Volume 68 — California Reports

<p>Attachment — Affidavit—Irregularity—Collateral Attack. — The regularity of an affidavit for attachment cannot be attacked collaterally by one who was a stranger to the suit.</p> <p>Mortgage — Foreclosure—Attachment Lien — Evidence. —In an action to foreclose a mortgage, defendants claiming under an attachment lien accruing after the mortgage was given are entitled to prove the existence of their lien, and to show that, in consequence of certain acts of the plaintiff, set forth in their answer, it is superior to the lien of the mortgage.</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>Trust — Bona Fide Purchaser — Burden of Proof.— In an action to declare a trust, and compel a conveyance of the trust property to the beneficiaries, the complaint alleged that the defendants held the legal title by conveyance from the original trustee, and that they took with knowledge of the plaintiffs’ equities. At the time of the purchase by the defendants, there was nothing of record to put them on inquiry as to the rights of the plaintiffs. Held, that the burden of proving notice to the defendants was upon the plaintiffs.</p>

<p>Execution — Exemption — Fraudulent Transfer. — The right to claim the exemption of personal property from execution is waived by a failure of the debtor to exercise it; and the fact that he might have claimed it will not be sufficient as against his creditors to impart validity to a sale of the property without an actual and continued change of possession.</p>

Action to recover possession of the promissory note mentioned in the opinion. The remaining facts are stated in the opinion of the court.

Action to recover state and county taxes alleged to be due for the fiscal year 1881-82, with five per cent penalty, and interest at the rate of two per cent per month from December 27, 1881. The remaining facts are stated in the opinion of the court.

<p>Sale — Personal Property — Statute of Frauds — Acceptance. — An oral contract for the sale of wool, no part of the price being paid, and it appearing from the evidence that the buyer had not accepted any p'art of the wool, held, invalid under section 1739 of the Civil Code.</p>

<p>Appeal from a judgment of the Superior Court of Sonoma County, and from an order refusing a new trial.</p> <p>The facts sufficiently appear in the head-note and 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>

• This was an action to recover damages for seduction. The remaining facts sufficiently appear in the opinion of the court.

<p>Practice — Appeal from Justice’s Court. ■ — A notice of appeal from a judgment of a Justice’s Court was filed one day after the service thereof, and the undertaking on appeal was filed, four days after the filing of the notice. These several acts were done within the time limited by statute. Held, that the appeal was regularly taken.</p>

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

<p>Contract in Writing — Lease — Alteration of — Unexecuted Parol Agreement. — An unexecuted oral agreement between a lessor and lessee, altering the terms of a written lease, is not binding upon a grantee of the lessor. . ,</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 San Mateo 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 Marin County, and from an order refusing a new trial.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Riparian Rights — Diversion of Water — Evidence. —In an action by a riparian proprietor, to restrain the diversion of water from a stream adjoining his lands, and to recover damages for a prior diversion, evidence of injuries caused by the diversion to lands of the plaintiff not bordering on the stream, and to his cattle pastured thereon, is inadmissible.</p> <p>Id. — Land not Described in Complaint — Evidence of Title. —In such an action, the plaintiff cannot prove title to land not described in the complaint.</p> <p>Id. — Adverse Diversion and Appropriation — Findings. —The defendant pleaded five years’ adverse diversion and appropriation of the waters of the stream, and gave evidence tending to support the plea. Held, that the failure of the court to find on the issue thus presented was error.</p>

<p>Contract of Employment — Public Policy. — An agreement by an employer to pay an employee a certain sum per month for his services, even if he should be discharged for incapacity or dereliction of duty, is not contrary to public policy.</p>

<p>Appeal from a judgment of the Superior Court of El Dorado County.</p> <p>The action was brought to recover the possession of land. The further facts are stated in the opinion of the court.</p>

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

<p>Note and Mortgage — Agreement for Renewal. — A mortgagor, after the maturity of bis promissory note to secure which the mortgage was given, executed to the mortgagee a written instrument, in which, after reciting the execution of the note and mortgage, and the place of record of the latter, it was agreed that the time for the payment of the note should he extended to a subsequent date. The agreement further provided that nothing therein contained should affect or impair any other covenant or condition in the note or mortgage, hut that they should remain in as full force and effect as if the agreement had not been made. Held, that the agreement was a renewal of the note and mortgage within the meaning of section 2922 of the Civil Code.</p> <p>Id. — Death of Mortgagor — Presentation of Claim — Foreclosure of Mortgage — Statute of Limitations. — After a claim founded upon a note secured by a mortgage has been duly presented to the personal representative of a deceased mortgagor, and allowed and approved, the right of the mortgagee to maintain an action to foreclose the mortgage is not affected by the statute of limitations, pending the proceedings for the settlement of the estate of the mortgagor.</p> <p>Id. —Payments by Mortgagee after Presentation of Claim. —In such an action, payments for taxes and street assessments made by the mortgagee after the presentation of the claim, under an authority given in the mortgage, may be recovered without any further presentation.</p>

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

<p>Appeal from a judgment of the Superior Court of Tehama County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</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>Practice — New Trial — Irregularity — Waiver. — An irregularity in the notice of intention to move for a new trial is waived by a failure to ■ make any objection on the ground of such irregularity either at the settlement of the statement or on the hearing of the motion.</p> <p>Partition — Judgment — Title.—A judgment in partition is conclusive upon all the parties thereto as to whatever title or claim they had to the land at the time of the rendition of the judgment.</p>

The action was brought to obtain an injunction restraining the defendants from proceeding with a judicial sale under a judgment decreeing the foreclosure of a street assessment lien which accrued on the 14th of November, 1870. 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,, from an order refusing a new trial, and from an order allowing the plaintiff the sum of one hundred dollars percentage upon the amount of the judgment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardian and Ward — Bond — Substitution of — Liability of Sureties. —Under certain sections of the Probate Act, made applicable to guardians by the act of March 27, 1857, the Probate Court has power to accept a new bond from a guardian to take the place of a former bond; and after a new bond has been so given, the sureties on the former are not liable for the defaults of the guardian subsequently occurring</p> <p>Id. — Citation—Service by Publication. — In a proceeding in the Probate Court to compel an accounting by a guardian who has left the state, so that personal service on him cannot be had, the citation must be served by publication in the same manner as a summons in a civil action. In the absence of such service, neither the guardian nor his sureties are bound by the decree rendered upon the accounting.</p> <p>Id. — Release of Sureties. —Prior to the adoption of section 1543 of the Civil Code, a release of one co-surety released the others, and as to a contract of co-suretyship entered into before the section was adopted, a release of one after its adoption releases the others.</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 head-note and opinion of the court.</p>

The action was brought to recover the possession of certain land. The court instructed the jury in effect that the right of the plaintiff, Henry G. Ganahl, to recover, was barred by section 1573 of the Code of Civil Procedure, because the action was not brought within three years after he attained his majority. The further facts are stated in the opinion of the court.

<p>Justices’ Court — Appeal — Trial de Novo. — On an appeal from a Justices’ Court, taken on questions of law and fact, the Superior Court cannot try the action de tiovo, unless a trial upon the issues of fact as made in the Justices’ Court had been bad in that tribunal.</p> <p>Id. — Dismissal oe Action without Trial. — The action was originally brought in a justices’ court, and issues of fact joined. The justice refused to enter upon the trial, upon the ground that the complaint, although actually filed, was not so indorsed, and dismissed the action. The plaintiff thereupon appealed to the Superior Court on questions of law and fact. Held, that the Superior Court had no authority to try the action de nono, and that it should reverse the judgment, and remand the case to the Justices’ Court for trial on the issues tendered by thevpleadings.</p>

<p>Criminal Law — Evidence—Eormer Arrest — Impeaching Witness.— On a trial for murder, where the defendant has been called as a witness on his own behalf, a question as to whether or not he has been previously arrested for shooting at certain individuals cannot be allowed on cross-examination for the purpose of impeaching him under section 2051 of the Code of Civil Procedure; nor can he be asked as to his knowledge of the unlawful character of the business carried on at a house where he was employed as door-keeper, and frequented by the deceased.</p> <p>Id. — Murder — Degrees — Malice — Instruction . — An instruction to the effect that when the killing is shown to be without extenuating circumstances malice is presumed, and that when malice is thus shown, if the evidence clearly discloses deliberation or premeditation in the act of killing, or the existence of an intention to kill while giving the fatal blow, the killing constitutes murder in the first and not in the second degree, held, proper.</p>

<p>Ejectment — Boundary Line — Courses and Distances — Naturae Objects. — The location of a boundary line determined on the principle that courses and distances are controlled by natural objects.</p>

The court in its instruction to the jury, after stating certain evidence that had been introduced by the defendant, charged them that such evidence tended to prove, according to the weight they might give to it, that the defendant did not speak the alleged slanderous words. The further facts are stated in the opinion.

<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.</p>

<p>Statute of Limitations — Execution Sale —Deed.— The statute of limitations does not begin to run against a purchaser of real estate at an execution sale before he becomes entitled to a deed. Whether the statute commences to run then or at the time when the deed is actually executed and delivered to the purchaser, not decided.</p> <p>Trust — Transfer of Real Property — Consideration Paid for a Person Other than the Grantee— Laches. — In February, 1877, certain real property was transferred by deed to the plaintiff, under an agreement that he should reconvey the same to the defendants, for whom the consideration of the transfer to the plaintiff was paid by a third person. The defendants were in possession of the property at the time of the transfer, and so continued until the commencement of the action in April, 1SSI, the plaintiff retaining the naked legal title. Held, that a trust resulted in favor of the defendants, and that they were not guilty of loches in failing to assert their rights against the plaintiff until he had taken some steps to disturb them.</p>

<p>Practice — Judgment — Amendment aster Appeal. — A motion to strike out material portions of a judgment cannot be made after the judgment has been affirmed on appeal, and the remittitur filled in the lower court, where all the questions involved in the motion might have been brought before the court and determined on,the appeal.</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 action was commenced October 22, 1874. The remaining facts are stated in the opinion.</p>

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

<p>Trust Deed — Homestead — Evidence. — In an action to declare a trust under the provisions of a deed from a husband to his wife of property on which a homestead had been previously declared by the wife, the declaration of homestead is admissible in evidence for the purpose of avoiding the deed.</p>

<p>Homestead — Declaration — Statement oe Value. — A statement in a declaration of homestead that “the cash value of the homestead is about four thousand dollars,” held, sufficient as a statement of value.</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 and order of the Superior Court of the county of Mono granting a peremptory writ of mandate.</p> <p>The facts are stated in the opinion of the court.</p>

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

On the subject of malice, the court below instructed the jury as follows:— “ To maintain this action, plaintiffs must show that the suit and attachment were commenced with, malicious intent, but this may be inferred from want of probable cause. The remaining facts are stated in the opinion.

<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 procure the cancellation of a certain promissory note, and for an injunction against its transfer.

<p>Appeal — Deposit in Lieu of Undertaking — When must be Made — Dismissal. — A deposit of money in lieu of an undertaking on appeal must be made within five days after the notice of appeal is served and filed. If made after that time, the appeal will be dismissed.</p>

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

<p>Pleading — Negligence—Railroad—Death of Employee — Presumption. — In an action against a railroad company to recover damages for negligently causing the death of one of its employees, when the complaint positively alleges that the acts and omissions complained of were by the defendant, it cannot be presumed that they were those of a fellow-employee of the deceased.</p>

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

<p>New Trial — Service oe Notice of Motion — Objection to how must be Taken — Waiver. —An objection that a notice of intention to move for a new trial was not served and filed in time is waived, if there is nothing in the statement to show that the attorney for the respondent objected to the service of the notice on admitting service of it, or of the statement, or on the settlement of the statement.</p> <p>State Lieu Lands — Selection and Listing of — Pre-emptor when cannot Attack — Instruction. — The action was brought to recover the possession of certain land which was listed to the state as lieu land on the I3th of March, 1877, on an application and selection made by it on the 1st of October, 1873. On the 31st of July, 1879, the state conveyed the land by patent to the grantor of the plaintiff. The defendant claimed title under a pre-emption settlement made prior to the inception of any right on the part of the state, but gave no evidence that at such time he was a qualified pre-emptor, or had complied with the requirements of the pre-emption laws. The court instructed the jury that the listing to the state was a nullity, and the patent based upon it void, if at the time of listing the land was withdrawn from sale. Held, that the i* ■ struetion was erroneous, because the defendant, not having connected himself with the title of the United States, could not attack the listing or patent to the state.</p> <p>Id. —Patent from State. —Held, further, that the defendant, not having shown any privity with the state, could not attack the patent from it.</p> <p>Id. — Filing Plat of Township Survey — Declaratory Statement of Pre-emptor— Priority of Title. — The evidence further showed that the plat of the survey of the township containing the land in controversy was filed in the proper district land-office on the 13th of June, 1872. The defendant filed his declaratory statement on the 20th of December, 1873. The act of Congress of March 3, 1853, required a pre-emption claimant to file Ms declaratory statement within three months after the receipt at the district land-office of the approved plat of the township embracing his settlement. Held, that the court would presume that such plat was received and filed on the same day, and that by reason of the selection by the state being prior to the filing of the declaratory statement by the defendant, its title derived by the listing in 1877 was superior iu right.</p> <p>Ejectment — Trial of Equitable Issues — Appeal—Bill of Exceptions — Statement. — In an action of ejectment, equitable issues should he first tried, but an irregularity in that respect will not he considered on appeal, unless the facts appear in a bill of exceptions or statement.</p>

<p>Condemnation of Land — Road — Appeal bt One Defendant — Service of Notice of — Adverse Parties. — The action was brought by a county for the condemnation of a strip of land for a road across lands owned by the respective defendants. Judgment was rendered for the plaintiff as prayed for. One of the defendants appealed from the judgment, from an order refusing him a new trial, and from the final order of condemnation. Held, that the other defendants were adverse parties within the meaning of section 940 of the Code of Civil Procedure, and should have been served with the notice of appeal.</p>

<p>Appeal from a judgment of the Superior Court of Colusa County, and from an order refusing a new trial.</p> <p>The defendant was convicted of murder in the first degree, and sentenced to be hanged. The further facts are stated in the opinion of the court,</p>

<p>Slander — Pleading — Allegation on Information and Belief. —In an action for slander, the complaint alleged on information and belief that on a certain day the defendant spoke in the presence of certain named persons the slanderous words complained of. Held, that the allegation was sufficient.</p> <p>Id. — Calling a Married Woman a ParAmour. — To falsely speak of a married woman as the paramour of a man not her husband imparts to her a want of chastity, and is slanderous per se.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>Application for a writ of mandate to compel the respondent to audit and allow the claim of the appellant for his salary as an official reporter of the city and county of San Francisco. The further facts are stated in the opinion of the court.</p>

<p>Application for a writ of mandate to compel the respondent, a judge of the Superior Court of the county of Santa Clara, to proceed with the trial of an action. The further facts are stated in the opinion of the court.</p>

The action was brought to recover money paid, laid out, and expended, for work and labor done, for goods sold and delivered, and upon a promissory note. The further facts are stated in the opinion of the court.

Proceeding in voluntary insolvency. The appeal was taken by one of the creditors of the insolvent. The further facts are stated in the opinion of the court.

<p>Sale oe Wool — Graders’ Rejection — Liability oe Vendee. — The action was brought to recover the price of certain wool sold and delivered by the plaintiffs to the defendants, subject to graders’ rejection. By the term “graders’ rejection ” was meant that the defendants upon receipt of the wool should cause it to be examined, fleece by fleece, by wool graders, for the purpose of ascertaining what portion, if any, was t'aggy _or scabby, and that for such portion, the plaintiffs, after being notified thereof by the defendants, should allow them a proportionate deduction from the purchase price. The defendants retained possession of all the wool, but refused to pay for a portion, on the ground that it had been rejected by the graders, and so notified the plaintiffs. The latter refused to abide by the rejection, for the reason that the graders had not examined the wool fleece by fleece. The defendants thereupon offered to have the rejected portion so examined, but the plaintiffs refused. Held, that it was the duty of the defendants to have had the grading conducted fleece by fleece, and that having failed to do so, and retained possession of the wool, they were liable for the entire amount delivered, at the agreed price.</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>Pleadings — Complaint—Failure to State Cause oe Action — Objection to how Taken. — If a complaint fails to state facts sufficient to constitute a cause of action, advantage may be taken of the defect by demurrer, by motion for judgment on the pleadings, or upon motion for a new trial.</p> <p>Id. — Judgment on Pleadings — Defendant when Entitled to. —. Where the plaintiff has a good cause of action, which by accident or mistake he has failed to set out in his complaint, the court, on a motion for judgment on the pleadings, should, on his application so to do, permit him to amend; but if he fail to make such an application, the defendant is entitled to judgment on the pleadings.</p> <p>Id. — Statute of Limitations — Defense of, how Taken — Waiver.— The defense of the statute of limitations is a personal privilege, and must be taken advantage of by demurrer or answer. Otherwise it is deemed to be waived.</p> <p>Injunction to Restrain Legal Proceeding^ — When does not Lie.— Proceedings at law will not be restrained by injunction, if the party applying therefor has lost his defense at law through his own negligence, or has omitted to- move for a new trial within the time required by law.</p> <p>Id. —Execution of Judgment — When Enjoined. — A judgment debtor is entitled to an injunction restraining the execution of a judgment at law, if the grounds upon which the injunction is sought could not have been made a defense to the former action, or if he was prevented from making the defense by reason of the fraudulent conduct of the judgment creditor.</p> <p>Id. — Fraud of Judgment Creditor — Pleading.—The action was brought to restrain the execution of a judgment against the plaintiff, on the ground that it was obtained by reason of the fraudulent acts and misrepresentations of the defendant. The complaint examined, and held to state facts sufficient to constitute a cause of action.</p>

<p>Contract for Manufacture of Lumber — Construction of. — The contract on which the action was brought, after providing for the manufacture by the defendants of certain timber into lumber, gave the plaintiffs a right to buy, at a stipulated price, any part or the whole of the refuse lumber that might accumulate during the process of manufacturing. Held, that the plaintiffs were authorized to take any part or the whole of the refuse, but could not cull and pick it over for the best pieces.</p> <p>Id. — Evidence — Performance.—On a construction of the contract, and review of the evidence, held, that the defendants had performed all the conditions on their part.</p>

<p>Execution Sale — Redemption by Judgment Debtor — Payment oe Prior Judgment. —Under section 702 of the Code of Civil Procedure, a judgment debtor whose lands have been sold under execution may redeem the same from the purchaser without paying the amount of a prior judgment against him held by a partnership of which the purchaser is a member.</p>

<p>Employer and Employee — Fellow-servants—Foreman—Negligence of. — The foreman of a gang of men to whom a stevedore delegates the entire management of the work of unloading a vessel, with full discretion to control and supervise it, is not a fellow-servant with his subordinate employees; and if, in the performance of the work, death or injury results to such an employee through the negligence of the foreman, the stevedore is liable, although he exercised due care in the selection of the foreman.</p>

<p>New Total — Conflict of Evidence — Discretion—Verdict.—It is not . necessarily an abuse of discretion for the trial court to grant a new trial on the ground that the evidence was insufficient to sustain the verdict, although the evidence may be conflicting.</p>

<p>Reference — Stipulation and Order for — Entry of Judgment — Report of Referee. — The parties to the action entered into a stipulation for its reference which authorized the referee to determine all the issues of law and fact, and provided that upon the filing of the report of the referee judgment should be entered by the court in accordance therewith. The court thereupon made an order of reference directing judgment to be entered upon the filing of the report of the referee. Held, that upon the filing of the report the clerk was authorized to enter judgment without any further order of the court.</p>

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

<p>Contract fob Sale of Land — Mortgage of Vendee’s Interest — Foreclosure.— Thomas Flint, L. Bixby, and Benjamin Flint, being the owners of the land in controversy, contracted in writing to sell it to one Lane, who subsequently assigned his contract to the defendant Harlan. Harlan then executed a mortgage thereon to one McOlosky, who assigned it to the plaintiff. Subsequently Flint and Bixby, who had succeeded to all of the interest of Benjamin Flint, conveyed the land to Harlan, and took from him his promissory note secured by a mortgage on the premises in payment of the balance of the purchase price. Shortly after, Harlan reconveyed the land to Flint and Bixby in consideration of the cancellation of the note and mortgage given by him to them. In this condition of affairs the present action was brought to foreclose the mortgage executed by Harlan to McOlosky, and subject the land in the hands of Flint and Bixby to the payment of the sum due the plaintiff from Harlan. Held, that upon a sale of the land the proceeds should be applied, after paying the costs of the sale: 1. To the payment of the balance of the purchase-money; and 2. To the payment of the amount due upon the mortgage to the plaintiff.</p>

<p>Involentaby Insolvency — Assignees of Non-bbsident Cbedetoes — Petitioning Cbeditobs. —Under section 8 of the Insolvent Act of 1880, a proceeding in involuntary insolvency cannot be instituted by residents of this state, if their claims against the debtor are held under assignments made by' non-resident creditors without consideration, and solely to enable the assignees to become petitioning creditors.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County.</p> <p>The action was brought to recover damages for the conversion of certain cattle. The further facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Santa Cruz County.</p> <p>Application for a writ of mandate to compel the defendant to refund to the plaintiff certain money paid by him in satisfaction of an illegal tax. The further facts are stated in the opinion of the court.</p>

<p>Partnership — Assignment for Benefit of Creditors — Dissolution — Property Exempt from Execution.— An assignment by copartners for the benefit of their creditors of the entire firm assets, except property exempt from execution, operates as a dissolution of the partnership; and the subsequent delivery by the assignees to the assignors of such portions of the exempt property as was respectively owned by them and used in the business of the firm does not revive or continue the partnership.</p>

<p>Application for a writ of review. 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>Protestant Episcopal Church — Parish—Election or Vestrymen — Notice or. —The proceeding was brought by the plaintiffs, claiming to be the duly elected vestrymen of St. Mark’s parish, to compel the defendants to surrender the temporalities and church building belonging to the parish, and to restrain them from further acting as the vestrymen thereof. The parish in question is a voluntary religious association, subject to the constitution, canons, and regulations of the Protestant Episcopal Church of the United States, and of the diocese of California. A canon of the church requires that the election of vestrymen shall he held on Easter Monday of each year, or as soon thereafter as practicable, and that notice of the election shall he given during divine service upon the Sunday previous thereto. The election under which the plaintiffs claim was not held on Easter Monday, and the notice thereof was given on the preceding Sunday at a meeting of the congregation, which took place several hours before the regular time for divine service. Held, that the notice was insufficient, and that the election was void.</p>

The action was brought for an accounting between partners, and 'for the foreclosure of an alleged lien on the seat of the defendant in the San Francisco Stock and Exchange Board. The further facts are stated in the opinion of the court.

<p>Laborers’ Liens — Foreclosure—Joinder of Causes of Action v — Separate Trials — Waiver. —The action was brought under section 1195 of the Code of Civil Procedure, for the foreclosure of two laborers’ liens separately claimed by the plaintiffs. At the calling of the case for trial, the defendant demanded and the court refused a separate trial of the respective claims. The defendant thereupon withdrew his answer as to ■one of the plaintiffs, and proceeded with the trial as to the other. Held, that the error, if any, in refusing to allow separate trials was waived.</p> <p>Id. — Action to Foreclosure is Equitable — Jury Trial. — An action to foreclose a mechanic’s or laborer’s lien is equitable, and a party thereto is not entitled to a jury trial as a matter of right. In such a case, the granting or refusing a jury trial is within the discretion of the court.</p> <p>Id. — Pleading—Evasive Denial — Identity of Property. — The answer admitted the ownership by the defendant of the property against which the lien was claimed, and the employment of the plaintiff to perform labor thereon, and for answer to an allegation of the complaint “that the plaintiff performed work and labor on the property as a miner,” it averred that “defendant is not sufficiently informed to admit that the plaintiff performed work and labor as a miner upon the property of the defendant, and therefore defendant denies said allegation.” Held, that the denial was evasive, and raised no issue as to the identity of the property upon which the work was done.</p> <p>Id. — Description of Property. — The description of the property upon which the liens were claimed held to be sufficient for the purpose of identification.</p> <p>Id. — Denial — Legal Conclusion. — A denial that the plaintiff has complied with the requirements of the provisions of chapter 2, title 4, part 3, of the Code of Civil Procedure, relating to mechanics’ and laborers’ liens, or that he is entitled to any lien on any property of the defendant, is a conclusion of law, and raises no issue.</p>

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

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

On the trial, one W. G. Lee, an attorney at law, was permitted to testify, against the objections of the defendant, to certain communications made to him by the defendant in reference to the matters in issue. The further facts are stated in the opinion.

<p>Default — Setting aside — Discretion.—It is a matter of legal discretion to grant or refuse a motion to open a default, and in the absence of an abuse of such discretion, the action of the court will not be reversed.</p> <p>Id. — Absence from Trial — Mistake of Attorney. — It is not an abuse of discretion for the court to set aside a judgment by default obtained during the absence of a party and his attorney from the trial, if such absence was due to the excusable mistake of the attorney as to the time set for trial.</p>

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

<p>Estate of Deceased Person — Insanity of Administrator — Vacancy in Administration. —The fact that the administrator of the estate of a deceased person was sent to an insane asylum, by the order of a judge of the superior court, does not create an absolute vacancy in the administratorship of the estate.</p> <p>Id. — Administrator Incapacitated during Confinement — Application for Letters. —During the time the administrator is so confined in the asylum, he is incapable of executing his trust, and an application then made by a proper person for letters of administration should be granted; but an application made after his incapacity has been removed, and he has again entered upon the discharge of his duties as administrator, should be refused.</p> <p>Id. — Commission of Insanity — Vacancy in Office. — Section 996 of the Political Code, providing that an office becomes vacant on the happening of the insanity of the incumbent, found upon a commission issued to determine the fact, refers to a commission out of chancery, and not to the statutory proceeding to send a person to an insane asylum.</p>

<p>Search-warrant of Person — Constitutional Law. —The legislature has power to authorize the issuance of a warrant to search the person of an individual in a proper case, and neither the fourth amendment of the United States constitution, nor section 19 of article 1 of the state constitution, prohibits it. Such power has been exercised by the enactment of sections 1523 to 1542 inclusive of the Penal Code.</p> <p>Id. —Officer may Take Property not on Person — Lottery Tickets. — The warrant in question was regularly issued by a justice of the peace, and directed the officer executing it to make immediate search of the person of the plaintiff for lottery tickets, and if any were found, to bring them before him. The officer, after searching the person of the plaintiff, discovered in the room where the search was made a package of such tickets, belonging to the plaintiff and in his possession, but not on his person, and carried them away for the purpose of using them as evidence against him in a future prosecution. Held, that the action of the officer was proper, and authorized by the warrant.</p> <p>Id. — Owner not Entitled to Return of Tickets. — After the tickets were no longer required as evidence, the plaintiff demanded that they should he returned to him. The defendant refused to return them, on the ground that they should be retained to prevent him from committing the offense of selling them. Held, that the refusal was authorized by article 4, section 26, of the constitution, and by sections 319 to 326 of the Penal Code, and by order No. 1587 of the board of supervisors of the city and county of San Francisco.</p> <p>Id. — Custody of Tickets after Taking by Officer — Presumption.— In the absence of any showing to the contrary, the officer executing the warrant is presumed to have taken the tickets before the magistrate, and having done so, they are not in law in his custody or under his control, but in that of the magistrate.</p> <p>Id. — Issuance of Warrant — Knowledge of Offense. — On a review of the evidence, held, that the defendant had sufficient personal knowledge that the plaintiff had or was about to commit a public offense to justify him in making the complaint and obtaining the warrant.</p>

<p>Agistment-op .Cattle — -.Contract fob Construed. — The plaintiff and defendants entered into a contract whereby the former agreed to agist and pasture on his -land -certain cattle of the defendants, for the term of one year, and the latter agreed to pasture thereon, at their own cost and expense .for herding, aU th.e .cattle it should be capable of grazing, not less .than three thousand head, and to pay therefor the sum of one dollar per -head. The defendants pastured seven hundred and seventeen head of-cattle .on the land, and paid therefor at the agreed rate, but refused to pasture any more because the land was incapable of grazing them. The action was brought to recover the balance alleged to be due for the pasture of three thousand head of cattle. Held, that the contract was one ,cf .agistment, and not -of lease, .and that the defendants were not liable .for the balance.</p>

<p>Municipal Corporations — San Francisco — Occupations Contrary to Public Policy — Regulation op. —The hoard of supervisors of the city and county of San Francisco has power, under section 2 of. article II of the constitution, and section 74 of the consolidation act of April 19, 1856, to prohibit or regulate all occupations which are against good morals, contrary to public order and decency, or dangerous to the public safety. In. — Laundry Ordinance — Restriction of Business to Particular Kind op Buildings. —In the exercise of such power, the hoard of supervisors may prohibit any person from establishing, maintaining, or carrying on a laundry within the corporate limits of the city and county, without having first obtained-the consent of the board, unless the same he located in a building constructed either of brick or stone.</p> <p>Id. — Certain Orders Held not Repealed. — Order No. 1569, and section 68 of order No. 1587, of such hoard, prescribing the kind of buildings in which laundries may he located, have not been repealed by order No. 1767, regulating the establishment and maintenance of public laundries within certain limits of the city and county.</p> <p>Id. — Construction op Municipal Ordinances. — The rules for the construction of ordinances and orders of a municipal corporation are the same as for the construction of statutes.</p> <p>Id. — Repeal of Statutes by Implication. — The repeal of statutes by implication is not favored, and where there is an apparent conflict between two acts, the court should reconcile them if possible; but if this cannot he done, the last act must govern.</p> <p>Id. — Treaty Obligations with China. — A municipal regulation which applies alike to all persons engaged in a given pursuit, without distinction as to nationality, residence, age, sex, or condition, is not in violation of treaty obligations existing between the United States and China.</p>

an order of the Superior Court of the city and county o.f San Francisco, granting a new trial. The facts are stated in the opinion.

<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, and in the opinion of Mr. Justice Myrick in Department Two.</p>

<p>Appeal from a judgment of the Superior Court of Marin County, and from ah 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 head-notes and opinion of the court. The opinion on a former appeal is reported ■in 60 Cal. 439.</p>

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

Motion to dismiss appeal from the order granting alimony and counsel fees. The action was brought to establish a disputed marriage and for a divorce. The further facts are stated in the opinion of the court. The report of the case on a former motion to dismiss is contained in 67 Cal. 185.

trial. Motion to dismiss appeal on the ground that the undertaking thereon was filed before the service of the notice of appeal. Subsequent to the date of the attempted appeal, the parties entered into a written stipulation to advance the cause on the calendar of the Supreme Court for hearing. The further facts are stated in the opinion of the court of May 21, 1886.

<p>Corporation — Subscription to Capital Stock — Liability of Subscriber for Calls — Statute of Limitations — Laws of Virginia. — The National Express and Transportation Company is a corporation organized under the laws of Virginia, On the 1st of November, 1865, the defendant subscribed for fifty shares of its capital stock, and promised to pay to the corporation therefor the sum of one hundred dollars per share in such installments and at such times as he might be called upon to pay according to the law under which the corporation Was organized. The laws of Virginia provided that upon every subscription for shares in any joint-stock corporation, there should be paid two dollars at the time of subscribing, and the residue as required by the president and directors of the corporation. On the 14th of December, 1880, in a suit in equity brought in the Chancery Court of Richmond, Virginia, it was decreed that thirty per cent of the par value of each share of the stock of the corporation should be called for and paid by the subscribers. The action was brought to recover the amount of the assessment so levied upon the stock of the defendant. Held, that the call made by the Chancery Court was the same in effect as if it had been made by the president and directors of the corporation, that the statute of limitations commenced to run in favor of the defendant from the time of the call and assessment, and that his liability thereon was barred in two years.</p>

Proceeding by mandamus to compel the defendant to construct and maintain a bridge over its canal at its intersection with a public highway. The further facts are stated in the opinion.

The defendant was convicted of the crime of an assault with the intent to commit murder. The further facts are stated in the opinion of the court.

<p>Contract — Covenants—Performance—Action to Recover Contract Price — Parties. —The contract on which the action was brought was entered into between the defendants, acting on behalf of the Los Prietos Mining Company, as parties of the first part, and the plaintiff and two other persons, acting on behalf of the Santa Inez Quicksilver Mining Com-pony, as parties of the second part. By the terms of the contract the parties of the second part covenanted ttiat the plaintiff should perform certain work for the defendants, in consideration of which the defendants promised to pay the plaintiff a stipulated amount. The action was brought to recover a balance alleged to be due the plaintiff on the contract price. Held, that the plaintiff could maintain the action without joining the other parties of the second part as plaintiffs.</p> <p>Id. — Personal Liability of Promisors. —Held further, that the -Santa Inez Quicksilver Mining Company was not a necessary party plaintiff; nor was the Los Prietos Mining Company a necessary party defendant, and that the defendants were personally liable on the contract.</p> <p>.Appeal from Judgment — Statement of Case — New Trial. — A statement of the case used on the hearing of a motion for a new trial is a part of the record upon which an appeal from the judgment may be heard.</p>

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

<p>Appeal — New Trial — Statement of Case — Specification of Errors.— • On an appeal from an order refusing a new trial, where the statement of the case does not specify any errors of fact on which the motion for a new trial was made, the decision of the court must be regarded as conclusive of the facts in the case.</p> <p>Id. — Jury Trial — Equity Case — Amendments—Discretion. — The allowance of a trial by jury in an equity case, or of amendments to the pleadings at any stage of the proceedings, is a matter addressed to the sound legal discretion of the trial court; and the Supreme C.ourt will not interfere with the exercise of such discretion unless it appears to have been abused.</p> <p>Id, — Immaterial Error — Submission of Issue to Jury — Findings.— Error in overruling an objection to a proposed issue submitted to the jury in an equity case is cured if the court, notwithstanding the answer of the jury, finds all the facts connected with such issue.</p> <p>Id. —Conclusions of Law — Appeal —Judgment. —The question whether the findings of fact warrant the conclusions drawn by the court arises on an appeal from the judgment.</p> <p>Homestead — Death of Husband — Title of Surviving Wife — Separate Property. — Under the Homestead Act of I860, as amended in 1862, the homestead property, upon the death of the husband, vests absolutely in the surviving wife as her separate property, and is not affected by her . subsequent remarriage. Thereafter, she may use it for her exclusive benefit, and dispose of it without the consent of her husband, in the manner provided by law.</p> <p>Mortgage — Foreclosure—Pleadings—Situation of Property — Judicial Notice — -Jurisdiction. — The action was brought to foreclose a mortgage. The complaint alleged that the mortgage was duly recorded in the office of the recorder of San Diego County, and described the mortgaged premises as lot G- in block numbered 93, in Horton’s Addition to San Diego, as per maps on file in the county recorder’s office, made by James Pascoe. Held, that the situation of the mortgaged property in San Diego County was sufficiently alleged, and judicial notice being taken that there is but one San Diego County in the state, that the Superior Court of that county had jurisdiction of the subject of the action.</p> <p>Id___Uncertainty of Description. — Held further, that the mortgage was not void for uncertainty in the description of the mortgaged property.</p> <p>Id.- — Mortgagor cannot Object to Description. —In an action to foreclose a mortgage as it is written, a mortgagor cannot be heard to complain of an indefinite description of the mortgaged property, whatever might he the effect of a sale under the description.</p>

<p>Verdict — Conflict of Evidence. —Where the evidence is substantially conflicting, a verdict will not be disturbed on the ground that it is contrary to the evidence.</p> <p>Id. — Malicious Prosecution — Excessive Damages. — In an action to recover damages for a malicious prosecution, a verdict of seven hundred and fifty dollars in favor of the plaintiff, held, not excessive.</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>Statute of Limitations — Objection how Taken — Pleadings.—Where it clearly appears upon the face of the complaint that the cause of action is barred by the statute of limitations, the objection may be taken by demurrer; otherwise it must be taken by answer.</p> <p>Id. — Judgment — Appeal — Presumptions. — On an appeal from a judgment in favor of the plaintiff, where there is no statement or bill of exceptions in the record, all presumptions are in favor of the judgment, and it will be presumed that the cause of action was not barred by the statute of limitations before the commencement of the action.</p>

<p>Beneficial Association — By-laws — Assessment. — The by-laws of the petitioner, a benevolent association, provided that upon the death of a member, and in order to make up the amount to be paid to his nominee, each member should pay one dollar, and that the nominee should be entitled to receive from the association the amount collected on the assessment to be levied therefor. Held, that a nominee was only entitled to receive the amount actually collected on an assessment made for his benefit, and not a sum equal to one dollar from each member.</p> <p>Id. — Resolution Increasing- Assessment — Ratification by Directors. — At a meeting of the members of the association, a resolution was passed directing a larger amount to be paid to certain nominees than the amount of the respective assessments collected for their benefit. A bylaw of the association provided that no money could be drawn or appropriated from the treasury without the order of the directors. Held, that in the absence of an adoption or ratification by the directors, the resolution was inoperative.</p>

<p>Appeal from an order of the Superior Court of Santa Cruz County refusing to remove an administrator.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Partnership — Death of Partner — Bequest of Partnership Interest to Survivor — Settlement of Partnership Affairs. —When a partner dies, leaving a -will which bequeaths his entire interest in the partnership property to his surviving partner, the latter cannot collect from the general assets of the estate of the decedent a debt due by him to the firm, if the interest of the deceased in the assets of the firm is sufficient to pay it; and this must be ascertained by complying with section 1585 of the Code of Civil Procedure.</p>

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

<p>Appeal from an order of the Superior Court of Merced County granting 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.</p>

<p>Justices’ Court — Complaint — Copt op Account. — The complaint in an action in a Justices’ Court, purporting to be a copy of an account for money borrowed on a certain day, is sufficient in the absence of a demurrer.</p> <p>Id. — Subscription to Complaint. — A complaint in such an action need not be subscribed by the plaintiff or his attorney.</p> <p>Id. — Appeal before Entry of Judgment — Waiver of Objection.— The appellant on an appeal from a Justices’ Court, who appears in the Superior Court and proceeds without objection to a trial on the merits, cannot afterwards question the jurisdiction of the Superior Court on the ground that when the appeal was taken no judgment had. been entered by the justice in his docket.</p> <p>Id. —Jurisdiction of Superior Court. —The Superior Court has jurisdiction of an appeal from a Justices’ Court, in an action tried by a jury, although when the appeal was taken no judgment had been entered by the justice in conformity with the verdict.</p>

<p>Application for a writ of prohibition to prohibit the Superior Court of San Bernardino County from proceeding to try the petitioner for the offense of maintaining a public nuisance injurious to health. The further facts are stated in the opinion of the court.</p>

<p>Bill of Exceptions — Settlement bt Supreme Court — Petition for— Procedure on. — In an application to the Supreme Court, under section 652 of the Code of Civil Procedure, for the settlement of a bill of excep-</p> <p>tians, the petition should set forth the exceptions taken and the evidence in support thereof, and notice of the application should be given to the trial judge.</p>

<p>Specific Performance- — Verbal Contract for Sale of Land — Offer of Payment — Delay. —The action was brought by a vendee under a verbal contract for the sale of several distinct tracts of land, to procure the specific enforcement of the contract, on the ground of part performance.</p> <p>The contract provided that the vendee should pay for the land within a reasonable time. The complaint showed that the plaintiff did not offer to pay for the land until two years and three months after the date of the contract, and failed to allege any excuse for the delay or facts showing an acquiescence by the vendor. Held, on a demurrer to the complaint, that the court would not presume that the offer to pay was made within a reasonable time.</p> <p>Id. —Allegations of Part Performance. —In such a case, the acts which constitute the part performance must be distinctly and clearly stated in the complaint, and an allegation that the vendee entered upon the premises and made valuable improvements is insufficient.</p>

<p>Mortgage — Foreclosure—Joinder of Parties Plaintiffs — Amendment. — Under sections 378 and 385 of the Code of Civil Procedure, a trustee to whom a mortgage has been assigned as security for a debt of the mortgagee may be joined with the latter as plaintiffs in an action to foreclose the mortgage; and if the trustee is not originally made a plaintiff, he may be brought in by amendment.</p> <p>Id. — Admission of Execution of Hote — ■ Proof of Indebtedness. — In such an action, if the note to secure which the mortgage was given is recited in the complaint, and the averment as to its contents and due execution is not denied by the answer, the plaintiff need not offer evidence to prove the indebtedness.</p>

<p>Judgment by Default — Unauthorized Entry by Clerk — Motion to Set Aside — When can be Made. — The-court may at any time set aside a judgment by default entered by the clerk, when it appears upon the face of the judgment roll that the clerk had no power to enter it. In such a case, section 473 of the Code of Civil Procedure, limiting the time within which a motion to set aside a judgment can be made to six months after its entry, has no application.</p> <p>Id. —Defendants Jointly Liable on Contract — Defaults of — Power of Clerk to Enter Judgment. —In an action against several defendants on their joint contract for the recovery of damages only, the clerk has power, under sections 414 and 585 of the Code of Civil Procedure, to enter the separate defaults of those defendants who have been served with summons and have not answered, and to enter a joint judgment by default against all of those served, although other of the defendants have not been served; but he has no power to enter a judgment by default against a part only of the defendants who have been served and have not answered.</p> <p>Id. —Motion to Set Aside Default — When must be Made — Surprise. Under section 473 of the Code of Civil Procedure, a motion to set aside the default of a defendant who has been served with summons and has not answered, on the ground of surprise, must be made within six months after the default was entered.</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>Insurance — Liability of Reinsurer— Compromise of Loss by Insurer. — The plaintiff insured a certain building against loss by fire, and reinsured itself against the same risk with the defendant. The building having been burned, the party insured brought an action against the original insurer to recover for the loss, of which the reinsurer was notified. The two companies thereupon agreed that the action should be resisted, and that the plaintiff should control the defense for itself and as agent of the defendant. The plaintiff, instead of contesting the action, and without the consent or knowledge of the defendant, abandoned its defense, com-</p> <p>promised the claim with the party insured, and had the action dismissed. This action was brought to recover from the defendant its pro rata proportion of the moneys paid, and the expenses incurred by the plaintiff in the former action. Bold, that the defendant was not liable.</p>

<p>Criminal Law — Injuring Public Jail — Information—Situs of Property Injured — Single Offense. — An information for the crime of injuring a public jail alleged that the defendant, “at the county of San Bernardino, state of California, on or about the sixth day of June, 1885, and prior to the filing of the information, did wrongfully, willfully, intentionally, and feloniously injure the county jail of San Bernardino County by digging a hole in the floor thereof, and prying up, pulling down, and breaking a certain door belonging to and being a portion of said jail, which said jail is a public jail for the confinement of prisoners,” etc. Held, that the information was sufficient, that the venue and situs of the property injured were sufficiently alleged, and that only one offense was charged.</p> <p>Id. — Date of Discovery of Injury — Evidence. — On the trial of such an offense, evidence is admissible that the injury was discovered subsequent to the date alleged in the information for its commission.</p> <p>Id__Date of Commission of Offense. — Except where time is of the es-</p> <p>sence of an offense, a crime alleged to have been committed on a certain day may be shown to have been committed on a subsequent day, if the latter is prior to the filing of the indictment or information.</p> <p>Id, — Evidence—Witnesses.—-Even when time is of the essence of the crime, the facts may be established by one witness, and the date at which they transpired by another.</p> <p>Id. — Instruction—Willful Act Defined. — It is not error to instruct the jury that an act is willful when done with deliberation, and not through surprise or confusion, or a bona fide mistake.</p> <p>Id. —Instruction Approved on the Evidence. — The court instructed the jury that if the defendant willfully and intentionally broke down, or by any means injured, any portion of the county jail, they should find him guilty. The evidence of the offense as charged was confined to the door and its adjoining supports. Held, that the instruction was proper, and did not tend to prejudice the defendant.</p> <p>Id. —Belief — Moral Certainty. —The court further-charged the jury to find the defendant guilty, if from the evidence they believed certain facts, but did not instruct them that their belief should be to a moral .certainty. Held, that no error was committed, in the absence of a request by the defendant for a definition of the term “belief.”</p> <p>Id. — Attempt to Escape — Injury as Incident to. — The offense of injuring a public jail may be committed, although the injury was incidentally done in an attempt to escape.</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 Diego 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>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.</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. The facts are stated in the opinion.

<p>-Appeaii from a judgment hfy'.fhn ^Superior Court of •Monterey County. x • gAAy.-</p> <p>Affihéjácts are stated in the:"Opinion';of-.the court.</p>

<p>Practice — Change of Venue — Impartial Trial — Convenience of Witnesses — Discretion—Appeal.—A motion for a change of the place of trial on the ground of the convenience of witnesses, and because a fair and impartial trial cannot be had in the county in which the action is brought, is addressed, to the sound discretion of the court, and its action thereon will not be reversed on appeal, unless it appears that this discretion has been abused, or injustice has been done.</p>

<p>Ejectment against Indians — Deea,t?i.ts oe Defendants — Motion to Vacate. — The action was brought""to recover the possession of certain land. The defendants, against wbpin defaults were taken, are Mission Indians, and by themselves and their ancestors have occupied the land for many years before the commencement of the action. They are very ignorant and helpless, totally unacquainted with judicial proceedings, and with few exceptions incapable:"of speaking the English language. Held, that a motion to vacate the defaults was properly granted.</p> <p>Id. — Affidavit of Merits — Counsei.".:may Make. — In such a case the affidavit of merits used on the motion, may be made by the counsel of the defendants.</p>

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

<p>Practice — Service, and Filing of Notice — Extension of Time. —Under section 1054 of the Code of Civil Procedure, the power given to the Superior Courts and the judges thereof to extend the time for the service of notices other than notices of appeal includes the power to extend the time for filing such notices.</p> <p>Id. —New Trial — Right to Move for is Statutory. —The right to move for a new trial is statutory, and must be pursued in the manner pointed out by the statute.</p> <p>Id. —Notice of Motion — Extension of Time for Giving. —Before the expiration of the ten days provided by section 659 of the Code of Civil Procedure, within which to move for a new trial, the Superior Court or a judge thereof may for good cause extend the time, not exceeding thirty days, within which to serve and file a notice of the motion. But such an extension cannot be made after the time fixed by the statute-has expired.</p>

<p>Justices’ Court — Penalty eor Collecting Excessive Toll'1- - Action to Recover — Jurisdiction. —A Justices’ Court has no jurisdiction to try an action brought to recover a penalty for collecting an allege^ excessive toll, where the question at issue is whether the amount cob ’cted was a legal toll.</p>

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

<p>Pleading — Action to Recover Illegal Taxes — Official Character of Defendant. —The complaint in an action against a tax collector in his official capacity to recover an amount of money alleged to have been illegally collected from the plaintiff as taxes must aver the fact of the defendant being such am officer.</p> <p>Id, — Several Causes of Action — Omission of Necessary Averment in One. — Where the complaint contains two causes of action, in one of which the official character of the defendant is averred, and in the other it is not, the omission in the latter is not cured by the averment in the former unless special reference is made thereto.</p> <p>Taxation — State Board of Equalization ■ — Raising or Lowering Assessment Roll. — The state board of equalization has power to increase or lower the assessment roll of a county so as to affect taxes for county purposes.</p>

<p>Criminal Law — Information—Setting aside — Objection to Jurisdiction of Court. —An information good upon its face, and regularly filed by the district attorney after an examination and commitment by a magistrate, cannot be set aside on the ground that the offense was not committed in the county alleged in the information. Such an objection may be taken advantage of under a plea of not guilty, and is then a question for the jury to determine.</p> <p>Id. — Order Setting aside Information — Judgment—Appeal.—An order setting aside an information and discharging the defendant is a final judgment, and appealable.</p> <p>Id, — Filing New Information — Exoneration of Bail. — A subsequent order refusing to allow another information to be filed against the defendant, and an order exonerating his bail, are also appealable.</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 lease in question was in writing for the term of •two years ending April 1, 1884, and for an additional term of three years at the option of the tenant. The tenant at the expiration of the original term continued in the possession of the demised property, and on the 19th of April, 1884, the plaintiff served upon him a three -days’ notice to quit for violating a covenant in the lease against subletting. The further facts are stated in the opinion of the court.</p>

<p>State Lands — Purchase oe — Applicants must be Actual Settlers.— Under section 3 of article 17 of the constitution, and section 3495 of the Political Code, a claimant to purchase from the state a tract of its land which is suitable for cultivation, must be, at the time of filing his application, an actual settler thereon.</p> <p>Id. — Actual Settler Deemed. — An actual settler upon land belonging to the state is one who establishes himself upon the land, or fixes his resi dence upon it, to take possession for his exclusive occupancy and use, with a view of acquiring title to it by purchase from the state. For that purpose, an actual entry upon the land, followed by the making of improvements, or building a house thereon in which to reside, and occupation of the land while doing such acts, are evidence of such a settlement as gives to the occupant, if he possesses the qualifications prescribed by law, an inchoate right to purchase the land, and operates as notice to all the world of the right.</p> <p>Id. — Findings. — The findings that the defendant was not an actual settler upon the land at the time of filing his application to purchase, and that the land was unoccupied at the time the plaintiff filed his application, held, not supported by the evidence.</p>

The action was brought on' the official bond of the defendant Grimmenstein, given by him to secure the faithful performance of his duties as marshal of the town of Redwood City, to recover a sum of money alleged to have been collected by him for taxes, and which he had failed to pay over to the town. The answers of the defendants alleged that the money was collected by Grimmenstein in his official capacity of tax collector and not of marshal.

The action was brought on the official bond of the defendant, Grimmenstein, to recover the sum of $547.88, alleged to have been collected by him for taxes due the town of Redwood City, and which he had failed to pay over to the town. The defendant admitted the collection of the money, and claimed that he was entitled thereto as his commissions on the amount of taxes coming into his hands for the fiscal years 1880-81 and 1881-82.

Motion to dismiss appeal on the ground that at the time of the service of notice of appeal, one of the respondents, who had been sued as an administrator of the estate of a deceased person, was in prison under a conviction for the crime of embezzlement. The further facts are stated in the opinion.

<p>Will — Execution — Legislature mat Prescribe Form or. — The legislature has power to prescribe the formalities to be observed in the execution of a will; and by so doing, it does not interfere with the natural right of an individual to dispose of his property as he sees fit.</p>

<p>Appeal — Dismissal—Motion fob when must be Made. — A motion to dismiss an appeal should be made on the day noticed for the hearing, or at the first opportunity during the session of the court. If not so made, the motion lapses, and it cannot be revived at a subsequent session.</p>

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

<p>Appeal from a judgment 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 Monterey County.</p> <p>The facts are stated in -the opinion.</p>

<p>Promissory Note — Purchase after Maturity — Bona Fide Indorsee — Tule. —The purchaser of a promissory note after its apparent maturity is not an indorsee in due course of business, and does not acquire a title thereto free from defects in the title of the person from whom he purchased it.</p> <p>Id. — Provision for Attorney’s Fee — Negotiable Instrument. — A promissory note which provides for the payment of an attorney’s fee, in case suit should be brought thereon, is not a negotiable instrument.</p> <p>Id. — Possession of Note — Transfer by Depositary. — The mere possession by a depositary of a promissory note indorsed in blank by the payee, in the absence of any other evidence of property or authority to sell from the owner, will not enable the depositary to transfer the note so as to pass a good title thereto.</p> <p>Id. — Finding—Evidence—Ratification.—A finding that the plaintiff had not ratified the unauthorized transfer of the note in question, held, to be supported by the evidence.</p>

The defendant, a police officer, was convicted of the crime of receiving a bribe, given to him to procure the release of a person then under arrest. The further facts are stated in the opinion.

<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>

The action was brought to restrain the city and county of San Francisco, and its officers, from constructing a sewer in Mariposa Street, as the same -is laid down on the Van Ness Ordinance Map, from Harrison to Channel streets. Judgment in favor of the defendants. The remaining facts appear in the opinion.

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

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

<p>Mortgage — Mortgagee has No Estate in Mortgaged Premises. — A mortgage is a mere security, and under it no estate in the mortgaged land passes to the mortgagee either before or after condition broken.</p> <p>Id. — Attachment. — A mortgagee has no attachable interest in the mortgaged premises.</p> <p>Id. — Debts Secured by Mortgage how Attached — Garnishment— Supplementary Proceedings. — Debts secured by mortgage, like other debts, may be attached by garnishment, but in no other way, and their payment may be enforced under the provisions of the Code of Civil Procedure relating to proceedings supplementary to execution.</p>

<p>Riparian Proprietor — Erection of Bulkhead — Threatened Change in Channel of Stream. — A riparian proprietor has a right to protect his land from a threatened change in the channel of the adjoining stream, by erecting along the border thereof a bulkhead as high as the original bank of the stream.</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.</p>

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

The motion for a new trial was made on the ground, among others, of newly discovered evidence. The further facts are stated in the opinion.

<p>Criminal 'Law — Murder—Evidence.—On a trial for murder, a witness for the prosecution testified that the defendant fired three shots, the second and third of which struck the deceased, causing her death, and that the third shot struck her in the arm. At the coroner’s inquest, the witness had testified that the second shot struck the arm of the deceased. The counsel for the defendant, after reading to the witness her testimony at the coroner’s inquest, asked her how she knew that it was the second shot that struck the arm of the deceased. Reid, that the question was improper.</p> <p>Id. —Immaterial Evidence. — The witness further testified, in response to . a question by the district attorney, that she had never been on the witness-stand but once before, and that then she was very much excited. The counsel for the defendant then asked her what she was called to testify for. Reid, that the question was immaterial.</p> <p>Id. —Leading! Question. —A witness for the prosecution was asked whom he saw watching around the place of the homicide. Reid, that the question was not leading.</p> <p>Id. — Impeachment of Witness — Contradictory Statements. — In response to a question if he saw any one there, the witness testified that he saw some person at a distance, but did not recognize him at the time, and could make no statement as to who the person was. The prosecution then called other witnesses, who testified that the witness had stated to them that he had seen the defendant near the place of the homicide. Held, that the evidence was inadmissible, but that the error was immaterial, since the other evidence conclusively showed that the defendant was at and near the place of the homicide on the night of its commission.</p> <p>Id, —Instruction — Self-defense — Necessity. —The court instructed the jury that in order to justify the taking of life on the ground of necessity, “it must not only appear that the defendant had reason to believe, and did believe, that he was in danger of his life or of receiving great bodily harm, but it must also appear to the defendant’s comprehension as a reasonable man that to avoid such danger, it was necessary for him to take the life of the assailant.” Held, that the instruction was proper.</p>

<p>Divorce — Maintenance of Wife Living Separate from Husband— Discretion. — In an action for a divorce, the court has discretionary power, under section 136 of the Civil Code, although a divorce is denied, to require the husband to provide for the maintenance of the wife while she is living separate from him, when the circumstances of the case show that it would be impossible for them to live happily together.</p>

<p>Appeal from a judgment of the Superior Court of Placer County, and from an order refusing a new trial.</p> <p>The tax deed in question contained a recital that the land was assessed to unknown owners, and to all owners and claimants known and unknown. The further facts are stated in the head-notes and opinion of the court.</p>

The facts relied upon by the defendants as an estoppel were, that on the 26th of September, 1870, one Seagraves, a justice of the peace, believing himself to be authorized by law so to do, went to the land claimed by Blunt, and with his consent, and that of the defendants, set off a portion thereof for the use of the latter; that Blunt thereupon agreed with the defendants that whenever he should procure a government title to the lands, he would deed the tract so set apart to…

The action was brought to correct a mistake in two deeds- made by tenants in common in partitioning their land. The complaint alleged that at the time the deeds were made, the defendants O. E. Parker and W. H. Troop were the owners of the land in dispute; that in pursuance of an agreement between them to divide the land equally, they each deeded to the other certain portions of the land, but by a mistake the land was not correctly described in the deeds.

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

<p>Warehouse Receipt — Indorsement—Negotiable Instrument. — Under the act of 1878, a warehouse receipt is negotiable, unless it is marked non-negotiable across its face, and the indorsement thereof by the party to whose order it is issued passes the absolute title to the property mentioned therein to the indorsee.</p>

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

<p>Appeal — Evidence—Rejection op — Exception. ■ — An objection to the exclusion of evidence will not be considered on appeal, unless the ruling of the court is excepted to at the trial.</p> <p>Practice — Deposition—Notice op Taking — Specipication op Place.— A notice of the taking of a deposition in the city of San Francisco, which did not specify any place in the city where it would be taken, held, insufficient.</p> <p>Ejectment — Statute op Limitations — Evidence.—Under a plea of the statute of limitations in an action of ejectment, it is competent to show the use the defendant made of the land, that he leased the same to a tenant, and that by his directions it was kept clear of stock belonging to other people.</p> <p>Id.' — Judgment Roll — Action against Tenant. — On the trial, the defendant offered in evidence the judgment roll in an action of unlawful detainer, brought by the plaintiff against a person in possession of the land, in which the court found that the latter was in possession as the tenant of the defendant, and not as the tenant of the plaintiff. Held, that the evidence was admissible.</p> <p>Findings — Immaterial Error. — Where the ultimate facts in issue are found by the court, a contradictory finding as to a probative fact involved therein has no effect.</p>

<p>Criminal Law — Morder—Order for View of Locus in Quo — Modification out of Court. —In a prosecution for murder, where the trial judge has made an order, under section 1119 of the Penal Code, for the jury to view the place of the alleged homicide, and the places at which certain other material facts occurred, a subsequent modification of the order by the judge, made out of court and without the knowledge of the defendant, is not a prejudicial error, if the modification was advantageous to him.</p> <p>Id. —Keeping Jury in a Body during View. —In making the-view, the jury were transported, under the charge of the sheriff and his deputy, to the places specified in the order, in two wagons, which were always in sight of each other. During an intervening night, they slept in separate rooms, to which there was no means of access except by a stairway, where the sheriff and his deputy were stationed. Held, that the rule requiring the jury to be kept in a body during the trial was sufficiently complied with.</p> <p>Id. — Whispering between Jurors. — The fact that the jury whispered among themselves, while viewing the place of the homicide, will not of itself warrant a reversal of the judgment.</p> <p>Id. — Absence of Defendant from Court-room — Immaterial Error.— The absence of the defendant from the court-room for an inappreciable space of time during the trial is not a prejudicial error.</p> <p>Id. —Argument of Counsel — 'Statement of Facts not in Evidence.— Statements made by the counsel for the prosecution, in his address to the jury, as to the impressions made on himself on hearing of the homicide, although objectionable, will not warrant a reversal, if the statements were made in reply to a similar argument by the counsel for the defendant, and the court subsequently instructed the jury not to consider such statements.</p> <p>Id. — Reputation of Defendants — Objection to Form of Question— Appeal. — On the trial, certain witnesses for the prosecution were questioned as to the reputation of the defendant for truth, honesty, and integrity. The counsel for the defendant objected to the questions on the . ground of incompetency and irrelevancy, but made no specific objection that the questions were not directed to the general reputation of the defendant for truth, honesty, and integrity. Held, that the defendant could not complain of the form of the questions.</p> <p>Id. —View by Jury must be had in Presence of Defendant— Constitutional Law. — Section 1119 of the Penal Code, authorizing a jury to be taken from the court-room, pending a trial for murder, to view a place or places elsewhere, does not in its terms authorize such action to be taken unless the defendant be present during the whole time of the view; and if the view is in fact had in his absence, the right secured to him by article 1, section 13, of the constitution, of appearing and defending in person and with counsel, and of being confronted with the witnesses against him on his trial, is violated.</p>

<p>License for Laundries — Charter of Oakland Under the provision of the charter of the city of Oakland, declaring that licenses shall be discriminating and proportionate to the amount of business, the city council may provide-that the licenses to be paid by laundrymen shall be in proportion to the number of persons employed by them.</p>

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

<p>Findings — • Evidence — Appeal — Presumption. — The findings are presumed to be supported by the evidence, in the absence of a showing to the contrary in the record on appeal.</p> <p>Id. — Findings not within Issues. — An objection that certain findings were not within the issues will not be considered on appeal, if no objection to the admission of the evidence supporting the findings ■ was made at the trial.</p>

The action was brought to recover damages from the defendant for the loss of certain household furniture through its negligence. The complaint alleged in effect that the defendant, as a common carrier, received the furniture, carried it to the place of destination, and neg-, ligently stored it in an open barn, where it was destroyed by fire. The further facts are stated in the opinion of the court.