Volume 70 — California Reports

<p>Criminal Law—Assault with Deadly Weapon—Punishment of— Constitutional Law. — The punishment for an assault with a deadly weapon provided for by section 245 of the Penal Code is not excessive, cruel, or unusual within the meaning of section 6 of article 1 of the constitution.</p> <p>Id.—Sufficiency of Verdict—Judgment—Imprisonment in State Prison. — People v. Turner, 65 Cal. 540, affirmed as to the point that where a party is informed against for an assault with intent to commit murder, and a verdict is rendered against him for an assault with a deadly weapon, the verdict is sufficient to support a judgment of imprisonment for two years in the state prison, without stating that the assault was made with the intent to commit great bodily harm.</p> <p>Id.—Imprisonment as Means of Enforcing Pine.—The petitioner was convicted of an assault with a deadly weapon, and sentenced to imprisonment in the state prison for two years, and to pay a fine, and to be imprisoned in the same prison one day for every dollar of the fine. Held, that conceding the portion of the judgment providing for imprisonment as a means of enforcing the fine was invalid, the sentence of imprisonment as a punishment was valid, and should he enforced.</p>

<p>Fixtures—Lessor and Lessee — Debtor and Creditor. — An engine, boiler, and machinery for a flouring mill, erected by a lessee on the demised premises, and securely attached thereto by bolts and screws, are fixtures as between him and his attaching creditors, notwithstanding an agreement between the lessor and lessee that the latter should be at liberty to remove the machinery upon the expiration of the lease.</p> <p>Id.—¿Removal of Fixtures—Conversion into Personalty.—The severance and removal of the fixtures by the lessee converts them into personalty.</p> <p>Id.—Action to Recover Possession — Demand.—No demand is necessary before bringing suit to recover the possession of the fixtures after their wrongful severance and removal by the lessee.</p>

<p>Assignment fob Benefit of Cbeditobs—Partnership—Preference Given to Firm Cbeditobs.—An assignment for the benefit of creditors, made by a partnership, of their individual as well as of their partnership property, is void as to creditors, if a preference is given to the partnership creditors over the individual creditors as to the individual property.</p> <p>Id. —Validity of Assignment—Garnished Debtor may Dispute.—On ths 22d of March, 1879, the firm of Daly & Hawkins made an alleged assignment for the benefit of their creditors to the plaintiff. At that time, the defendant, George Hyde, was indebted to the firm of Daly & Hawkins on two promissory notes in the sum of §3,445, and the firm were indebted to the Hibernia Savings and Loan Society in the sum of $0,000. On the 27th of March, 1879, in an action brought by the Hibernia Savings and Loan Society against Daly & Hawkins, the debt due by Hyde to them was garnished, and was subsequently paid by him in satisfaction of the judgment recovered in the action by the Hibernia Savings and Loan Society. On the 10th of April, 1879, the assignee, O’Kane, commenced an action against Daly & Hawkins, the Hibernia Savings and Loan Society, and other general creditors of Daly & Hawkins, to be discharged of his trust, and in the complaint therein enumerated the notes as ambng the assets delivered to him by Daly & Hawkins. The Hibernia Savings and Loan Society in its answer denied the right of O’Kane to be discharged of his trust, and prayed that the assignment be adjudged void. On the 7th of October, 1880, an order was made by the superior judge before whom the suit was pending, directing O’Kane to bring an action against the defendant Hyde for the collection of the notes. The present action was thereupon brought. The answer of the defendant set up the payment of the notes under the garnishment to the Hibernia Savings and Loan Society, and alleged that the assignment to the plaintiff was void because it gave a preference to the partnership creditors of Daly & Hawkins over the individual creditors as to the individual property. On the 4th of December, 1880, a judgment in the case of O’Kane v. Daly et al. was rendered, discharging the plaintiff from his trust as assignee. Held, that the action of OKane v. Daly et al. was not, as to the defendant or the Hibernia Savings and Loan Society, an adjudication as to the validity of the assignment, and that the defendant could dispute its legality.</p>

<p>New Trial—Newly Discovered Evidence. —Where the evidence given on the trial is conflicting, newly discovered evidence merely cumulative will not warrant a new trial.</p> <p>Practice—Juror—Non-residence—General Challenge for Cause—■ Exception. —A challenge to a juror on the ground that he is not qualified to serve by reason of his non-residence in the county in which the trial is had is a general challenge for cause, for the disallowance of which no exception is provided for by the Penal Code,</p> <p>Criminal Law—Interpreter may be Witness. —A person appointed to act as an interpreter on the trial of a criminal action is not disqualified by reason of the fact that he was a witness for the prosecution.</p> <p>Id. — Evidence — Question. — On the examination of a witness, counsel cannot insert in a question a statement as having been made by the witness which had not in fact been made by him.</p> <p>Id. —Leading Question — Discretion. —It is within the discretion of the trial court to allow leading questions to be put to a witness on his examination in chief.</p> <p>Id.—Murder—Dying Declarations—Written Statement—Parol Evidence. — In a prosecution for murder, where dying declarations of the deceased have been reduced to writing, parol evidence is admissible to show the condition of deceased when the declarations were made. Such evidence does not add to or contradict the written statement.</p> <p>Id. — Entire Context of Declaration must be Given. —A statement in a dying declaration disconnected from the context, and contradictory to the general import thereof, is inadmissible in evidence unless the whole of the context is given.</p> <p>Id.—Admissibility of Dying Declarations.—Dying declarations to be admissible must relate to the act of killing or to the circumstances immediately attending it and forming part of the res gestee.</p> <p>Id. —Evidence—Immaterial Error. —The refusal of the court to permit a proper question to be answered is not a material error if the witness in ano'.her portion of his testimony fully answers the question.</p> <p>Id. —Impeachment of Witness—Evidence of Hostility. —On a trial for murder, where the defendant is proved to have been previously arrested and charged with arson, a question as to who instigated the arrest is inadmissible in the absence of evidence or the offer of evidence connecting any witness for the prosecution with the arrest.</p>

<p>Evidence — Public Records. —The books of a recorder’s office are not admissible in evidence to prove the execution and contents of instruments which have been duly recorded, unless the absence of the originals is first explained or accounted for.</p>

<p>Appeal from an order of the Superior Court of Sierra County directing the jury to acquit the defendant.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Promissory Note—Action on—Proof of Indorsement—Practice— Opening Case after Resting—Nonsuit. — The action was brought on a promissory note by an indorsee. The complaint alleged the execution of the note, its assignment to the plaintiff by the payee, and that he was the owner and holder thereof. The answer admitted the execution of the note, but denied every other allegation of the complaint. On the trial the plaintiff offered the note in evidence, proved that no part of it had been paid, and rested without any proof of the indorsement. The defendant then moved for a nonsuit on the ground that there was no proof of the indorsement. The plaintiff’s counsel contended that no such proof was necessary, but upon an intimation of the court to the contrary, asked leave to open the case and introduce evidence of the indorsement. This the court refused to allow, and granted the motion for nonsuit. The nonsuit, if allowed to stand, would have compelled the plaintiff to bring a new action, to which the statute of limitations would be a bar. Held, that under the circumstances the rulings of the court were erroneous.</p>

<p>Appeal—Insolvency—Order Settling Account—Abstract or Evidence —Record. — On an appeal from an order settling the final account of an assignee in insolvency, a paper embodied in the transcript, certified by the trial judge as containing “an abstract of the evidence given on the hearing of the settlement of the account of the assignee,” forms no part of the record, and will be disregarded.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County.</p> <p>The facts are stated in the opinion of the court.</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>Practice—Affidavit of Merits—Requisite Statements of—Setting' aside Judgment by Default. — On motion by a defendant to set aside a judgment by default, the affidavit of merits must state that he has fully and fairly stated the facts of the case to his counsel. A statement in the affidavit that he has fully stated the facts of his defense to his counsel is insufficient.</p> <p>Id. — Court cannot Waive Proper Affidavit. — On such a motion the court has no authority to waive a proper affidavit of merits.</p>

Motion to dismiss appeal. The defendant was convicted of the crime of grand larceny. The further facts are stated in .the opinion of the court.

The defendant was convicted of the crime of embezzlement, and pending an appeal taken by him, made this application to be admitted to bail. The further facts are stated in the opinion of the court.

<p>Municipal Corporations—Regulating Sale of Liquors—License— Constitutional Law. —The right to pursue a lawful employment is one of the privileges and immunities guaranteed to a citizen by the constitution of the United States; but such right is not abridged, within the meaning of the fourteenth amendment to the constitution, by a municipal ordinance which merely regulates the sale of liquors and imposes a license thereon without prohibiting their sale.</p> <p>Id,—Conditions to Issuance of License—Reasonableness of.—An ordinance of the city of Stockton, passed on the 25th of May, 1885, provided that a license to carry on the business of selling liquors could only be obtained by an application to the city council, founded upon the petition of the applicant, accompanied by a certificate of five respectable citizens of the neighborhood in which the business is to be conducted as to his character. The ordinance further provided that upon complying with this condition the applicant should be entitled to a license if the city council found, from the certificate and the report made to it by the officers to whom the petition had been referred, that he was qualified to carry on the business. Held, that the conditions imposed upon the issuance of the license were not unreasonable, and that the ordinance was valid.</p>

<p>Contract fob Services — Payment by the Day. —Pa an a’ction to recover for services alleged to have been rendered for the defendant at an agreed price per day, the plaintiff is only entitled to recover for the length of time during which he was engaged in the services, at the price agreed upon.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County, and from an order refusing a new trial.</p> <p>The action was brought to recover the possession of certain land, which the plaintiff had contracted to sell to the defendant. Judgment was rendered in favor of the plaintiff. The further facts are stated in the opinion of the court.</p>

<p>Contempt — Witness—Refusal to be Sworn—Privilege. —The refusal of a person called as a witness to comply with an order of the court directing him to he sworn in a case on trial is a contempt of court, and is not excused by the assertion of the witness as a reason for his refusal that his testimony would have a tendency to subject him to punishment for a felony. His privilege cannot be urged by the witness until a question is put to him after being sworn, the answer to which would have that tendency. Whether the answer would or might he of such a tendency is to be determined by the court, and it cannot be called upon to do so in advance of the question being put.</p> <p>Id.—Defendant in Different Information mat be Called.—A party proceeded against in one information for an alleged murder may he called as a witness on behalf of the state to testify against a defendant charged in another and different information with the same killing. In such a case, the party called as a witness retains the right to object to answering a question which would tend "to criminate him.</p> <p>Id. — Separate Refusals to be Sworn — Distinct Contempts. — The petitioner was called as a witness on the trial of a criminal prosecution, and refused to be sworn. For this he was adjudged guilty of contempt of court, and punished by imprisonment for one day. Upon the expiration of such imprisonment, he was again called as a witness in the same-case, and again refused to be sworn. The court thereupon adjudged him guilty of contempt, and sentenced him to pay a fine, or in default thereof, to he imprisoned. Held, that each refusal to he sworn was a separate contempt, for which the court had jurisdiction to impose separate punishments.</p>

The action was brought to recover the amount alleged to be due for a license tax to sell and dispose of spirituous liquors and wines in less quantities than one quart at a fixed place of business in the county of Fresno. The action was commenced on the 26th of January, 1884. The complaint alleged the previous sale of liquors by the defendant in violation of the ordinance.

The defendant was convicted of forgery, in uttering and passing to W. A. Elgin a certain promissory note as a true and genuine note of one C. H. Pitch, with intent to defraud Elgin, defendant knowing the note to be forged. The evidence showed that the defendant was indebted to one Liddell in the sum of $55.50, for which he gave his check on the Nevada Bank. Liddell indorsed the check to Elgin, and sent it to him for collection.

<p>Estate of Decedent—Commissions of Executor—¡Land not Belonging to Estate. — The executors of the last will of a deceased person are not entitled to commissions upon the value of a piece of land of which they had taken possession, and which was included in their inventory as a part of the property of the estate, where it is afterwards determined, in an action brought against them to recover the possession, that the land did not belong to the estate.</p>

Motion to dismiss appeal on the ground that the record failed to identify the papers used on the hearing in the court below. At the hearing of the motion to dismiss, the appellant filed a certificate of the judge of the court below identifying the papers in the transcript as those used by him on the hearing. The further facts are stated in the opinion.

<p>Contract—Breach of—Action to Recover for—Pleading. — In an action to recover damages for the breach of an alleged contract, the complaint is insufficient if it merely alleges a promise without averring its breach, or if it assigns a breach of something which is not alleged to have been promised.</p> <p>Id. —Contract for Sale of Land—Refusal to Execute Agreement for Sale. —The action was brought to recover damages for the breach of a contract whereby the plaintiffs agreed to procure a purchaser of certain land belonging to the defendant, at a fixed price, to be paid in installments at stated times, in consideration of which the defendant promised to pay them a certain compensation. The complaint, after setting forth the contract, alleged that the plaintiffs found an intended purchaser, and assigned as a breach of the contract the refusal of the defendant to join with the purchaser in the execution of an agreement for the sale of the land embodying the terms upon which the defendant had authorized the plaintiffs to negotiate the sale. Meld, that the refusal of the defendant to execute the agreement was not a breach of the contract.</p>

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

<p>Appeal from an order of the late District Court of the Fifteenth Judicial District of the, city and county of San Francisco granting a preliminary injunction.</p> <p>The facts are stated in the opinion of tne court.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco dismissing the action.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Assault with Intent to Murder — Information. — An information for an assault with intent to murder is sufficient if it substantially complies with the requirements of sections 950-952 of the Penal Code.</p> <p>Id.—Instructions — Review of on Appeal.—Alleged errors in the instructions to the jury in a criminal case will not be considered on appeal if the instructions are not embodied in the record.</p> <p>Id. — Hearsay Evidence—Immaterial Error. —The admission in evidence of a statement by the person alleged to have been assaulted, made without the presence of the defendant and about two hours after the assault, to the effect that he was shot, without indicating by whom the shot was fired, is not prejudicial to the defendant if the latter admits when testifying in his own behalf to having fired the shot complained of:</p> <p>Id. — Error in admitting hearsay evidence of a certain fact is cured if the defendant subsequently testifies to the same effect.</p> <p>Id.—Assault with Deadly Weapon — Condition of Defendant as to Sobriety—Evidence —Intent.—Where an information charges the defendant with an assault with intent to murder, and he is convicted of an assault with a deadly weapon, the exclusion of evidence tending to show his condition as to sobriety or the contrary at the time of the assault is not error, as the offense of which the defendant was convicted does not involve the necessity of proof of any specific intent to commit it.</p> <p>Id.—Reputation of Defendant for Peace and Quiet—Rejection of Evidence of. — On the trial, the defendant’s counsel asked a witness if he knew the reputation of the defendant for peace and quietude in the community in which he lived. The district attorney objected to the question because it had not been shown that the witness knew the particular community in which the defendant lived. The court thereupon asked the witness several questions, and then sustained the objection. The record does not show what these questions were, nor whether the witness knew in what community the defendant lived. Held, that the objection was properly sustained.</p> <p>Id. —Improper Question — Answer — Error without Prejudice. —The allowance of an improper question to be put to a witness against the objection of the defendant will be considered as without prejudice if</p> <p>' the récord fails to show that any answer was given to the question.</p> <p>Id. —Expert Testimony as to Eyesight. —A physician cannot testify as an expert to the relative powers of eyesight of two different persons, under certain named conditions, unless it is first shown that he has made an examination of their eyes.</p> <p>Id. —Absence of Witness from Trial—Refusal of Bench-warrant.— On the trial, certain witnesses for the defendant, who had been served with subpoenas out of the county in which the action was tried, did not appear when called to testify. The defendant thereupon asked for a bench-warrant to enforce their appearance. The court denied the application. It did not appear by affidavit or other sworn statement what was sought to be proved by the witnesses, or that their testimony would have been material to the defendant, or that they were within immediate reach of the process of the court. Held, that the action of the court was proper.</p>

The action was brought to restrain the defendants from using or diverting the waters of a certain stream. The plaintiffs recovered judgment as prayed for. The further facts are stated in the opinion of Mr. Justice McKinstry.

<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, and the opinion of Commissioner Searls.</p>

The information charged the defendant with the offense of obtaining property under false pretenses, in that he did willfully, unlawfully, knowingly, and designedly obtain from one J. P. Spence certain hogs belonging to him and in his possession, by falsely pretending to Spence that he, the defendant, had in the Commercial and Savings Bank of San José the sum of $196.70, and did, with intent to cheat and defraud said Spence, make,, execute, sign, and deliver to him a check…

<p>Criminal Law—Impeachment of Witness — Cross-examination — Matters Collateral to Issue. — On the trial of a criminal case, where a witness for the defendant, after he had been examined and cross-examined, is recalled by the prosecution for further cross-examination, in order to lay a foundation for his impeachment, the answers of the witness given on his further cross-examination, concerning matters collateral to the issues, are binding on the prosecution, and as to them he cannot be contradicted.</p>

<p>Appeal from a judgment of the Superior Court of Mono County, and from an order refusing a new trial.</p> <p>On the 15th of April, 1881, the plaintiffs and the. defendant Young entered into a contract for the purpose of prospecting for and locating mines in the Patterson Mining District in Mono County, California. The contract remained in force until the 12th of May, 1881, when it was terminated by mutual consent. Immediately after the execution of the contract, Frost and Young, two of the parties thereto, discovered a mineral vein in the mining district, and on or about the 27th of April, 1881, located a claim thereon known as the “Ken-tuck.” The notice of location named the plaintiff Page and the defendant Young as the locators. On the 5th of May, 1881, they located another claim on the vein, the notice of location of which named Page, Frost, and another of the prospecting party as the locators. From the 27th of April, 1881, to the 19th of May, 1881, Frost and Young worked continuously upon the latter claim. On the 14th of May, 1881, while Frost and Young were at work upon the Kentuck claim, they tore down the notice of location of April 27, 1881, and substituted another notice, claiming the same ground, signed by Gr. M. Summers and Matt. Young as locators, and designating the claim as the “May Bell.” On the 19th of May, 1881, they tore down the notice of location of May 5, 1881, and substituted another therefor, signed by J. N. Summers and Frost as locators, and designated the claim as the “ Georgie Howell.” The action was brought to determine the rights of the parties in the several locations, and to compel conveyances in accordance therewith. The complaint alleged that the defendants G. M. and J. 1ST. Summers had notice of the prospecting agreement, and of the work done thereunder. The defendants claimed title under the “May Bell” and “Georgie Howell” locations'. Judgment was rendered in favor of the defendants. The further facts are stated in the opinion of the court.</p>

<p>Mechanic’s Lien—Subcontractor—Lien for Balance Due—Liability of Owner.—Prior to the amendments of March 18, 1885, to the sections of the Code of Civil Procedure regulating the liens of mechanics, a notice by a subcontractor to the owner of a building which is being constructed that a balance is'due him on his subcontract from the original contractor does not impose on the owner the duty of retaining a portion of the contract price to satisfy any lien which the subcontractor might subsequently file.</p>

The action in which the negligence of the defendant is alleged to have occurred was founded on a promissory note, executed on December 1, 1870, and .payable one day after date. The action was commenced July 8,1881. The answer set up the statute of limitations as a defense. On the trial, the court sustained the defense and dismissed the action.

<p>Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.</p> <p>The plaintiff is a corporation formed for fraternal and charitable purposes. The defendant the Occidental Building and Loan Association is also a corporation, formed! for the purposes indicated by its name. In November, 1884, the defendants Gibson and Bennett were members and officers of the plaintiff, and together with the defendant Dustman and one Worthington composed its board of trustees. At that time Gibson was the owner of certain blocks in the city of Sacramento, on which the Occidental Building and Loan Association held a mortgage to secure the payment of his note for twelve hundred dollars. The plaintiff had then on deposit in bank about two thousand dollars, subject to the order of its trustees. The defendant Gibson, desiring to get that money, entered into an arrangement with Bennett whereby Gibson was to deed a portion of said lots to the plaintiff, and Bennett was with Gibson to induce the other trustees to unite in drawing the money from the bank and paying eighteen hundred dollars thereof to Gibson as the ostensible purchase price of the land. Bennett and Gibson induced Dustman to consent to this arrangement, and the transaction was consummated by them, without the knowledge or consent of Worthington, and without any meeting of the trustees being held to consider the matter. In pursuance of this arrangement, the money was drawn from the bank; the mortgage to the Occidental Building and Loan Association was paid off with part of it, and the balance delivered to the defendant Gibson, who thereupon deeded the land to the plaintiff. Upon the first meeting of the jilaintiff, the pretended purchase was repudiated by it. The wife of Gibson thereupon filed a declaration of homestead upon the part of the land which had been included in the mortgage to the Occidental Building and Loan Association, but not .conveyed to the plaintiff. One of the by-laws of the plaintiff provided that the trustees should “ keep the funds invested for the best interest of the tribe, in such stocks, bonds, mortgages, or other securities as shall be approved by two thirds of the members thereof present at a regular council.” On the 31-st of October, 1884, the council had instructed the trustees to invest two thousand dollars of the money in bank. The action was brought to have the deed to the plaintiff declared void, and to revive- the mortgage for its benefit, and for a personal judgment against Bennett, Dustman, and Gibson. Judgment for the relief prayed for was rendered in favor of the plaintiff. The further facts are stated in the opinion of the court.</p>

<p>Insolvency—Petition for Involuntary—Partnerships as Petitioners — Names of Members. —Under section 8 of the insolvent act of April 16, 1880, a petition in involuntary insolvency which describes the petitioning creditors as firms or copartnerships is sufficient, although the names of the persons comprising the firms are not given.</p> <p>Id. — Facts Showing Indebtedness must be Alleged.—In such a proceeding, the petition should allege the facts showing the indebtedness of the respondent to at least five of the petitioners, with the same degree of certainty and fullness as would be requisite in a complaint in an ordinary action to recover the indebtedness.</p>

<p>Slander or Title—Prior Action to Determine Title—Nonsuit. —In an action to recover damages for slander of title, the defendant is entitled to a nonsuit, if the evidence shows that the existence of the title alleged to have been slandered is in dispute in a prior action between the parties brought for the purpose of determining their rights.</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>

The proceeding was commenced by the filing of a petition for the probate of a certain will, purporting to have been made and executed by George F. T. Learned on June 3,1869, and for the issuance of letters testamentary thereon to the petitioner, Mrs. A. 0. Hereford, who was named therein as executrix.

<p>Corporation—Mortgage—Execution of—Authority of Officers—. Presumption. —A mortgage executed in the name of a corporation by its president and secretary, and having the corporate seal attached, is presumed to have been executed in pursuance of a due authorization to such officers, and the burden of proof is on the corporation to show the contrary.</p> <p>Id.—Resolutions—Proof of Existence—Validity of Mortgage.—, Where the circumstances surrounding the execution of the mortgage show the existence of proper resolutions of authorization, and support the presumption of its authoritative execution, as shown by affixing the corporate seal and the signatures of the proper officers, the mere fact that such resolutions do not appear in the proper book of the corporation is not sufficient to disprove their existence and invalidate the mortgage.</p> <p>Id.—Counsel Pees—Resolution must Provide for.—In an action for the foreclosure of a mortgage against a corporation, the plaintiff is not entitled to recover counsel fees if the resolution of the corporation authorizing the execution of the mortgage did not provide that the payment of counsel fees should be secured by it.</p>

On the 2d of December, 1878, the will in question was admitted to probate. On the 3d of December, 1879, the contestants filed their petition for a revocation of the probate, which was granted by the Superior Court on the 14th of May, 1880. From this decree an appeal was taken to the Supreme Court. The decree was reversed by that court, and the cause remanded.

The action was brought to determine, as between conflicting claimants, the right to purchase from the state certain swamp and overflowed lands situated in Tulare County. The plaintiff, in pursuance of an order of reference made by the surveyor-general, commenced the action against the defendants, and in due time obtained a decree adjudging that the applications of the defendants were void, and that the plaintiff was alone entitled to have his application approved.

John Smith, a native of England residing in California, and a naturalized citizen of the United States, died intestate in Sacramento, California, November 3, 1883, leaving certain real and personal property therein as his estate. He left no heirs resident in the United States, but he did leave one nephew and three nieces, natives of and residing in England, as his only next of kin.

<p>Subscription to Charitable Object—Liability of Subscriber — Acceptance of Offer—Death of Subscriber.—A promise to pay a subscription to help defray the expenses of some charitable object is a mere offer, which may be revoked at any time before it is accepted by the promisee; and an acceptance can only be shown by some act by the promisee whereby a legal liability is incurred or money is expended on the faith of the promise. If the promisor die before his offer is accepted, it is thereby revoked, and cannot afterwards, by any acts showing an acceptance, be made enforceable against his estate. The rule is otherwise when subscribers agree together to make up a specified sum, and where the withdrawal of one increases the amount to be paid by the others. In such a case, as between the subscribers, there is a mutual liability, and the co-subscribers may maintain an action against one who refuses to pay.</p>

The action was brought to compel the defendant to remove a certain line of trees on or near the boundary of his land and the land of the plaintiff, and to recover damages alleged to have been caused by reason of the existence of the trees during the preceding four years.

The action was brought to recover certain moneys deposited in the Hibernia Savings and Loan Society. The bank thereupon paid the money into court, and asked that certain other claimants be substituted as defendants. This was done. Judgment was rendered in favor of the plaintiffs. The substituted defendants -subsequently moved for a new trial, which was refused. The further facts are stated in the opinion of the court.

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

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

The action was brought to recover the proceeds of an execution sale of certain goods belonging to the assignor of the plaintiff, on the ground that the judgment under which the sale was made was obtained through the fraudulent collusion of the defendant and the assignor, and was in fraud of the creditors of the latter. The findings were that all and singular the averments of the complaint are true. The further facts are stated in the opinion of the court.

The action was brought to enforce the lien of a material-man. Judgment was rendered in favor of the defendants. The further facts are stated in the opinion of the court.

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

The defendant was convicted of burglary in the second degree. Pending the trial, the jury, under the direction of the court, visited the premises alleged to have been burglarized, the defendant not being present when the view was made. This the defendant claimed deprived him of the right secured to him by the constitution of appearing and defending in person, and of being confronted with the witnesses against him. The further facts are stated in the opinion of the court.

<p>Partnership—Publication op CErmpigate—Assignee may Maintain Action without.—The sections of.'the Civil Code prohibiting persons doing business as partners from, maintaining any action upon or on account of any contracts made or transactions had in their partnership natiie, until they have filed and published a certificate showing the names and residences of all the members of the partnership, does not preclude the assignee of such partners from maintaining.an action thereon.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.</p> <p>The action was brought to recover damages for the conversion of a growing crop on which the plaintiff held a chattel mortgage. Judgment was rendered in favor of the plaintiff. The further facts, are .stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.</p> <p>The policy in question was issued by the defendant to one I. H. Locey, the assignor of the plaintiffs. Subsequent to the fire, differences arose between the insured and payees under the policy on the one hand, and the defendant on the other, touching the amount of the loss. No arbitration or award to determine the amount was ever had, nor any demand made therefor by the insured or the plaintiffs. On the trial, the defendant asked the court to instruct the jury that the action could not be maintained because of such failure. The court refused to give the instruction, to which the defendant excepted. Judgment was rendered in favor of the plaintiffs. The further facts are stated in the opinion of the court.</p>

<p>Malicious Prosecution — Excessive Damages.—The action was brought to recover damages for a malicious prosecution in causing the arrest of the plaintiff on a charge of simple assault. The plaintiff, after his arrest, was not confined in jail or subjected to any real hardship or act of oppression, or injured in his business or social standing, and the charge against him was dismissed in the Police Court. A verdict was rendered in favor of the plaintiff for four thousand dollars. Held, that the verdict was excessive, and should be reduced to one thousand dollars</p>

<p>Ceiminal Law—Continuance of Teial—Absence of Witness—Affidavits must Show Issuance of Subpcena. —The refusal to continue the trial of a criminal case on the ground of the absence of a material witness for the defendant, who resides out of the county in which the trial is had, is not error, if the affidavits for continuance fail to show that a subpoena for the witness, having indorsed thereon an order of the trial judge for his attendance, was ever issued.</p>

<p>Seashore—Owner op Adjoining Land Takes to High-water Mark — Presumption. —In the absence of evidence to the contrary, it is presumed that the owner of land bordering on the seashore holds only to ordinary high-water mark, and that all the seashore fronting his land lying between high and low water mark is the property of the state.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County dismissing a proceeding for contempt.</p> <p>The proceeding was brought to punish the defendant Newman for an alleged' contempt in re-entering upon real property from which he had been ejected under a writ of restitution upon a judgment in the case rendered on the 24th of February, 1873. The proceeding was commenced on the 10th of April, 1882. The court dismissed the proceeding on the ground that it was barred by section 336 of the Code of Civil Procedure, and therefore the court had no jurisdiction. The further facts are stated in the opinion of the court.</p>

<p>Proceeding for a writ of mandate to compel the . Superior Court of Los Angeles County to hear and determine a proceeding to have one Newman, a defendant in an action brought to recover the possession of certain land, adjudged guilty of contempt for re-entering upon the land from which he had been ejected under an exe- . cution issued in the action. The court dismissed the proceeding on the ground that it was barred by section 336 of the Code of Civil Procedure, in not having been commenced within five years after the date of the judgment. The appeal from the order of dismissal is reported supra, p. 210. The further facts are stated in the opinion of the court.</p>

The defendant was the commissioner of immigration for the port of San Francisco from January 19,1880, to March 15,1883. Between those dates, as such officer, he collected $40,871.60 from the masters, owners, and consignees of vessels arriving at the port of San Francisco from foreign ports and places, on account of passengers inspected by him on board of the vessels, according to the provisions of section 2955 of the Political Code.

<p>Slander—Words Imputing Want of Chastity. —The action was brought to recover damages for an alleged slander. The complaint averred that the defendant said of and concerning the plaintiff, that “ she was a bad woman, and that you had better have nothing to do with her case, as it is a very bad one; that she had not lived with her husband for two years previous to his death, and that she was the cause of her husband’s death; that she had driven him to drinking, and that her husband fell while drunk, and was killed.” It was further alleged that the words signified, and were understood by the hearer to mean, that the plaintiff had deserted her husband, and had, prior to his death, led an unchaste life, and had become enciente while living apart from him, and that sucht bad conduct on her part drove him to drinking, and caused his death. Held, that the complaint stated a cause of action.</p> <p>Id. —Meaning of Ambiguous Words—Question for Jury.—In such a case, the words used being ambiguous, their meaning is for the jury to determine.</p>

The action was brought by a contractor for the erection of a building against the owner to recover damages, for not being allowed to complete the building. The contract was made on the 6th of November, 1885. The court sustained a demurrer to the complaint. The plaintiff declining to amend, judgment was rendered in favor of the defendant. 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, 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 San Bernardino County, and from an order refusing a new trial.</p> <p>The plaintiffs claimed title to the mining ground in controversy under a location made on the 5th of April, 1881. The defendants claimed under a subsequent overlapping location. The further facts are stated in the opinion.</p>

<p>Practice—Expiration op Term op Judge—Entry op Judgment after — Findings — Waiver op. — Where the term of office of the judge who tried the case expires after an order for judgment has been entered, but before the findings have been filed, no valid judgment can be entered in the action without a new trial being had, unless agreed findings are filed or waived by both sides.</p> <p>Id.—Judgment Entered without Findings—Motion to Vacate — Notice— Time for Making Motion.—If no agreed findings'are filed or waived, a judgment entered in conformity with the order after the expiration of-the term of office of the trial judge may be set aside for want of findings on the motion of the party in whose favor the judgment is entered, without notice to the opposite party, notwithstanding the latter offers to waive findings, or to have them made by the successor of the judge who tried the case, and tenders to the prevailing party the amount of the judgment. Such a motion may be made after the expiration of six months from the date of the order for judgment, and after the termination of the session of the court at which it was made.</p> <p>Id.—Motion mat be Renewed after Denial—Jurisdiction—Discretion. — In Such a case, the court has jurisdiction, and it is within its discretion, to allow the motion to vacate the judgment to be renewed, although it had previously been denied.</p>

<p>Homestead—Property Subject to Trust Deed—Declaration maybe Piled on. —A person residing with his family on community property, which he had previously conveyed by a deed of trust to secure an indebtedness, has such an interest in the property, notwithstanding the trust deed, as entitles him to make a valid claim of homestead thereon.</p> <p>Id. —Property not Occupied by Claimant — Claim oe as Homestead. — A declaration of homestead covering certain premises on which the claimant resided, and certain other premises which were not occupied by him, is valid so far as the land resided on is concerned.</p> <p>Id.—Declaration — Estimated Value of Premises.—A declaration of homestead is not invalid, although the value of the premises claimed as a homestead is estimated at seven thousand dollars.</p> <p>Id.—Debtor may Declare Homestead—Fraud on Creditors.—The head of a family having property subject to a homestead declaration, and who is indebted to third persons, may, notwithstanding his indebtedness,. exercise his right of homestead; and the fact of his having done so is not in itself sufficient evidence of fraud to invalidate the homestead claim at the instance of his creditors.</p>

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

The certificate of the surveyor-general referring the contest for trial recited the facts showing how the contest arose, and ordered that it be referred to the Superior Court of Los Angeles County for adjudication.

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</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.</p>

<p>Employee, and Employee—Defective Machinery — Liability of Mill-owner. — It is the duty of the owner of a saw-mill to furnish suitable and safe machinery for the use of his employees, and he cannot divest himself of liability for injuries to an employee, caused by defective machinery, by intrusting the performance of that duty to his servants.</p> <p>Id.—Knowledge by Employee of Defects. —The owner of the mill is not liable for such injuries to an employee if the latter knew or had the means of knowledge of the defects in the machinery, and of the dangers and risks likely to result from its use.</p> <p>Id. •—Danger of Employment—Instruction.—The action was brought by an employee in a saw-mill against his employer to recover damages for injuries alleged to have been caused by defective machinery. The defendant requested the court to instruct the jury that “ when a party works with or in the vicinity of a piece of machinery insufficient for the purpose for which it is employed, or for any reason unsafe, with a knowledge or means of knowledge of its condition, he takes the risk incident to the employment in which he is thus engaged, and cannot maintain an action for injuries sustained arising out of accidents resulting from such defective condition of the machinery.” Held, that the instruction, was properly refused, as it failed to include as one of the conditions upon which the plaintiff could not maintain the action that he knew or might have known that his employment involved danger to himself.</p> <p>Id. —Negligence of Employee — Question for Jury. —In such an action, the question whether the plaintiff was negligent or not is one of fact for the jury, and the knowledge of the plaintiff of the defectiveness of the machinery is only one of the probative facts from which the ultimate fact of negligence must be determined.</p> <p>Id.—Expert in Saw-mills — Evidence.—On the trial, a witness for the plaintiff testified in rebuttal, after showing himself qualified as an expert, that at the time of the accident the log being sawed did not pinch the • saws, and that the machinery was being operated in the usual manner. Held, that the evidence was proper.</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>Indemnity School Lands—Defective Selections—Confirmation to State—Previous Settlement—Good Faith of Settler—Decision of Interior Department.—Under the act of Congress of March 1, 1877, confirming to the state the title to indemnity school lands the selections of which were defective or invalid, but excepting from the confirmation lands on which a bona fide pre-emption or homestead settlement had been made previous to the certification to the state, the question of the bona fides of such a previous settlement is one of fact, or of mixed law and fact, and the decision of the department of the interior thereon in a case involving the question is final.</p> <p>Id. —Patentee from State—Action to Quiet Title against—Allegations of Fraud. —In an action by an alleged pre-emptor of such land, claiming title under a previous settlement, to quiet his title, as against a patentee from the state, and to have the title of the latter declared void on the ground that his application to purchase the land from the state was fraudulent, the facts constituting the fraud must be specifically alleged in the complaint.</p> <p>Id.—Defective Application to Purchase—Impeachment of Patent — State Title. — In such an action, the plaintiff cannot question the validity of the patent to the defendant on the ground that his application to purchase was defective or irregular; because he is not seeking to obtain the title of the state.</p>

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

<p>Practice—Amendment to Answer. — The refusal to allow a defendant to file an amended answer setting up matters which could he proved under the averments of the original answer is not erroneous.</p> <p>Id.—Finding — Party Desiring cannot Dictate.—A party desiring a finding upon a particular point should specify the point to the court without dictating the terms of the finding; and the refusal of the court to make certain findings presented to it as facts in the case is not erroneous.</p> <p>Id. — Conflict of Evidence. —Where the evidence is conflicting, a finding will not he disturbed on the ground of the insufficiency of the evidence to justify it.</p> <p>Water Rights—Riparian Proprietor—Use of Stream — Ordinary Flow — Appropriation—Diversion of Surplus. —A riparian proprietor, who has appropriated and uses.all the water of a stream crossing his land, as it ordinarily flows, cannot restrain the diversion, during times of extraordinary high water, of the surplus of the stream not used or appropriated by him.</p>

<p>Action for Support and Maintenance — Counsel Fees for Prosecution of Appeal—Trial Court mat Order. — In an action by a wife against a husband for permanent support and maintenance, after an appeal has been taken by the defendant from an order made pendente, lite, directing him to pay counsel fees to the plaintiff, the trial court has power, within the bounds of a proper discretion, to order him to pay further counsel fees to enable her to prosecute the appeal.</p>

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

The tax deed referred to in the opinion was offered in evidence by the plaintiff, and excluded. It recited that the tax collector offered the land at public auction as one parcel, instead of offering the smallest quantity which any purchaser would be willing to take and pay the tax. The further facts are stated in the opinion.

<p>San Francisco—Van Ness Ordinance—Title Acquired by—Adverse Possession — Public Squares. — Hoadley v. City and County of San Francisco, 50 Cal. 265, to the effect that the plaintiff acquired no title to the public squares in controversy, either by the Van Ness ordinance or by adverse possession, affirmed.</p> <p>Id.—Selections for Public Squares—Ratification of by Act of March 11, 1858. —The selections of land for public squares in the city of San Francisco made by the commissioners appointed under ordinances Nos. 822 and 845 of the common council, from land lying west of Larkin Street and southwest of Johnston Street, and designated as squares on the map of the commissioners approved by the board of supervisors on the 16th of October, 1856, were ratified and confirmed by the act of the legislature of March 11, 1858, and are consequently valid, although the selections embraced more than one block, and more than one twentieth ' of the land in the possession of one person, and the excess was taken without payment of eompensaton as provided in ordinance No. 822.</p>

<p>Express Trust—Termination op— Conveyance by Trustor—Estate op Grantee.—The author of an express trust which does not provide to whom the trust property shall belong upon a failure or termination thereof may convey the property subject to the trust; and the grantee will acquire all the rights in and to the property that the trustor had.</p> <p>Id. —Trust for Cemetery Purposes—Los ’Angeles—Quitclaim Deed — Confirmation by Legislature.—The land in question was originally part of the pueblo lands of the city of Los Angeles. In 1857, the city set it apart as a public cemetery, and conveyed it to the defendant and two. others, since dead, in trust for the uses and purposes of a cemetery. A small portion of the land was used, for such purposes until 1861, when the city resolved, by ordinance, to discontinue the use and to remove the bodies there buried. This was done, except that a few bodies buried in one corner were not removed. In 1870, the city, by a quitclaim deed, conveyed the land to the grantor of the plaintiffs, which conveyance was subsequently confirmed by an act of the legislature. Held, that the deed, in connection with the act of confirmation, transferred all the interest of the city in the land.</p> <p>Id. — Resulting Trust.—Held further, that as to the portion of the land not used for the purposes of a cemetery, and as to which such use was discontinued, a trust resulted by operation of law in favor of the city and its grantees.</p> <p>Id. — Right of Trustor to Reconveyance. — The abolition of the cemetery by the city terminated the trust relation, and thereupon it became the duty of the trustees to reconvey the trust property.</p> <p>Id. —Trustee cannot Hold Adversely—Statute of Limitations. —A trustee cannot be permitted to retain possession as such after repudiating the trust and claiming adversely.</p> <p>Id. — Substitution of Trustees—Equity. — A court of equity will substitute new trustees to manage the trust property when its safety or proper administration so requires, but will not do so if no good result is to be accomplished thereby.</p> <p>Id.—Grantee of Trustor—Conveyance to by Trustee—Decree.— The complaint, after setting up the trust and all the facts connected with it, alleged that the defendant had violated and repudiated it, had used the trust property for his own benefit, and that he was an unfit person to be trustee. The court found these allegations to be true, but instead of substituting a new trustee, it decreed that the defendant should convey the land to the plaintiffs, and provided that they should hold the lot in which the bodies were buried, subject to the public easement as a place of burial until the bodies were removed by proper authority. Held, that the decree was proper.</p>

The action was brought to recover ten thousand dollars from the defendant as commissions in securing a loan.

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

<p>Estate of Decedent—Specific Performance—Contract for Sale of Land—Judgment against Executor after Resignation—Heirs not Bound.—Where an action for the specific performance of a contract for the sale of land is brought against a defendant as the executor of the will of the deceased vendor after the resignation of his executor-ship has been accepted by the Probate Court, and without joining the heirs of the deceased, a judgment rendered therein against him as executor does not bind the heirs.</p> <p>Id. — Order Accepting Resignation of Executor—Presumption of Regularity.—An order of the Probate Court accepting the resignation of an executor and discharging him from his trust is presumed to be regular, and cannot be collaterally attacked.</p>

Proceeding for a writ Of review to annul an order of the Superior Court of San Mateo County appointing one Caroline Hawes the special administratrix of the estate of Horace Hawes, deceased. Horace Hawes died testate on the 19th of December, 1884. The petitioner, his then. surviving widow, was nominated as the executrix of his will, and letters testamentary thereon were issued to her on the 22d of January, 1885.

<p>Water Rights—Adverse Possession and User—Claim of Right. —An adverse possession and user of water for five years continuously and uninterruptedly, with the knowledge of and to the injury of the true owner, will bar the right of the latter thereto; but a mere claim of right to the use and enjoyment of the water, however long continued, will not have that effect.</p> <p>Id.—Statute of Limitations—Denial of Right to Possession.—The mere denial by the owner of the right of the adverse user to the possession of the water is not a sufficient interruption thereof to prevent the statute of limitations from operating as a bar.</p> <p>Id.—Findings — Evidence.—The findings on the plea of the statute of limitations examined, and held sufficient, and supported by the evidence.</p>

<p>Tenants in Common—Adverse Possession — Ouster.—Where a tenant in common of land is in possession thereof, acknowledging or with knowledge of the rights of his co-tenants, there must be, in order to constitute an ouster by him of his co-tenants, such acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the co-tenants that an adverse possession and disseisin are intended to be asserted against them; and this rule applies wherever a co-tenant enters under a conveyance which purports to convey a moiety, or any portion less than the whole, or merely the interest of the grantor.</p> <p>Id. — Deed of Entirety—Exclusive Possession under—Statute of Limitations. — When a conveyance of land is made by a party in the exclusive possession under a deed which purports to convey the whole of the property, and the grantee enters into the open and notorious possession of the whole without notice of a co-tenancy, the entry will be presumed ' to be in the assertion of an exclusive right in severalty, and is equivalent to an express declaration on the part of the grantee that he enters claiming the whole for himself, and is therefore such a disseisin as sets the statute of limitations in motion in his favor and against his co-tenants.</p> <p>Id.—Decree of Distribution — Estoppel.—Under such circumstances, the grantee is not estopped to set up the statute of limitations against the heirs of a former owner by reason of the fact that the decree of distribution of the estate of such owner distributed the land to the heirs.</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 opinion.</p>

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

<p>Letter of Credit — Liability of Drawer—Guaranty of Credit to Third Person. — In 1877, John Mel & Sons, merchants of San Francisco, having a branch house at Bordeaux, France, and doing their banking business with the plaintiffs, obtained from the defendants, then doing business under the name of Falkner, Bell & Co., the following letter of credit: —</p> <p>“ San Francisco, Sept. 20, 1877.</p> <p>“ The Merchants’ Banking Company of London (Limited), 112 Cannon Street, London, —Dear Sirs: At the request of Messrs. John Mel & Sons of this city, we hereby authorize Messrs. A. Lafargue. & Co., of Bordeaux, to draw on you at sixty days’ sight for our account to thb amount of three thousand pounds sterling (£3,000).</p> <p>“All drafts must be drawn at Bordeaux, and be accompanied by due advice. This credit to be in force for twelve months, from 31st October, 1877, to 31st October, 1878. We are, dear sir, yours faithfully,</p> <p>“Falkner, Bell & Co.”</p> <p>The plaintiffs and the bank were duly advised of the issuance of the letter, which was deposited by Mel & Sons with the plaintiffs as security for advances that might be made to them by the latter. During the period in which the letter of credit was to remain in force, and upon the faith and credit thereof, the plaintiffs advanced about nineteen thousand dollars to Mel & Sons, of which a balance of $13,441.54 remained unpaid. On the 10th of October, 1878, they drew a bill of exchange for three . thousand pounds on the Merchants’ Banking Company at sixty days’ sight, which they requested that bank to pay, and charge according to the terms of the letter of credit. The draft was accompanied by a letter of advice and notice, and was duly presented for acceptance and payment. The bank refused to accept or pay it, whereupon it was protested for non-acceptance and non-payment. The action was brought on the letter of credit to recover the amount of the draft. Held, that the defendants were liable, as the letter of credit was a guaranty by them of the credit of Mel & Sons during the time and for the amount therein specified, and of the acceptance and payment by the Merchants’ Banking Company of all drafts drawn by the plaintiffs in conformity with the letter.</p>

<p>New Trial—Time for Preparation op Statement—Extension op by Court__Under section 1054, of the Code of Civil Procedure, where the time for the preparation of a statement on motion for a new trial has been extended by stipulation between the parties, the court has power to grant a further extension, not exceeding thirty days, if the application therefor be made before the time as extended by stipulation has expired.</p>

<p>Appeal from a judgment of the Superior Court of Nevada County, and from an order refusing a new trial.</p> <p>The action was brought to recover damages for personal injuries. The further facts are stated in the opinion of the court.</p>

The action was brought to recover the possession of certain land forming part of a tract of 160 acres alleged to belong to the plaintiff. The defendant pleaded the statute of limitations.

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

The action was brought to recover damages for the breach of an alleged contract for the sale of one hundred head of horses. The further facts are stated in the opinion of the court.

The action was commenced on the fifteenth day of February, 1882, by the plaintiff, as the executrix of the last will of one Mat. Lewis, against the defendant P. T. Adams, on a judgment obtained by her as such executrix in the district court of Bexar County, in the state of Texas, on the fifteenth day of March, 1877, against Adams, and Joseph Collins, James Dalrymple, and John H. Kennedy.

In 1876, the plaintiffs were employed by the defendant to conduct certain litigation upon a contingent fee. Being successful, they presented a claim in the sum of ten thousand dollars to the board of trustees of the defendant. On the 24th of December, 1877, their claim was rejected. On the 29th of July, 1878, the plaintiffs and defendant entered into an agreement to submit the claim to arbitration.

The action was brought to recover damages for personal injuries alleged to have been caused by the overturning of a stage-coach. The further facts are stated in the opinion of the court.

<p>Ejectment—Vexatious Action—Cbo'ss-complaint—Injunction against Prosecution of Action. — The action was brought to recover the possession of certain land. The answer denied the allegations of the complaint, and pleaded in bar of the action certain judgments rendered in other actions, which were alleged to have determined adversely to the plaintiff the title to the land in controversy. The defendants also filed a cross-complaint for an injunction restraining the plaintiff from asserting any title to the land, on the ground that his action was vexatious. During the pendency of the action, the defendants, upon affidavits and the judgment rolls in the actions pleaded in bar, moved for an order perpetually enjoining the plaintiff from further prosecuting the action. The court granted the motion. Held, that the order was erroneous.</p>

<p>Estate oe Decedent—Services oe Married Woman — Claim eor— Presentation oe — Judgment.—A claim against the estate of a deceased person for services rendered by a married "woman while living "with her husband is community property, and should be presented to the personal representatives of the decedent in the name of the husband. But where such a claim, verified by the wife, is presented in her name by ° the husband, and is rejected, and an action is subsequently brought thereon by the husband and wife, a judgment in favor of the plaintiffs will not he reversed on account of the informality in the manner of the presentation.</p> <p>Id. — Bequest in Payment oe Services—Renunciation oe by Legatee — Election. —The action was brought to recover the value of services rendered by one of the plaintiffs as nurse to a deceased person. The decedent by his will bequeathed to the plaintiff a sum of money in consideration and in payment for the care and attention of the plaintiff during his last sickness. Held, that the action was a renunciation of the bequest, and an election by the plaintiff not to rely upon it as a payment for the services.</p>

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

<p>Contract for Sale of Land—Payment of Purchase Price—Failure of Title. — Money paid by the vendee as part of the purchase price under a contract for the sale of land may be recovered if the vendor did not have the title at the time the contract was made, nor acquire it afterwards.</p>

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

<p>Summons—Publication—Affidavit fob—Statement of Facts in — Jurisdiction — Judgment.—Under section 412 of the Code of Civil Procedure, an affidavit for the publication of summons against a nonresident defendant, in a case where the complaint is unverified, must state the facts showing the existence of a cause of action against the defendant, and that he is a necessary or proper party to the action; otherwise the court does not acquire jurisdiction of the defendant hy reason of the attempted service by publication, and a judgment by default founded thereon is void.</p> <p>Id. — Statement of Legal Conclusion Insufficient. —In such a case, an affidavit which merely states that the plaintiff has a good cause of action against the defendant, and that he is a necessary and proper party defendant, is insufficient.</p> <p>Id.—Action to Condemn Land—Public Highway—Proceedings before Supervisors.—In an action to condemn land for a public highway, an affidavit for the publication of summons, where the complaint is unverified, must show that the proceedings before the board of supervisors have been had as provided in sections 2698 to 2708 of the Political Code.</p> <p>Id.—Appeal from Judgment—Recitals in Findings—Defendant not Concluded by. — On an appeal from a judgment by default, rendered after an insufficient service of summons by publication, the defendant is not concluded by a recital in the findings that due proof had been made that the summons was legally served upon him, and his time for answering had expired.</p> <p>Id,—Proof of Service—Certificate of Notary Public.—The service of a summons and complaint by a notary public must be proved by his affidavit) his mere certificate is insufficient.</p>

<p>Lien op Material-man—Abandonment op BoiLDiNa by Contractor— Completion bt Owner—Payment op Contractor.—Where a contractor for the erection of a building abandons the work before its completion, after being paid in full by the owner for the work already done, a material-man is not entitled to a lien on the building for materials furnished the contractor for its construction, unless the owner afterwards completes it for a less amount than the balance of the contract price. '</p>

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

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

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

<p>Trust in Personal Property—Mat be Created by Parol. — An express trust iu personal property may be created without a written transfer.</p> <p>Id. —Reservation of Right bt Trustor. —A verbal transfer of money in. trust for the use and benefit of the children of the trustor, reserving to the latter the right to draw from the trust fund such sums as he might deem proper for his own use, is valid.</p> <p>Id.—Revocation bt Trustor.—After a trust has been created and accepted, the trustor has no power to revoke it without the consent of the beneficiaries, unless such power was reserved in the declaration of the trust.</p> <p>Evidence—Striking out—Motion for must be Specific.—Where testimony is admitted, some of which is relevant and competent, and intermingled with that which is improper, a motion to strike out should, be directed with such precision to the portion attached that no uncertainty may remain as to the testimony challenged; otherwise a refusal to-strikeout is not error.</p>

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

<p>Appeal from a judgment of the Superior Court of Amador County.</p> <p>The license tax in question was imposed upon the business of selling spirituous, malt, and fermented liquors at retail. The ordinance appointed an agent to collect the taxes, and fixed his compensation. The further facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County.</p> <p>The facts are stated in the opinion, and in the opinion of Mr. Justice Myrick in Department Two.</p>

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

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

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

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

<p>Contract for Sale of Land—Forfeiture—Failure to Pay Purchase Price. — The failure of the vendee under a contract for the sale of land to pay the purchase price within the time stipulated, or to perform other conditions of the contract, is no ground for a decree in equity declaring a forfeiture of his rights. A court of equity will never enforce a penalty or forfeiture.</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.</p>

<p>New Trial—Notice of Intention — Striking out—Want of Diligence. —A notice o£ intention to move for a new trial cannot be stricken out for want of diligence in prosecuting the motion.</p> <p>Trespass by Cattle—Land in Fresno and Tulare Counties—Limitation.—In an action to recover damages for trespasses committed by cattle on land situated in Fresno or Tulare County, the right of recovery is not limited to trespasses committed within sixty days prior to the commencement of the action.</p>

<p>Contract for Sam of Land—Acceptance of Offer Contained in Circular— Railroad Lands.—The action was brought to recover the possession of certain land forming part of the railroad lands of the plaintiff. The defendant settled upon the land, under the provisions of a printed circular issued by the plaintiff, inviting settlers to go upon its lands and occupy and use them until the company was ready to sell, and giving to snch settlers the right to purchase on certain terms and conditions, all of which the defendant had complied with, except the completion of the purchase, which the plaintiff refused to permit. Held, that the acceptance by the defendant of the offer contained in the circular constituted a contract of sale, and established the relation of vendor and vendee between the plaintiff and the defendant, and that as the defendant was rightfully in possession, the plaintiff could not recover.</p>

<p>Ejectment—Boundaries—Land Included in Quarter-section—Evidence to Contradict Survey. — The action was brought to recover the possession of certain land. The plaintiff is the owner, by title derived from the United States government, of the southeast quarter of sgction 13 in township 11 north, range 9 west, Mount Diablo base and meridian, and the defendant Polack is the owner of the northeast quarter of the same section. The official plat of the approved survey of the township located the premises in controversy in the northeast quarter of the section. The patent under which the plaintiff claims describes the land conveyed as the southeast quarter of the section, “according to the official plat of the survey returned to the general land-office by the surveyor-general.” Held, that neither parol evidence nor a private survey was admissible to show that the premises in controversy were situated in the southeast quarter of the section.</p> <p>Id. — Map Referred to in Deed. —A map of a tract of land, having lines drawn upon it marking the boundaries and the natural objects upon its surface delineated, which is referred to in a deed containing a description of the premises therein conveyed, is to be regarded as giving the true description of the land conveyed, as much as if it was expressly recited and marked down in the deed itself.</p>

<p>Appeal from, a judgment of the Superior Court of Colusa County, from an order refusing to set aside the judgment, and from an order refusing to set aside an execution sale.</p> <p>The facts are stated in the opinion of the court.</p>

The action was brought to recover for certain services performed under an agreement stated in the opinion. The further facts are stated in the opinion of the court.

Superior Court of ■Sacramento County, and from an order refusing a new trial. The action was brought to recover the amount of certain delinquent taxes. The property assessed was situated in the city of Sacramento, and the taxes were levied for municipal purposes for the fiscal years 1882-83. The assessment described the property as consisting of several lots, giving their numbers in a designated block, and valued them as a whole.

<p>Quieting Title—Estate of Decedent—Personal Representative and Heirs are Proper Parties. —In an action to. quiet title to land against the estate of a deceased person, both the personal representative of the decedent and his heirs at law are proper parties defendant.</p> <p>Id. — Amendment — Joinder of Personal Representative.—Where a ' general leave to amend has been obtained, the plaintiff has a right to join other proper parties as defendants without special permission so to do.</p> <p>Id.—Change of Nature of Action—Misjoinder of Causes of Action. — The action was brought to quiet title to certain land. The original complaint alleged that the plaintiff’s devisor was the owner of the land, ■ and conveyed the same by a deed absolute in form to one Gridley in 1866; that the deed was intended as a mortgage to secure an indebtedness, which had subsequently been fully paid; that Gridley promised to reconvey the property, but died without having done so. It was further alleged that the deed constituted a cloud on the title of the plaintiff. The widow and children of Gridley were made parties defendant. The plaintiff subsequently filed an amended complaint, making the administratrix of the estate of Gridley also a defendant; and further alleging that the plaintiff’s devisor remained in the actual, open, notorious, uninterrupted, and exclusive possession of the land, claiming the same as his own, and adversely to every other right, from the time of the execution of the deed until his death in 1883. The prayer was for a decree establishing the ownership of the plaintiff to the land, and that the defendants had no right or title therein; that the deed be declared a mortgage and canceled of record, and that the title of the plaintiff be quieted. Held, on demurrer and motion to strike out, that the amended complaint did not materially change the nature of the action, and that several causes of action were not improperly joined.</p> <p>In.—Statute oe Limitations—Immaterial Issue—Enramo.—The defendants pleaded section 337 of the code of Civil Procedure in bar of the action. Held, that the section did not apply, and that no finding on the subject was required.</p>

<p>Grantor and Grantee — Adverse Possession by Grantor—Subsequently Acquired Title. — A grantor of land who remains in the adverse possession thereof for the period prescribed by the statute of limitations obtains a title as against his grantee, and a title subsequently acquired by him inures to his benefit, and not to the benefit of the grantee.</p>

The action was brought to recover an installment of the purchase price of certain land sold by the plaintiff to the defendants. The further facts are stated in the opinion of the court.

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

<p>Appeal from a judgment of the Superior Court of Sierra County.</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.</p>

<p>Criminal Law—Refusal to Pat over Public Monet—Indictment.— The indictment charged in effect that the defendant was the tax collector of Del Horte County from the first Monday in January, 1883, at 12 o’clock, M., to the like day and time on the fifth day of January, 1885; . that as tax collector he had on the fifth day of January, 1885, received and collected certain public money, and on that day, and for five days thereafter, and ever since then, had wholly and willfully refused and omitted to pay it over to the county treasurer. Held, that the indictment charged but one offense, and was sufficient under section 424 of the Penal Code.</p>

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

<p>Criminal Law — Obtaining Property under False Pretenses—Description op Property—Variance. —An indictment for obtaining under false pretenses a promissory note alleged to have been executed by the person defrauded is not sustained by evidence showing that the note was jointly executed by him and another.</p> <p>Id.—Promissory Note—Personal Property.—Under section 7 of the Penal Code, a promissory note is personal property, and may be the subject of the offense of obtaining property under false pretenses.</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.</p>

<p>Public Land—Contest as to Right to Purchase — Conclusiveness of Judgment. — In hearing and determining a contest between rival claimants of the right to purchase public lands of the United States, the officers of the land department act judicially; and their judgments cannot be collaterally assailed in an action at law.</p> <p>Id.—Title Acquired by Fraud-—■ Trust—Action to Compel Conveyance of Legal Title. — If the successful claimant has acquired, pursuant to the judgment, the legal title affected with any fraud or trust in relation to it, he will be regarded in equity as a trustee of the true owner, who may by a proper proceeding compel a conveyance to himself of the legal title.</p> <p>Id.—Pleading—Evidence.—In an action by the unsuccessful claimant to compel a conveyance of the legal title, the plaintiff must distinctly allege and clearly prove that he occupies such a status as gives him the right to control the legal title.</p> <p>Id. — The action was brought by an unsuccessful claimant of the right to purchase certain public land of the United States under the pre-emption and homestead laws, against the successful claimant, to compel the latter to convey the legal title to the plaintiff. The complaint showed that in the contest as to the right to purchase, the land department had decided that the defendant settled upon and occupied the land before the plaintiff entered upon it, and had not abandoned his occupation, and that the plaintiff invaded the occupation of the defendant, and was not a qualified pre-emptor. Held, that the plaintiff was not in a position to control the legal title issued to the defendant.</p> <p>Id. — Insufficient Allegations of Fraud.—In order to avoid the conclusiveness of the judgment of the land department, the complaint alleged in general, terms that the judgment was based upon certain false, perjured, incompetent, and irrelevant evidence introduced by the defendant, but did not state what the evidence was. Held, that the complaint was insufficient.</p>

<p>I&ew Trial—Statement—Presentation for Settlement—Time for. — The defendant, having duly served Ms proposed statement on motion for a new trial, to wMch the plaintiff had duly served amendments, presented the same to the judge for settlement fourteen days after the service of the amendments. No notice was given to the plaintiff of the presentation. The judge refused to settle the statement because it had not been presented in time, and because no notice of the presentation had been given. The defendant thereupon engrossed the statement, embodying therein all of the proposed amendments, and presented it to the judge for settlement thirty days after the former presentation. Held, that the engrossed statement was a new statement, and that the judge had no authority to settle and allow it, as the time for the service of a statement had passed.</p>

<p>Water Rights — Appropriation — Equity—Injunction. — A court of equity has power to ascertain and determine, as between several appropriates of the waters of a natural stream, the extent of the respective rights of each in the waters therein flowing, to regulate the use thereof in such a way as to maintain equality of rights in the enjoyment of the common property, and to enjoin a subsequent appropriator from interfering with the rights of the prior appropriators as ascertained and established by the court.</p> <p>Id. — Water Ditch—Evidence of Capacity—Experts. —A witness who has had many years’ practical experience in mining and measuring and selling water to miners, although not an expert in the science of measuring water, may testify to the carrying capacity of a particular water ditch.</p>

<p>Specific Performance—Contract must be Definite and Certain— Evidence. — The specific performance of a contract cannot be had unless the thing agreed to be done is definite and certain in its terms and in itself, and the party claiming performance establishes by clear and satisfactory proof the existence of the contract as he alleges it.</p> <p>Id.—Contract for Indemnity —Agreement to Execute Note and Mortgage. — The action was brought to procure the specific performance of a parol contract. The complaint alleged that the plaintiff, having become liable as the accommodation surety for the defendant on two promissory notes, hearing a given rate of interest, entered into a contract with her whereby she promised, in consideration of his joining with her in the execution of a new note for six hundred dollars, payable six months after date, at a different rate of interest, to secure him against liability on the three notes by giving him her individual note secured by a mortgage upon her homestead property, the note to he made payable to him at the same time as the six-hnndred-dollar note, in a sum equal to the whole amount then due on the three notes, and to bear the same rate of interest, and the mortgage to be made in such an amount as would secure him against any liability by reason of his becoming her surety. The court found the contract as alleged in the complaint, except that it was made in consideration of the plaintiff becoming surety on a note payable one year after date. Held, that specific performance of the contract could not he had, — 1. Because the contract as alleged in the complaint and as found by the court differed in the consideration; and 2. Because the contract was indefinite and uncertain both as to the time of payment of the note and mortgage, and as to the amount for which the mortgage was to he given, and the rate of interest on the note.</p> <p>Id. —Waiver of Right to Specific Performance. —The plaintiff performed his part of the contract, hut there was no subsequent ascertainment or agreement as to the amount and terms of the mortgage; nor did he make any demand on the defendant for a performance on her part until after the debt for which he was surety became due, at which time the contract in its original shape could not he performed. Held, that the plaintiff had waived his right to a specific performance of the contract.</p> <p>Id. — Surety — Rights of after Payment — Insolvency of Principal — Homestead — Excessive Value. —The complaint alleged and the court found that the defendant was insolvent, but owned certain premises which she claimed as a homestead. The notes on which the plaintiff was surety were otherwise unsecured. Held, that upon the payment of the notes by the plaintiff, 1ns remedy was by an action at law against the defendant to recover the amount that he had paid, and that the judgment therein might he enforced against the homestead premises to the extent that they exceeded in value the amount allowed by the statute.</p>

The action was brought to recover damages for the conversion of certain personal property alleged to have been owned by the plaintiff’s testator at the time of his death, and described in the complaint as the saloon fixtures and furniture and stock in trade of liquors, cigars, and tobacco contained in a certain saloon in Marysville. Prior to October 2, 1882, the property in controversy belonged to a firm composed of William Wearman, the plaintiff’s testator, and one Serrett.

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

The action was brought to enforce an assessment for the reclamation of swamp land. Prior to and at the trial the defendants tendered a warrant of the district in payment of the assessment. The tender purported to be made in conformity with section 3465 of the Political Code, which provides that the assessments may be paid “in warrants of the district, drawn by order of the trustees thereof, and approved by the* board of supervisors.

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

<p>Partnership—Accounting—Surviving Partner cannot Maintain Action for. — A surviving partner cannot maintain an action against the personal representative of his deceased partner for an accounting of the partnership affairs.</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>

The action was brought on a fire insurance policy to recover the amount of an alleged loss. 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,, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Pleadings — Amendment —Discontinuance oe Parties — Change of Nature of Action. — The action was originally brought by several plaintiffs against the defendant Walter and others, to restrain Walker from interfering with certain water rights owned by the plaintiff, Ware. The defendants other than Walker were joined as such because they refused to become plaintiffs. An amended complaint was subsequently filed, in which Ware alone was named as plaintiff, and Walker as defendant. Held, that the amended complaint did not change the nature of the action.</p> <p>Water Rights—Public Lands—Approeriator mat Remove Obstructions from Stream. — An appropriator of the waters of a natural stream flowing through public lands of the United States has a right, as against a subsequent purchaser from the United States, to go upon the land of such purchaser higher up the stream than the point of diversion, and remove obstructions from the bed of the stream, so as to cause its waters to flow in their natural channel to the point of diversion.</p>

<p>Public Lands — Settlers upon Unsurveyed—Agreement for Conveyance when Void. — An agreement between settlers upon unsurveyed public lands of the United States to the effect that, after their respective lands should be surveyed and patents obtained therefor, each would convey to the other such land embraced in the patent to him as was in the possession of the other at the time of the agreement, is void under section 2263 of the United States Revised Statutes, unless the parties are settlers and have their improvements upon the same legal subdivision.</p> <p>Id.—Conclusiveness of Patent—False Oath of Applicant to Preempt. — A patent for public lands of the United States issued to a pre- . emptor cannot be collaterally attacked on account of the false oath of the patentee in making his application to pre-empt the land.</p>

The final account of the executor of the last will of the deceased was settled and the executor discharged by a decree of the Probate Court entered on the 7th of August, 1875.

The action was brought for the specific performance of a contract for the sale of land against the devisees and heirs at law of the vendor. The further facts are stated in the opinion of the court.

The proceeding was by mandamus to compel the defendant to appoint the petitioner to the office of road overseer of Suisun road district in Solano County. The petitioner, claiming to act under section 2642 of the Political Code, as amended on the 28th of February, 1883, presented a petition signed by a majority of the tax-payers of the road district, asking the appointment of the petitioner as road overseer.

<p>Appeal from a judgment of the Superior Court of Sierra County, and from an order refusing a new trial.</p> <p>The actions were brought for the foreclosure of certain miner’s liens. Prior to the trial of the actions, the counsel of the respective parties stipulated that the depositions of certain witnesses residing out of the state might be taken before a designated justice of the peace, and that when so taken the depositions might be used on the trial of the actions. On the trial, the appellant objected to the introduction of the depositions in evidence, on the ground that they were not taken under a commission issued from the trial court. The further facts are stated in the opinion.</p>

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

<p>False Representation—Decree in Divorce Suit—Reformation of— Knowledge of Attorney. —Pending an action for divorce, the parties thereto entered into an agreement for the division of their community property in case a divorce should be granted, whereby the wife, the present plaintiff, was to have set apart to her a certain ranch known as the Home Place, consisting of a particular lot, and a tract of land of about twenty acres inclosed therewith. The decree in the divorce suit, to which the plaintiff assented, awarded her the Home Place, but erroneously described it as consisting solely of the lot, thus omitting the twenty-acre tract. At the time of the decree, neither the plaintiff nor her attorney knew of the exact extent and boundaries of the Home Place. The attorney had means by which he might have informed himself on the subject, but omitted to do so, and applied to the defendant for information, who stated to him that the lot covered the entire place. The action was brought to reform the decree so as to include and award to the plaintiff the twenty-acre tract, on the ground that her assent to the decree as rendered had been induced by the false and fraudulent representations of the defendant. Held, that the plaintiff was entitled to the relief prayed for.</p> <p>Practice—Immaterial Issue —Defense Unsupported by Evidence — Findings. ■— An issue raised by a defense upon which no evidence is offered at the trial, and no finding made, is deemed immaterial, and the judgment will not be reversed for want of a finding.</p>

<p>Justice’s Court—Appeal on Questions of Law—Arbitrary Dismissal of — Jurisdiction — Certiorari. —An appeal from the Justice’s Court taken on questions of law alone cannot be dismissed by the Superior Court on the ground that the appeal should have been taken on questions of law and fact, if the statement on appeal contains the evidence upon which the question of law involved in the appeal was raised and decided in the Justice’s Court. Such a dismissal is in excess of the jurisdiction of the Superior Court, and will be annulled on certiorari.</p>

<p>Lottery Ticket—Bond — Time of Payment Determined by Chance — Premium on Bond. — The petitioner was convicted of selling a lottery ticket. The supposed lottery ticket was one of a large number of bonds issued by the city of Brussels. The bond in question is numbered 387, and provided that the holder should be entitled to the repayment of the principal, with interest thereon. It further provided, in effect, that a certain number of the bonds should be payable each year, and in order to ascertain what particular bonds should be payable during a given year, an annual drawing should be had, and the bonds bearing the numbers drawn thereat should become due and payable. It further provided that the holders of bonds bearing the first forty nunbers drawn should be paid premiums ranging from tMenty-five thousand francs for the first down to two hundred francs for the last. Held, that the bond was not a lottery ticket withip the meaning of sections 319 and 321 of the Penal Code.</p>

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

<p>Contempt—Refusal of Telegraph Employee to Produce Messages-— Subpcena Duces Tecum. — An employee of a telegraph company, having charge of messages transmitted by it. is not guilty of contempt for refusing to obey a subpcena duces temrrri,-ommanding him to search for and produce all messages from and to a large number of persons therein named, between specified dates. The subpoena must identify the particular messages required.</p>

<p>Pleading—Allegation of Time of Promise — Evidence. —In an action to enforce a promise alleged to have been made by the defendant on a certain day, the plaintiff is entitled to recover upon proof that the promise was made at any time before the commencement of the action, He need not prove that it was made on or about the time alleged in the complaint.</p>

<p>Criminal Law—Assault with Deadly Weapon with Intent to Murder — Conviction for Lesser Offense—Instruction. — In. a prosecution for an assault with a deadly weapon with intent to murder, the omission of the court to instruct the jury as to its power to convict for a lesser crime necessarily included in the charge is not error, if the evidence would not warrant a conviction for the lesser crime, or if a request for such an instruction was not made by the defendant.</p> <p>Id. —Evidence of Drunkenness—Admissibility of—Must be Received with Caution. —In such a case, evidence of the drunkenness of the defendant must be received by the jury with great caution, and can be considered by them only for the purpose of determining the degree of the crime by showing that his mental condition at the time of the assault incapacitated him from deliberately forming an intention to murder; but it cannot be considered in determining whether he committed an assault with a deadly weapon with intent to inflict great bodily harm.</p> <p>Id. — Deadly Weapon Defined. — A deadly weapon is one likely to produce great bodily harm. A knife may be such a weapon.</p>

The defendant was convicted on circumstantial evidence of the crime of grand larceny. The further facts are stated in the opinion of the court.

<p>Change of Venue—Disqualification of Judge—Receipt of General Retainer. —A change of the place of trial may be had on the ground that the judge of the court in which the action was brought had received a general retainer from one of the parties.</p>