Volume 69 — California Reports

<p>Contempt — Agreement to Influence Decision of Court — Evidence. — The proceeding was brought to punish the defendant for an alleged contempt of the Supreme Court. The accusation charged in effect that the defendant, well knowing that the judgments in certain cases then pending before the court had been affirmed, in consideration of a sum of money to be paid him, undertook and agreed with one of the respondents therein to procure the court to render judgments in the respective cases in their favor. The accusation further charged that the defendant, at the time of the alleged agreement, assured the person with whom he made it, and induced him to believe, that he possessed such influence with the court and the members thereof that he could procure the judgments to be so rendered. Held, that the conduct charged in the accusation constituted a contempt of court, but that the guilt of the defendant was not established by the evidence.</p> <p>Id. — Guilt must be Established by Clear and Satisfactory Evidence. — A proceeding to punish for an alleged contempt, not committed in the presence of the court, is criminal or quasi criminal in its nature, and before a conviction can be bad therein the guilt of the accused must he established by clear and satisfactory evidence. A mere preponderance of evidence is not enough.</p>

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

<p>Application for the disbarment of an attorney and counselor at law. The facts are stated in the head-note and the opinion of the court in The Matter of J. F. Cow= dery, ante, p. 32.</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>Appeal from an order of the Superior Court of the city and county of San Francisco granting a nonsuit, and from an order dissolving a preliminary injunction, and from an order refusing a new trial</p> <p>Motion to dismiss appeal The facts are stated in the opinion of the court.</p>

<p>Application for a writ of mandate to compel the respondent to draw a warrant in favor of the petitioner, for the support of certain aged persons in indigent circumstances in the city and county almshouse, a public institution conducted by it for the support of such persons. The further facts are stated in the opinion of the court.</p>

<p>Deputy Supreme Coubt Reporter—Salary of—Appropriation for.— Treating the act of February 26, 1881, providing for the appointment of a Deputy Supreme Court Reporter, as making an appropriation for the payment of his salary, such appropriation terminated with the fiscal year ending June 30, 1883, and the controller is not authorized to draw a warrant in payment of the salary of that officer subsequently accruing, unless a specific appropriation therefor has been made.</p>

<p>Estate of Deceased Person—Claim:—Affidavit to. —An affidavit to a claim against the estate of a deceased person stated “that the amount thereof, to wit, the sum of four hundred is justly due,” etc., the word “ dollars ” being omitted. In the body of the claim the amount due was stated to.be four hundred dollars. Held, that the affidavit was sufficient.</p> <p>Id. —Reference to Determine Correctness of Claim — Order for mat be Made in Court. —Under section 1507 of the Code of Civil Procedure, a reference to determine the correctness of a claim against the estate of a deceased person may be made in court, if the claimant and the personal representative of the deceased consent thereto.</p>

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

<p>Goods Sold and Delivered—Action to Recover fob—Pleading—Evidence of Sale on Credit—New Matter. — The action was brought to recover for goods sold and delivered. The complaint alleged a promise to pay for the goods on demand. The answer merely denied the allegations of the complaint. On the trial, the court excluded evidence offered by the defendant showing that the goods were sold on a credit of sixty days, which period had not expired when the action was commenced. Held, that the evidence was not new matter, and was admissible in defense of the action without being specially pleaded.</p>

<p>Municipal Corporation—Power to Impose Licenses—Constitutional Law. — Under sections II and 1 of article II of the constitution o£ 1879, a municipal corporation has power to impose licenses for carrying on business, or for revenue, or both.</p> <p>Id.— Effect of Constitution on Existing Municipalities. —The constitution did not abolish the municipalities of the state, nor abrogate their charters, nor change the powers granted by them, except where they may have been enlarged or contracted by its provisions; on the contrary, the constitution made existing municipalities more independent of state ■ control, by inhibiting the legislature from passing special laws for any municipality, and from imposing taxes for any municipal purpose. At the same time it conferred upon all existing municipalities the power to make and administer, within their respective limits, all such local, police, sanitary, and other laws as are not in conflict with the general laws of the state.</p> <p>Id. — Cut of Los Angeles—Ordinance of September 29, 1885—Valid-ity of. — At the time of the passage by the city of Los Angeles of the ordinance of September 2$, 1885, providing for the licensing of business carried on within the city, there had been no general laws passed by the legislature, which, in terms or by impBcation, conflicted with the provisions of the ordinance, or restricted the municipality in the exercise of its power to pass it. The ordinance was therefore in harmony with the constitution, the general laws of the state, and the city charter.</p> <p>Id. — Authentication of Ordinance by Clerk.—Section 2 of article 12 of the charter provided that every ordinance passed by the council should, before it became effective, be signed by the clerk of the council. The charter further provided for the election of a city auditor, who should, also be ex officio clerk of the council. The ordinance in question was signed by “ W. W. Robinson, clerk of the council of the city of Los Angeles.” Held, that the ordinance was properly authenticated under section 1031 of the Political Code.</p> <p>Id.—-Order for Publication of Ordinance.—The ordinance provided that the clerk of the council should certify to its passage, and cause it to be published in a designated newspaper. Held, that the order for publication was sufficient, and the fact that it was contained in the ordinance did not affect either the order or ordinance.</p> <p>Id. — Held further, that to render the order effectual its publication was not necessary.</p> <p>Id, — Liquor License — Reasonableness of. — The ordinance required that a license fee of fifty dollars a month should be paid by a person carrying on the business'of a saloon, where liquors are sold or given away in quantities less than a gallon. Held, that it could not be presumed as a matter of law that the amount of the license was oppressive, unreasonable, or prohibitory of trade.</p> <p>Id.—Violation of Ordinance — Punishment by Municipality.—The city of Los Angeles had power under its charter to provide that any violation of the provisions of the ordinance should be a misdemeanor and punishable as such. The power is also conferred upon the municipality by the provision of the constitution authorizing it to make and enforce within its limits all such local, sanitary, and other laws as are not in conflict with the general laws of the state.</p> <p>Id.—Issuance of License — Delegation of Authority—Permit from Police Commissioners. —The city council has authority to delegate the performance of the ministerial act of issuing licenses to the clerk of the council, and also to make the issuance of a license for the sale of liquors conditioned upon the applicant’s obtaining a permit from the board of police commissioners.</p> <p>Id.—City Court of Los Angeles — Constitution did not Abolish.— The city court of Los Angeles, as created by the charter of the city, was not abolished by the constitution, nor are the provisions of the charter making the mayor of the city a component part of the council and ex oficio city judge unconstitutional.</p> <p>Id.—Mayor as Judge — Disqualification.—The fact that the mayor presided over the council that passed the ordinance did not divest him of his authority under the charter to act as the judge of the City Court on the trial of a prosecution for violating the ordinance; nor was he as judge of that court disqualified from trying such a case because the charter required all fines collected therein to be paid into the salary fund, or because his action as mayor in approving the ordinance had been severely criticised by the city press.</p>

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

<p>Appeal—Notice of — Order Refusing New Trial. —The notice of appeal stated that the appeal was taken “from an order overruling and denying defendant’s motion for new trial upon the judgment made and entered in above-entitled action, which said order overruling and denying defendant’s motion for new trial was made and entered by said court herein on the sixteenth day of September, 1887.” The notice was properly entitled in the cause, and an order denying the motion for a new trial on the above date appeared in the transcript. Held, that an appeal from the order was sufficiently expressed in the notice.</p> <p>Id. — New Trial — Notice of Intention — Appeal — Record. — A notice of intention to move for a new trial is not a part of the judgment roll, and . will not he considered on appeal unless it is made a part of the record by being embodied in a statement or bill of exceptions.</p> <p>Id. —Time for Serving Notice—Objection to —Notice of Decision. — An appeal from an order refusing a new trial, in an action tried by the court, will not be dismissed on the ground that the notice of intention to move for a new trial was not given in time, if the transcript fails to show that any notice of the decision was ever given, or that any objection was •' made in the lower court that the notice of intention was not given in time.</p> <p>Id.—Statement of Case—Settlement of—Certificate of Judge.— Appended to the statement on the motion for a new trial was a certificate of the trial judge, signed by him, as follows: “I hereby certify that the foregoing statement of the case on motion for a new trial is the statement settled and allowed by me therefor. ” Held, that the statement was properly settled.</p> <p>Sale of Animals — Liability of Purchaser for Loss by Death. — The defendant sold to the plaintiffs a band of horses, then running at large, for a stipulated price, and guaranteed that, when gathered up, they should amount to a certain number. Between the date of the sale and the gathering up of the horses two of them died. Held, that the plaintiffs must suffer the loss.</p> <p>Findings — Immaterial Issues. — Certain issues raised by the pleadings examined, and held to be immaterial.</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>Appeal from a judgment of the Superior Court of Sonoma County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Ejectment—Special Issues—Findings against Dependant—Rental Value — Instruction to Find for Plaintiff. — The action was brought to recover the possession of certain land. The complaint was in the usual form, and prayed for the recovery of the possession, with damages for the withholding, and the value of the rents and profits. The answer, besides a general denial, set up the statute of limitations and a previous judgment in bar of the action, and as a cross-complaint, alleged an agreement by the plaintiff to convey the land to the defendant, and prayed for a specific performance thereof. The special issues raised by the cross-complaint were submitted to the jury, who found thereon adversely to the defendant. At the trial, the ownership of the land by the plaintiff at the date of the alleged agreement was admitted. No evidence in support of the plea of a former adjudication was offered, and the evidence was insufficient to sustain the plea of the statute of limitations. The defendant testified that the rental value of the premises was about ten dollars a month. On the coming in of the special verdict, the court instructed the jury to find for the plaintiff, and to fix the rental value at eight dollars a month. Held, that the instruction of the court was proper.</p> <p>Id. —When Court mat Direct Verdict. —The court has power to direct a verdict when there is no conflict in' the evidence.</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>Promissory Note — Transfer after Maturity— Title of Transferee. — The transferee of a promissory note, after its maturity, is not an indorsee in due course of business, and does not acquire an absolute title thereto, so that it is valid in his hands, notwithstanding a defect in the title of 'the transferer.</p> <p>Id.—Action by Holder—Ownership and Right of Possession—Evidence. — To entitle the holder of a promissory note to maintain an action thereon, he must be the legal owner, and have the right of possession, and his ownership must be sufficient to protect the maker from a subsequent recovery against him.' In such an action, the defendant may show that the plaintiff paid no consideration for the note and is not the legal owner of it.</p> <p>Id.—Estoppel—Evidence.—On a review of the evidence, held, that the defendant was not estopped to dispute the ownership of the note by the plaintiff.</p>

<p>Trespassing Cattle—Land in Santa Clara County — Owner not Required to Fence. —■ An owner of land situated in Santa Clara county, under the act of April, 1863, as amended in March, 1872, is not required to fence it against cattle belonging to another person; and the owner of such cattle, if he allows them to trespass thereon, is liable for the damage done, whether the land was fenced or not.</p>

<p>Laundries—Municipality may Restrict Places oj? Business — Constitutional Law. —The city of Modesto has authority, under section 11 of article 11, of the constitution, to pass an ordinance prohibiting the carrying on of a public laundry or wash-house within the city limits, except within certain prescribed boundaries. Such an ordinance is not unreasonable, nor in violation of article 1, sections 11 and 21, of the constitution because not uniform, in its operation.</p>

<p>Change of Place of Trial — Convenience of Witnesses—Answer.—A defendant is not entitled to a change of the place of trial, on the ground of the convenience of witnesses, until he has filed an answer in the case.</p> <p>Id.—Substituted Defendant—Right of to Change.—One who is involuntarily substituted as the sole defendant in an action, under section 386 of the Code of Civil Procedure, is entitled to a change of the place of trial to the county in which he resides, notwithstanding the failure of the original defendant to demand such a change.</p>

<p>Trespass—Action to Recover for—Devisee in Possession may Maintain. •— One who is in possession of land as a sole devisee, pending the settlement of the estate of the testator, may maintain an action in her individual name to recover damages for a trespass committed thereon after the death of the testator, and while she is in possession.</p> <p>Id. —Judgment in Favor of Devisee — Bar to Recovery by Executrix. — If the devisee is also the executrix of the will of the devisor, a recovery hy her in such an action is a bar to a subsequent recovery in an action instituted by her in her representative capacity.</p> <p>Pleading — Complaint — Ambiguity—Demubrer.—An objection to a complaint on the ground of ambiguity must be taken advantage of by a special demurrer; otherwise the defect is waived.</p> <p>Id.—Blasting Books in City—Liability for Damages. — Where the owner of a lot situated in a large city, and contiguous to the dwelling-house of another, uses gunpowder to blast out rocks on his lot, he is liable for the damage proximately and naturally resulting to the house of the adjoining owner from the act of blasting, whether the damage was caused by rocks thrown against th^ house or by a concussion of the air around it.</p> <p>Id.—Unreasonable Use of Property — Skill in Use. — Such a use of property is unreasonable, unusual, and unnatural, and no care or skill exercised in the use will excuse the owner from liability for the damages proximately and naturally resulting from the blasting.</p> <p>Excessive Judgment — Verdict.—A judgment entered for an amount in excess of the verdict is erroneous, and will be modified on appeal.</p>

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

<p>Criminal Law—Murder.—Statement by Deceased—Admissibility of — Evidence. —In a prosecution formurder, a statement by the deceased that the defendant shot him, if made almost eo instanti the firing of the fatal shot, and before the defendant had proceeded farther than across the street from the place of the homicide, is admissible in evidence, although such statement was not made in the immediate presence of the defendant.</p> <p>Id.—New Trial—Newly Discovered Evidence.—Anew trial will not be granted on the ground of newly discovered evidence, if the evidence is merely cumulative, and is contradicted by the affidavits of the adverse party.</p> <p>Id. —Instruction—Reasonable Doubt—Error. —The court charged the jury that they should acquit, if they had from the evidence a reasonable doubt of the guilt or innocence of the defendant. Held, that the instruction was more favorable to the defendant than he was entitled to, and was not a prejudicial error.</p> <p>Id. —Circumstantial Evidence—Weight of. — A statement by the court in its instructions that there was evidence in the case of a circumstantial nature, is not error, if the charge as a whole did not convey to the jury any opinion of the court as to the weight of such evidence.</p> <p>Id. —Instruction that Act is Murder. —Where there is no conflict in the evidence as to the homicide being murder, the court may so instruct the j™-y-</p> <p>Id. — Relationship of Witness—Evidence of Admissible. — In a criminal case, where a son of the defendant testifies in his behalf, evidence of flheir relationship is admissible, and the court may instruct the jury that they may consult their general knowledge and experience in life as to whether or not a son would he apt to favor his father in giving his testimony.</p> <p>Id.—Alibi—-Character of Evidence to Prove.—Certain observations made by the court in the instructions to the jury as to the character of the evidence that might he used to prove an aUbi examined, and held not erroneous.</p>

The defendants were convicted of the crime of arson in the second degree. The further facts are stated in the opinion of the court.

<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 head-note and opinion of the court. ,</p>

<p>Ejectment—Judgment in when not a Bab.—On the 20th of January, 1879, the land in controversy was public land of the United States, and open to pre-emption or homestead entry. On that day, one Thrift made a homestead entry upon it by filing with the register and receiver of the proper United States land-office the requisite application and affidavit, and paying them their fee and commission. On the 15th of April, 1879, the defendant, Delaney, brought an action against Thrift to recover the possession of the land. The complaint alleged that Delaney was the owner and seised in fee of the premises, and that Thrift had entered and ousted him therefrom. The answer was a specific denial of these allegations. On the trial, Delaney offered no evidence of a paper title, but relied solely on evidence of prior actual possession and inclosure of the land. Thrift contested his right to recover on that ground, but did not offer any evidence of his homestead entry. Judgment was rendered in favor of Delaney, under which he was placed in possession. Subsequently Thrift commuted his homestead entry to a cash entry, and a United States patent for the land was issued to him. Thereafter he commenced the present action to recover possession of the land, in bar of which the defendant pleaded the former judgment in his favor. Held, that the judgment was not a bar, as the patent based upon the cash entry gave the plaintiff a new title, which was not put in issue in the former action.</p> <p>Id. —Conclusiveness of Judgment—Subsequent Title. —-A judgment in an action to recover the possession of real property under the Code of Civil Procedure is conclusive between the parties and their privies as to all matters put in issue and passed on in the action, and is a bar to another action between them when the same matters are directly in issue. The bar of such a judgment is, however, limited to the rights of the parties as they existed at the time when it was rendered, and neither the parties nor their privies are precluded from showing in a subsequent action any new matters occurring after its rendition which give the defeated party a title or right of possession.</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 action was brought to procure the abatement of an obstruction of a right of way over land owned by the defendant. The court found that the plaintiffs became entitled to the right of way of necessity, and had been in the continuous, uninterrupted, and adverse use of it for more than five years immediately preceding the erection of the obstruction by the defendant. The further facts are stated in the opinion.

<p>Appeal from a judgment of the Superior Court of Sonoma 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 Mr. Justice Ross in Department One.</p>

<p>Hastings College of Law—Affiliation with University of California —Legislature cannot Change Form of Government. —After the affiliation of the Hastings College of the Law with the University of California, the legislature had no power, under section 9 of article 9 of the constitution, to change the form of government of the college; consequently, the acts of March 3, 1883, and of March 18, 1885, assuming to transfer the control of the college from the directors named in the act of March 26, 1878, creating it, are unconstitutional.</p>

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

<p>Traveling Expenses of Surveyor-general and Attorney-general— Appropriation. —The act of March 9, 1883, making appropriations for the thirty-fifth and thirty-sixth fiscal years, appropriated one thousand dollars for the traveling expenses of the surveyor-general and attorney general when engaged in contests between the state and the United States as to public lands. The act further provided that not more than one half of any sum appropriated thereby should be expended during the thirty-fifth fiscal year. During that year, one half of the appropriation was exhausted in payment of such traveling expenses. Held, that the controller was not authorized to draw his warrant in payment of any further traveling expenses incurred by these officers during that period.</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 of the court.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco settling the account of a special administrator.</p> <p>Upon the settlement of the account in question, the court found that the special administrator was indebted to the deceased in a large sum of money, for which he had failed to charge himself in his account, and. ordered that he charge himself therewith. The further facts are stated in the opinion of the court.</p>

The appeal was regularly taken, and was accompanied by an undertaking in the sum of three hundred dollars, as provided for by section 941 of the Code of Civil Procedure. The further facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of Alameda County setting apart a homestead to an insolvent debtor.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mandamus—Justice’s Court—Appeal—Trial by Superior Court— Failure to File Findings.—A writ of mandate will not lie to compel the Superior Court to restore to its calendar a case tried by it on an appeal from a Justice’s Court, in which judgment was rendered without filing findings of fact.</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>

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

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

<p>Street Assessment—Completion of Work—Expiration of Time for— Extension of by Supervisors. —Where the contract time for the completion of the work of grading a street in the city and county of San Francisco has been extended by the board of supervisors, and the extension has expired without the work being completed, the board has no power to further extend the time for its completion.</p> <p>Id.—Protest against Extension—Appeal to Supervisors—Estoppel. — The owners of lots against which the assessment is levied are not estopped from disputing its validity because they protested against the extension and appealed from the assessment to the board of supervisors.</p> <p>Judgment—Reversal — Immaterial Error. —A judgment will not be reversed for a harmless and immaterial error.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing to amend a judgment.</p> <p>The judgment in question provided that the plaintiff have and recover from Samuel Epstein, the defendant served, a certain sum of money. The further facts are stated in the opinion.</p>

<p>Estate of Decedent—Homestead—Setting apabt fob Minor Children— Land Disposed of by Will.—The testator by her will provided that all her property should be sold, and bequeathed a portion of the proceeds to her brother. The only property of her estate consisted of a house and lot of the value of §850. Pending the settlement of the estate, an application was made that the house and lot be set apart as a homestead for the use of the minor children of the deceased. Held, that the court had no discretion in the matter, and that the application was properly granted.</p>

<p>Application for a writ of mandate. 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.</p> <p>The facts are stated in the head-notes and opinions.</p>

<p>Street Work — City oi? Oakland—Statutes Regulating—Levy and Collection oe Assessment—Letting Contract—Constitutional Law. ■—The application was for a writ of mandate to compel the defendant, as the city marshal of the city of Oakland, to enter into and execute a certain contract for grading, curbing, and macadamizing to the official grade a portion of a street in the city of Oakland, and to fix the times for the commencement and completion of the work to be done under the contract. The proceedings for the work were taken under the act of April 4, 1864, and the various acts amendatory thereof, authorizing the city council of Oakland to improve the streets within the city limits, and under the act of March 18, 1885, providing for work upon streets, and for the construction of sewers within municipalities. Neither of such acts made any provision for levying, collecting, and paying into the treasury of the city an assessment previous to the making of a contract for letting or doing the work, or the commencement of the work, as required by section 19 of article 11 of the constitution of 1879. The petitioner contended that this requirement had been abrogated by an amendment to the constitution proposed by the legislature in 1883, and adopted by the people at the general election in 1884, and that the act of March 18, 1885, providing for a contract for doing street work in advance of an assessment levied, is constitutional. The proposed amendment, during its progress through the legislature, was referred to in the journals of the senate and the assembly as Senate Bill No. 10, but was not copied at large in the respective journals. Held by Thornton, J., and McKee, J., that the failure to enter the proposed amendment at large in the journals was in violation of section 1 of article 18 of the constitution, and that the amendment never took effect.</p> <p>Id. —Held further by Thornton, J., amd McKee, J., that section 19 of article 11 of the constitution was self-executing, and nullified all statutes then existing, or which might thereafter be passed, inconsistent with its provisions.</p> <p>Id.—Held by McKinstry, J., and Sharpstein, J., that the act of April 4, 1864, as amended by the act of March 29, 1870, is still in force in the city of Oaldand, but that the application for a writ of mandate should be denied, as it did not appear from the affidavit of the petitioner that it had complied with the requirements of such acts.</p>

<p>Bankruptcy—Discharge — Liability or Property Attached—Judg-, ment. —The action was commenced on the 16th of May, 1876, to recover the value of professional services rendered by the plaintiff to the defendant. On the following day, certain money belonging to the defendant, on deposit in the Bank of California, was levied upon under an attachment regularly issued in the action. On the 17th of June, 1876, the defendant procured the release of the property attached by giving the undertaking required by section 555 of the Code of Civil Procedure. Pending the action, on the 15th of March, 1877, the defendant instituted proceedings for his discharge in bankruptcy, and on the 27th of September, 1878, obtained a certificate discharging Mm from all his debts existing on the 15th of March, 1877. The defendant set up Ms discharge as a bar to the action in a supplemental answer. Judgment was rendered in favor of the plaintiff as stated in the opinion. Held, that the judgment was proper, as the lien of the attachment, which accrued more than four months prior to the commencement of the bankruptcy proceedings, was not affected by the discharge.</p> <p>Id. — Held further, that the portion of the judgment purporting to authorize a proceeding on the undertaking against the sureties was surplusage.</p>

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

<p>Husband and Wife—Necessaries Furnished Wife—Liability of Husband—Pleading.—The action was brought to recover the value of certain necessary articles supplied to the wife of the defendant. The complaint alleged that for more than two years immediately preceding the commencement of the action, the defendant neglected to make adequate or any provision for his wife, and that during that period the plaintiff, in good faith and at her request, supplied her with certain specified articles which were necessary for her support and maintenance, and which were reasonably worth a stated amount; that the wife never abandoned the defendant, nor did she ever live separate from him by agreement; and that by reason of the premises the defendant "became indebted to the plaintiff for the value of the articles so furnished, no part of which has been paid. Held, that the complaint was sufficient under sections 174 and 175 of the Civil Code, notwithstanding the failure to allege that the articles were sold and delivered to the defendant.</p>

The action was brought to recover damages for the removal of a fire-proof vault from the premises of the plaintiffs, and its conversion by the defendant. The opinion on a former hearing is reported in 52 Cal. 350. The further facts are stated in the opinion of the court.

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

The action was brought to recover damages for a libel. The facts are stated in the head-notes and opinion of the. court.

<p>San Luis Obispo County—Recorder—Fees must be Paid into Treasury. —Under the act of March 21, 1876, all fees collected by the county recorder of San Luis Obispo County, for services rendered by him or his deputies in their several official capacities, must be paid into the county treasury to be applied to the payment of the current expenses of the county.</p> <p>Id.—Action to Recover Fees—Statute of Limitations—Trust—Demand. — The fees so collected by the county recorder, and not paid over, are held by him in trust for the county, and the statute of limitations does not commence to run against the right of the county to recover the same until a demand has been made on the recorder therefor.</p>

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

<p>Fraudulent Repbesentations—Action to Recoveii eor—Pleadings. — The action was brought to have the defendant declared a trustee for the plaintiff of a balance alleged to be due on a certain promissory note. The note was executed by the defendant to the plaintiff, and was surrendered by her upon the payment by the defendant of am amount less than that apparently due thereon. The complaint alleged that the plaintiff was induced to surrender the note by reason of certain fraudulent representations of the defendant as to the amount due, but failed to allege that she was misled thereby. Held, that the complaint was insufficient.</p> <p>Change of Venue — Order for — Payment of Costs on — Setting aside Order. —The court in which the action was commenced made an order for the transfer of the cause for trial to the county in which the defendant resided, on condition that the defendant pay certain costs. The order did not specify any time within which the costs should be paid. Fourteen days afterwards, the court, on an ex parte application, set aside the order of transfer for the reason that the costs had not been paid, although the defendant then and there offered to pay the same. Held, that the order setting aside the order of transfer was properly made.</p>

The action was brought to quiet title to a tract of land in Fresno County. The plaintiff claimed title to the land by mesne conveyances from the heirs at law of C. E. G-raxiola, at the time of his death the owner thereof. The defendants claimed title under a tax deed based upon the assessment mentioned in the opinion. The further facts are stated in the opinion of the court.

The defendant was prosecuted by information for the crime of grand larceny, and convicted. The information was filed on the 1st of October, 1885, and on the following day the defendant was arraigned.

<p>Grand Jury—Collateral Attack on Validity— Contempt. — The validity of a grand jury cannot be drawn in question in a proceeding of contempt to punish a person for refusing to testify before it.</p> <p>Id. — Jurisdiction. —A grand jury is part of the court by which it is convened, and the court has jurisdiction to adjudge a witness who defies the authority of the grand jury, by refusing to testify before it, guilty of contempt, and to punish him therefor.</p> <p>Id.—Term op Service.—A grand jury legally constituted may continue to act until dissolved by operation of law or an order of court.</p> <p>Id. -—Grand Jury op 1885. —The grand jury organized on the 14th of July, 1885, in the city and county of San Francisco, was not dissolved by operation of law during or at the expiration of that year, and was a valid body on the 26th of March, 1886, notwithstanding the names of grand jurors were selected and returned in January, 1886, for that year, from which a new grand jury might have been drawn. Section 241 of the Code of Civil Procedure prescribes no specific time for the drawing of the grand jury, or for its official existence. These matters have been left to the discretion of the court.</p> <p>Id.—Terms of Court.—The constitution of 1879 abolished the-system of terms and final adjournments under which judicial business was transacted by the former courts. The word “sessions,” as used in sections 73 and 74 of the Code of Civil Procedure, means the time during which the court is in fact held at the place appointed and engaged in business; and the word “recesses” means the times in which the court is not actually engaged in business. There is no division of time into certain periods of the year known as terms of court at which a court may sit to hear and determine causes.</p>

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

The twenty-third instruction requested by the defendant, and refused by the court, was to the effect that the jury could find the defendant guilty of murder in the first or second degree, or of manslaughter. The further facts are stated in the opinion.

<p>Justice’s Court—Action fob Fine, Penalty, ob Forfeiture—Jurisdiction—Legality of Assessment — Pleadings.—A Justice’s Court has jurisdiction of an action to recover a sum of money less in amount than three hundred dollars for a fine, penalty, or forfeiture given by statute or ordinance of a municipal corporation; provided no question of the legality of any tax, impost, assessment, toll, or municipal fine is raised. If any such question is raised, it must be by answer, verified by the oath of the defendant, and unless so raised, no evidence as to such legality can be received, either in the Justice’s Court, or on appeal in the Superior Court.</p> <p>Id. —Appeal to Supreme Court. —In such an action, the Supreme Court has no jurisdiction of an appeal from the Superior Court, if no question as to such legality is raised by the answer.</p>

<p>Practice—Memorandum of Costs—Time for Filing —Notice of Decision. —Under section 1033 of the Code of Civil Procedure, in an action tried by the court, a memorandum of costs is not filed in time if the filing thereof is made more than five days after the party claiming the costs had knowledge of the decision, although no notice of the decision has been served on him by the adverse party.</p>

<p>Eoboible Entbt—Action fob—What Plaintiff must Show. —In order to maintain an action of forcible entry, the plaintiff must show that he was in the actual and peaceable possession of the property entered upon; that the defendant, by some kind of violence or circumstance of terror, entered into or upon the property, and so turned the plaintiff out and took and held possession of it himself; or that after making a peaceable entry the defendant, by force, threats, or menacing conduct, turned the plaintiff out and took the possession.</p> <p>Id.—Does not Lie fob. Mebe Tbespass.—An action of forcible entry does not lie for a mere trespass on land.</p> <p>Id.—Evidence — Possession.—The evidence reviewed, and held not to show a forcible entry by the defendants, or such an actual and peaceable possession in the plaintiff as was necessary to enable him to maintain the action.</p>

<p>Promissory Note—Action by Indorsee—Pleading—Allegation or Ownership — Presumption. —The action was brought on a promissory note by an indorsee. The complaint alleged that prior to the commencement of the action the original payee indorsed, assigned, and delivered the note to the plaintiff. Held, that the plaintiff was presumed to be the owner and holder of the note at the commencement of the action, and that no allegation on the subject was required.</p>

<p>Ejectment—Action against Tenant — Substitution of Landlord as Defendant. —Prior to the adoption of section 379 of the Code of Civil Procedure, the court had power, in an action of ejectment against a tenant in possession, to substitute the landlord as the party defendant, after a notice and motion to that effect.</p> <p>Practice — Appeal—Bill of Exceptions — Delay in Settlement. —The Supreme Court will not refuse to consider a hill of exceptions on the ground that it was not settled in time, unless it affirmatively appears from the record that the bill was not presented in time, or that the regular steps were not taken for its settlement.</p> <p>Id.—Assignment of Error of Law.—A hill of exceptions need not contain any assignments of errors of law, and maybe settled after an appeal has been taken.</p> <p>Id. —Delay in Filing. —Delay in filing a hill of exceptions for more than six months after its allowance by the judge will not authorize the Supreme Court to disregard it, if -it is properly certified to the court as a part of the record. „</p> <p>Ejectment—Intervention by Landlord—Equitable Defense — Unexecuted Conspiracy. — Conceding that, in an action of ejectment against a tenant in possession, the landlord may intervene and set up any equitable defense which he may have to the action, an intervention by the landlord which merely avers an unexecuted design, by collusion between the tenant of the intervenor and the plaintiff, to allow a judgment by default against the tenant, before the landlord was informed of it, does not raise any equitable issues.</p> <p>Id. — Insufficient Averments — Equitable Relief—Fraudulent Action — Injunction. —In such an action, an averment by the intervenor that the claim of the plaintiff is invalid and unfounded, and a cloud upon his title, and that the plaintiff intends to prosecute another clandestine and fraudulent suit of ejectment against the intervenor’s servants in charge of the land, without his knowledge, and with a view to trick him out of the possession thereof, is not sufficient to entitle the intervenor to invoke the aid of a court of equity, or to an injunction against the prosecution of such alleged fraudulent suit.</p> <p>Id. —One not a Party cannot be Dispossessed. —A person in the possession of land cannot be dispossessed under a writ issued on a judgment rendered in an action to which he was not a party, in which he was not heard, and where the defendants never were in possession.</p> <p>Appeal — Order Refusing to Vacate Judgment.—The Supreme Court will not take jurisdiction of an appeal from an order refusing to vacate a judgment if the errors alleged to have been committed can be considered on an appeal from the judgment.</p>

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

<p>Criminal Law — Setting aside Information.—Mere irregularities or in-formalities before the committing magistrate, which do not deprive the defendant of any substantial right, will not warrant the quashing of an information.</p> <p>Id.—Preliminary Examination—Omission to Examine Witness as to his Business. — The omission of the district attorney and magistrate, on the preliminary examination, to ask a witness for the prosecution his profession or business is not prejudicial to the defendant.</p> <p>Id. —Evidence. —Reputation of Defendant. —The defendant was prosecuted for an assault with a deadly weapon. On the trial, a witness was asked to state the general reputation of the defendant for peace and quietness in the county, so far as he knew. The witness had not stated that he lived in the county or knew the general reputation of the defendant therein. The court excluded the evidence. Held, that the ruling of the court was proper.</p> <p>Id.—Deadly Weapon Defined.—The court instructed the jury that a deadly weapon “is any weapon or instrument by which death maybe produced, or would be likely to be produced, when being used in the manner in which it may appear it was used in the affray. The jury are the judges as to whether the weapon was or was not a deadly weapon.” Held, that the instruction was correct.</p> <p>Id.—Instructions—Reasonable Apprehension of Injury.—The court refused to instruct the jury that they should acquit the defendant if they entertained a reasonable doubt that he made the assault under a reasonable apprehension of great bodily harm. Held, that the refusal was proper, as the defendant could not justify the assault unless the use of a deadly weapon was necessary to prevent the injury.</p> <p>Ip.—Burden of Proof—Reasonable Doubt.—In such a prosecution, if the defendant relies upon no separate, distinct, or independent fact, but confines his defense to the original transaction on which the charge is founded, with its accompanying circumstances, the burden of proof never shifts, but remains upon the government throughout the case to prove the act a criminal one beyond a reasonable doubt.</p> <p>Id.—Evidence—Impeachment of Witness — Judgment and Sentence for Felony. — The party seeking to impeach a witness may ask him on cross-examination whether a judgment and sentence had been pronounced against him for a felony.</p>

<p>Appeal from an order of the Superior Court of Lake County refusing to change the place of trial.</p> <p>The 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.</p>

<p>Ejectment—Deed—Consideration need not be Proved. —In an action of ejectment, the deed under which the plaintiff claims title to the premises in controversy, if regular in form and properly executed, is admissible in evidence without allegation or proof of the payment of the consideration for its execution.</p> <p>Id.—Agreement to Assume Mortgage—Condition—Legad Title— Possession. — An agreement by the grantee in a deed, forming part of the consideration therefor, to assume and pay a mortgage previously executed on the land by the grantor, does not constitute a condition upon the breach of which the title would revest in the grantor. Such a deed vests the legal title in the grantee, and his right to the possession of the land conveyed cannot be defeated by showing that he had failed to pay the mortgage.</p> <p>Id.—Action or Unlawful Detainer—Abatement.—In an action of ejectment in which the plaintiff bases his right to recover the possession of the premises in controversy on a deed from the defendants to him, the pendency of an action brought by the plaintiff against the defend- ■ ants for an unlawful detention by them of the same premises, after the expiration of an alleged lease, cannot be pleaded in abatement.</p> <p>Id.—Finding—Rental Value.—A finding that the rental value of a piece of land is twenty-five dollars a month is equivalent to a finding that the rental value is three hundred dollars a, year.</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 Lake County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court. ■</p>

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

<p>Appeal — Order Refusing Transfer.—An appeal cannot betaken from an order denying a motion to set aside a former order refusing the transfer of a cause to the Federal Courts. Such action can be reviewed only on an appeal from the final judgment.</p> <p>Id.—Order of Dismissal.—An appeal cannot be taken from an order denying a motion to set aside a former order of dismissal as to some of the defendants in an action of ejectment. The order of dismissal is a final judgment when entered, and is itself appealable.</p>

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

<p>Practice—Renewal of Motion—Jurisdiction—Discretion.—In all ordinary motions, where the jurisdiction is not limited by statute, it is in the discretionary power of the court or judge hearing and denying a motion to grant leave for its renewal.</p> <p>Id. — This discretionary power will be presumed to have been properly exercised, unless the contrary is ma'de to appear. So held where leave was granted a third time on new grounds to renew a motion to set aside a default.</p> <p>Id. — Default. — A default inadvertently permitted by a party having a substantial defense presents a case in which great latitude should be extended to the discretion of the court by which the default was set aside.</p>

<p>Practice—Prior Action when not Bar—Dismissal.—An action will not be dismissed on the ground that at the time it was commenced there was another action pending between the same parties for the same cause of action, if prior to the trial of the second action the former had been dismissed by stipulation of the parties.</p> <p>Street Assessment — Cost of Unauthorized Work—Appeal to Supervisors. — A street assessment which includes the cost of more work than that authorized is not void as to the cost of work properly included therein, and may be corrected on an appeal to the board of supervisors. Id.—Action to Enforce Assessment—Second Assessment—Estoppel — Evidence. — The defendants, in an action for the enforcement of a street assessment in the city and county of San Francisco, averred in their answer that the assessment was void because it included the cost of work that was not authorized by the order of the board of supervisors, and procured the dismissal of the action on that ground. The superintendent of streets, acting upon the supposed invalidity of the assessment, thereupon made a second assessment, covering the work ordered by the board, which the present action was brought to enforce. The defendants set up the first assessment as a bar to the action. Held, that the defendants were estopped to deny the invalidity of the first assessment, and that the plaintiffs could introduce evidence of the estoppel without pleading it.</p> <p>Id. — Superintendent of Streets. —Held further, that the superintendent of streets had power to make the second assessment, which, if valid, superseded the first assessment.</p>

<p>Appeal—S deficiency oe Evidence — Verdict.—The sufficiency of the evidence to sustain the verdict will not be considered on appeal if the statement contains no specifications of the particulars wherein the evidence is insufficient.</p> <p>Employer and Employee—Breach oe Contract—Action of Quantum Meruit. — One employed to do certain work for a specified term at an agreed compensation may maintain an action to recover the reasonable value of work done by him in pursuance of the contract, if during the term the employer denies his rights under the contract and attempts to rescind it.</p> <p>Evidence — Intention oe Adverse Party.—Evidence of one party, pur» porting to declare the intention of the other party concerning the matter in controversy, is inadmissible.</p> <p>Contract—Action eor Services -t- Cross-complaint—Remote Damages. — The action was brought to recover the reasonable value of services rendered by the plaintiff to the defendant on certain land which was leased by the latter. The defendant in his cross-complaint alleged that the plaintiff had violated the contract under which the work was done, by reason of the unskillful manner in which the work was performed; that he was compelled to surrender his lease to his landlord by reason thereof, and sought to recover the damages occasioned thereby. Held, that the damages were not a direct consequence of the plaintiff’s violation of the contract.</p> <p>Evidence — Cross-examination—Hostility__The party against whom a</p> <p>witness is called may cross-examine him for the purpose of showing his hostility.</p> <p>Employer and Employee—Dismissal for Cause—Right to Compensation. — An employee dismissed by his employer for good cause is not</p> <p>- entitled to any compensation for services rendered since the last day upon which a payment became due to him under the contract of employment.</p>

<p>Applications for writs of mandate. The facts are stated in the head-notes and opinion of the court.</p>