Volume 71 — California Reports

<p>Criminal Law—Murder—Implied Malice—Absence op Provocation — Unlawful Killing. —In a prosecution for murder, when no considerable provocation for the killing appears, malice is implied; and if the killing is with malice, it is unlawful.</p> <p>Id,— Clothing of Deceased — Evidence — Res Gesm. —In such a prosecution, where death was caused by stabbing with a knife, the clothing of the deceased covering the portion of his body where the wound was inflicted is admissible in evidence as part of the res gestee, for the purpose of showing the violence of the blow, and the course or direction of the incision.</p> <p>Id. — Express and Implied Malice—Degrees of Murder Distinguished. — Under section 189 of the Penal Code, to constitute murder of the first degree, the killing must be premeditated, except when done in the perpetration of certain felonies and accompanied with express malice, proved by circumstances independent of the killing. Where the intention to kill is proved by the circumstances preceding or connected with the homicide, there is no question of implied malice; and unless the express malice is affirmatively proved, the defendant cannot he convicted of murder of the first degree, even though his commission of the homicide is proved, and there is no evidence that it is manslaughter or that the killing was justifiable or excusable. In such a case, the verdict should be guilty of murder in the second degree.</p> <p>Id. —Proof of Prima Facie Case by Prosecution—Defendant must Overcome by Preponderance of Evidence. —Where the commission of the homicide by the defendant is proved on the part of the people, and the evidence of the prosecution does not tend to prove the offense manslaughter, or that the homicide was excusable or justifiable, the defendant must prove by a preponderance of evidence that the crime was only manslaughter, or that he was excusable or justifiable.</p> <p>Id.—Defendant as Witness—Evidence of—Jury must Carefully Weigh — Instruction. — On the trial, the defendant testified as a witness in his own behalf. The court instructed the jury that in weighing his testimony they should consider his position, the manner in which he might be affected by the verdict, and the very grave interest he must feel in it, and whether this position and interest might not affect his credibility and color his testimony; but that they should weigh the testimony fairly, and give it such credit as they thought it ought to receive. Held, that the instruction was proper.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.</p> <p>In October, 1883, S. Lachman, being the owner of a certain winery, and its contents, consisting of machinery, cooperage, etc., caused the same to be insured in his own name, against loss by fire, in the sum of ten thousand dollars. Six thousand dollars of the insurance was on the building, and four thousand dollars on the movable chattels, and on this basis the whole amount was divided among several companies, including' the defendant, whose policy covered about one third of the whole risk. During the term of the insurance, on the 7th of May, 1884, Lachman sold and conveyed the whole of the insured property, both real and personal, to one M. S. Nevis, for the sum of seven thousand five hundred dollars, receiving in payment a check for three thousand five hundred dollars, which was paid, and the note of Nevis for the balance. Immediately upon the completion of the transfer, Lachman delivered the policies of insurance to Nevis, who on the same day procured an indorsement to be made on each of the policies by the respective companies, to the effect that the loss, if any, should be paid to the plaintiff. At the time of its indorsement, the defendant had no notice of any sale from Lachman to Nevis. The policy in question contained a provision that it should become void upon any sale and conveyance of the insured property, and could only be revived by an assignment to the vendee; and that no such assignment could be made before a loss without the written consent of the defendant indorsed on the policy. Printed on the back of the policy was a notice, to which the attention of the insured and all concerned was particularly directed, containing forms for assignment and consent to assignment, and a statement that the policy was not assignable for the purpose of collateral security, but in all such cases was to be made “payable in case of loss,” etc., by declaration on its face. The loss, to recover for which the action was brought, occurred on the night following the sale. The further facts are stated in the opinion of the court.</p>

<p>Statute of Frauds — Agreement to Pat for Past Services.—An agreement to pay a physician for his past attendance on a third person, rendered at the request of the latter, and also for his services to be rendered such person in the future, is a promise to answer for the debt of another, so far as the past services are concerned, and must be in writing.</p>

<p>Criminal Law—Grand Larceny—Stealing Gold-dust from Mining Claim—Act of March 20, 1872. —The act of March 20, 1872, entitled “An act supplementary to an act concerning crimes and punishments, passed April 16, 1850,” and providing that the felonious stealing, taking and carrying away, of gold-dust from a mining claim shall be grand larceny, is not an amendment to the latter act, and must be construed as having been passed subsequent to the passage of the Penal Code, and to be still in force.</p>

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

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

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

The action was for the claim and delivery of certain hogs, which had been attached by one of the defendants, a sheriff, as the property of one Ho. Yuclc, in an action wherein J. D. McDougald was plaintiff, and Ho Yuck was defendant. The hogs in question had originally belonged to McDougald, but had been sold, as claimed by him, to Ho Yuck. The plaintiff, on the contrary, claimed that the sale had been made to him.

<p>Appeal from a judgment of the Superior Court of Stanislaus County.</p> <p>The facts are stated in the head-notes and opinion.</p>

<p>Statute of Limitations — Title under—Possession and Payment of Taxes Essential. — Title to land cannot be acquired under the statute of limitations by a person who has never been in the actual possession thereof, and has never paid any taxes assessed against it.</p> <p>Written Instrument — Use of Masculine Pronoun — Evidence to Identify Person Intended. —The use of the pronouns “he” and “his ” in a written instrument, in referring to a person whose Christian name is designated therein by a mere initial, is not conclusive that the person referred to is a male; and in an action founded on such instrument, parol evidence is admissible to show that the person intended is a female.</p> <p>Evidence — Party Objecting to may Use. — An instrument admitted in evidence may be used by the party against whom it is offered to prove any fact which it legitimately tends to prove, notwithstanding he objected to its introduction.</p>

<p>Public Record—Charge against Official—Right of Citizen to Inspection. — A written charge made to a board of supervisors, a board of directors or trustees of a college or other state institution, upon being filed in the office of the custodian of their records, does not necessarily become a public record to which any citizen may have access at pleasure.</p> <p>Id. —Mandamus to Compel Inspection — Beneficial Interest. —A writ of mandate will not lie, under section 1086 of the Code of Civil Procedure, to compel the custodian of a public record to allow it to be inspected by a citizen of the state, unless the applicant has a beneficial interest in its examination.</p>

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

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

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

<p>Way of Necessity—Conveyance of Inclosed Land—Designation of Way. — A conveyance of land which is entirely inclosed by other lands of the grantor carries with it, as appurtenant to the premises conveyed, a right of way of necessity over the adjoining lands of the grantor, subject to the limitation that the grantor may, in the first instance, designate the way to be pursued, and in the event of his failure so to do, the grantee may choose it for himself.</p> <p>Id.—Grantor may Designate Way—User of Way by Grantee—Notice. —In such a case, the grantor may designate a particular way in preference to one in use at the time of the conveyance; and the subsequent user by the grantee of the way as designated is sufficient notice of its existence to all persons claiming under the grantor.</p> <p>Id. —Action to Abate Obstructions-—Declarations of Grantor—Evidence. — In an action by the grantee against a subsequent purchaser from his grantor of the adjoining land to restrain the latter from obstructing the right of way, the declarations of the grantor relating to the designation of the line of way are admissible.</p> <p>Id.—Way by Prescription.—The continuous, uninterrupted, and exclusive user of a private way over the land of another for five years, under a claim of right and with the knowledge and acquiescence of the owner, is sufficient to create a right of way by prescription over such land.</p>

<p>Conversion—Property Covered by Chattel Mortgage—Measure of Damages — Instructions. —The action was brought against a sheriff to recover damages for the conversion of certain personal property, of part of which the plaintiffs were the owners, and on the remainder of which they held a chattel mortgage. On the tria), the court instructed the jury that if they found that the plaintiffs were the owners or entitled to the possession of the property as pledgees, and that the defendant wrongfully converted it, the detriment caused thereby was presumed to be the value of the property at the time of the conversion, with interest from that time, and a fair compensation for the time and money properly expended in pursuit of the property. It further instructed them that if they found that the defendant levied upon, sold, and converted that portion of the property upon which the plaintiffs held a chattel mortgage, and that he neither paid nor tendered to the plaintiffs the amount of the mortgage debt with interest, nor deposited the amount thereof with the county clerk to their order, then as to that particular property, the plaintiffs were entitled to a verdict for the amount of the mortgage debt with interest. Held, that the instructions were proper.</p> <p>Id.—Pursuit of Property—Time and Money Spent in—Compensation for.—In such an action, to entitle the plaintiff to compensation for time and money spent in pursuit of the property, the evidence must show that money was properly spent, and time lost in the pursuit, and the amount thereof. When that is done, it is for the court or the jury, as the case may be, to allow a fair compensation therefor.</p>

<p>Swamp and Overflowed Land—Action to Enforce Assessment—Statute of Limitations—An assessment for the reclamation of swamp and overflowed lands is a liability created by statute, within the meaning of subdivision I, section 338 of the Code of Civil Procedure, and an action to enforce it is barred if not commenced within three years after the cause of action accrued.</p>

<p>Insolvency—Property Exempt prom Execution—Thrashing Machinery— Farmer. —An expensive thrashing outfit, consisting of a thrashing-engine, water-tanks, a thrasher, a derrick and forks, a seed-cleaner, a feeding-machine, a feeding-rack, and a cook-house, which is owned in common by several farmers, and used by them to a limited extent on their own lands, but principally in doing work for others for hire, is not exempt from execution under subdivision 3 of section 690 of the Code of Civil Procedure, and upon the insolvency of one of the co-owners, his interest therein cannot be set apart for his use and benefit.</p> <p>Id. — Several Implements op Same Character cannot be Set Apart. — An insolvent farmer, for whose benefit a particular implement of husbandry has been set aside as exempt from execution, cannot have another implement of the same general character, although operated in a different manner, set aside for his benefit, unless it appears that the former implement is insufficient for his purposes.</p> <p>Id.—Application to Set Apart—Creditors may Oppose without Piling Written Objections. — On an application by an insolvent debtor to have certain property set aside to him as exempt from execution, the creditors may appear and object to the property being set aside, without filing any paper setting forth their objections.</p>

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

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

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

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

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

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

<p>Appeal from a judgment of the Superior Court of Calaveras County, and from an order refusing to vacate and set aside the judgment.</p> <p>Motion to dismiss appeals. The facts are stated in the opinion.</p>

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

<p>Insolvency—Merchant or Tradesman—Failure to Keep Proper Books op Account — Discharge.—Section 49 of the insolvent act of April 16, 1880, does not prohibit the discharge of an insolvent merchant or tradesman who was engaged in business as such, hut did not keep proper books of account prior to the passage of the act.</p> <p>Id.— Immaterial Issue—Judgment.—The petition for the discharge of the insolvent alleged, and the evidence conclusively proved, that the insolvent had not been engaged in any business before the 20th of July, 1881. On the hearing of the petition, the court, against the objection of the insolvent, submitted to the jury the issue whether or not he had kept proper books of account since the 16th of June, 1880, that being the day when the insolvent act took effect. On this issue the jury found in the negative, and a judgment refusing a discharge was thereupon entered. Held, that the issue as submitted was immaterial, as the insolvent was not engaged in business before the 20th of July, 1881, and that the judgment based thereon was erroneous.</p>

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

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

<p>Statute of Limitations — Quieting Title—Trustee.—In am action to quiet title to land, the right of the defendant to charge the plaintiff as trustee of the land for his benefit on the ground of fraud, held, barred by the statute of limitations.</p>

<p>Injunction—Restraining Working of Mine—Answer — Allegation of Contract — Conclusions of Law. — The action was brought to enjoin the defendants from extracting and removing ore from a certain mining claim owned by the plaintiffs. The answer averred in effect that the defendants were lawfully in possession of, and were engaged in working and mining the claim, under a contract between the plaintiffs and themselves, which entitled them to continue the working, but did not set forth the contract either in lime verba or according to its legal intendment. Held, that the allegations of the answer were merely conclusions of law, and that evidence of the contract was inadmissible.</p> <p>Evidence — Original Complaint not Admissible after Amendment. — Where an amended complaint is filed, the allegations of the original complaint are not admissible as evidence for or against the plaintiff.</p> <p>License to Work Mine—Revocation —Landlord and Tenant. —A verbal contract between the owner of a mine and a third person, whereby the latter is given permission to enter and work the mine if he sees fit, and to exercise his own discretion whether to work it or not, does not create the relation of landlord and tenant between the parties, but is a mere license to work which may be revoked at the will of the licensor.</p>

<p>Forcible Entry—Removal or Fence in Night-time — Trespass.—The action was for a forcible entry upon land forming part of an inclosure of which the plaintiff was in the actual and peaceable possession. During the night-time, the defendant, with a large number of men and several teams of horses and wagons, in the absence of the plaintiff and without his knowledge or consent, entered upon the locus in quo, broke down and dug up the fence inclosing it, and removed the materials to a considerable distance from their original position. After the entry the defendant did not personally remain upon the land, but he asserted possession thereof and exercised acts of ownership over it. Held, that the acts of the defendant were more than a mere trespass, and constituted a forcible entry.</p> <p>Id. —When Entry is Forcible. —To constitute a forcible entry it is not necessary that it should be accompanied with tumult or riot directed against the person of the party in possession. It is sufficient if the entry is attended with such a display of force as manifests an intention to intimidate him, or deter him from defending his rights, or excite him to repel the invasion of his possession, and thus bring about a breach of the peace.</p> <p>Id. —Held further, that in such a case it is immaterial whether the person in possession is present or absent at the time of the entry.</p>

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

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

<p>Appeal from a judgment of the Superior Court of 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>Public Road—Action to Restrain Opening—Existence of Road a Question of Fact. —In an action to restrain a road overseer from opening an alleged public road, the question whether the locus in quo had ever been a highway is one of fact.</p> <p>Id.—Declarations of Former Owner — Evidence.—The action was brought to restrain the defendant as road overseer from opening an alleged public road across the land of the plaintiff. On the trial, the defendant introduced in evidence certain declarations of a former owner of the land to the effect that he intended to open the bats in quo as a road. The plaintiff thereupon in rebuttal introduced certain other declarations of the former owner made at about the same time, and while he was having the land surveyed, to the effect that he did not intend to open the road. Held, that the evidence was properly admitted.</p> <p>Id. —Declarations Made during Performance of An Act. — The declarations of a party while engaged in the performance of an act, and illustrating the object and intent of its performance, are admissible in evidence.</p> <p>Id. —Witness cannot Testify to Impressions. —Where a witness has testified to the performance of certain acts by another, he cannot give his impressions as to the object the other had in their performance. Such an inference is for the court.</p>

<p>Tax Collector—City and County or San Francisco—Failure to Pay over Money Collected — Statute or Limitations. — The tax collector of the city and county of San Francisco is legally bound to pay over the moneys collected by him in his official capacity upon the expiration of his term of office, without any demand being made upon him for payment. If he fails so to do, the statute of limitations commences to run from that time against the right of the city and county to maintain an action on his official bond to recover for his default.</p>

<p>Appeal — Transcript — Stipulation to Correctness op. — Where the correctness of the transcript on appeal is stipulated to by the respondent, he cannot afterwards impeach it by showing that the judgment was entered at a later date than that shown on the face of the record.</p> <p>Id. — Pleading—Complaint — General and Special Demurrer.—If a complaint fails to state a fact essential to the cause of action, the defendant may take advantage of the defect by a general demurrer. If, however, the complaint avers all the essential facts, but states them defectively or improperly, the defect can only be reached by a special demurrer, particularly designating the specific point at which it is aimed.</p> <p>Judgment — Collateral Attack — Defendant not Served.—A judgment against a defendant who was not served with summons, and did not appear in the action, cannot be collaterally attacked if the record shows that the defendant was served and appeared, and the judgment is regular on its face.</p> <p>Id.—Judgment by Default when Voidable.—A judgment entered against a defendant by default, before the time for answering has expired, is voidable.</p> <p>Id.—Restraining Enforcement of Judgment—Allegations of Complaint— Showing Defense to Former Action. —In an action to restrain the enforcement of a voidable judgment, the complaint must show that the plaintiff had a good defense to the action in which the judgment was rendered. Such a defense is sufficiently shown, in the absence of a special demurrer, by an allegation that at the time of the entry of the judgment the defendant had no cause of action against the plaintiff.</p>

<p>Landlord and Tenant—Negligence of Janitor — Overflow of Water] —Liability of Landlord to Sub-tenant. —The landlord of a building is liable for the damage done to the goods of a sub-tdnant by reason o( an overflow of water which a janitor of a building, in the employ of the landlord, negligently permitted to escape from a wash-basin in thé building.</p>

The action was brought to recover damages for the failure of the defendant to pay to one Jackson, a creditor of the plaintiff, certain money which had been intrusted to him for such purpose by the plaintiff, and which he had agreed to pay. The further facts are stated in the opinion of the court.

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

The action was brought to quiet title to certain real estate. On the trial, the defendant Lincoln, for the purpose of showing title in himself, offered in evidence the judgment by confession referred to in the opinion, under which the premises in controversy were attempted to be sold to his grantors; also a copy of articles of association of the Sutter Land Company, under whom he claimed; and the tax deed referred to in the opinion.

<p>Appeal from a judgment of the Superior Court of Santa Cruz County, from an order refusing to vacate the judgment, and from an order refusing a new trial.</p> <p>The action was brought to foreclose a mortgage executed on the 4th of May, 1870, by Thomas W. Mann to the plaintiff, and payable one year after date. On the 4th of July, 1871, the mortgagor and his wife conveyed the mortgaged premises to one Abel Mann, who died on the 4th of December, 1871. The plaintiff became his administrator on the 29th of the same month, and in June, 1872, assigned the mortgage debt to Adolphus Brown for the sole purpose of having the mortgage foreclosed. On the 26th of the following July, Adolphus Brown brought a suit in his own name to foreclose the mortgage against the mortgagor, and the present plaintiff as the administrator of the estate of Abel Mann, and others. The suit was prosecuted to judgment, under which the premises were sold to Thomas W. Mann. The latter not being able to pay the purchase price, the plaintiff was substituted for him as purchaser. Thereafter, Adolphus Brown reassigned the mortgage debt, and assigned the judgment to the plaintiff. On the 4th of May, 1875, the plaintiff, having ceased to be the administrator of the estate of Abel Mann, moved the court to vacate the judgment, substitute him as plaintiff, and allow him to file a supplemental complaint to foreclose the mortgage, making other parties defendants. The motion was granted on the 28th of June, 1879, and on the 12th of September of the same year the supplemental complaint was filed. Subsequently the judgment appealed from was rendered in favor of the plaintiff. The further facts are stated in the opinion of the court.</p>

<p>Criminal Law—Libel — Person Deferred to in Publication—Question for Jury. — In a prosecution for libel, the question to whom the alleged, libelous publication referred is for the jury, and it is error to permit a witness to testify thereto.</p> <p>Id,—Jury cannot Disregard Statute—Instruction.—In such a prosecution, an instruction that the jury might, if they thought fit, ignore the law defining a criminal libel, is erroneous.</p>

<p>Criminal Law—Presenting Fraudulent Claim to Supervisors—Indictment— Claim of Several Items.—An indictment for presenting to a board of supervisors for allowance a false and fraudulent claim, the offense being alleged substantially in the language of section 72 of the Penal Code, is sufficient, notwithstanding the claim as presented contained several items alleged to be false and fraudulent, and certain items as to which no such allegation was made.</p> <p>Id. — Warrant upon Which Claim is Based—Regularity of Issue. — In such a case, it is immaterial whether or not the warrant was regularly issued upon which the claim was based.</p> <p>Evidence—Impeachment of Witness—Conviction of Misdemeanor.— A witness cannot be asked on cross-examination, for the purpose of affecting his credibility, whether he had been arrested and convicted of a misdemeanor, and had been incarcerated in the county jail. Under section 2051 of the Code of Civil Procedure, evidence of such a character is limited to convictions for felonies.</p> <p>Id.—Record of Conviction—Offense must Involve Moral Turpitude or Infamy. —The record of a conviction of a misdemeanor is not admissible for the purpose of discrediting a witness, unless it is shown that the offense involved moral turpitude or infamy.</p>

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

<p>Constitutional Law — Interstate Commerce—Peddler’s License—Municipal Ordinance Imposing. — An ordinance of a board of supervisors which imposes a license tax upon every traveling merchant,, hawker, or peddler who vends goods, wares, or merchandise of any kind, other than the manufactures or productions of this state, without requiring a license for vending the manufactures or productions of this state, is in conflict with the constitution of the United States, in that it is an attempt to regulate commerce between the states.</p>

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

The action was brought to determine the right of purchase of certain state land. The further facts appear in the opinion.

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

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

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

<p>Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.</p> <p>The action was brought on a promissory note. The defendant in his answer denied the allegations of the complaint, and pleaded in avoidance of the note,—1. Want of consideration; 2. Fraud in procuring the execution of the note; and 3. Rescission by agreement of the parties and the return to the payee of certain stock for which the note had been given. The further facts are stated in the opinion.</p>

<p>Vendor and Vendee—Part Payment of Purchase Price—Rescission by Vendor.—A vendor under a contract for the sale'of land, who has received a part of the purchase price at the time of the execution of the contract, cannot rescind the contract on account of the non-payment of the balance of the purchase price on the day stipulated for in the agreement, without returning or offering to return to the vendee the money that he had received on account of the contract.</p> <p>Broker—Sale of Rear Estate—Commissions when Earned.—The action was brought to recover the amount of commissions alleged to be due to the plaintiffs under a contract for the sale of land. On the 10th of May, 1883, the defendant entered into a written contract with the plaintiffs whereby he authorized them to sell a ranch belonging to him at a stated price prior to the 1st of September, 1883, and in consideration of their being instrumental in effecting a sale or finding a purchaser, agreed to pay them certain commissions. On the 21st of May, 1883, the plaintiffs found a purchaser to whom they agreed to sell for the price limited, a part of which was paid at the time, and the balance agreed to be paid and the deed delivered on or before the 1st of September, at a designated bank. On that day, the parties met at the bank, when Cox, the purchaser, offered checks in payment of the balance due, which the defendant refused to accept. The defendant then deposited a deed of the property in escrow with the bank officers, to be delivered to Cox upon his payment of the balance due at any time prior to the 5th of September. On that day Cox called at the bank, deposited the amount due to the credit of the defendant, and demanded the deed. His demand was refused upon the ground that the time for payment had expired. The defendant thereupon caused the amount to be transferred in the bank to the credit of Cox, but did not return or offer to return the amount of the part payment. A few days afterward he conveyed the property to his father, and the latter conveyed to Cox, receiving in payment the balance due on the original contract. Held, that the plaintiffs were entitled to their commissions.</p>

<p>Injunction—Mining by Hydbaulic Pbocbss—Unlawful Deposit of Tailings—Findings.— The action was brought by the owner of a, placer mining claim, who had appropriated the waters of a certain gulch by means o'f a ditch and flumes, for the purpose of working his claim, to restrain the defendants from mining by the hydraulic process on the hillside sloping into the gulch, in such a manner as to cause the tailings from their mine to run into and obstruct his ditch. The defendants by their answer averred that for more than twenty years they had possessed and worked their mine, and had used the gulch as a place of deposit for their mining tailings, and that the plaintiff had at his own. risk and peril entered upon their claim while they were working it, and. constructed his ditch and flumes. The court found in favor of the plaintiff, and rendered judgment as prayed for. Held, that the findings were warranted by the evidence, and supported the judgment, and were sufficiently intelligible.</p>

The proceeding was brought for a writ of review to annul an order of the board of supervisors of Colusa County granting to certain persons the right to use a public highway for the purposes of a steam railroad.

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

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

The plaintiff is the owner of a tract of land lying on the hank of the San Francisquito Creek, and the defendants of another tract through which flows, the Trancos, a tributary and feeder of the San Francisquito. The action was brought to restrain the defendants from continuing a certain reservoir constructed by them across the Trancos Creek, in such a manner as to divert the natural flow of the waters thereof from the lands of the plaintiff.

The action was brought to set aside a judgment for costs and an execution sale thereunder. The further facts are stated in the opinion of the court.

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

<p>Application for a writ of habeas corpus. The 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>Appeal from an order of the Superior Court of Sonoma County distributing the estate of a deceased person.</p> <p>The facts are stated in the opinion.</p>

<p>Contract fob Exchange of Lands—Possession of—Rights of Party to Contract— Trust. — In September, 1875, one Jacob Gilbert, being the owner of certain lands including the premises in controversy, entered into a verbal agreement with the defendant, who held a certificate of purchase from the state to an adjoining tract of swamp and overflowed land, for the exchange of certain parcels of their lands. Under the contract, each party was to take and thenceforth hold possession of the parcel given him, and they were to exchange deeds whenever the defendant obtained a patent for his land from the state. In pursuance of the contract, Gilbert took possession of the parcel given him, and so remained until his death in April, 1882, since which time the plaintiff, his widow, lias continued in possession without offering to return it to the defendant. When the contract was made, the defendant was in possession of the parcel given him, .and has ever since so remained without objection from Gilbert or the plaintiff, and has erected valuable improvements thereon. On the 3d of December, 1881, Gilbert conveyed his property, including the premises in controversy, to the plaintiff, upon her agreeing that when the defendant should .obtain a patent for his land, she would execute to him a deed for the premises in controversy, in accordance with the terms of the contract of exchange. On the 6th of December, 1881, the plaintiff filed a homestead upon all the land conveyed to her by her husband, and on the 30th of January, 1883, commenced this action to recover possession of the parcel held by the defendant. On the 20th of February, 1883, the defendant received a patent for his land from the state, and on the 10th of March following, he tendered to the plaintiff a deed of the parcel which her husband had taken in exchange, but she refused to accept it. The defendant filed a cross-complaint in the action, setting forth the foregoing facts, and prayed for a conveyance of the land to him. Held, that the plaintiff, having acquired the land with notice of the equities of the defendant, held the legal title thereto in trust for him.</p> <p>Id. — Statute of Limitations—Acquiescence—Possession by Oestut que Trust. —Held, further, that the right of the defendant to demand a deed from the plaintiff was not barred by the statute of limitations, —1. Because the statute had not been pleaded; 2. Because the grantor of the plaintiff had acquiesced in the delay of the defendant in procuring his patent; and 3. Because the statute does not run in favor of a trustee as against his cestui que trust while the latter is in possession of the trust estate.</p> <p>Id. — Homestead. — Held further, that the rights of the defendant were not impaired by the declaration of homestead filed by the plaintiff.</p>

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

On the 24th of March, 1883, William H. Crowey and Mattie Crowey, his wife, filed a declaration of homestead on a tract of land in Napa County, containing 185.73 acres, including the 125 acres set apart to Mattie Crowey under the order appealed from. The land described in the declaration belonged to one G. W. Crowey, the father of W. H. Crowey, until the death of the former in October, 1882.

<p>Attachment—Levy on Real Property—Omissions Fatal to Lien.— An attempted levy of an attachment on real property of a judgment debtor does not create a lien thereon to which the right of a purchaser at the execution sale can relate, unless a copy of the writ, together with a description of the property attached, and a notice that it is attached, is left with an occupant of the property, or posted upon it.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.</p> <p>The action was brought by the plaintiff, the widow of one A. S. Bates, against his minor child, for the partition of certain lands situated in Alameda County, standing on the county records in the name of her deceased husband. The plaintiff, proceeding on the assumption that the lands were community property, averred in her complaint that she was the owner and entitled to three fourths thereof, and that the defendant was the owner and entitled to one fourth. The defendant, by his guardian ad litem, answered to the same effect. A preliminary decree of partition was thereupon made, in accordance with the allegations of the complaint. Immediately after that decree was entered, but before any notice of the decision had been given, the plaintiff moved for a new trial on the ground of newly discovered evidence. The affidavits in support of the motion were to the effect that the lands in question had been purchased by the husband of the plaintiff with money belonging to her; that such fact was not made known to her attorneys until after the decree was rendered; that the plaintiff and her husband had moved to California a short time before the commencement of the action, where he had died; that the plaintiff, overcome with grief at his loss, and being unacquainted with his investments or the laws of California, was compelled to leave her business to counsel, who were themselves unable to obtain from her adequate information or proofs as to her separate estate, and that her counsel, assuming that the premises in controversy were common property, acted on that assumption in bringing the action. The further facts are stated in the opinion of the court.</p>

On the 25th of March, 1872, the legislature passed an act entitled “An act to provide for the redemption of the funded indebtedness of the city of Sacramento,” which required the board of trustees of the city to levy an annual special tax of not less than one tenth of one per cent, and not exceeding thirty-five cents on each hundred dollars, upon all taxable property within the city, for the purposes specified in the act.

The action was brought for a divorce and division of land claimed to be community estate. The court granted the plaintiff the divorce, but refused relief as to the land, on the ground that it was the separate estate of the defendant. In 1865, the defendant, then a widow, was in the occupation of and resided upon the land. In that year she filed a declaratory statement in the proper United States land-office, of her settlement upon and intention to pre-empt the land.

Section 3495 of the' Political Code, under which the respective applications of the parties to purchase were made, provides in effect that any person desiring to purchase a portion of the five hundred thousand acres of land granted to the state for school purposes, or of a sixteenth or thirty-sixth section, or lands selected in lieu thereof, situated in any township which has been surveyed by the United States, must make an affidavit that he is a citizen of the United…

<p>Certiorari — Appealable Order. — An order which is appealable will not he reviewed on certiorari, either before or after the expiration of the time allowed by law for appealing therefrom.</p> <p>Id. — Estate of Decedent — Order Directing Sale of Land—Review of—Appeal. —A writ of certiorari will not lie, at the instance of an administrator of the estate of a deceased person, to review an order of the superior court, sitting in probate, directing him to sell certain real property belonging to the estate; nor will it lie to review an order requiring him to proceed with the sale as directed in a previous order. In such a case, the remedy of the administrator is by an appeal from the order of</p>

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

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

<p>Divorce—Appeal by Wife—Costs and Counsel Fees.—The Superior Court has power in an action of divorce after an appeal has been taken by the wife from a judgment rendered ajainst her to compel the husband to pay her a reasonable sum of money for costs and counsel fees with which to prosecute the appeal.</p>

<p>Landlord has No -Lien fob Bent—.Use and Occupation. .—A landlord in California has no lien for rent reserved in the lease, or for the value of the use and occupation of the land.</p> <p>Id.—Lease of Sheep—Payment of Rent from Proceeds of Wool — .. Delivery. — In 1878,; the plaintiff leased to one Thing, for a term of five years, certain land and sheep, at a stated annual rental. The lease provided that the wool sheared from the sheep should he delivered at a designated .place by the lessee in the name of the lessor, to be sold by the latter, the rent retained from, the proceeds, and the balance paid to the lessee.. In the following year, the plaintiff, by a separate lease, let to Thing certain other sheep, at a stated annual rental. The latter lease provided that the lessee should not remove the sheep from the land, and .. that the wool arising therefrom should be marked on the land in the name . . of the lessor, and shipped to him at certain places as the lessee might "elect. On the 1st of November, 1881, the lessee .was indebted to the lessor on account of rent in a large amount. At that time he had on the ranch, ready to deliver to the plaintiff, wool exceeding in value the amount of .the rent. Thereafter he was adjudged an insolvent, and the wool taken possession of by his assignee. The action was brought by the plaintiff to recover possession of the wool from the assignee, or its value if possession could not "be had; or if the plaintiff were not entitled to the possession, . that a lien he established on the wool in his favor, for the rent due, payable out of the proceeds of a sale thereof. Held, that under the terms of the leases the plaintiff had no property in the wool as such, until its delivery to him, and no lien thereon, either by way of chattel mortgage or pledge.</p> <p>Pledge — Agreement for does not Create Lien. — An agreement to pledge personal property does not create a lien thereon in favor of the intended , , pledgee, either as against a creditor of the intended pledgor, or his assignee in bankruptcy or insolvency.</p>

<p>Married Woman—Separate Property—License—Interference by Husband. —Where a married woman has licensed a third person to conduct water across her lands, her husband, in the absence of any direction or authorization from her, has no power to interfere with the works used by the licensee in conducting the water.</p> <p>Judgment — Appeal—Time tor-Taking —Dismissal.—An appeal from a judgment, if taken more than a year after its entry, will be dismissed.</p>

<p>Tenants in Common — Trustee Holding Legal Title—Estoppel.—In 1856, the land in controversy was part of a Mexican grant, for which a patent was subsequently issued by the United States. In that year, the plaintiff and defendant, supposing the land to be public land, purchased the same from a party in possession, taking a conveyance thereof in their joint names. The defendant paid the entire consideration for the purchase, immediately entered into the exclusive possession, and so remained for about twenty-four years, until the commencement of this action, with the exception of one year, when he rented it to the plaintiff. In 1861, the defendant procured the true title to the land to be conveyed to him by the grantees of the patentee, and paid the consideration therefor out of his own funds. The plaintiff, until about one year before the commencement of this action, never offered to pay the defendant any portion of the consideration paid by him for the true title, and never requested a conveyance of any interest in the premises, nor did he ever attempt or offer to enter into possession, or claim any right to the possession thereof. The action was brought to recover an undivided one half of the land. Held, that the plaintiff, under the purchase of 1856, did not become a tenant in common with the defendant, but was a mere trustee holding whatever title was so acquired for the defendant, and that the latter was not estopped to set up the true title subsequently acquired by him.</p>

<p>Lease—Covenant to Use Premises for a Ferry—Breach of—Forfeiture—Finding.—The action was brought by the personal representative of a deceased lessor to recover the possession of the demised premises, on the ground that a covenant by the lessee, to use the premises for the usual and ordinary business of a ferry, had been broken, and that thereby the lease had become forfeited. On this issue the court found in favor of the defendants. Held, that the finding was sustained by the evidence.</p>

<p>Criminal Law—Appearance of Defendant as Rational or Irrational—Evidence of Witness not an Intimate.—In a prosecution for an assault with intent to murder, a witness who was present at the time of the alleged assault may testify as to whether the defendant appeared rational or irrational at that time, notwithstanding he has not first shown himself to be an intimate acquaintance of the defendant.</p>

<p>Peoceeding for the disbarment of an attorney. The facts are stated in the opinion of the- court.</p>

The action was brought against the administratrix of the estate of a deceased person to recover for work and labor performed and material furnished by the plaintiff to the deceased. The further facts are stated in the opinion of the court.

The action was brought to recover the reasonable value of materials alleged to have been furnished, and services alleged to have been rendered, at the special instance and request of the defendants, who were husband and wife, in and about certain premises alleged to be the separate property of the wife. The answer denied, generally and specifically, every allegation of the complaint. Judgment was rendered in favor of the plaintiff.

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

<p>Criminal Law—Embezzlement—Conviction—Pronouncing Judgment — Informing Defendant of Nature of Charge — Immaterial Error — Arrest of Judgment.—The defendant was charged by information with the crime of embezzlement, and the verdict was guilty as charged. The defendant moved in arrest of judgment on the ground that the information charged no crime. The motion was overruled, whereupon the court proceeded to inform the defendant of the information charging him with the crime of grand larceny, of his arraignment and plea of not guilty thereto, and of his trial and the verdict of guilty. The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him, to which he replied in the negative. The court thereupon adjudged him guilty of grand larceny, and ordered him to be imprisoned for that offense. A judgment declaring that the defendant had been convicted of grand larceny was thereupon entered. Held, that the motion made by the defendant in arrest of judgment warranted the presumption that he knew of the nature of the crime of which he was charged, and that the erroneous statement by the court of the crime charged in the information was without prejudice.</p> <p>Id. —Judgment must Conform to Verdict. —Held further, that the judgment, not being for the crime of which the defendant was convicted, should be reversed, with directions to the lower court to render a judgment for embezzlement.</p> <p>Id. — Embezzlement by Bailee — Sufficiency of Information. — An information against a bailee for embezzlement, under section 507 of the Penal Code, is not subject to a general demurrer on the ground that the defendant is not named therein as a bailee, if the terms of the contract between him and the person alleged to have been injured are specifically set forth, and the contract clearly shows that the defendant was thereby constituted a bailee, and received the property embezzled in that capacity.</p> <p>Id.—Subsequent Arrest for Same Offense—Committing Magistrate —Validity of Information — Jurisdiction.—The defendant was arrested on a warrant issued by a justice of the peace of a certain township, on a complaint filed before him. Thereafter, and while this proceeding was pending, he was again arrested on a warrant issued by a justice of the peace of another township, and was by him committed. On this commitment, the information was filed under which he was convicted. Held, that the proceeding before the first magistrate did not affect the validity of the information, nor deprive the Superior Court of jurisdiction.</p> <p>Id.—Motion in Arrest of Judgment — When Lies.—A motion in arrest of judgment must be founded upon defects in the indictment or information, appearing on the face thereof.</p>

The action was brought on a promissory note. The complaint was unverified, and alleged that the defendant was indebted to the plaintiff in the sum of $765 upon a promissory note, set forth in hæc verba, made by the defendant to Mrs. L. H. Brown, dated at Oakland on the 5th of January, 1878, and then and there delivered to her; that afterwards and before the note became due, Mrs. L. H. Brown, for a valuable consideration, sold and transferred it to the plaintiff, by an…

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

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

<p>Highway — Mistake in View and Survey — Correction of. — The board of supervisors of a county have no jurisdiction to correct a mistake in the view and survey of a public road which has become a highway, except by a proceeding under the Political Code to alter or change the road.</p> <p>Id. —Proceeding to Alter Highway. —In the year 1875, the locus in quo was condemned for the purposes of a public road. By a mistake on the part of the viewers, the road was actually located and opened across the land of the plaintiff at another place, and was so used by the public without any objection by the plaintiff for about ten years. In 1885, the board of supervisors commanded the defendant as road overseer to open the road to the public on its true line. Held, that the road as located had become a public highway, and could not be altered except by a proceeding brought for that purpose.</p>

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

<p>Partition—Appeal prom Part of Interlocutory Decree—Notice of Appeal — Service on Adverse Parties.—On an appeal from such specific parts of an interlocutory decree in partition as relate to a particular undivided interest in the land in controversy, the notice of appeal need only be served on the parties, or their attorneys, interested adversely to the appellant' in the undivided interest involved in the appeal.</p>

<p>Appeal from certain portions of an interlocutory decree in partition, rendered in the Superior Court of Santa Clara County.</p> <p>Motion to dismiss appeal. The facts are stated in the opinion of the court.</p>

<p>Deed Absolute in Form when a Mortgage—Evidence of Defeasance. —Under sections 2924 and 2925 of the Civil Code, every transfer of an interest in land, other than in trust, made only as a security for the performance of another act, is to he deemed a mortgage; and the fact that the transfer was made subject to a defeasance may he proved, though it does not appear by the terms of the instrument.</p> <p>Id.—Deed Given as Security. — Whether a deed absolute in form be a mortgage or not is a mixed question of law and fact, to he determined from all the evidence, written and oral; and in determining it, all the facts and circumstances attending the transaction should he considered. If the deed were given as a security for a loan of money, a court of equity will treat it as a mortgage; and whether it was so given or not is the test by which its character must be judged.</p> <p>Id. — Nature of Indebtedness — Promise to Pay.—The debt to secure which the deed is given may be an antecedent debt, or one created at the time, or it may be advances to he thereafter made by the mortgagee to or for the mortgagor; and no accompanying written promise on the part of the mortgagor to pay the debt is necessary.</p> <p>Id. — Inadequacy of Price. — Great inequality between the value of the property conveyed and the price alleged to have been paid for it is a circumstance tending strongly to show that a deed absolute in form was only a mortgage.</p> <p>Id.—Possession by Mortgagee — Agreement to Pay Indebtedness — Hindering and Delaying Creditors. —The action was brought to have a deed absolute in form, executed by the plaintiff to the defendant, adjudged a mortgage. On the 15th of July, 1876, the plaintiff was the owner of the land in question, which was then worth about four thousand dollars. He was indebted at the time in the sum of about twelve hundred dollars. Under these circumstances, he applied to the defendant, his brother, in whom he placed great confidence, for assistance. The defendant agreed to pay the indebtedness of the plaintiff provided the latter would execute to him a conveyance of his land. The plaintiff thereupon executed the deed in question. At the same time a written defeasance was executed by the parties, to the effect that the defendant should take and hold possession of the land for six years, and that at the expiration thereof the land should be reconveyed to the plaintiff upon his paying to the defendant such sum of money as might then be found due him. After the expiration of the six years the plaintiff demanded from the defendant an account of the rents, issues, and profits of the land, and offered to pay him whatever sum might be found due. This demand the defendant refused, and claimed the land, which had greatly increased in value, as his own. Held, that the deed should be deemed a mortgage, and was not made to hinder or delay the creditors of the plaintiff.</p> <p>Id. — Adverse Possession by Mortgagee.—Held further, that the defendant, during the six years in which he was in possession of. the land under the agreement, was not holding adversely.</p> <p>Id. —Accounting between Mortgagee and Mortgagor. —In stating the account between the parties, the court credited the defendant with all sums of money paid out by him for the plaintiff, and for taxes and improvements upon the property, and also with his expenses and a reasonable compensation for his time while attending to the plaintiff’s business, with interest on the several sums at the rate of ten per cent per annum; but it refused to credit him with the expenses of a certain lawsuit brought against him by a third person. The court charged him with the value of the rents and profits of the land while he held possession of it, with the amount of a mortgage he had placed upon the land and had not paid, and with the value of certain work and labor performed by the plaintiff on another farm owned by the defendant. Held, that the account was properly stated.</p>

The action was brought to recover the possession of certain lands situated in Alameda County. The land in controversy was, on the 14th of March, 1872, owned by one John W. Brumagim, who on that day conveyed it by a deed of trust to E. W. Burr, and B. D. Dean, as security for money borrowed by him from the Savings and Loan Society.

<p>Appeal from a judgment of the Superior Court of Contra Costa 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 the city and county of San Francisco ordering a judgment to be satisfied of record.</p> <p>The facts are stated in the opinion, and in the opinion in Department Two.</p>

<p>Abatement of Action—Similar Action between the Same Parties — Pendenct of Appeal. —An action commenced during the pendency of an appeal in a prior action between the same parties, and for the same cause of action, will be abated.</p>

<p>Appeal — Failure to File Transcript—Dismissal—Settlement of Bill of Exceptions. — Pending the settlement of a bill of exceptions before-the trial judge, an appeal will not be dismissed on account of the failure of the appellant to file the transcript. If unwarranted delay occurs in the settlement, the respondent should seek redress in the lower court..</p>

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

<p>Appeal from a judgment of the Superior Court of Alameda County, and from an order refusing to vacate the judgment and set aside a default.</p> <p>The facts are- stated in the opinion.</p>

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

<p>Judgment by Consent—Effect of—Cannot be Collaterally Attacked or Supported — Immaterial Error.—A judgment by consent in an action in which the court has jurisdiction of the subject-matter and of the parties will bind them and their privies as efficaciously as if it had been entered after a trial of the issues.</p> <p>Id.—Ejectment—Notice of Lis Pendens—Not Necessary Prior to-May 1, 1872. —Prior to May 1, 1872, on which date the act of March 2, 1872, took effect, the provisions of the practice act in relation to filing notice of the pendency of actions did not apply to the action of ejectment.</p> <p>Id. — Purchaser Pendente Lite — Subsequent Judgment Binding on__ Prior to the 1st of May, 1872, a purchaser pendente lite of the premises in controversy in an action of ejectment from a defendant in possession thereof was bound by the judgment afterwards rendered in the action; and such judgment is admissible against him in a subsequent action brought by him to recover possession of the same premises from the plaintiffs in the prior action.</p> <p>Deed of Trust—Legal Title Passes by. —A deed of trust of land given as security for the payment of an indebtedness conveys the legal title.</p> <p>Id.—Deed of Trust Admissible to Show Title out of Grantors— Ejectment. —In an action of ejectment, where the plaintiff claims title under a deed executed to him on a given date, a prior deed of trust executed by his grantors, as security for an indebtedness due from them, is admissible in evidence as tending to show that they did not have the legal title to the premises at the time of the deed to the plaintiff; and the question whether the indebtedness has been paid and a reconveyance made by the trustees does not affect its admissibility.</p> <p>Id. — Statute of Limitations—Payment of Taxes.—In such an action, evidence that the defendant has paid the taxes on the premises in controversy is admissible in support of the plea of the statute of limitations.</p> <p>Id. — Evidence — Cross-examination. — Certain questions asked of the-plaintiff on cross-examination in reference to his alleged payment of taxes on the land in controversy, held, proper.</p>

<p>Mortgage—Subsequent Declaration of Homestead—Foreclosure — Wife is Necessary Party—Writ of Assistance.—Where a married man executes a mortgage, and thereafter flies a declaration of homestead on the mortgaged premises, his wife is a necessary party defendant in an action of foreclosure; if she is not made a party, the purchaser at the foreclosure sale is not entitled to a writ of assistance against the husband.</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, and in the opinion of Department One.</p>

<p>Change of Venue—Action against Corporation—Breach of Contract.—Under section 16, article 12, of the constitution, in an action against a corporation to recover damages for the breach of a contract, the defendant is entitled to a change of the place of trial to the county in which its principal place of business is situated, when the county in which the action was brought is not the one in which the contract was made or was to be performed, or in which the obligation or liability arose or the breach occurred, or in which the principal place of business of the corporation is situated.</p> <p>Id.—Residence of Corporation.—The principal place of business of a corporation is its residence, within the meaning of that term as used in section 395 of the Code of Civil Procedure fixing the place of trial of actions.</p>

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

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

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

<p>Partnership—Sale op Entire Eiem Assets—Stallion is not Merchandise. — A stallion owned by partners engaged in the business of stock-raising, and kept for breeding purposes, is not merchandise within the meaning of section 2430 of the Civil Code, preventing one partner from disposing of the whole of the partnership property at once, unless it consists entirely of merchandise.</p> <p>Id. —Sale of Interest by Partner—Copartner not Divested of Eight of Possession, — One partner cannot by a sale of his interest in the partnership property deprive bis copartner of the right of possession thereto.</p> <p>Id___Bell of Sale—Pledge—Conditional Offer of—Payment — Judgment — Presumption. —The stallion in question was sold by the plaintiff to one Alexander, who subsequently gave a bill of sale for certain horses to the defendant Bonyman as security for a loan. The evidence tended to show that the stallion was intended to be included in the bill of sale. Thereafter, the plaintiff repurchased the stallion from Alexander, and delivered it into the possession of Bonyman. At some time, —it does not appear when, — Alexander offered to pay Ms indebtedness to Bonyman on certain conditions which the latter was not bound to perform, but did not in fact pay it. The action was brought to recover possession of the stallion. Judgment was rendered in favor of the defendants. Held, that it would be presumed in support of the judgment that the stallion was included in the bill of sale.</p> <p>Id. —Lien of Pledgee — Release of. — Held further, that upon the delivery of the stallion to Bonyman, his lien thereon created by the bill of sale at once attached, and was not released by the conditional offer of payment made by Alexander.</p> <p>Claim and Delivery—Joint Action—Defendants Answering Separately — Joint Judgment. — In an action of claim and delivery against defendants who are sued jointly, a joint judgment in their favor is not erroneous, although each of the-defendants answered separately.</p> <p>Id.—Judgment for Defendant—Value of Property.—In such an action, where the property sued for is delivered to the plaintiff at the commencement of the action, the judgment, if in favor of the defendants, may provide for a return of the property, or the value thereof in case a return cannot be had.</p>

<p>Homestead—Land Held by Joint Tenants or Tenants in Common— Aot of March 9, 1868.—Prior to the act of March 9, 1868, a homestead could not be acquired in land held by the claimant in joint tenancy or as a tenant in common.</p> <p>Id. — Tenant in Common not Exclusive Occupant—Failure to Inclose. — Under section 1 of the act of March 9, 1868, a tenant in common of land, who was not in the exclusive occupancy thereof, and did not have the same inclosed, could not acquire a homestead therein to the extent of his undivided interest; nor was a homestead, recorded by him on such land prior to the passage of the act, rendered valid by the provisions of section 2 of the act.</p> <p>Id. — Mortgage of Homestead by Husband—Foreclosure—Wife is Proper Party.—Where a mortgage is executed by a husband alone, upon property claimed by him and his wife as a homestead, the latter is a proper party defendant in an action to foreclose.</p> <p>ID,—Service of Wife—Failure to Appear—Appearance by Unauthorized Attorney—Decree.—Where an action to foreclose the mortgage is brought against the husband and wife, and process is served upon both, the court acquires jurisdiction of the person of the wife as well as of the subject-matter of the action; and a decree of foreclosure entered therein is not void because the wife did not appear, but was represented by an attorney employed by the husband without her knowledge or consent, who appeared and answered for her.</p> <p>Id.—Plaintiff not Prejudiced by Unauthorized Appearance.—In such a case, if there had been no appearance for her, the plaintiff would have been entitled to a default and decree against her, and his position should not be held worse by an appearance with which he had no connection.</p> <p>Id.—Action by Wife to Set Aside Decree—Reason for Non-appearance must be Alleged.—In a subsequent action by the wife to set aside the decree of foreclosure, where her complaint fails to show any reason why she did not appear, or did not apply to the court in which the action to foreclose was pending for leave to defend, the decree will be held valid and binding upon her, and a bar to her subsequent action.</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>Appeal—Interlocutory Decree in Action to Enforce Trust.—In an action brought to have the defendants adjudged trustees for the plaintiffs of certain real property, and for an accounting of the rents and profits thereof, an interlocutory judgment establishing the trust and directing an accounting is not appealable.</p> <p>Id.—New Trial—Bill of Exceptions—Findings—Special Verdict. —In such an action, certain special issues were submitted to a jury, who found thereon adversely to the defendants. The latter thereupon moved to set aside the verdict on the grounds of insufficiency of the evidence to justify it, and of errors in the instructions. No statement or bill of exceptions was made on this motion, which was denied by the court, on the ground that the verdict was merely advisory, and that the errors, if any, could be corrected when the case was finally submitted. The court subsequently filed its findings, covering the principal issues in the case, upon which the interlocutory judgment establishing the trust and directing the accounting was entered, and thereafter filed additional findings covering the matters embraced in the account, upon which final judgment was entered. No notice of the filing of the latter findings was served on the defendants. On the eleventh day after the filing of the additional findings, the defendants moved for a new trial on a bill of exceptions, which was settled by the court. Held, that the motion for a new trial could not properly have been made until after the findings on the matters embraced in the account had been filed, and that on such motion the defendants could be heard on their bill of exceptions as to that part of the trial which was had before the jury.</p> <p>Id.—Failure to Give Notice of Filing Findings'.—Held further, that the motion for a new trial was made in time, as no notice of the filing of the additional findings was served on the defendants.</p> <p>Evidence—Admission—Petition for Letters of Administration.—A petition for letters of administration is a pleading, and the rules in regard to admissions in pleadings apply to it.</p> <p>Id. —Petition when Admissible in Evidence. —A statement in a petition for letters of administration, to the effect that certain real property therein particularly described belonged to the deceased, cannot be received in evidence against the petitioner as an admission by him of such fact, unless the petition was signed by him personally, or by an attorney who acted within the scope of his authority in making the statement.</p> <p>Id.—Attorney to Draught Petition — Authority of.—An attorney merely authorized to prepare a petition appropriate to the procurement of letters of administration has no authority to particularly describe the property belonging to the estate of the decedent; and a description of such property in the petition prepared by the attorney is not binding on the client as an admission.</p> <p>Id. — Admissions in Arbitration Proceeding. — Admissions made for the purpose of submitting to arbitration matters of difference between certain parties, in order to dispense with proof of the facts admitted, cannot he received in evidence in a collateral action between the same parties.</p> <p>Appeal — Error Presumptive of Injury.—When an error against the appellant is shown, injury to him is presumed, and it devolves upon the respondent to show that no injury has in fact been done.</p> <p>Statute of Limitations—Action Affecting Real Property—Relief on the Ground of Fraud. — Conceding that subdivision 4 of section 33S of the Code of Civil Procedure, providing that actions for relief on the ground of fraud must he commenced within three years after the discovery of the fraud, does not apply to actions of that nature in relation to real property, then the limitations affecting such actions are to he determined by the rules of equity, which are substantially the same.</p> <p>Attorney in Fact—Sale of Land—Duty to Inform Principal.—An attorney in fact to sell real estate is bound to inform his principal of all sales and conveyances that he has made of the property to which his agency extends.</p> <p>Pleading—Fraud—Laches and Delay.—The complaint held to show that the property in question had been fraudulently acquired by the defendants, and that the plaintiffs’ right of action had not been lost by laches or delay.</p> <p>Equity—Jurisdiction in Case of Fraud—Action of Ejectment when Inadequate. — A court of equity has jurisdiction of an action brought to set aside a deed alleged to have been fraudulently executed many years before the commencement of the action, and to charge the grantees therein as trustees of the land conveyed, notwithstanding the complaint alleges that the deed was executed without consideration. In such a case, the remedy by ejectment is not adequate.</p> <p>Id. — Finding as to Ownership—Legal Title Held in Trust. — In such an action, where issues are raised as to whether the person alleged to have been defrauded was the owner of the land, or was a mere trustee holding the legal title for the benefit of certain -third parties, who paid the purchase price therefor, a finding that he “was the owner of the legal title of the land,” and “ did not acquire the legal title in trust for other persons,” is not sufficient.</p> <p>Id.—Finding as to Notice.—So where an issue is raised as to notice by him of the fraudulent deed, a finding that he had no actual knowledge or information thereof is not sufficient.</p> <p>Id. — Statute of Limitations. — On am issue raised as to the statute of limitations, the court should expressly find whether or not the action is barred by the statute, and not merely the facts from which it may be inferred.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The action was brought for the restitution and possession of certain premises alleged to be unlawfully detained by the defendant. Judgment was rendered in favor of the plaintiff, from which the defendant appealed. Pending the appeal, the defendant made the present application for a stay of proceedings. The further facts are stated in the opinion of the court.</p>

The action was brought to recover damages for the breach of a contract.

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

<p>Certiorari—Appealable Judgment or Order cannot be Reviewed on. —A writ of certiorari will not lie to review an appealable judgment or order either before or after the expiration of the time limited by law for appealing therefrom.</p>

<p>Criminal Law—Dismissal ot Action by Court—People cannot Appeal from Order. —No appeal lies on behalf of the people from an order made by the Superior Court, of its own motion, dismissing a criminal action.</p>

<p>Cbiminal Law—Examination of Jueob—Hypothetical Question — Bias. —In a criminal prosecution, where the attorney for the defendant, on the voir dire examination of a juror asks him hypothetical questions based upon his theory of the case, the district attorney on cross-examination may ask the juror whether he would regard the defendant as innocent if certain hypothetical facts related to him were true; and the-answer of the juror in the negative does not show any bias against the defendant.</p> <p>Evidence—Impeachment of Witness—Want of Relisious Belief.— A witness cannot be impeached by evidence showing him to be a person without religious belief.</p>

<p>Application for a writ of review. The facts are stated in the opinion. The opinion ordering the issuance of the alternative writ is reported in 68 Cal. 24.</p>

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

<p>Justice's Court — Motion to Dismiss — Want of Jurisdiction —Waiver of Objection. — Where the defendants in an action in a Justice’s Court, which is personal in its nature, move for a dismissal on the ground that the court has no jurisdiction to try the cause, their subsequent withdrawal of the motion and consent to a trial on the merits is a waiver of the objection to the want of jurisdiction.</p> <p>Id. —Appeal — Change of Place of Trial — Constitutional Law. —An appeal from a Justice’s Court to the Superior Court of the county in which the action was brought cannot be transferred for trial to the Superior Court of any other county. Section 980 of the Code of Civil Procedure purporting to authorize such a transfer is in conflict with article 6, section 9, of the constitution.</p>

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

<p>Criminal Law—Murder—Evidence Connecting Defendant with Other Offenses. — The defendant was convicted for a murder committed by him while burglarizing the house of the deceased. At the trial, the prosecution, against the objections of the defendant, introduced evidence tending to show that the defendant gained an entrance to the house with certain instruments which had been stolen from a neighboring house at the time of a prior burglary, and that the homicide was committed with a pistol which had been taken at another prior burglary. Held, that the evidence was admissible, notwithstanding it tended to connect the defendant with the perpetration of other crimes.</p> <p>Id. —Sufficiency of Evidence—Jury. —In such a case, the sufficiency of the .evidence connecting the defendant with the prior burglaries is for the jury.</p> <p>Id.—Instructions — Presumption.—Where the jury are correctly instructed as to the applicability of the evidence before them, it is a presumption of law that they exercised their jurisdiction soundly.</p>

<p>Criminal Law—Murder—Evidence of Declarations of Third Person— Res Gestas — Co-conspirator. —On a trial for murder, the prosecution, after giving evidence tending to show that the deceased believed the defendant to he the paramour of his mother, and that he was killed while endeavoring to eject the defendant from her house, offered in evidence certain declarations made by her after the commission of the homicide and in the absence of the defendant, tending to show the meritricious relation existing between them, and that she sympathized with the defendant rather than with the deceased, and approved of the killing. Iidd, that the evidence was prejudicial, and was not admissible either as part of the res gestee or as the declarations of a co-conspirator.</p> <p>Id. — Hearsay Evidence. — In such a case, evidence of declarations descriptive of the homicide, made in the absence of the defendant by a person who was present at the killing, is hearsay.</p> <p>Id.—Justifiable Homicide—Belief of Defendant in Necessity of Killing. — To warrant a verdict of justifiable homicide, it is not enough for the jury to believe that the defendant at the time of the killing had an apparent and reasonable ground to apprehend great bodily harm or death at the hands of the deceased; they must iurther he of opinion from the evidence that the defendant entertained such belief and acted upon it.</p> <p>Id.—Pretense of Necessity — Fault of Defendant. — An instruction that a person ‘ ‘ cannot in any case justify killing another by a pretense of necessity unless he was wholly without fault in bringing that necessity on himself,” is erroneous.</p> <p>Id.—Self-defense — Instruction.—An instruction that in order to justify a homicide on the ground of self-defense, the necessity for the killing “ must be apparent, actual, imminent, absolute, and unavoidable," is contradictory and misleading.</p> <p>Id. —Instruction as to Apparent Necessity. —An instruction as to what constitutes a justifiable killing in self-defense, which excludes from the consideration of the jury the question whether or not the defendant had apparently, to his comprehension as a reasonable man, the means at hand to avoid killing his assailant without incurring imminent danger of losing his own life or of having great bodily harm done to his person, is erroneous.</p> <p>Id.—Duty of Person Assailed to Avoid Attack. — A person who expects to be attacked is not always compelled to employ all the means in his power to avert the necessity of self-defense before he can exercise the right of killing his assailant.</p> <p>Id. —Misleading Instruction. —A certain instruction quoted in the opinion as to the right of the defendant to visit the place of the homicide, held, properly refused ón the ground that it was calculated to mislead the jury.</p>

<p>Findings—Issue as to Existence of Partnership—Action for Accounting. —In an action for an accounting of the affairs of a partnership, which the complaint alleges and the answer denies to be in existence at the commencement of the action, a finding on the issue so raised to the effect that the partnership was dissolved and the partnership assets divided by mutual consent before the commencement of the action, although not a finding in the exact language of the pleadings, is sufficient to sustain a judgment in favor of the defendant.</p>

The action in which the order complained of was made originated in a Justice’s Court, and from the judgment there rendered an appeal was taken to the Superior Court. On the trial of the appeal, the plaintiff was nonsuited, and judgment rendered in favor of the petitioner. The plaintiff moved for a new trial, which was granted. On the new trial, a judgment was rendered against the petitioner.

<p>Certiorari to Superior Court—Necessary Party Respondent—Service oe Writ. — In a proceeding by certiorari to review an order of the Superior Court, the court is the only necessary party respondent; and the service of the alternative writ is sufficient, if a copy thereof, together with a copy of the petition for the writ, is served on the judge of the court, and on the attorneys of the party in whose favor the order was made.</p> <p>Id.—Time to Plead cannot be Expended beyond Thirty Days—Review oe Order Extending. —An order of the Superior Court extending the time in which a defendant might plead until ten days after the receipt of the remittitur in another action then pending on appeal in the Supreme Court, in so far as it attempts to extend the time to plead more than thirty days, is in excess of the jurisdiction.of the Superior Court, and may be reviewed on certiorari.</p>

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

<p>Judgment—Entry of in Pursuance of Order of Supreme Court—Inadvertent Error—Amendment. —When by an order of the Supreme Court the Superior Court is directed to enter a judgment, and upon a return of the cause a judgment is inadvertently entered which does not accord with the order, the Superior Court has power to amend the judgment.</p> <p>Id.—Discretion of Superior Court — Judicial Function — Contempt. —When the order of the Supreme Court is not specific, but leaves room for the exercise of any discretion in the court below, that court has a judicial power to determine whether the judgment as entered does or does not conform to the direction of the Supreme Court; and for an error in deciding that the judgment as entered does not accord with such direction, the judge of the Superior Court cannot be held as for contempt.</p>

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

<p>Execution Sale—Tenant in Possession—Liability of for Rents and Profits after Sale—Redemption.—Under section 707 of the Code of Civil Procedure, the purchaser of real property at an execution sale from the time of sale until a redemption, and a redemptioner from the time of his redemption until another redemption, is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof. This right is not limited to cases where there is a redemption. It begins at the time of the purchase, and continues until a redemption is made, or if there be no redemption, then until the time allowed for redemption has expired.</p> <p>Id.—Foreclosure Sale — Party in Possession — Use and Occupation — Assumpsit. — Where real property is sold at a foreclosure sale, a party to the foreclosure suit who thereafter remains in its possession, under a claim of title which is subject to the mortgage, isa “tenant in possession,” within the meaning of section 707 of the Code of Civil Procedure, and liable as such to account to the purchaser in an action in assumpsit for the value of the use and occupation.</p> <p>Id. —Purchase fob Benefit of Another—Trustee of Express Trust. — A purchaser of real property at an execution sale, who receives the certificate of sale and the sheriff’s deed in his own name, but in reality for the benefit of another, is a trustee of an express trust, and as such may maintain an action against the tenant in possession for the value of the use and occupation, without joining the person for whose benefit the purchase was made.</p>

<p>Road Tax—Mode of Procedure for Levying—Board of Supervisors may Adopt Suitable Mode. — Under section 25 of the County Government Act, the board of supervisors of a county has power to adopt any suitable mode of procedure for submitting to the qualified electors of a road district a proposition to levy a special tax for road purposes, and may adopt the assessment made for state and county purposes as the basis upon which to levy the tax.</p>

During the progress of the trial, it was shown by a witness for the prosecution that the nieces and son of the defendant were present at the homicide. The defendant, at the close of the case for the people, moved the court to compel the prosecution to call such persons as its witnesses. The court refused the request, to which ruling the defendant excepted. The further facts are stated in the opinion.

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

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

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

<p>Appeals prom Distinct Orders—One Undertaking on Appeal—Dismissal — Piling New Undertakings. — Appeals taken from two distinct orders are each ineffectual and will he dismissed, when only one undertaking on appeal is filed, which fails to designate to which of the appeals it was intended to apply. In such a case, the appellant is not authorized, under section 954 of the Code of Civil Procedure, to file new undertakings.</p>

The proceeding was for a writ of mandate to compel the defendant, as treasurer of the city and county of San Francisco, to pay to the petitioner out of the city and county treasury the sum of $1,275, being the amount called for ‘by fifty-one several orders of the Police Judge’s Court of the city and county, issued in favor of the petitioner at divers times between the 25th of July, 1883, and August 3, 1884, in pursuance -of the authority conferred by section 1388 of the…