroboration of the plaintiff's testimony was that of her attorney and another person in reference to statements made by the defendant in conversations of a friendly and confidential character, sought by the plaintiff’s attorney with her knowledge, and with a view to settle matters between the parties, there being no evidence that the statements were made with any wanton or cruel intent, or that they produced any effect upon the plaintiff. Held, that the testimony of the plaintiff was uncorroborated within the meaning of section 130 of the Civil Code.</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 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 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 defendant was convicted of the crime of grand larceny in having stolen a sum of money belonging to the complaining witness, in whose house he was employed as a servant. The further facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Monterey County, and from an order refusing a new trial.</p> <p>On the 7th of May, 1878, Peter Heron was indebted to the firm of Wood, Dutcher & Co., J. K. Alexander, Goodall, Perkins & Co., and the Salinas City Bank, in the aggregate sum of $1,487.25. Being desirous of paying the same, he executed to the firm of Wood, Dutcher & Co. his promissory note for that amount, under an agreement that the payee should assume and pay the indebtedness to the other creditors named above. On the same day Wood, Dutcher & Co. transferred the note to the plaintiff. Subsequently Heron executed to Wood, to secure the payment of the note, a chattel mortgage on his growing crops, which was duly recorded. A few hours afterwards Wood charged himself on the firm books with the full amount of the note and mortgage, and thereupon paid all of the assumed claims. The defendant, as sheriff, afterwards levied upon and took into his possession the mortgaged crops, under an attachment issued in an action against Heron. At the time of the levy and subsequently, the plaintiff demanded of the defendant the payment of the amount due on the note and mortgage, but the defendant did not pay or tender any part thereof, or deposit the same with the county clerk or county treasurer subject to the order of the plaintiff. The present action was brought to recover of the sheriff the amount of the mortgage debt. The case is reported on a former appeal in 56 Cal. 217. The further facts appear in the opinion of the court.</p>

The condition of the policy with respect to the possession of the property was as follows: “If any change take place in title or possession (except in case of succession by reason of death of the assured) whether by legal process or judicial decree, or voluntary transfer or conveyance .... this policy is void.” Exhibit D referred to in the opinion was in the following .form:— “ Plaintiff’s Exhibit D. “ Western and Southern Department. “T. E. Burch, General Agent, “ 160 La…

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

<p>Deed—Uncertainty of Desobiption—Patent Ambiguity—Pabol Evidence.— A deed which shows upon its faco that there arc two lots to which the description equally applies is void for uncertainty, and parol evidence is inadmissible to explain the ambiguity.</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 an order of the Superior Court of the city and county of San Francisco, setting aside a judgment.</p> <p>Action of ejectment. The facts are stated in the opinion of the court.</p>

<p>Cbiminal Law—Rape—Evtoenoe—Pabtiotlabs of Costplatot. — On a trial for rape, the prosecutrix cannot give evidence of the particulars of a complaint made by her shortly after the assault.</p>

<p>Büeqlaby—Evidence of Ownebship of House—Vabianoe.—Aa information for burglary alleged that the crime was committed by entering the house of H. Wempe. A witness named G. Wempe testified that his father owned the house. No evidence of the owner’s Christian name was given. Held, that the jury might presume that the name of the father of the witness was Wempe, and that he was in possession of the building; and that there was no variance between the information and the evidence.</p> <p>Id.—Evidence of Subsequent Offense__On the trial of such offense evidence</p> <p>was given that at the time of the defendant’s arrest he and an accomplice were attempting to commit another burglary, that burglars tools were found in the possession of the latter, and that articles stolen at the first robbery were found on the person of each. Held, that the evidence was admissible as tending to connect the parties with the first robbery.</p>

<p>Chattel Mobtgage—Becobding.—A chattel mortgage, accompanied by the. affidavit of all the parties thereto, as required by section 2957 of the Civil Code, is deemed to be recorded within the meaning of that section, when being duly acknowledged or proved, and certified, it is deposited in the recorder’s office with the proper officer for record.</p>

Proceeding brought by one steam railroad company against another for the purpose of acquiring a right of way through lands of the defendant. The further facts are stated in the opinion of the court.

<p>Appeal—Judgment op Fobeclostjbe—Chattel Mobtgagb—Undertaking, to Stay Execution.—The statutory undertaking of @300 given on an appeal'from a judgment for the foreclosure of a chattel mortgage operates as a stay of execution, and if a further undertaking he given to stay execution, it cannot he enforced against the sureties therein for want of consideration.</p>

The action was brought to quiet title to certain lands. The plaintiff claimed title under a United States patent issued to it in 1875, in pursuance of the Act of Congress of July 27, 1866, and resolution of June 28,1870. The defendants claimed under a patent from the State of California for swamp and overflowed lands, dated and issued in 1868.

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

The action was brought to recover the possession of certain real and personal property and damages for withholding the possession. The property in question was owned by the firm of Campbell & Welton, who becoming financially involved on February 1, 1876, conveyed it by a deed of trust to four trustees for the benefit of their creditors, whose claims were consolidated in a promissory note to the trustees for $196,139.82 payable in instalments.

<p>Counties—Liability bob Intobies bbom Defective Bridge.—A quasi corporation, such as a county, is under no common-law obligation to repair highways, streets, or bridges within its limits; and even when the legislature enjoins z such a duty, a county is not liable to be sued for damages caused by neglect to perform the duty, unless the action is expressly given by statute.. Section 50 of the act, entitled “an act concerning roads and highways in Contra Costa County ”—Stats. 1875-76, p. 237—which makes the county “responsible for providing and keeping passable and in good repair, bridges and all public highways,” does not create such a liability.</p>

<p>Blandee — Wobds not Actionable eeb se — Pleading Exteaneous Facts— Bdbden of Pboof—Evidence.—In an action for slander, where the words spoken were not actionable per se, and the complaint alleges extraneons facts showing their slanderous meaning, the plaintiff must prove such extraneous facts, and the defendant may give evidence to the contrary under a general denial.</p> <p>Id. —Undebstanding of Wobds by Heabebs.—In such a case, the plaintiff must aver and prove that the words were actually used in their actionable sense, and were applied to him, and that the hearers so understood them. Upon this latter point, the testimony of the hearers, as to how they understood the words, is admissible.</p>

<p>Estate of Decedent—Payment of Unlawful Clam—Action on Bond— Accounting.—The heirs of an intestate cannot maintain an action on the bond of an administrator to recover for a misappropriation of the funds of the estate until after an accounting has been had in the Probate Court, and the administrator has refused to pay .the amount adjudged against him.</p>

<p>Appeal—Notice of—Signatgbe of Attobney.—The omission of the persons signing a notice of appeal from a judgment of a Justice’s Court to designate themselves as attorneys for the appellant will not render the notice ineffectual if it is otherwise sufficient.</p>

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

<p>Resulting Tbust—Action to Enfobce—Evidence—Estate of Decedent.— An action to enforce a resulting trust against the personal representatives of a deceased trustee is not founded upon a claim or demand against the estate of the deceased, within the meaning of section 1880 of the Code of Civil Procedure. In such an action, the original cestui que trust may testify to facts occurring prior to the death of the trustee.</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 recover a balance due for money paid, laid out, and expended by the plaintiff for the use of the defendant, in pursuance of a contract whereby the plaintiff agreed to purchase and sell stock for the defendant) advance the purchase price, and pay the assessments thereon. .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>

Santa Clara County, and from an order refusing a new trial. The defendant was convicted of the crime of burglary in the second degree. In support of his pleas of former conviction and once in jeopardy the defendant proved that under a former information for the same offense he had pleaded guilty, that his plea had been accepted, and that after taking testimony to determine the degree a verdict of guilty of burglary in the second degree was entered.

<p>Pleading—Guahanty.—A complaint on a written guaranty purporting to be signed by a firm, the action being against a single defendant, does not state a cause of action as to him without showing that he alone is bound by the guaranty; and it is not sufficient to allege that he agreed to give the guaranty, and that he signed it himself.</p>

<p>Application for a writ of habeas corpus. The petitioner was arrested and held in custody under order Ho. 1559 of the board, of supervisors of the city and county of San Francisco. The remaining facts sufficiently appear in the opinion of the court.</p>

<p>Criminal Law—Attempt to Commit Burglary—Information.—The crime of attempt to commit burglary is defined by statute, and an information which charges the offense in the language of the statute is sufficient.</p>

Proceedings for a writ of mandate to compel the defendants, as trustees of the city of San Diego, to audit a claim based upon a judgment recovered in the Superior Court of San Diego County. The action in which the judgment was recovered was begun by the city of San Diego against the petitioner to recover a fine for the violation of a city ordinance.

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

This was an action upon an official bond, in which the defendant Hicks was principal and the other defendants sureties. The remaining facts are stated in the opinion of the court.

<p>Taxation —Improvements Ebected on Lands Leased wtoii Münxotpamtx.— Por the purpose of taxation, improvements erected by a lessee upon lands owned by and leased from a municipal corporation are regarded as the property of the lessee.</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 action was brought to recover the possession of a mining claim, and for an injunction to restrain the defendants from extracting and removing the ore therefrom. The plaintiffs based their right of possession upon a location made on May 8, 1884. At that date the land in controversy was in the occupation of the defendants, who were engaged in working it. The further facts appear in the opinion of the court.</p>

<p>Cbesiinal Law—Plea of Guilts—Withdbawal of Piba afteb PmsisHaiEur has been Fixed.—In a prosecution for murder, the defendant, with the concurrence of his attorney and other persons of whom he sought advice, pleaded guilty. The court, after hearing evidence, determined the degree of the crime-, and fixed the punishment at death. Held, that the defendant could not after-wards withdraw his plea and plead not guilty.</p> <p>Id. — Waived of Rienr to Jubt Tbiab.—In a criminal prosecution, a defendant, by pleading guilty, waives his right to a trial by jury.</p>

<p>Appeal fkoii Justice’s Coubt—Undeetaeing—Justification of Subeties.— Where the sufficiency of the sureties upon an undertaking on appeal from a Justice’s Court is excepted to, the appeal cannot be perfected by filing a new undertaking without notice to the adverse party.</p>

<p>County Assessob of Alameda County—Act of February 10, 1874, Abolishing. —The Act of February 10, 1874, abolishing the office of county assessor of Alameda County, and creating the office of township assessor, is constitutional. Such act was not repealed hy the Act of March 7,1881, amending section 4109 of the Political Code.</p> <p>Id.—County Government Act.—After the passage of the Act of January 10,1874, and until the first Monday after the 1st day of January, 1885, the date on which the provisions of the County Government Act of March 14,1883, creating county offices, took effect, there was no such office as county assessor of Alameda County. Publio Office—Vacancy in, How Created.—A public office does not become vacant except upon the happening of one of the events enumerated in section 996 of the Political Code,.</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>

<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 damages for the breach of a contract to employ the plaintiff as a commercial traveler. A trial by jury was had and a verdict rendered for the plaintiff. The further facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of San Bernardino County.</p> <p>Action for unlawful detainer. The complaint, in addition to the averments mentioned in the opinion, alleged that on the 24th day of April, 1884, the plaintiff notified the defendants, that if they continued to occupy the leased premises after the 1st day of June, 1884, the rent would be raised to $100 per month; that the defendants did so continue in occupation for several months, and refused, after a three-days demand so to do, either to pay the increased rent or surrender possession of the premises. The demurrer of the defendants to the complaint was sustained, and upon the refusal of the plaintiff to amend, judgment was entered thereon. The further facts are stated in the opinion of the court.</p>

<p>Pabtnebship—Business done undeb Fictitious Name—Assionment oe Pabtnebship Cdaeu.—Section 2468 of the Civil Code, requiring partners doing business under a fictitious name to file and publish á certificate of copartnership before they can maintain an action on a partnership demand, does not prevent the assignment by them of a valid partnership claim, although.they have not filed or published the required certificate.</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 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 stated in the opinion of the court. ■</p>

<p>Appeal from an order of the Superior Court of the city and county of San Fránciseo made after judgment."" v '</p> <p>The facts are stated in the opinion of the court.</p>

<p>Benevolent Corporation—Constitution and By-laws—Assent to Bind Membebs. —A member of a benevolent corporation who has assented to the provisions of its constitution and by-laws is bound by them.</p> <p>Id.—Allowance to Sick Members—Action to Recover.—The constitution of the corporation provided that members when sick, upon complying with certain conditions, should be entitled to an allowance out of tho funds of the corporation; that the board of trustees should examine all claims of members for such allowance, and that no money should be paid out of the corporate funds except upon the order of the trustees. Held, that a member could not maintain an action to recover the allowance until after the board of trustees had been given an opportunity to examine his claim therefor.</p>

The action was brought to recover damages for the conversion of certain sheep. The defendant, as sheriff, justified the taking under an attachment issued in an action instituted against the vendor of the plaintiff. The further facts are stated in the opinion of the court.

<p>Judgment, how Pleaded—Supebioe Covet—Jurisdiction—Pbesumetion.— The Superior Court being a court of general jurisdiction, it is not necessary, in pleading a judgment thereof, to aver the facts conferring jurisdiction. They aro presumed by law. An allegation that the judgment was recovered in a designated action is sufficient.</p> <p>Pleading—Failvbe to Dent Allegation—Admission—Findings.—The failure to deny a material allegation of a complaint is an admission thereof, and a finding to the contrary is erroneous.</p>

<p>Mining Chaim—Notice of Location — Ebboneous Descbiption.—An erroneous statement in a notice of location oí" a mining claim-as to the quarter section in which the claim is situated, will not invalidate the notice, if the * remaining portions of the description sufficiently identity the land.</p> <p>Id. — Descmetion, when Sufficient.—The description in a notice of location of a mining claim is sufficient, if it designate the number of acres claimed, and define its "boundaries on three sides.</p> <p>ID.—Action to Deteemine Right of Possession—Judgment—Findings—Evidence.—In an action to determine the right of possession to a mining claim, an erroneous finding as to the location of the premises in controversy will not warrant a reversal, if the judgment be conclusively supported by the evidence : and the other findings.</p>

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

<p>Estates of Deceased Persons—Rejection of Claim—Statute of Limitations.— The period of three months within which an action upon a rejected claim against the estate of a deceased person must be brought under section 1498 of the Code of Civil Procedure does not commence to run until the actual rejection of the claim by an indorsement to that effect.</p>

' Appeal from a judgment of the Superior Court of Humboldt County, and from an order refusing a new trial. The facts are stated in the opinion of the court.

The action was brought to restrain the défendants from interfering with plaintiff’s right to the use of the waters of a certain creek. The further facts are stated in the opinion of the court!

<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>

The proceeding was in the nature of quo warranto, to oust the defendants from the office of new city hall commissioners of the city and county of San Francisco, and -to compel them to turn' qversuch building, and its management and control, to the board of supervisors of the city and county of San Francisco.

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

<p>Appeal from an order of the Superior Court of Monterey County allowing the defendant to amend his notice of intention to move for a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Navigable Stream—Street Bailroad—Implied Grant op Bight to Build Bridge__A grant by the legislature of the right to build a street railroad over a designated route which crosses a navigable stream, includes 'the right to build a bridge over the stream.</p> <p>Id.—Act Admitting California into Union—Power of State over Navigable Streams. — The provision of the act of Congress admitting California into the Union, which declares “that all navigable waters within the State shall be common highways and forever free,” etc., does not impair the power of the State to authorize the construction of bridges over navigable streams.</p> <p>Id.—Power to Construct Bridge. — While the power of the State with respect to the construction, regulation, and control of bridges over navigable streams is subordinate to that of Congress, still until Congress acts on the subject the power of the State is plenary.</p> <p>Id.—Authorized Bbidge not a Nuisance.—A bridge over a navigable stream, built in pursuance of a valid authorization from the State, cannot he adjudged a nuisance.</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 San Bernardino 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 San Bernardino.</p> <p>The action was brought to recover possession of the northwest quarter of section 6, township 1 south, range 6 west of San Bernardino base and meridian. The plaintiff on the 15th of April, 1882, had entered the land in controversy under and in compliance with the Act of Congress of March 3, 1877, entitled “an act to provide for the sale of desert lands in certain States and Territories,” made valuable improvements thereon, and continued in the occupation thereof until ousted by the defendant. On the trial in addition to the above facts, the plaintiff gave evidence that" the books in the United States land office showed a memoranda dated the 16th of June, 1884, giving a notice of contest by the defendant of the plaintiff’s claim to the land in dispute and rested. Thereupon the defendant moved for a nonsuit, which was granted by the court-.</p>

<p>. Divorce—Condonation—Dismissal of Action—Payment of Wife’s Counsel , Pees.—If, pending an action for divorce, the parties thereto admit a condonation, and ask that the action be dismissed, the court should order a dismissal, and thereafter the husband cannot be compelled to pay the counsel fees of the wife.</p> <p>Appeal—Modification of Judqmbnt by Trial Court—Bill of Exceptions. — After a case has been appealed, the trial court has no power to so change the judgment appealed from as in effect to prevent the review of alleged errors brought up by a bill of exceptions.</p>

<p>Estate of Deceased Person—Presentation of Claims.—Only such claims are. required to be presented to the personal representative of a deceased person as when allowed will rank among the acknowledged debts of the estate to be paid in due course of administration.</p> <p>Id.—Mortgage to Seocbe Debt of Another—Statute of Limitations__Where a mortgage is given to secure the debt of a third person, and the mortgagor afterwards dies, the claim arising on the mortgage is not required to be presented to his personal representative, nor will its presentation and allowance affect the running of the Statute of Limitations against the mortgage.</p> <p>Id.—Accruing of Cause of Action.—The doctrine of Tynan v. Walker, 35 Cal. 634, that the accruing of the cause of action and the running of the Statute of Limitations do not depend upon the' existence of a person competent to sue, applied to the present case, the mortgagor having died before the mortgage debt became due.</p> <p>Id.—Judgment tor Taxes and Insurance—Pleading. —In an action to foreclose a mortgage, the judgment should not include the amount of taxes and insurance paid by the mortgagee on the mortgaged property, unless the complaint alleges their payment.</p>

<p>Public Officer—Deputy County Clebk of San Feancisco—Salaey.—The salary of a court-room and register clerk of the Superior Court of the city and county of San Francisco is fixed at $175 per month, by the Acts of February 13, 1880, and of April 2, 1880.</p> <p>Id.—Mandamus—Couet-boom Clebk—Appointment must be Alleoed.—In a proceeding for a writ of mandate brought by a deputy of the county clerk of the city and county of San Francisco to compel the auditor to allow his claim for salary as a court-room or register clerk, the petition must allege and the court must find that the petitioner had been appointed or assigned to such position. An allegation that he had acted in the capacity and performed the services of a court-room or register clerk is not sufficient.</p> <p>Id.—De facto Offioeb cannot Becoveb Salaey__A de facto officer cannot recover the salary annexed to the office as the salary is incident to the title io the office and not to its occupation and exercise.</p>

The action was brought to obtain a decree declaring a marriage to exist between the appellant and the respondent, and for a divorce. Judgment ivas rendered in favor of the plaintiff establishing the validity of the marriage, and granting her a divorce. Prior to such judgment the trial court made an order requiring the defendant to pay to the plaintiff alimony and counsel fees. The terms of this order are stated in the last head-note.

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

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

<p>Pleading—General Demurrer. — A general demurrer addressed to the whole of a complaint should be overruled if some portion of the complaint states a cause of action.</p> <p>Practice—Sbecification of Errors. — Where the specification of errors in a statement of the case on motion for a new trial does not comply with the statute, it will be disregarded on appeal; but if a particular error is sufficiently indicated, it will be considered, although the place where it is found is not correctly given, and it is not numbered to correspond with the specification.</p> <p>Libel—Evidence—Damage.—In an action for libel, where the complaint contains no averment of special damage, it is error to permit a witness to state his opinion as to the amount of damage the plaintiff has sustained.</p> <p>Id.—Part of Publication not Libelous Perse. — Where the alleged libel consists of two distinct parts, one of which is not libelous per se, this part should be distinguished from that which is libelous.</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 sufficiently appear in the syllabus and the opinion of the court.</p>

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

<p>Equitt—Besülting Trust—Where in a purchase of land one person pays the consideration and another takes the title, a trust results in favor of the person paying the consideration; and where only a part of the consideration is paid by him a trust arises in his favor pro tanto.</p>

On an application for the sale of real property for the purpose of paying the claim in question the attorneys appointed by the court to represent the minor heirs consented to the sale. The further facts are stated in the opinion of the court.

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

<p>Municipal Corporations—Counties — Powers Involving Exercise of Judgment Cannot be Delegated. —Powers conferred upon a municipal corporation, involving the exercise of judgment and discretion, are in the nature of public trusts, and cannot be delegated to others.</p> <p>Id.— Board of Supervisors—Contract for Collection of Debt dub County ‘—Delegation of Power to Conduct Litigation.—The board of supervisors of a county has power to contract for the collection of a debt due the county; but in the exercise of that power it has no authority to delegate to others, whom it employs for that purpose, the power to determine whether to commence a suit in the name of the county, and to retain attorneys to manage the prosecution thereof, nor to abdicate its control of such a suit, or make its compromise or settlement dependent upon the consent of strangers.</p>

<p>Appeal from a judgment of the Superior Court of the county of Fresno, and from an order refusing a new trial.</p> <p>The action was brought to compel an assignment of the contract of sale mentioned in the opinion. Judgment was rendered for the plaintiff in the court below. The remaining facts are stated in the opinion of the court.</p>

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

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

<p>Application for a writ of habeas corpus. The petitioner was held in custody under an order of the Superior Court of the city and county of San Francisco committing him to jail for contempt in refusing to comply with a judgment of that court.</p> <p>The remaining facts are stated in the opinion of the court.</p>

<p>Attachment—Oboes Gbown by Adverse Possessob. — Crops grown «pon land by a person in the actual, exclusive, and adverse possession thereof, cannot he attached as the property of the legal owner of the land.</p>

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

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

<p>Appeal from a judgment of the Superior Court of Lassen County, and from an order dissolving an injunction.</p> <p>The facts are stated in the opinion.</p>

<p>Action to Quiet Title—Legal Title in Government.—An action to quiet title to lands is maintainable in this State, although the legal title thereto is in the government of the United States.</p> <p>Mortgage in Fee—After-acquired Title—Foreclosure. — Where a mortgage of land purports to convey the fee, any title afterwards acquired by the mortgagor will feed the mortgage and inure to the benefit of the mortgagee; and this is so although the title when the mortgage was made was in the government of the United States, and was acquired by the mortgagor after a foreclosure of the mortgage.</p> <p>Id.—Mortgage of Homestead.—Section 2296 of the United States Revised Statutes does not prohibit the voluntary mortgaging of land entered as a homes tead.</p>

The defendant in his answer set up a counter-claim for the amount of taxes paid by him on the distributive share of the plaintiff, after the decree of distribution was entered. The counter-claim was disallowed by the trial court, and a personal judgment was entered against the defendant for the amount awarded to the plaintiff by the decree of distribution, with legal interest thereon from the time it should have been paid. The further facts are stated in the opinion.

<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.</p>

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

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

<p>Mabbied Woman—Contbact to Assume Indebtedness—Obiginal Obligation— Statute of Pbauds.—A married woman may enter into a contract to assume tbo payment of an indebtedness of a third person in consideration of the conveyance to her of a tract of land. The promise to answer for such indebtedness is an original obligation and need not be in writing.</p> <p>Contbact fob Benefit of Anotheb—Action on — Considbbation. — One in whose favor a contract is made may maintain an action thereon, although he was not •a party to the agreement, and the consideration therefor did notmove from him.</p>

<p>Judgment—When Set Aside on the Gbound op Ehied,—A judgment at law will be set aside on the ground of fraud only when the fraud was practiced in the act of obtaining the judgment, and the party against whom it was rendered and his counsel are free from negligence.</p>

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

<p>Ejectment—Cboss-complaint—Speoieio Peheoemanoe—Findings—Vebdict. — In an action of ejectment, where the defendant files a cross-complaint for the specific performance of a parol contract for a lease of the land in controversy, the issues so raised constitute a ease in equity, and the verdict of a jury thereon is merely advisory, and may he disregarded by the court.</p>

<p>Bill oe Exceptions—Specification oe Eebob must be Pabttculab. —A specification of error in a bill of exceptions that the findings are not justified by the evidence must state the particulars in which the evidence is alleged to be insufficient. A specification that “ the court erred in finding” certain facts is not sufficiently particular.</p> <p>Election Contest—Evidence—¡Ballots—Bübden of Pboof.—In an election contest the ballots are the primary and best evidence of the number of votes received by any candidate, provided they have not in any way been tampered with; and the burden of proof is upon the contestant to show that fact.</p> <p>Id.—Custody of Ballots by Contestant.—The ballots are not inadmissible in evidence by reason of the fact that for a short time they were in the possession of the contestant as defacto county clerk.</p> <p>Id. — Statement of Count on one Tbial as Evidence on Second Tbial. — A tabulated statement showing the result of the count by the judge on ono trial is admissible in evidence on a subsequent trial for the purpose of showing whether or not the ballots had been tampered with between the dates of the trials.</p>

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

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

<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.</p>

The action was brought to reform a promissory note, and for judgment thereon as reformed. The remaining facts are stated in the opinion.

<p>Appeal from an order of the Superior Court of the county of Stanislaus.</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial, and from an order dismissing the motion for a new trial as to one defendant.</p> <p>The facts are stated in the opinion;</p>

<p>Appeal from an order of the Superior Court of Amador County refusing a change of the place of trial.</p> <p>The facts are stated in the opinion.</p>

<p>Judgment on Pleadings—Inconsistent Defenses—Denials and Admissions.— A judgment on the pleadings is not authorized if the answer deny the material allegations of the complaint, although in a special defense separately stated the allegations formerly denied are admitted.</p>

<p>Claims against Counties — Meals Fuenished Peisonebs—Compensation— Action fob. —The sheriff of a county, if he is dissatisfied with the amount of compensation allowed him by the board of supervisors for meals furnished to prisoners confined in the county jail, may bring an action against the county for the amount which he claims to be reasonable.</p>

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

<p>Judgment—Clbbicad Ebbob—Amendment afteb Appeal.--A clerical error in the entry of a judgment, where it is shown by the record, may be corrected on motion at any time so as to make the entry correspond with the judgment rendered; and this may be done even after an appeal and affirmance of the judgment.</p>

<p>Evidence—Opinion of Judge.—A paper which purports to be the opinion of the 1----judge in a former action between the same parties, but is not signed by the judge or authenticated in any way, is not admissible in evidence in connection with the judgment roll in that action.</p> <p>Eobmeb Adjudication—Judgment Becobd.—A judicial record is not conclusive as to the truth of any allegations which were not material and traversable; but as to all those which were material and traversable, the judgment is conclusive between the samo parties upon the same matter.</p> <p>Id.—Upon comparison of the judgment roll in the former action with the pleadings in this, held, that the same identical question was involved and was finally determined in the former action, and should not again be litigated between the same parties.</p> <p>Ed.—Pjleading.—A former recovery by the plaintiff operates by way of estoppel on the defendant, and cannot properly be pleaded.</p>

The action was brought to restrain the diversion of water by the defendant from the plaintiff’s ditches, and for damages. The jury rendered a verdict for the defendant. The remaining facts are stated in the opinion.

<p>Appeal from an order of the Superior Court of Stanislaus County.</p> <p>The facts are stated in the opinion.</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 of the court.</p>

<p>Proceeding for the disbarment of an attorney. The foots are stated in the opinion of the court.</p>

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

The action was brought to obtain a distribution of the trust property. The remaining facts are stated in the opinion of the court.

<p>Motion fop. new Trial—Dismissing Proceedings—Order Refusing to set Aside Dismissal—Ex parte Application.—An order of the court dismissing tlie proceedings on St motion for a new trial cannot be set aside on an ex parte application.</p>

<p>Practice — Stipulation to Abide Determination of Another Cadse—Final Judgment.—Where two causes alike in every material respect, and having the same attorneys on both sides, are pending in the same court, a stipulation that one of them shall abide the determination of the other, and that final judgment may be entered in accordance with such determination, does not lose its effect for the reason that a judgment rendered in the other case is reversed on the ground of error in overruling a demurrer to the complaint, the pleadings in that case being thereupon amended without making any substantial change in the issues and final judgment obtained on the merits.</p>

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

<p>Practice—Verdict—Conflict of Evidence.—Where there is a substantial conflict in the evidence, a verdict will not he disturbed on the ground of insufficiency of the evidence to sustain it.</p> <p>Id__Power to Remit Excess.—The court may allow the plaintiff to remit from a verdict an excess over and above the amount demanded in the.eomplaint, and to take judgment accordingly.</p> <p>Suretyship—Reimbursement—Pleading. —In an action by a surety on a promissory note against Ms principal for reimbursement, the suretyship not appearing on the face of the note, a complaint which avers that the plaintiff signed the note as a surety only, and for the accommodation of the defendant, need not allege a request from the defendant to the plaintiff to pay the same.</p> <p>Appeal—Affidavit.—An affidavit which is not embodied in any statement or bill of exceptions cannot be considered on appeal.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Criminal Law—Instruction—Immaterial Error.—In a trial for murder an erroneous instruction to the effect that a certain act would constitute murder in the second degree, whereas it might amount to manslaughter only, is immaterial if the defendant is convicted of murder in the first degree.</p> <p>Id.—Defendant as a Witness on His Own Behalf. —The defendant having testified as a witness on liis own hehalf, the court instructed the jury in effect that in determining the weight to be given to his testimony, they must consider the circumstances under which he testified, the consequences to him from the result of the trial, and all the inducements and temptations which would ordinarily influence a person in his situation. Eeld, that tile instruction was proper.</p> <p>Id.—New Trial—Newly Discovered Evidence. — The defendant moved for a new trial, and one of the grounds of the motion was newly discovered evidence, which consisted of certain letters written by the defendant and by the sheriff of the county in which he was convicted. Tho letters were relied oil as tending to prove the insanity of the defendant. Eeld, that the motion was properly denied.</p>

<p>Alien—Ixhebitance — Statutory Provision—Constitutional Law.—Under section 671 of the Civil Code, a non-resident alien may inherit property in this State, and there is nothing in the Constitution 'to the contrary.</p> <p>Id.—How Pbcpbrty Claimed—Personal Appearance op Alien. — In order to obtain the property it is not necessary that the alien should appear in person and claim it; he may act through an attorney.</p> <p>Id. — Property Vests in Heirs. —The property of a person dying intestate, leaving non-resident alien heirs, vests in them and not in the State, subject to be divested if they fail to appear and claim it within the time and in the manner provided by statute.</p>

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

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

<p>Justice’s Court—Judgment—Jurisdiction Must Affirmatively Appeab.— A Justice’s Court is an inferior court, and a party relying upon or claiming any right under its judgments must affirmativc-ly show its jurisdiction.</p> <p>Id.—Summons—Defective Statement in—Voidable Judgment—Default.— The summons in an action in a Justice’s Court for a trespass on land contained a statement that in case of the defendant’s failure to answer, “ the plaintiff would take judgment for the amount claimed in the complaint.” Reid, that a judgment by default rendered after a personal service on the defendant was voidable only and could not be collaterally attacked.</p> <p>Exemption fbom Execution a Pebsonal Pbivilege__Exemption of property from execution is a personal privilege which may be claimed or waived at the option of the debtor.</p> <p>Id.—How and when must be Claimed.—Where a debtor has more property of a particular kind than is exempt from execution, and a writ is levied ' upon a portion thereof, leaving as much as the law exempts, and thereafter the debtor claims as exempt a portion of the property levied upon, the residue in the hands of the officer being insufficient to satisfy the writ, the debtor to make good his claim of exemption must offer to surrender to the officer the other property of the same general kind subject to execution, or so much as may be necessary to satisfy the writ, and failing to do so he is not entitled to recover against the officer for an unlawful seizure.</p>

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

<p>Contempt — Sueeiciencv op Affidavit — Violation op Injunction against Cobpobation—Pbohibition.—An affidavit in contempt proceedings for the violation of an injunction restraining a corporation, its officers, agents, superintendents, managers, servants, and employees, from the commission of certain acts, did not state that the persons complained of were officers or servants of the corporation; but it did state that they knew of the issuance, service, and effect of the injunction, and violated it in contempt of the authority of the court. Held, on an application for a writ prohibiting the respondent from proceeding in the matter, that the affidavit was sufficient.</p>

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

<p>Conspiracy—One Conspirator mat be Separately Prosecuted—Information. —In a prosecution for conspiracy, one conspirator may be separately informed against, tried, and convicted; and naming the co-conspirator does not render the information bad.</p> <p>Id__Conspiracy to Bob.—A conspiracy to compel a third person to sign a bank check, and then to take it from Mm by force, is a conspiracy to rob.</p>

<p>Logger’s Lien—Action to Enforce—Complaint.—In an action to enforce a logger’s lien, under the Act of March 30, 1878, as amended by the Act of April 12, 1880, the complaint must allege that something was due from the defendants to the original contractor when the lien of the plaintiff was filed, or that the defendant was notified or had knowledge of the claim of the plaintiff prior to the payment in full of the amount due to the original contractor under the contract.</p>

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

<p>Eminekt Domain—Railroad—Right op Wat.—In a proceeding to condemn land, a railroad corporation, under section 465 of the Civil Code, lias power to acquire a right of way in accordance with the most advantageous route for its road; and the taking for such purpose is not rendered unnecessary by the fact that it had previously purchased a less advantageous right of way over tho land of the defendant.</p>

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

<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-notes and opinion of the court.</p>

<p>Division Like—Parol Agreement—Statute of Frauds.—A parol agreement between co-terminous proprietors of land that a surveyor should run a line between their respective tracts, and that such line should become the division line, is invalid under the Statue of Frauds.</p>

The will was conditional to take effect in case the testator should die from the illness under which he was suffering at the. time of its execution. The remaining facts are stated in the head-notes and opinion.

<p>Reed—Pilling in Blank aftee Execution—Leqal Title.—A deed in which the name of the grantee is left blank by the grantor at the time of its execution, and afterward inserted without his authority, does not convey any title, nor does it become sufficient for the purpose of passing the legal title from the fact that the grantee enters into possession and pays the purchase price.</p> <p>Ejectment—Equitable Defense—Pleading.—In an action of ejectment, where the plaintiff has the legal title, and the defendant is in possession under a contract of purchase from one under whom the plaintiff claims, and has fully complied with the terms of the contract, the equitable title thus vested in the defendant may be pleaded in defense of the action. The facts constituting the defense must he fully stated in the answer, but a prayer for equitable relief is not required, nor is it material that the defendant may by lapse of time or other cause have lost his right to such relief.</p>

The plaintiff claimed the right of possession under the lease mentioned in the opinion; the defendant under a subsequent lease. The term of the plaintiff’s lease had expired at the time of the alleged unlawful entry of the defendant, but the lease contained a clause giving the plaintiff the privilege of retaining possession of the land on a certain condition which he claimed to have fulfilled. The remaining facts are stated in the opinion of the court.

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

<p>Appeal from an order of the Superior Court of Lassen County refusing a new trial.</p> <p>The facts are stated in the head-note and opinion.</p>

<p>Appeal from an order of the Superior Court of Sacramento County refusing to set aside an order of distribution and settlement of the final account of an executor.</p> <p>The facts are stated in the opinion.</p>

<p>Mabbied Woman—Sepabate Pbopebtt—Bepbvin—Pleading In an-action by a married woman to recover personal property, she need not in her complaint allege the coverture, but when that fact appears on the trial, may show that tho property demanded is her separate property.</p> <p>Id.—Evidence — Schedule.—In such an action, a schedule of the wife’s separate property filed and recorded under sections 105 and 166 of the Civil Code is admissible in evidence to prove her title.</p> <p>Id.—Assessment Boll.—The assessment roll of the county showing that no separate property has been assessed to the wife, and that part of tho property described in tho complaint was assessed to the husband as his own, is inadmissible to prove property out of the wife and in her husband, unless it is shown that she gave in the property as that of her husband or had some knowledge that it was so assessed.</p> <p>Id.—Laws of Anotheb State.—The tenure by which personal property acquired in another State and brought into this is held, as between husband and wife, will depend upon the laws of the State where it was acquired; but these laws are to bo proved like any other fact, and in the absence of all evidence will be presumed to be the same as the laws of this State.</p>

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

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

<p>Election—Contest—Mistake in Ballot.-—Under the circumstances of the case, held, that the obvious intention of the electors to vote for the contestant for a certain office could not be defeated by a mistake of the printer in the description of the office in the ballots.</p>

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

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

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

<p>CONTBACT FOB THE SAEE OF PeBSONAL PBOPEBTY—BbEACH OF BY SELLEB—Me AS-TEE of Damages. —The measure of damages in an action by the buyer against the seller to recover for the breach of a contract for the sale and delivery of personal property is prescribed by sections 3203 and 3354 of the Civil Code.</p> <p>In. — Money Paid to Thibd Pebson. —In such an action, money paid by the plaintiff to a third person, in pursuance of the contract, may be recovered from the defendant.</p> <p>New Tbial—Incompetent Evidence. — The admission of incompetent evidence, if not objected to at the trial, cannot be assigned as error on a motion for a new trial.</p> <p>Instbcction need not be Repeated.—The refusal to give an instruction which has already been given in substance is not error.</p>

The action was brought to quiet the title of the plaintiff as against the holder of a certificate of sale for taxes, and to restrain the execution of a deed founded thereon. The land in controversy was within the boundaries of a protection district formed under the Act of April 15,1880, and the tax was levied in pursuance thereof. The judgment ordered the cancellation of the certificate of sale, and restrained the tax collector from executing a deed.

<p>New Trial—Insufficiency of Evidence—Judgment—Decision.—A motion for a new trial cannot be based on the ground of the insufficiency of the evidence to justify the judgment, nor on the ground that the judgment is against law. The motion should be directed to the decision and not the judgment.</p> <p>Id.—Notice—Findings.—A notice of motion for a new trial, which specifies as a ground for the motion insufficiency of the evidence to support or justify the findings, is a valid notice under section 657 of the Code of Civil Procedure.</p> <p>Attorney—Authority to Prosecute Action Presumed—Dismissal.—An action regularly instituted by an attorney is presumed to be with the consent of the plaintiff; and until bis want of authority is established, the defendant cannot have the action dismissed by showing that the plaintiff does not desire to maintain it, the attorney opposing the dismissal.</p> <p>Corporation—How Existence Proved.—In an action by a corporation brought in the county in which its original articles of incorporation are filed, a copy certified by the secretary of State of the certified copy of such articles on file in his office is admissible in evidence to prove the organization of the corporation.</p> <p>Id.—Officer—Stockholder—Parol Evidence.—A question arose incidentally as to whether a witness for the corporation was an officer and stockholder. Held, that parol evidence was competent to prove the fact.</p> <p>Taxation—Sale for Excessive Amount—Jurisdiction.—A tax sale for an amount in excess of what is lawfully chargeable is without jurisdiction and void.</p> <p>Jury Trial—When Waived—In an action at law, a jury is waived, if on the day set for the trial the parties appear, and a trial is had before the court without objection.</p>

<p>Pleading—Demdebeb to Pabt of a Cause of Action.—A demurrer cannot be interposed to part of a cause of action or defense. If the part demurred to is irrelevant or immaterial, a motion to strike out may be made, but a demurrer must go to the whole cause of action or defense.</p> <p>Evidence—Value of Land—Opinion of Witness,—A witness called upon to give an opinion as to the value of laud must lay a proper foundation by showing that he possesses the means to form an intelligent opinion; but it is not essential that his knowledge should be derived from any peculiar skill in a particular pursuit or branch of business or department of science.</p> <p>Pbactice—NewTeial—Cumulative Evidence.—A new trial will not be granted on the ground of newly discovered evidence, where such evidence is merely cumulative.</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.</p>

<p>Election—Contest—Illegal Ballot.—The court below rejected a ballot which did not conform in length and other minor respects to section 1191 of the Political Code. The ballot was only about eight inches and a half in length. Held, that the ballot was properly rejected.</p> <p>Id.—Ebasube.—In certain ballots the voters had erased with lead pencil marks the name of the contestant and also the name of the office to be voted for, leaving simply the number indicating its order on the ballot, and opposite this number and erasure had written the name of the defendant. Held, that these ballots were properly counted for the defendant.</p> <p>Id.—Appeal—Conflict of Evidence.—The rule which restrains an appellate court from interfering with a finding of the court below where there is a conflict in the evidence, does not apply when the evidence consists entirely of ballots, photographic copies of which are before the court on appeal.</p>

<p>Appeal from an order of the Superior Court of Sacramento County setting aside a judgment by default.</p> <p>The facts are stated in the opinion.</p>

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

<p>License Tax—Voluntaby Payment of.—Money voluntarily paid in satisfaction of an illegal license tax cannot be recovered back.</p> <p>Id.—Powebof Supebvisobs.—Section 3804 of the Political Code does not authorize the board of supervisors of a county to order a license tax erroneously or illegally collected to be refunded by the county treasurer.</p>

<p>Cokpokation—Secbetaby—Bond—Liability on.—In June, 1881, the defendant Allen w,is elected secretary of the corporation plaintiff for the term of one year, and until liis successor should be elected and qualify. He thereupon executed to the plaintiff a bond with sureties in the penal sum of 519,000, to secure the safe-keeping and payment to it of all moneys that might come into his possession as secretary, and not paid out in the due course of business. The by-laws of the corporation authorized the board of directors to remove at pleasure aU officers, and fix their terms of office. In June, 1882, Allen was re-elected, and the action was brought on the bond against him and his sureties to recover moneys alleged to have been misappropriated by him after his re-election. Held, that the action could not be maintained.</p>

<p>Application for the disbarment of an attorney and counselor of the Supreme Court. The facts are,stated in the opinion of the court.</p>

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

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

<p>Corporation—Election of Directors—Action to set aside—Who mat Maintain. —A stockholder in a corporation may maintain an action to set aside an election of directors of the corporation, although at the timo of the election no stock had stood in bis name on the books of the corporation sufficiently long to entitle him to vote.</p> <p>Id.—Jurisdiction.—The Superior Court has jurisdiction as a court of equity to inquire into the validity of such an election, and to set it aside if not made in conformity with law.</p> <p>Id.—Manner of Votinq.—Every qualified stockholder present at an election has a right to vote at one time the number of shares owned by him for the whole number of directors to he elected, or to cumulate his shares upon one candidate, or to distribute them among as many candidates as he may see fit; and the corporation has no power to adopt any other mode of election.</p>

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

<p>Transfer of Personal Property—Consideration—Change of Possession. —A transfer of personal property, in consideration of a promise by the transferee to use it for a public purpose, in such a manner that the transferrer will derive pecuniary profit from its use, is good as against the creditors of the transferrer, if accompanied by an actual, immediate, and continued change of possession.</p>

<p>Navigable Stbeah—Public Highway—Wateb Ebont op Benicia—Right op Owneb to Pbeb Access.—The navigable waters of the Straits of Carquinez, adjoining the permanent water front of the city of Benicia, as established by the Act of March 21, 1868, are a public highway; and an owner of land, the boundary of which forms a part of the water front, has a vested right of free access to such highway, of which he cannot be deprived without compensation.</p> <p>Id.—Whabe—Nuisance—Injunction.—The erection of a wharf materially obstructing such access will be enjoined as a nuisance.</p>

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

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

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

<p>Appeal—Obdeb made afteb Judgment—Stay of Execution.—Pending an appeal from an order made after final judgment for the payment of money, the undertaking on appeal from the order having been waived, but no appeal having been taken from the judgment, the Supreme Court has no authority to grant a stay of execution upon the judgment.</p>

This was an action to foreclose a mortgage executed by the defendant Gillespie, who subsequently conveyed the property to the appellant subject to the mortgage. The affidavit of service shows that the summons was served on all the defendants in the county of Santa Clara, and that a copy of the complaint was served on defendant Gillespie.

<p>„ Will—Deed of Gift.—An instrument purporting to be a deed of gift, but inoperative for want of delivery, cannot, in the absence of proper evidence that a testamentary disposition was intended, be admitted to probate as a will.</p> <p>Id. — Cebtaei IbstbujUeets Constbued as a Will__Two instruments in the handwriting of the deceased, attached together, and found among his papers, one being in the form of a letter signed by him and addressed to his sister, and the other purporting to he a copy of a deed of gift from the former to the latter, and it appearing on the face of the letter that the property described in the deed was intended by the deceased as a provision for the sister after his death, held, to be a will, and admissible to probate.</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.</p>

<p>Fences—Acts nr Relation Thereto.—The Acts of April 27, 1855, and April 3, 1860, concerning lawful fences, are continued in force under section 19 of the Political Code, and consequently the counties to which they apply arc not subject to the provisions of section 841 of the Civil Code.</p> <p>Id._What Constitutes.—A fence which is good, strong, substantial, and built of stone, forming a perfect enclosure, and sufficient to turn stock, is a lawful fence within the meaning of the statute, although it is not specifically described therein. Id.—Division Fence.—The line or division fences provided for by the statute of 1860 must be lawful fences.</p> <p>Id. —In an action brought under the statute to recover one half the value of a partition fence, and to foreclose a lien therefor, it is not necessary for the plaintiff to show that other fences which have been adopted by the defendant in completing Ms enclosure are lawful fences.</p> <p>Road Laws—Constitution.—The road laws retained by the Code having been in force before the adoption of the present Constitution, are not affected by the provision against special legislation.</p>

<p>Indemnity—Verdad Promise—Sureties — Statute of Mauds—Consideration. —The defendants were sureties on an undertaking to stay execution on an appeal from a judgment of a Justice’s Court. The appeal having been dismissed, they requested the plaintiff, a constable, to levy execution upon and sell certain personal property which they represented belonged to the j udgment debtor, and verbally promised to indemnify him for any damage ho might sustain by reason of the levy and sale, should they prove to be wrongful. The plaintiff, in consideration of such promise, levied upon and sold the property and thereby satisfied the judgment. Held, that the promise was founded upon a sufficient consideration, and was not within the Statute of Frauds.</p> <p>Id.—Execution Issued without Authobity of Judgment Cbeditob—Batifioation.—The execution was issued at the request of the sureties, but the money arising from the sale was received by the judgment creditor in satisfaction of the judgment. Held, that the receipt of the money was a ratification of the act of the sureties.</p>

<p>¡Findings—Facts in Issue—Admissions.—Findings should be limited to the facts put in issue by the pleadings, and are not required as to admitted facts. If, however, findings are made upon the admitted facts, they must be in harmony with such facts. *</p> <p>Id.—The findings reviewed, and held to be in conflict with admissions in the answer.</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.</p>

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

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

<p>Findings—Admissions in Pleading.—No findings are necessary as to facts admitted by tbe pleadings.</p> <p>Possession—When Imparts Notice__Possession of land, in order to impart notice of the rights.and equities of the holder, must be actual, open, exclusive, notorious, and visible.</p> <p>Contract fob Purchase of Land—Action to Enforce—Findings.—The action was brought by the plaintiffs, suing as husband and wife, to compel the defendant Davis to assign a contract for the purchase of certain land owned by the Central Pacific Railroad Company, and to require the company to convey the land to them. The plaintiffs claimed to have a prior right to purchase the land under an alleged contract entered into by the company with the wife, which contract was founded upon an alleged acceptance of, and compliance with the conditions of a circular issued by the company. The court found that the company had issued a circular in which it invited persons to settle upon and improve its lands, and promised that those so doing, and who should file applications therefor, should be preferred purchasers. The court further found that no application to purchase had been filed by the wife, and that she never settled upon or improved tbe land, as required by the circular. Held, that the findings were sustained by the evidence.</p> <p>Id.—Evidence—Declarations of Vendor. — On the trial of the action, the plaintiffs offered to prove certain declarations made by the officers of the company in reference to a sale of the land. It did not appear from the offer whether tbe declarations were made before or after the execution of the contract for the purchase by the defendant Davis, nor was he shown to have been present at or to have had any knowledge of the declarations. Held, that the evidence was properly rejected.</p> <p>Id.—Notice—Possession.—The defendant Davis testified that at the time of his contract to purchase, he had no knowledge that any portion of the land had been enclosed by the plaintiffs, or that they had made any application for the purchase thereof. Held, that the evidence was admissible as tending to show that the defendant had no notice of the alleged equities of the plaintiffs.</p> <p>Id.—Default — Judgment—Trustee—Legal Title.—The company having failed to answer, its default was entered, and findings and a judgment were subsequently rendered in favor of the defendant Davis. Held, that the company was a trustee, holding the legal title to the land for him, and that if the plaintiffs were not entitled to relief as against him, they could not enforce a deed from his trustee.</p>

<p>Fire Insurance—Policy—Application—Notice to Agent— Insurer when not Bound by.-—A policy of fire insurance expressly exempted the insurer from being bound by any act or statement not contained in the application for or indorsed on the policy. Held, that notice to its agent as to a matter different from that contained in the policy and application did not bind the insurer.</p> <p>Id.—Conditions of Policy—How Waited.—The policy further provided that nothing less than a distinct, specific agreement, indorsed on or attached to the policy, should be construed as a waiver of any printed or written conditions or restrictions therein. Held, that a local agent of the insurer could not waive any of the provisions of the policy, except in the mode thus provided for.</p> <p>Id.—Fishing Scow—Building—Question for Jury.—A question involved in the action was whether or not the property insured, a fishing scow, was a building within tlio meaning of that word as used in the policy. Held, that the question was one of fact to be determined by the jury from all the surrounding circumstances.</p>

<p>Constitution—Amendment—Boabd of Equalization.—The amendment of 1884 to section 9, article xiii., of the Constitution, was properly adopted.</p>

The plaintiff appeals from so much of the judgment as denies interest; and the defendant from so much as gives the plaintiff judgment for the tax and penalty. The remaining facts are stated in the opinion of the court.

This was an action to recover salary for services alleged to have been performed by the plaintiff as justice of the peace of the city of Oakland. The remaining facts sufficiently appear in the opinion of the court.

<p>Corporation—Mortgage—Estoppel.—In an action by a corporation to foreclose a mortgage given by the defendant for money loaned to him by the corporation, the defendant is estopped to deny the regularity of the organization of the corporation and its power to enter into the contract.</p>

The action was brought on an account for the price of goods sold and delivered. The remaining facts are stated in the head-notes and opinion of the court.

<p>Appeal from an order and decree of the Superior Court of the city and county of San Francisco settling and allowing the final account of an administrator, and directing the payment of certain claims.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Cbeuinal Law—Mubdeb—Evidence.—The evidence examined, and held sufficient to sustain a verdict of murder in the second degree.</p> <p>Id.—Self-defense.—Where the killing occurred during an assault upon the defendant brought about by his own misconduct, ho must, in order to justify the killing as an act of self-defense, have really and in good faith endeavored to decline any further struggle before the act was committed, provided he could do so with safety.</p> <p>Id.—Instructions.—The rulings upon certain instructions approved.</p> <p>Id. — Witnesses—Who to be Produced by Pbosecution.—The court below denied a motion made by the defendant after the prosecution had rested, for an order requiring the prosecution to call and examine as witnesses certain persons who were shown by the testimony of one of the witnesses for the prosecution to have been present at the time of the homicide. Held, no error.</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>Action to quiet title. The remaining facts are stated in the opinion of the court.</p>

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

<p>Eminent Domain—Wateb Company—Beseevoib.—A corporation organized and existing under the laws of the State for the purpose of supplying the inhabitants of an incorporated city with pure fresh water, may exercise the right of eminent domain for the acquisition of land needed as a reservoir in connection with the purposes of its incorporation.</p> <p>Id.—Pbiob Appbopbiation—Pleading. — In an action to condemn land for a public use, the complaint alleged that the defendant was a corporation organized under the laws of the State for a purpose similar to that of the plaintiff, and that it was the owner'of the land sought to bo condemned. Held, that inasmuch as the complaint contained no averment that the land in question had been appropriated to a public use, it was sufficient on demurrer without alleging that the land was required for a more necessary public use.</p>

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

<p>Pleading—Statute of Limitations—Finding.—The Statute of Limitations was pleaded by specifying certain sections of the Code of Civil Procedure as a bar to the action. The court found that the action was not barred by the statute or by the sections of the Code so specified. Held, that the finding was sufficient.</p> <p>Ejectment—Possession of Defendant—Landlobd.—In an action of ejectment, where the possession is held by tenants, their landlord may be joined with them as a defendant.</p> <p>Id.—Cobtgbation—Evidence. —In such" an action, evidence that the plaintiff is a corporation defacto is admissible to establish the existence of the corporation as against the defendants.</p>