Volume 72 — California Reports

<p>Ejectment—Vendor and Vendee — Contract of Sale.—Where a contract has been made for the sale of land, the'vendee being in possession, and having paid a portion of the purchase-money, the mere fact that the ; vendor has not returned or offered to return the money so paid is no de- - fense to an action by him to recover the possession.</p> <p>Id.—Failure of Vendor’s Title — Cross-complaint.—In such a case,. a cause of action existing in favor of the vendee for the recovery of the -= money paid, on the ground of the failure of the vendor’s title, cannot be • set up by way of cross-complaint.</p>

The proceeding was for a writ of mandate to compel the city marshal of the city of Oakland to enter into and execute a certain contract for street work in the city of Oakland. It was stipulated between the parties that all the requirements prescribed by the special street laws of Oakland before 1880, and by the general street act of March 18, 1885, had been complied with.

<p>Criminal Law — House of Correction — Imprisonment in of Prior Offender__Under the act of April 1, 1878, a defendant prosecuted in the Superior Court of the city and county of San Francisco, for the crime of burglary, who pleads guilty thereto, and confesses a charge of prior convictions of felonies, cannot be sentenced to imprisonment in the house of correction in that city and county; and a judgment to that effect is void.</p>

<p>Constitutional Law—Corporations as Sole Surety—Act or March 12, 1885 — Undertaking on Appeal. —The act of March 12, 1885, providing that a corporation organized under the laws of any of the United States for the purpose of making and guaranteeing bonds and undertakings required by law may be ^accepted as a sole and sufficient surety on such bonds and undertakings, is not in conflict with article 4, section 25, subdivision 3, of the constitution, prohibiting the passage of special laws regulating the practice of courts of justice; and an. undertaking on appeal given in pursuance of the act is valid.</p>

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

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

The proceeding was brought to obtain a judgment requiring the defendants to permit the attorney-general, and such counsel as he might employ, to examine all the books and papers of the defendant corporation for the purpose of discovering what property, if any, it had in its possession which had escheated or should escheat to the state. The further facts are stated in the opinion of the court.

<p>Escheated Property—Discovery oe—Examination oe Books oe Corporation— Power oe Attorney-general. — Under section 474 of the the Political Code, neither the attorney-general nor counsel employed by him is authorized to examine the books and papers of a corporation for the purpose of discovering property which has escheated to the state, except under the order and supervision of the court.</p>

The action was brought to determine a contest as to the right to purchase a portion of a section of school land. The further facts are stated in the opinion of the court.

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

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

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

<p>Criminal Law—Embezzlement—Proof of Venue—Instructions.—In a prosecution for embezzlement, the failure of the court to instruct the jury of its own motion to acquit, if the venue as laid in the indictment is not proven, cannot be taken advantage of by the defendant, unless he requested an instruction to that effect.</p> <p>Id.-—Bill of Exceptions—Instructions Given by Court of its Own Motion — Presumption. —■ Where the only instructions contained in the bill of exceptions were given by the court of its own motion, and the bill recites that they were “all the law so given,” it will not be presumed that the court did not give other instructions at the request of parties.</p> <p>Id. — Error must Affirmatively Appear in Bill of Exceptions. — Where the bill of exceptions fails to affirmatively show that the venue as laid down in the indictment was not proven at the trial, an objection on that ground will not be considered on appeal.</p>

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

<p>Habeas Corpus—Erborwill not be Reviewed on—Jurisdiction. — A party convicted of an offense by a court having jurisdiction of his person, and of the offense for which he was tried, cannot be discharged on habeas corpus because of errors of law committed by the trial 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>Criminal Law — Leading Question — Discretion. — In a criminal prosecution, it is not an abuse of discretion for the court to permit leading questions to bo asked on the direct examination of a witness who is unfamiliar with the English language, and who had previously testified in substance to the facts embodied in the questions.</p> <p>Id. —Robbery—Larceny—Instructions — Unprejudicial Error. —In a prosecution for robbery, the court in charging the jury as to the distinguishing features between the crimes of larceny and robbery, stated that the taking from the person of another necessary to constitute grand larceny must be “forcible” and “violent.” In other portions of the charge, the features distinguishing the crimes were correctly stated. The defendant was convicted of robbery. Held, that the instruction was without prejudice to the defendant, because its only tendency was to induce the jury to convict of the lesser crime of larceny.</p> <p>Id. — Imprisonment — Excessive Punishment. —■ Under the circumstances of the case, a judgment imprisoning the defendant for fifty years, held, not excessive.</p>

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

A motion was made to dismiss the appeal from the judgment, on the ground that the notice of appeal purports to appeal from a judgment entered on the 29th of March, 1884, whereas the record shows that no judgment was entered until the 30th of April., 1884. The further facts are stated in the opinion.

The action was brought to recover damages for injuries caused to the land and fruit-trees of the plaintiff, by reason of an overflow of water produced by certain levees constructed and maintained by the defendants. The further facts are stated in the opinion.

Appeals from a judgment of the Superior Court of Mono County, and from an order refusing a new trial. The facts are stated in the opinion.

The motion was m.ade to dismiss the appeal, on the ground that the appellants had failed to file the transcript within the time required by the rules of the Supreme Court. The further facts are stated in the opinion of the court.

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

The motion was made to dismiss the appeal, on the ground that the appellant had failed to file the transcript within the time required by rule 2 of the Supreme Court. The judgment appealed from was rendered in favor of the defendant for a sum of money. In order to perfect his appeal and to stay execution of the judgment, the appellant filed an undertaldng as required by the Code of Civil Procedure, io the sufficiency of the sureties, on which the respondent excepted.

<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 contempt in question was alleged to consist in the violation of a judgment enjoining the Last Chance Water and Ditch Company from interfering with certain water rights belonging to the petitioners. The further facts are stated in the opinion of the court.

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

<p>Corporation—Action by Stockholder against Directors—Misappro- . priation of Corporate Funds. — A stockholder of-a corporation may maintain an action in its behalf against the directors of the company for an accounting and recovery by the corporation of moneys belonging to it which had been fraudulently misappropriated by the directors.</p> <p>Id, —Corporation Necessary Party Defendant. —In such an action, the corporation is a necessary party defendant, and at no stage of the litigation can it be dismissed from the case without working a discontinuance.</p> <p>Id.—Appeal by Directors—Notice of Appeal. —On an appeal by the directors in such an action from a judgment rendered against them, a notice of appeal served on the attorney for the plaintiff necessarily brings the corporation defendant before the appellate court.</p> <p>Id. — Findings—Judgment. — The judgment rendered against the directors^ held, not sustained by the findings.</p>

<p>Appeal from a judgment on the Superior Court of San Benito 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 Los Angeles County admitting a will to probate, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Mortgagee in Possession — Agreement for Application of Rents. — An agreement between a mortgagor and a mortgagee in possession, or a mortgagee authorized to collect the rents of the mortgaged premises, to the effect that the excess of the rents over and above the interest of the mortgage debt shall be applied to other indebtedness due from the mortgagor to the mortgagee, is valid.</p>

<p>Municipal Corporation—Police Regulation—Prohibiting Keeping op Cows in San Francisco. — The city and county of San Francisco has power, under section 11 of article 11 of the constitution, and the act of April 25, 1863, to enact an ordinance prohibiting the keeping of more than two cows within certain portions of the city limits.</p>

<p>Criminal Law—Murder—View of Locus in Quo—Presumption of Regularity. —In a prosecution for murder, the minutes of the court embodied in the transcript recited that during the progress of the trial the defendant and the jurors went in charge of a sworn officer to inspect the premises where the crime was committed, and subsequently returning into court, the names of the jurors were called, and all answered thereto. Held, that it would be presumed, in the absence of a showing to the contrary, that the officer was the sheriff or his deputy; that the premises were shown to the jury by a person appointed by the court for that purpose; and that the counsel of the defendant and the judge were present at the view.</p> <p>Id.—Verdict — Recommendation to Mercy—Excessive Punishment. —The defendant was convicted of murder in the second degree, and recommended to the mercy of the court, who sentenced him to imprisonment for life. Held, that the judgment could not be reversed on the ground that the punishment was excessive.</p>

<p>Appeal from a judgment of the Superior Court of Monterey County, and from an order refusing a new trial.</p> <p>On the 23d of July, 1882, the plaintiff wag put off of one of the trains of the defendant at or near a place called Kelleher's Crossing. He then went a short distance away and procured a rope, with which he returned to the crossing and proceeded to tie up a bundle of blankets. Being very much intoxicated at the time and overcome by the heat, he fell asleep between the ties outside of the track, and so remained until he was injured by a passing train belonging to the defendant. The action was brought to recover damages for the injury. On the trial the defendant moved for a nonsuit, which was denied. The further facts are stated in the opinion of the court.</p>

The action was brought to foreclose a lien on a promissory note. The defendants demurred to the complaint, and their demurrer being overruled, final judgment was rendered in favor of the plaintiff for $7,053.61, and for the sale of the note and the application of the proceeds in payment thereof.

<p>Municipal Corporation—Fire Limits—Regulation op Wooden Buildings— Constitutional Law. — An ordinance of the city and county of San Francisco prohibiting the alteration or repair of any wooden building within certain designated fire limits, without permission in writing signed by a majority of the firewardens, and approved by a majority of the committee on .fire department and the mayor, is not in violation of the fourteenth amendment of the constitution of the United States. Such an ordinance is not unreasonable, oppressive, nor special in its operation; nor is it an unwarrantable delegation of power to the officers named therein; nor does it deny to the owner of such building the equal protection of the law, nor deprive him of liberty or property without due process of law.</p> <p>Id. — Publication op Ordinance—Intervening Sunday.—A provision requiring a municipal ordinance to be published for five successive days in a daily newspaper is complied with by such publication for five successive week days, although a Sunday intervened on which there was no issue óf the paper.</p>

On the trial of the contest in question, the appellant verbally objected to the probate of the will on the ground that the evidence failed to show its due execution and attestation.

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

<p>Street Assessment—San Francisco—Act or April 4, 1870—Action by Contractor—Judgment Determining Invalidity of Assessment. — Under the act, of April 4, 1870, providing that a contractor for street work in the .city and. county of San Francisco, when he has faithfully performed his; contract, shall be paid the amount due thereon out of the street ’department fund, after the assessment for the work has been declared invalid by the highest courts of the state, if such invalidity shall appear by the decision of the courts not to have been caused by the fault of the contractor, the judgment rendered in the action to foreclose the assessment, determining its invalidity, is not conclusive upon the contractor, in a subsequent action by him against the city and county to recover the amount due on the. contiact, as to the grounds upon which the assessment- was held invalid. Nor is it essential to the right of the contractor to maintain ■ the action against the city and county that the judgment. on the assessment should affirmatively show that the invalidity of the assessment was not caused by any fault of his.</p> <p>Id.—Contractor -when Entitled to Interest.—In such an action against the city and - county, the contractor is only entitled to recover legal interest upon the amount due under the contract from the time when the adjudication of the invalidity of the assessment became final.</p> <p>Ed.—Macadamizing -Street—Contract for—Petition by Property Owners. —-Under the statute referred to, a petition signed by a majority-of the property ■ owners is not .necessary to authorize the- board of supervisors to contract for macadamizing a street in the city and county -of San 'Francisco, although it is essential to authorize the work of grading; ;and a contract for macadamizing is .not rendered invalid because the resolution and-order of the board of supervisors for such work embraced the-work-of grading also, and no petition for the,-grading had- been- made by the property owners.</p> <p>Id.—¡Grade of Stree®—Sufficient Designation.—A statute-fixing the grades of - certain streets in the city and county of San Francisco at their points of intersection, fixes the grade,at all intermediate points' by con- . neeting the named points by a straight "line.</p> <p>Id. —Width of ; Street—Designation by .Official Map. —.The width of a street in the city and county of San Francisco is sufficiently designated on the official map by a number printed across the space denoting the street, without indicating what the number stood for, if the scale of the map shows that the number was intended -to represent feet.</p>

The action was brought to recover the contract price of certain street work done in the city and county uf San Francisco after the passage of the act of April 4, 1870. The complaint contained seven counts based on alleged contracts, three of which were for macadamizing and curbing, and four for grading.

The action was brought to enjoin the defendants from operating certain machinery situated in part of a building leased from the plaintiff, in such a manner as to annoy the latter. Judgment was rendered in favor of the plaintiff as prayed for, together with damages and costs, amounting to $457.

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco admitting a will to probate and granting letters of administration thereon.</p> <p>The facts are stated in the opinion.</p>

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

<p>New Trial — Action to Recover tor Personal Injuries — Inadequacy of Verdict — Specification of Error. —In an action to recover damages for personal injuries, the plaintiff in whose favor 'the verdict is rendered, may move for a new trial upon the ground that the verdict, being too small, is not sustained by the evidence; and a specification of error in the statement to the effect that it appears from the evidence that the injuries of the plaintiff were very serious, and that the sum found by the jury was unreasonable and grossly inadequate, is a sufficient specification.</p> <p>Id.—Discretion of Trial Court—Verdict Contrary to Evidence.— The lower court has discretion to grant a new trial when it is of opinion that the verdict is contrary to the weight of evidence; and the Supreme Court-will not interfere with its discretion in so doing, except in extreme cases, or where it is apparent that the lower court has proceeded upon an erroneous hypothesis.</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>Point San Jose Military Reservation—Land Included in—Conveyance of by City and County of San Francisco — Act of July 1, 1870 — Judicial Notice. —The action was brought to recover the possession of a lot of land in the city and county of San Francisco, which originally was part of the Point San José Military Reservation, but which had been granted to the city and county by the act of Congress of July I, 1870, in trust, for the purpose of conveying the same to certain persons mentioned in the act as beneficiaries. The plaintiff, claiming to be the beneficiary entitled to the land in question, had received a deed therefor from the city and county, and had entered into and held possession of the same until within five years prior to the commencement of the action, when he was ousted by the defendant. The court found that the land had been originally included within the reservation. Held, that in the absence of evidence to the contrary, the Supreme Court would not take judicial notice that the land was not so included.</p> <p>Id. — Risht oe-Beneeioiary—Intruder cannot Question.—Held further, that the defendant, being a mere intruder upon the possession of the plaintiff, and having no claim to the title of the city and county, could not be permitted to show that the plaintiff was not a beneficiary under the act, or that the city and county had no right to convey to him.</p>

The action was brought to recover the value of services alleged to have been rendered by the plaintiff to the defendants’ testator for two years prior to his death. The claim on which the action was founded was originally-presented to the defendants, as executors, on the 5th of October, 1882. The executors rejected the claim on the 12th of the same month, and indorsed their rejection on it, but did not notify the plaintiff of their action.

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

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

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

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

<p>¡Practice—Jury—Dismissal of Juror after Completion of Panel — Bias. — The action was brought by a landlord against his tenant to recover rent and the restitution of the leased premises, and was tried before a jury. After the jury was completed, and the trial ready to proceed, one of the jurors, who had been previously accepted as competent by each of the parties, upon learning the nature of the action, expressed himself as hostile to all landlords. He was thereupon challenged by the plaintiff for cause, and dismissed from the panel. Held, that the dismissal was proper.</p>

<p>Appeal from an order of the Superior Court of Santa Clara County refusing a new trial.</p> <p>The facts are stated in the opinion of Mr. Justice Paterson.</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>Lease—Covenants fob Purchase and Sale—-Performance—Default — Tender. •—• Where a lease contains a provision giving the lessee the privilege of purchasing the demised premises at any time during the term, upon the payment of a stipulated sum to the lessors, the covenants for the payment of the purchase price by the lessee, and for a conveyance by the lessors, are mutual and dependent, and neither party can put the other in default without tendering a performance on his part, unless the other party waives such performance.</p> <p>Id.—Insufficient Allegation of Tender.—An allegation by the lessee that ever since a day prior to the expiration of the lease “he has been and still is ready and willing to perform each and all of the covenants and conditions of said agreement on his part to be kept and performed, and to pay to the lessors the full sum thereby agreed to be paid, upon the performance on their part of the covenants and conditions by them so to be kept and performed,” is not an averment that he tendered the purchase price.</p> <p>Id. —Refusal of Lessor to Convey—Waiver of Tender. — The refusal of the lessor to convey after the termination of the lease does not relieve the lessee of the necessity of proving a previous tender.</p> <p>New Trial —Notice No Part of Judgment Roll — Appeal—Bill of Exceptions. —A notice of intention to move for a new trial, and the evidence of its service and filing, constitute no part of the judgment roll, and if not embodied in the bill of exceptions, will not be considered on appeal for the purpose of determining when it was served and filed.</p> <p>Id. — Failure to File Affidavits in Time — Waiver of Objection.— The respondent on a motion for a new trial does not waive the right to object to the affidavits of the moving party on the ground that the same were not filed in time, if he raises the objection on the hearing of the motion.</p> <p>Id.—Excusable Neglect—Motion to Set Aside Judgment—Reason for Delay must be Shown.—Where a motion for a new trial on the ground of excusable neglect is denied because the moving affidavits were not filed in time, a subsequent motion under section 473 of the Code of Civil Procedure, to set aside the judgment on the same ground, will also be denied, unless sufficient reasons are shown for the delay in filing the affidavits on the former motion.</p>

In his supplemental answer, the defendant alleged the existence of a partnership between himself, the plaintiff, the plaintiff’s assignor, and several other persons, and that since the commencement of the action and the filing of the original answer he had advanced a certain sum of money in connection with the partnership business ' for the account of the plaintiff and his assignor.. The amount so advanced was pleaded as a counterclaim.

<p>New Trial—Fraudulent Statement—Refusal to Settle—Appeal. — An order refusing to settle a proposed statement on motion for a new trial, on the ground that the same is so grossly inaccurate as to be a mere pretense and fraud, conceding it to be appealable, will not be reviewed on appeal, when the record fails to show that the proposed statement is not fraudulent.</p>

The action was brought to foreclose the lien of a street assessment in the city and county of San Francisco. The assessment was based upon a resolution of intention to order the work, passed by the board of supervisors on the 27th of April, 1874. The further facts are stated in the opinion of the court.

<p>Summons—.Irregularity in Issuance of Alias — Collateral Attack__ An objection to the regularity of the issuance of an alias summons in an action in a Justice’s Court is not jurisdictional, and cannot he taken advantage of in a collateral attack.</p> <p>Id.—Irregularity in Summons — Judgment by Default.—A judgment of a Justice’s Court rendered by default after a personal service of summons is not void, although the summons fails to definitely state the nature of the cause of action, and does not notify the defendant to appear and answer at the office of the justice.</p> <p>Judgment ■—Not Subject to Execution.—A judgment is hut the evidence of a debt, and as such is not subject to levy or sale under execution.</p> <p>Id. — Garnishment of Judgment Debt.—The appellant claimed to he entitled to the money due upon the judgment in question under an execution sale. The execution was issued out of a Justice’s Court against the person in whose favor the judgment was rendered. The levy of the execution was made by the sheriff, who delivered to and left with the . judgment debtor a copy of the writ, with a notice in writing that he levied upon the judgment, particularly describing it, and also upon all moneys, goods, credits, effects, debts due or owing, or under his control, and requesting him not to pay or transfer the same to any one except the sheriff. Held, that the service of the writ and notice on the judgment debtor was not a levy on the judgment as such, hut a garnishment of the money due thereon.</p> <p>Appeal—Dismissal — Service of Statement on New Trial—Adverse Parties. — An appeal will not be dismissed on the ground that the statement on motion for a new trial was not served on all the adverse parties, when the parties not served are not interested in the appeal.</p>

<p>State Lands—Lands Suitable fob Cultivation. — The phrase “ lands belonging to the state which are suitable for cultivation, ” as used in section 3 of article 17 of the constitution, includes all lands ready for occupancy, and which, by ordinary farming processes, are fit for^agricultural purposes.</p> <p>Id.—Land Pabtly Covered with Timber.—The land in controversy is situated in the Santa Cruz Mountains, about six miles from the coast, and is difficult of access on account of the absence of roads. Its surface is rolling and uneven, but not steep, and its soil of a rich nature. The greater portion of the surface is covered with brush and redwood timber, which would have to be removed before the land could be plowed. There are, however, spaces and openings, aggregating less than one half, ready for plowing. The land has a distinct value for its timber, but would be more valuable for agricultural purposes after the timber was removed. Held, that the land was suitable for cultivation within the meaning of the constitution.</p> <p>Id. — Actual Settler — Sale must be Made to — Constitutional Law. •—Section 3 of article 17 of the constitution, limiting the sale of state lands suitable for cultivation to persons who are actual settlers thereon, prohibits a sale of such land to a non-settler, notwithstanding his application to purchase was made before the constitution took effect.</p> <p>Id.—Action to Determine Contest—Plaintiff cannot Recover upon Insufficiency of Defendant’s Case. —In an action to determine a contest as to the right to purchase certain state lands, the plaintiff, not having shown a right to purchase in himself, is not entitled to recover because of the insufficiency of the allegations or proof of the defendant.</p>

<p>Claim and Deliveby—Attachment—Exemption—Evidence oe Business oe Plaintiff. — The action was for the claim and delivery of two horses which had been taken by the defendant, as sheriff, under certain writs of attachment against the plaintiff. The complaint alleged that at the time of the taking the plaintiff was a peddler and huckster, and that the horses being used by him in his business were exempt from attachment. On the trial, the defendant offered in evidence an entry in a directory which described the plaintiff as a publisher of hand-books and county directories. The plaintiff admitted that a portion of his time was employed as such publisher. Held, that the evidence was without prejudice, as the entry did not negative the fact that a portion of his time was occupied in the business of a huckster or peddler.</p> <p>Id. — Supplemental Complaint—Statute of Limitations.—In such an action, it is not error to refuse to allow the plaintiff to file a supplemental complaint setting up that the judgment obtained in the action in which the attachments were issued was barred by the statute of limitations, not at the time o’f the taking by the sheriff, but at the time of the proposed filing of the amended pleading many years after the taking, and after the sheriff had gone out of office. "</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>Practice — Refusal to Allow Legal Argument to Jury.—The refusal of the court to allow counsel to read law books, or to make an argument on the law of the case, or to state what he claimed to be the law, to the jury, is not error.</p> <p>Nuisance — Action to Abate — Injunction — Prayer. — An action for the abatement of a nuisance is a suit in equity, and an injunction against its continuance may be issued therein, although it is not specifically prayed for in the complaint.</p> <p>Id. — Verdict Merely Advisory in Equitable Action. — In such an action, the verdict of the jury is merely advisory to the court, and an erroneous instruction to them is immaterial.</p> <p>Id. — Nuisance from Soot — Injunction. — A person carrying on a business in a populous city, requiring the consumption of a large quantity of fuel, may be restrained from allowing the soot resulting therefrom to become an annoyance or source of injury to his neighbors.</p> <p>Id. — Supervisors cannot License Nuisance. —• A license from the board of supervisors of the city and county of San Francisco to erect and maintain a steam-engine within the city limits does not authorize the licensee to use the engine so as to create a nuisance.</p>

<p>Breach of Contract—Action to Recover for—Evidence.—In an action to recover damages for the breach of a contract of employment, letters written by the plaintiff between the time of the alleged breach and the commencement of the action, tending to show that he then claimed nothing as due him from the defendant, are relevant and material.</p> <p>Practice—Findings — Objection to must be Made in Lower Court — Appeal. —An objection that a certain finding is not within the issues raised by the pleadings, if not made in the court below, will not be considered on appeal.</p> <p>Id.-—Hew Triad—-Finding Outside of Issues —- Evidence.—A new trial will not be granted on the ground that certain findings are not within the issues raised by the pleadings, when the action was tried without objection to the sufficiency of the pleadings to raise such issues, and the findings are justified by the evidence.</p>

<p>Negligence—Defective Sidewalk—Liability fob. Injury Caused by. —The action was brought to recover damages for personal injuries caused to the plaintiff by falling down a hole in the sidewalk of a populous street in the city and county of San Francisco, in front of the defendant’s premises. The hole was used by the defendant, without any license from the city authorities, for his own convenience, and had a wooden trap-door. An ordinance of the city and county prohibited the use of wooden coverings for excavations in the sidewalks. At the time of the accident, the plaintiff was rapidly walking along the sidewalk, when, her attention being momentarily called in another direction, she fell into the hole, which was then entirely uncovered and unprotected. The plaintiff had frequently passed along the sidewalk at that place, but had no knowledge of the existence of the hole. On the trial, the evidence failed to show who had removed the trap-door. Held, that the plaintiff was not guilty of contributory negligence.</p> <p>Id.—Nuisance — Evidence of Negligence.—Held further, that the hole was in the nature of a nuisance on account of the constant danger which it presented to passers-by, and that the defendant was liable for the injury without proof that either he or his servants had removed the trapdoor.</p> <p>Id.—Repair of Sidewalk—Negligence of Independent Contractor. — The fact that a few days before the accident the defendant employed a carpenter to repair the trap-door, and that his negligence contributed to the accident, does not relieve the defendant from liability, although the carpenter was an independent contractor.</p> <p>Id. —Sidewalk Presumed to be Safe. — A person walking .along the sidewalk of a street in a -city, not near a ¡crossing, has a right to assume that the place is safe.</p>

The mortgage in question covered several adjoining tracts of land, which the judgment directed to be sold as a whole and in one parcel. The sale was set aside at the instance of a judgment creditor of the mortgagor. The plaintiff and the purchaser at the sale each appealed from the order. The further facts are stated in the opinion of the court.

<p>Pleading.— Action on Judgment — Parties — Amendment.—Theaction was originally brought by the plaintiffs, describing themselves as late partners, against the defendant Sherman alone, upon a judgment recovered against him and three others in Nevada. A demurrer to the complaint being sustained because of the non-joinder of the other judgment debtors, the plaintiffs filed an amended complaint, omitting the designation of themselves as late partners, and making all the judgment debtors parties. Held, that the amendment was proper.</p> <p>Id.—Judgment on Partnership Cause of Action.— Evidence — Variance. — The action in which the judgment was rendered was brought in Nevada, and the complaint therein described the plaintiffs as partners. Pending the action, the partnership was dissolved, and the judgment was rendered in favor of the plaintiffs individually. Held, that the judgment was valid, and that its admission in evidence in the present action was not a variance.</p> <p>Id.—Action on Foreign Judgment —Statute of Limitations.—Under section 361 of the Code of Civil Procedure, a citizen of California may maintain an action in this state on a judgment recovered in another . state, of which he has held the cause of action from the time it accrued, although an action on the judgment in the state in which it was rendered is barred by the statute of limitations thereof.</p> <p>Id. — Insolvency of Plaintiff—Assignee need not be Substituted.— Where one of the plaintiffs in an action is adjudged an insolvent during its pendency, his assignee need not be substituted in his place.</p> <p>Id.—Action against Partners — Judgment against Party Served.— In an action against alleged partners, in which only one is served with summons or appears, a judgment rendered against all the defendants, with a direction that it may be enforced against the joint property of all, and against the separate property of the one served, is not void as to the latter.</p> <p>Id. —Foreign Judgment — Interest on how Computed. —Where a judgment rendered in a foreign state directs that a portion thereof bear interest at a specified rate, but is silent as to the rate of interest on the balance, in an action on the judgment in California, interest on the balance should be computed at the rate allowed by the law of the foreign state; but the allowance of a less rate of interest is not error of which the judgment debtor can complain.</p>

<p>Appeal from a judgment of the Superior Court of San Benito County, and from an order refusing a new trial.</p> <p>On the trial, one Swope, the grantor of the plaintiffs, was permitted to testify, against their objection, that he only sold them the waste water of the ditch. The further facts are stated in the opinion.</p>

<p>Injunction—Application for Dissolution—Notice when Necessary. — Under section 532 of the Code of Civil Procedure, an injunction granted upon an ea: parte application of the plaintiff cannot be set aside upon a showing made by the defendant that since the issuance of the injunction the matter complained of has been abated, unless a notice of the application to dissolve the injunction is given to the plaintiff.</p> <p>Id. — Certificate Identifying Papers — Appeal. — The complaint and affidavits upon which -the injunction was granted established a prima facie case for its issuance. The ex parte application for its dissolution was made upon affidavits filed on behalf of the defendant, and the order of dissolution recited that affidavits were used at the hearing, showing that the nuisance enjoined had been abated. On an appeal from the order of dissolution, held, that a certificate of the clerk or judge identifying the affidavits used on the hearing was not necessary.</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>Application for a writ of mandate. The facts are stated in the opinion of the court.</p>

<p>New Trial—Notice of Motion — Statement of Oase.—A motion for a new trial made solely upon a statement of the case is properly heard and determined, although the notice of the motion stated that it would also be made upon the minutes of the court and a bill of exceptions.</p> <p>Rescission of Contract—Fraudulent Representations—Offer to Re^ scind—Reasonableness of Time.—The action was brought to obtain the rescission of a contract whereby the plaintiff purchased from one of the defendants a lot of furniture, and a lease for five years of a boardinghouse, on the ground that he had been induced to. make the purchase through the false and fraudulent representations of his vendor. Six ^months after the purchase, the plaintiff, having discovered the- falsity of the representations, verbally offered to rescind the contract, and placed the vendor in possession of the furniture and boarding-house. Held, that the offer to rescind was made within a reasonable time, and was sufficient without the tender of - a written release of the rights acquired by the plaintiff under the lease.</p>

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

<p>Attorney-General—Authorization to Use Name of State—Revocation of. — An authorization given by the attorney-general to the real, parties in interest, to use his name in an action to set aside a patent to. certain swamp and overflowed lands, and to bring the action in the name. of the people as plaintiff, cannot afterwards be revoked by him, to the: prejudice of the real parties in interest.</p>

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

Action for the claim and delivery of certain printing materials. The further facts are stated in the opinion. Levi Chase, for Appellant, cited Hart v. Barney, 7 Fed. Rep. 553; Heryford v. Davis, 102 U. S. 235; Harkness v. Russell, 7 Sup. Ct. Rep. 51.

<p>Eire Insurance — Notice and Preliminary Proof of Loss —Waiver— Proceedings for Arbitration. — • A provision in a policy of fire insurance, requiring the assured in case of loss to forthwith give notice thereof to the insurer, and produce a certificate of preliminary proof from a notary or magistrate, is waived, if the insurer, after learning of the loss, makes no objection to the absence of the notice and preliminary proof, but joins in proceedings for determining the loss by arbitration, which proceedings were required by the policy to be taken after proof of the loss had been received in due form. And this result follows, although the policy contains a provision that no condition thereof shall be altered, annulled, or waived, except by the written indorsement of the president or secretary of the insurer.</p> <p>Id.—Ratification by Insurer of Acts of Agent.— In such a case, the insurer cannot deny the authority of its agents to waive the provision of the policy as to notice and preliminary proof, when it adopts their acts in that regard, and relies on the award as a defense to an action to recover for the loss.</p> <p>Id.—Provision fob Submission to Arbitration.—Such a waiver is not prevented by a provision in the submission to arbitration, to the effect that the appointment “is without reference to any question or matters of difference within the terms and conditions of the insurance, and is not to be taken as any waiver upon the part of the companies of the said conditions in their policies, in case they elect to avail themselves of them.”</p> <p>Id.—Action to Recover Loss — Submission to Arbitration Essential Prerequisite—Amount of Recovery.—The policy in question provided that in case differences should arise touching any loss or damage, the matter might be submitted to arbitrators, whose award in writing should determine the amount of such loss or damage, but not decide the question of the liability of the insurer, and that no action could be maintained against the insurer for the recovery of any claim under the policy until an award had been obtained fixing such claim. Held, that the submission to arbitration was a condition precedent to the right of the assured to recover for a loss, and that the action should be for the amount as fixed by the award.</p> <p>Id.— Pleading — Complaint must Allege Award.—In such an action, ' the complaint must specifically allege the award, or show that it was prevented by the fraudulent conduct of the insurer; an allegation that the plaintiff has duly performed and kept all the conditions of the policy is not sufficient.</p> <p>Id.— Answer to Cross-complaint — Unauthorized Pleading.—A paper filed in an action by the plaintiff, and styled an “answer to the defendant’s cross-complaint,” will not be considered as a pleading when no cross-complaint is filed.</p>

<p>Practice — Examination of Witness—Form of Question.—It is not an objectionable form of question to request a witness on his direct examination to state only what he knows about the matter.</p> <p>Id.—Contract for Sale of Fruit—Action for Breach of—Finding — Evidence. — In an action by a vendor to recover the amount alleged to be due him under a contract to deliver certain fruit, a finding that at the time the fruit was delivered it was not in a good and merchantable condition, will be held sustained by the evidence, when the plaintiff testifies that it was more or less bruised at that time.</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 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 action was brought to redeem a mortgage. The further 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 a judgment of the Superior Court of San Bernardino 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>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>Sheriff— Belease of Attached Property—Negligence.—The plaintiff brought an action against one Bruce, in which an attachment was regularly issued and placed in the hands of the defendant as sheriff, who levied it upon certain cattle as the property of Bruce. One Goss, claiming to own the cattle, commenced an action of claim and delivery therefor against the defendant, and upon executing the undertaking required by the statute, the coroner took possession thereof and delivered them to him. The defendant did not execute the counter-undertaking as required by section 514 of the Code of Civil Procedure, nor did he except. to the sufficiency of the sureties on the undertaking given hy Goss, or notify the plaintiff of the action or of the giving of the undertaking. Soon after receiving the possession, Goss sold the cattle and left the state. In the action brought by Goss, judgment was rendered in favor of the defendant. The plaintiff herein recovered judgment against Bruce, on which he has been unable to realize anything. The judgment against Goss has not been enforced, nor any portion of it paid. At the time of the execution of the undertaking by Goss, he and the sureties thereon were and since have continued to be insolvent. Held, that the defendant was guilty of negligence in accepting the undertaking given by Goss without compelling the sureties to justify.</p>

<p>Statute of Limitations—Maliciously Burning Building—Action for "when Barred. — An action for maliciously burning a building, and the personal property contained therein, whether considered as an action for a trespass upon real property, or for injuring personal property, is barred by the statute of limitations after the expiration of three years from the time of the injury.</p> <p>Id.—Statute Commences to Run from Time of Injury.—The statute of limitations commences to run against such an action from the time of the injury, and not from the time the plaintiff discovered the person who did it.</p>

Pending the settlement of the estate in question, the administrator was judicially declared insane, and comm Ti ed to the lunatic asylum. He was granted a certificate of discharge therefrom, and subsequently judicially declared restored to capacity and of sound mind.

<p>Negligence—Railroad—Jumping oee Moving Cars—Proximate Cause — Instruction. — The action was brought to recover damages for injuries received by the plaintiff in alighting from a train of cars belonging to the defendant. The main point at issue was, whether the injury was caused by the sudden starting of the cars after they had stopped, without giving the plaintiff a reasonable time to alight, or by her negligently jumping from the train while it was in motion. On this issue the evidence was conflicting. The court, after charging the jury as to the duty of railroad companies to stop their trains a reasonable time in order to allow passengers to alight, instructed them that the plaintiff could not recover if her negligence caused or contributed to the injury. Held, that the instruction was proper, and that the omission therefrom of the word “proximate ” was immaterial, as under the circumstances the negligence, if any, of the plaintiff, must have proximately contributed to tho injury.</p> <p>Id.—Evidence os Previous Similar Negligence.—In such a case, evidence that the plaintiff had within a year previous to the accident, frequently traveled over the route in question, had frequently jumped off the cars while in motion, and had been warned against the danger of so doing, is admissible.</p>

<p>Ejectment—Location of Boundary Line—Judgment in Former Action — Evidence. — The action was brought to recover the possession of a strip of land lying along the boundary line of two adjoining ranchos severally owned by the respective parties. On the trial, it was stipulated that each party was the owner of the land as described in his muniments of title, and the only point at issue was as to the proper location on the ground" of their boundary line. The plaintiff offered in evidence the judgment roll in a former action, brought by him against the grantor of the defendant, wherein it was determined that the parties were the respective owners of .the ranchos, and that there was no conflict in their deeds with respect to the boundary line. The court excluded the evidence. Held, that the ruling was proper.</p>

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

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

<p>Homestead—Action to Enforce Trust in—Insolvency—Order Setting Apart Homestead — Statute of Limitations.—The action was brought by a judgment creditor of an insolvent to establish and enforce a constructive trust as against him in certain land which had been set aside to him in the insolvency proceedings as a homestead, on the ground that the same was not a valid homestead when the order setting it aside was made, and that the court was induced to make the order through the fraudulent representations of the defendant that it was a homestead. The complaint alleged that the plaintiff had no notice of the order, or of the fraud of the defendant until about two years prior to the commencement of the action. Held, that the statute of limitations commenced to run against the action from the time of the termination of the insolvency proceedings, and barred the same at the expiration of four years.</p> <p>Id.—Notice of Public Records Implied.—Held further, that the order setting aside the homestead being a matter of public record in the insolvency proceedings, the plaintiff was charged with notice thereof, and that ignorance of the fraud would not stay the running of the statute.</p> <p>Id. — Implied Trust — Statute of Limitations Runs against. — The statute of limitations runs in favor of a defendant chargeable as trustee of an implied trust, and it is not necessary, in order to set the statute in motion, that he should have denied or repudiated the trust. In such a case, the statute begins to run when the wrong complained of is done, and the limitation, under section 343 of the Code of Civil Procedure, is four years.</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>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.</p>

<p>Ejectment — Description of Premises — Amendment.—In an action of ejectment to recover a quarter-section of land described as being in “range 19 east,” an amendment to the complaint describing the land as “range 20 east ” is not the substitution of a new cause of action, and may properly be allowed.</p> <p>Id.—Adverse Possession—Payment of Taxes—Act of April, 1878.— The amendment of April 1, 1878, to section 325 of the Code of Civil Procedure, requiring the adverse possessor of land to pay all state and county taxes assessed thereon, in order to acquire title by adverse possession, is not retroactive, and does not affect adverse holdings prior to the date of its passage.</p> <p>Id.—Statute of Limitations — Defense of—Instruction.—Where the defendant, in an action of ejectment, sets up title to the demanded premises under the statute of limitations, and there is evidence tending to support the plea, an instruction which directs the jury to find for the plaintiff, without considering such defense, is erroneous.</p>

<p>Corporation — Action by—Denial op Corporate Existence — Special Verdict. — In an action by a corporation in which an issue is raised as to the corporate existence of the plaintiff, the court may direct the-jury to find specially upon such issue in addition to their general verdict.</p> <p>Id. — Proof of Corporate Existence—Articles of Incorporation—. Copy of Certified Copy.—In such an action, under section 297 of' Civil Code, a copy of the certified copy of the articles of incorporation! of the plaintiff, on file in the office of the secretary of state, is admissible' in evidence in proof of its corporate existence.</p> <p>Id.—Contract with Apparent Corporation — Estoppel. — One who has contracted with an apparent corporation as such is estopped, in an action, on the contract, from denying the existence, of. the corporation..</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 Lassen County.</p> <p>The facts are stated in' the opinion.</p>

On the trial, a witness who was present at the killing was asked by the defendant whether a certain wound found in the body of the deceased was caused by the entrance or exit of the bullet fired by the defendant. The prosecution -objected to the question on the ground that no proper foundation had been laid therefor, and because it did not appear that the witness was an expert on gunshot wounds, or was a surgeon. The court sustained the objection.

<p>Contract—Building — Claim tor Extra Work—Arbitration. — In an action by a contractor to recover a balance alleged to be due on the contract price for building a house, the plaintiff is not entitled to recover for extra work done, and materials furnished, when the contract provides that claims for such extras should be submitted to arbitration, and the plaintiff has made no offer or request so to submit them.</p> <p>Id.—Set-off — Completion of House by Owner.—In such an action, the defendant is entitled to set off an amount expended by him in finishing the house, after the refusal of the contractor to complete it, upon, being notified so to do, authority to finish the house upon the happening of such an event being given to the owner by the contract.</p> <p>Practice — Offer of Compromise — Conclusion of Trial within Time Limited for Accepting Offer—Costs. — Under section 997 of the Code of Civil Procedure, the failure of the plaintiff to accept an offer of compromise does not preclude him from the right to recover costs, although the judgment rendered in his favor is for a less amount than the offer, if the trial is concluded within five days after the offer was made.</p>

<p>Divorce—Action for by Wife — Order for Alimony Pendente Lite —Judgment — Reservation of Questions as to Property.—In an action instituted by a wife for a divorce, and for a division of the property of the defendant, an order was made pendente lite awarding the plaintiff a certain monthly allowance as alimony. Thereafter the court, having found that the plaintiff was entitled to a divorce, .referred the action to a referee to take testimony and report upon certain questions relating to the property of the defendant. Subsequently, and while the reference was pending, the court filed additional findings of fact and conclusions of law, and directed that judgment be entered in favor of the plaintiff, reserving all questions as to the property. A judgment- was accordingly entered for a divorce, containing a provision that “all questions as to property, and as to a suitable allowance to the wife for her support, are hereby reserved.” Held, that the judgment was not final so far as the questions concerning the property were concerned, and did not render inoperative the prior order for alimony.</p>

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

The plaintiff attacked the discharge in insolvency pleaded by the defendants on the grounds,—1. That the notice calling upon the creditors of the insolvent to appear on a specified day was not published for the time required by law; 2. That he had failed to include in the schedule certain property belonging to him, and that the property included therein was not estimated at its actual cash value; and 3.

<p>State Lands — Contest as to Right to Purchase — Failure to Bring Action in Time — Contestant may Make Second Application. — Under section 3417 of the Political Code, the failure of a party applying for the purchase of certain state lands to commence an action to determine a contest between himself and a prior claimant as to the right to purchase, within sixty days after an order referring the contest for trial is made, does not deprive him of the right to make a second application for the same land, and on the latter application to contest the right of the prior claimant to purchase.</p>

The action was brought to recover a sum of money received by the plaintiff as county recorder of the county of .San Bernardino, by way of fees for recording notices of locations of mining claims, and by him paid into the county treasury. Judgment was rendered in favor of the plaintiff- The defendant, having appealed therefrom, subsequently moved to dismiss the appeal. The further facts are stated in the opinion of the court.

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

<p>Criminal Law—Receiving Stolen Goods — Uncorroborated Testimony of Thief — Accomplice — Instruction.—In a prosecution for receiving stolen goods knowing them to have been stolen, an instruction that the jury might convict the defendant upon the uncorroborated testimony of the person by whom the goods were stolen, without leaving to them to determine whether the latter was in fact an accomplice, is erroneous.</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>New Trial — Appeal from Justice’s Court — Failure to File Notice of Motion — Omission to Serve or File Draft Statement. — The Superior Court has no jurisdiction to hear and determine a motion for a new trial in an action retried hy it on an appeal from a Justice’s Court, where the notice of intention to move for the new trial has not been filed, and no draft statement of the case on which the motion was based has been filed or served on the adverse party, and the omission has not been cured by stipulation.</p>

<p>Homestead — Easement—Water Ditch—Bight of Way—Judgment— Execution ■—■ Payment. —On the 28th of June, I860, one Kelly procured a right of way from the plaintiff across the lands of the latter for the purpose of constructing a water ditch, and on the same day granted to the plaintiff one fourth interest in the right of way, on condition that he would bear his proportionate part of the expenses of construction. Thereafter the parties jointly constructed the ditch, and have since jointly maintained the same, and the plaintiff has used the water flowing therein for the purpose of irrigating his lands. Kelly, having paid more than his proportionate part of the cost of construction, brought an action against the- plaintiff for the excess, in which an ordinary money judgment was rendered in his favor. After the findings in that action had been filed, but before the judgment was entered, the plaintiff herein filed a declaration of homestead on the land through which the ditch was constructed. The present action was brought to enjoin the defendant as sheriff from selling the interest of the plaintiff in the ditch and water flowing therein under the above-mentioned judgment. Held, that the interest of the plaintiff in the ditch and water was appurtenant to. and a part of his homestead, and was not liable to he sold under the judgment, and that Kelly, after obtaining a personal judgment against the plaintiff for his proportion of the- construction expenses, could not claim that the-title of the plaintiff to the- ditch was conditional upon full payment.</p> <p>Id.—Partnership—Tenants in Common—Lien for Advances. —Held further, that the transaction did not create- a partnership between the plaintiff and Kelly, either in the ditch as a mere- conduit, or in the water flowing through it, so as to-create, a lien thereon in favor of one of the-partners advancing more than his proportion of the capital; nor did it constitute them tenants in common of the land traversed by the ditch so as to prevent the plaintiff from filing a. declaration of lio:nesfceadthereon.</p> <p>Id.—Homestead Filed, during Litigation—Fraud on Creditors.—A homestead is not fraudulent as to- creditors of the declarant because-made during the progress of litigation which subsequently results in an ordinary money judgment against him.</p> <p>Vendor’s Lien — Waived by Obtaining Personal. Judgment. — The lien of a vendor of land for the unpaid purchase- price is not a specific and absolute charge upon the land, but a mere equitable right to resort to it upon failure of payment by the vendee, and can be enforced only by a, suit in equity. Such a lien is waived by the vendor’s proceeding against the vendee in an action at law, and by the recovery therein, of an ordinary money jndgment.for the purchase.price;</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 facts are stated in the opinion of the court.</p>

<p>Estate of Decedent — Claim — Demand fob Services as Attorney for Administrator — Order for Payment •— Appeal. — The demand of an attorney for services rendered an administrator during the progress of the settlement of the estate of a decedent, which is presented to the administrator and allowed and approved by the Probate Court, and ordered to be paid out of the estate in the due course of administration, although not technically a “claim” against the estate within the meaning of section 968 of the Code of Civil Procedure, will be treated as such, and the order directing the administrator to pay it is appealable.</p>

<p>Criminal Law — Murder—Verdict — Conflict of Evidence.—In a prosecution for murder, a verdict of conviction will not be reversed on the ground that it is not, warranted by the evidence, when there is testimony in the case which, if credited by the jury, demanded from them the verdict rendered.</p> <p>■ Id.—Sickness of Juror-—Discharge of — Impaneling New Jury.—• After the jury was sworn to try the cause, and before any evidence was taken, one of the jurors was taken sick, and being unable to continue on the jury, was discharged by the court. The defendant excepted to this action, and requested that the remaining j urors be discharged, and their names, in common with all others summoned, be placed in the jury-box, and that the jury be impaneled anew. The court declined to pursue this course, and retained the eleven jurors, subject to the right of the parties to challenge them. The defendant interposed no challenge. The prosecution challenged one of the eleven peremptorily, and thereupon the jury was filled and sworn in the usual manner. Held, that under section 1123 of the Penal Code, the course pursued by the court' was proper.</p> <p>Id. — Dying Declaration — Admissibility of. — On the day following that on which the deceased was injured, and after he had been told by a physician that Ms wounds were mortal, he announced repeatedly that he had no hope of recovery, and that he was going to die, and expressed a desire to make a statement of the circumstances attending the conflict with the defendant. His statement was then made to a justice of the peace, in the presence of several persons, taken down by a reporter in shorthand by question and answer, written out at length, read .and assented to by the deceased, who signed and swore to it. Held, that the statement was admissible as a dying declaration, although it did not contain certain conversations had by him in reference to the homicide, prior to the making of the formal statement.</p>

The land in question, on the second day of March, 1877, was owned by one Thomas R. King, through whom each party claims to have derived title. The defendant claims under a deed from King, executed on the 12th of March, 1877, and recorded on the same day.

The action was brought to recover damages for the breach of a covenant in a lease, whereby the lessee covenanted to surrender the demised premises, with the improvements thereon, at the expiration of the term.

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

<p>Supplementary Proceedings—Return of Execution Unsatisfied — Order for Examination — Affidavit for — Piling of—Appearance of Judgment Debtor. — Where an execution has been returned, unsatisfied, an order directing the judgment debtor to appear before a. referee to answer concerning his property is not void because the affidavit, of the judgment creditor on which it was issued was not filed until the-filing of the report of the referee, if the judgment debtor, after being-served with the affidavit and order, appears before the referee, and submits to the examination without objection.</p> <p>Id.—Affidavit when Unnecessary for Order of Examination.—In. supplementary proceedings under section 714 of the Code of Civil Procedure, after an execution has been returned unsatisfied, the judgment, creditor is entitled to an order directing the judgment debtor to appear and answer concerning Ms property, without making any affidavit; therefor.</p> <p>Id.—Order for Assignment of Property by Debtor — Evidence.—In, such proceedings, an order directing the judgment debtor to assign all his right, title, and interest in certain letters patent of the United States, cannot be assailed on the ground that it does not appear that he has any-property therein, when the evidence on that point is conflicting.</p> <p>Id. — Proceedings not a New Action — Assignment of Judgment.— Supplementary proceedings, whether had before or after the return of " the execution unsatisfied, are not in the nature of a new action, and an, order rendered therein in favor of the judgment creditor, directing the., judgment debtor to assign certain property in satisfaction of the judgment, will not be reversed, although the judgment creditor states in his; affidavit for the order of examination that he had assigned the judgment,, and only has a contingent interest therein.</p> <p>Id.—Interpleader by Judgment Debtor.—In such proceedings, the. judgment debtor is not entitled, under section 386 of the Code^of Civil Procedure, to apply for leave to interplead the judgment creditor with other persons, to compel them to litigate their respective claims to .the property ordered to be assigned.</p>

<p>Injunction — Restraining Supervisors — Auditing Illegal Claims.— An injunction will not lie at the instance of a tax-payer of a county to restrain the board of supervisors from, examining, auditing, or ordering paid certain claims on the ground that the same are not proper or valid demands against the county.</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>Appeal from a judgment of the Superior Court of Amador County, and from an order refusing a new trial.</p> <p>The action was brought to quiet title to a mining, claim. The further facts are stated in the opinion,.</p>

The action was brought on a policy of fire insurance to recover the loss sustained by the burning of the insured building. The further facts are stated in the opinion of the court.

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

<p>Appeal from, an order of the Superior Court of Yolo County setting aside the allowance of a claim against the estate of a deceased person.</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 dissolving an attachment.</p> <p>The action was brought on a promissory note, and a writ of attachment was issued therein and levied on property of the defendant on the 6th of November, 1876. On the 27th of February, 1877, the defendant procured a release of the attached property by executing the bond required by sections 554 and 555 of the Code of Civil Procedure, and afterwards moved to have the attachment dissolved, on the ground that the affidavit on which it was issued was defective. The alleged defect in the affidavit consisted in the alternative statement that the “ contract was • made and is payable in this state, and that the payment of the same has not been secured by any mortgage upon real or personal property, or, if originally so secured, that such security has, without any act of the plaintiff, become valueless.” On the hearing of the motion, the plaintiff asked leave to file an amended affidavit, which was denied by the court. The further facts are stated in the opinion of the court.</p>

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

<p>Contract —• Insanity — Undue Influence — Spiritualism—Evidence — Findings. — The action was brought to enforce a contract entered, into between the plaintiff and one Jarvis, the defendant’s intestate. The defense was that at the time of making the contract Jarvis was insane, and that the contract was procured by the use of undue influence by the plaintiff. The court found that at the time the contract was executed Jarvis was insane on the subject of spiritualism, and that the plaintiff, who was a spiritual medium, had taken advantage of his weak and unsound mind in procuring the contract to be executed. On a review of the evidence, held, that the findings were sustained.</p> <p>Id. —Relation between Spiritualist and Medium — Contract between — Presumption of Undue Influence—Burden of Proof.—The relation existing between a person who is a firm believer in spiritualism, and the medium upon whose spiritual manifestations he habitually relies, is one of personal confidence, and all contracts between them, by which the medium obtains an advantage, are presumed to have been procured through the undue influence of the latter. And in an action to enforce such a contract, the burden is cast upon the medium of overcoming the presumption by showing that there was no undue influence.</p>

The action was brought to quiet title to certain undivided interests in three mining claims, which were originally the property of one John C. McDonald. The defendants claim title to the property by virtue of an execution sale under a judgment by default obtained by them in an action in a Justice’s Court against one John McDonell.

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

The note, to secure which the mortgage in question was given, contained a provision that in case default was made in the payment of the interest, the note should immediately become due at the option of the holder thereof. The further facts are stated in the opinion.

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

<p>Appeal—Estate of Decedent —emdash; Order Settling Account of Administrator &emdash; Entry in Minute-book — Premature Appeal. —An appeal from an order settling the. accounts of am administrator of the estate of a deceased person is premature and will be dismissed, when taken before the order is entered in the minute-book of the court.</p>

<p>Appeal—Dismissal—Errors in Transcript—Certificate of Clerk.— Where the transcript on appeal is certified to by the clerk of the court below as correct, the mere statement of the counsel for the respondent that errors exist therein will not establish the fact or warrant a dismissal of the appeal.</p> <p>Id.—Papers Used on Motion — Failure to Identify.—The fact that papers printed in the transcript are not identified as having been used on the motion on which the order appealed from was made will not justify a dismissal of the appeal.</p> <p>Id.—Undertaking on Appeal — Mistake in Indorsement.—An undertaking on appeal, if otherwise in due form of law, is not rendered ineffectual hy a mistaken indorsement of the title of the case in which it is given.</p> <p>Id. —Notice of Appeal—Mistake in Title. —Where a notice of appeal otherwise clearly identifies the order appealed from, and is properly served on the attorney for the respondent, and filed in the action to which it was intended to apply, a mistake in its title is immaterial.</p>

<p>Criminal Law—Declaration of Defendant to Sheriff—Evidence.— In a criminal prosecution, evidence of a declaration made by the defendant after his arrest to the sheriff, to the effect that he would plead guilty voluntarily, is admissible when no attempt was made by the sheriff to coerce the defendant, and the only inducement held out to him was the probability that if he was guilty, and so pleaded, he would get a shorter sentence.</p> <p>Id.—Evidence of Good Character—Certificate of Discharge from Army. — In a prosecution for burglary, a certificate of the discharge of the defendant from the United States army, certifying to his good character, is not admissible as evidence of his good character.</p> <p>Id. —Instructions — Circumstantial Evidence.—In instructing the jury upon the subject of circumstantial evidence, the court, after stating that in order to warrant a conviction the circumstances must exclude to a - moral certainty every other hypothesis than that of guilt, further said that “to convict upon circumstantial evidence, it should he such as to produce nearly the same degree of certainty as. that which arises from direct testimony.” Held, that the instruction 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>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>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>Criminal Law—Murder—Manslaughter — Instructions. —-In a prosecution for murder;, certain instructions on the subject of reasonable-, doubt, and as to the distinguishing features between murder and manslaughter, Tield, not erroneous.</p>

<p>Ci~n~m~ LAw-MunDER-Dyn~G DECLA1~ATXONS. - In a prosecution for murder, a declaration made by the deceased in reference to the homicide a few moments before his death, and immediately preceding a statement by him to the effect that he knew he was about to die, is admissible as a dying declaration.</p> <p>Id.—Evidence'—Testimony Taken at Coroner’s Inquest.&emdash;In such a prosecution, the refusal to admit in evidence a paper claimed by the counsel for the defendant to be the testimony taken .at the coroner’s inquest, is not error, when there is nothing to show that the paper was such testimony, except the statement of the counsel offering it, and the record fails to show what it contained.</p> <p>Id. —Instructions — Reasonable Doubt. —In the charge to the jury, the court, after correctly instructing them upon the subject of reasonable doubt, said: “ But mere probabilities of innocence or doubts, however reasonable, which beset some minds on all occasions, should not prevent a verdict ” of guilty. Held, that the instruction, although ambiguous, could not have misled the jury.</p> <p>Id. —Assumption of Fact in Instruction — Expression of Opinion — Conflict of Evidence. —In a prosecution for murder, an instruction which assumes the fact of the killing, or expresses an opinion upon the weight of the evidence tending to show it, will not be presumed erroneous, where there is no conflict in the evidence contained in the record as to the fact of the killing.</p> <p>Id. — Alibi &emdash; Proof of — Preponderance of Evidence. — In such a prosecution, the defense of an alibi, being extrinsic, and not arising out of the res gestee, must be proved by a preponderance of evidence.</p> <p>Id. — Instructions — Weight of Evidence. — The court further instructed the jury: “If you are satisfied beyond a reasonable doubt that the defendant, at the time and place specified in the information, killed the party alleged to have been killed, under such circumstances as under the testimony as given before you and the law that I have given you, it would be murder in the first degree, and you desire that he shall suffer the death penalty, the form of your verdict will be, We, the jury, find the defendant guilty of murder in the first degree.’ ” Held, that the instruction could not be construed as charging the jury that the killing, if it occurred at the time and place specified, would, under the testimony and law, be murder in the first degree.</p> <p>Id, — Repetition of Instructions — Intimation as to Enormity of Case. — The court, before giving the instructions asked for by the defendant, the substance of which had already been given by him, remarked to the jury that he did not desire to have any question in the case, and that he would give the instructions asked for in addition to those he had already given, and that he did not deem it necessary to-give certain instructions that he usually gave in homicide cases. Held, that the remarks of the. court were not an intimation that the case was one of unusual enormity, or that the instructions asked by the' defendant were given under protest.</p>