Volume 73 — California Reports

<p>Application for leave to prove exceptions. The facts, are stated in the opinion of the court.</p>

<p>Injunction—Restraining Execution — Justice’s Court—Void Judgment— Motion to Set Aside Execution.—An injunction will not lie to restrain the enforcement of an execution issued on a judgment by default rendered in a Justice’s Court, which is void on its face for the reason that the court never acquired any jurisdiction of the person of the defendant. In such a case, the defendant has an adequate remedy at law, by motion in the Justice’s Court, to set aside the execution.</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>

' The proceeding was brought to compel the appellant, the assignee for the benefit of the creditors of one L. Hyman, an insolvent debtor, to make and file a true account of the estate of the insolvent, under the provisions of sections 29 and 30 of the Insolvent Act of 1880. The assignee appeared in response to an order to show cause issued upon the petition of the respondents, and demurred to the same generally and specially.

<p>Application for a writ of prohibition to restrain the Superior Court of Yolo County from proceeding with the trial of an action appealed to it from the Justice’s Court. The further facts are stated in the opinion of the court.</p>

<p>Contract for Sale of Land—Parol Agreement to Advance Purchase Price—Trust.—In May, 1880, the land in controversy belonged to the Central Pacific Railroad Company, and at that time the defendant applied to the company for permission to purchase the same. In June, 1881, the company recognized the right of the defendant to purchase, and entered into an agreement with him, that, upon the payment by him of a specified sum, it would execute to him a contract for the sale of the land. By the terms of the contract, the defendant would have five years from the 8th of July, 1881, in which to pay the purchase price. On the 5th of July, 1881, the plaintiff paid the first installment of the purchase price to the company, for the benefit of the defendant, in pursuance of a verbal agreement between them that the contract of sale should be taken in the name of the plaintiff, to be held by him as security for the repayment by the defendant of the amount so advanced within one year. The contract of sale was accordingly made to the plaintiff, but before the expiration of the year, the plaintiff extended the time of repayment six months. Before the expiration of the six months, the plaintiff voluntarily, and without the knowledge of the defendant, paid the company the balance of the purchase price, and took a conveyance of the land in his own name. The plaintiff never demanded payment by the defendant of the amount so advanced, and has refused to make any statement of the amount due him. The defendant has at all times been ready and ■willing to repay the amount of the advance, but the plaintiff has refused to accept the same. Held, that the plaintiff held the land in trust for the defendant, and should be compelled to convey the same to him upon the payment of the amount advanced.</p> <p>Id. — Statute of Frauds—Contract to be 'Performed within Year. — Held further, that the contract between the plaintiff and the defendant was not void under the statute of frauds, as it was originally to have been performed within one year, and its subsequent extension for six months took place before the expiration of the year, and after that time was not of the essence of the contract.</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>Mining Claim—Location—Boundaries — Erection of Monuments on Adjoining Claims. — The location of a mining claim, if otherwise sufficient, is not rendered invalid by reason of the fact that certain of the monuments erected to mark its boundaries were by mistake placed upon adjoining claims. In such a case, the location is good in so far as the land included within the boundaries was vacant and subject to location.</p>

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

On and prior to the 9th of April, 1862, the plaintiffs were the owners of certain lands situated on the west bank of the Sacramento River, about one half mile above the point at which the American River, through its natural channel, emptied into the Sacramento.

<p>Sheriff’s Deed — Description of Land — Reference to Map—Uncertainty— Evidence of Identity. —A sheriff’s deed of land sold at an execution sale, which describes the property intended to be conveyed solely by a general reference to a non-official map, in order to be operative must clearly identify the particular map referred to; and the deed is void for uncertainty, when the reference contained therein is equally applicable to two different maps, and in an action founded thereon, parol evidence of the sheriff to identify the one referred to is inadmissible.</p> <p>Id.—Taxation — Town Lots—Assessment of must be Separate — Return to Assessor. — Under section 3650 of the Political Code, town lots must be separately listed and valued for purposes of assessment, according to the system of numbering obtaining in such towns; and an assessment of several lots as one undivided parcel is void, if the owner thereof did not return them to the assessor as a whole, and did not refuse to make a return.</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>Appeal from a judgment of the Superior Court of Fresno County.</p> <p>The facts are stated in the opinion.</p>

<p>Principal and Agent—Agency to Sell Corporate Stock—Fraud oe Agent—Accounting—Demand—Tender.—Where the owners of stock in a corporation transfer the apparent ownership thereof to another, solely for the purpose of enabling him, as their agent, the better to sell the property of the corporation, and the latter, in fraud of the rights of the real owners, sells the corporate property for a larger amount than that for which he makes a return, the principals may maintain an action against the agent for the return of the stock and an accounting of the dividends received by him thereon, without previously making a demand for a return, or tendering the amount received from him.</p>

<p>Swamp and Overflowed Lands—Act of September 28, 1850—Grant in Priesenti. — Section 1 of the act of Congress of September 28, 1850, commonly called the swamp-land act, is a grant in prcesenti to each state of the swamp and overflowed lands within its limits. The provision made in the second section of the act for a patent is for the purpose of furnishing to the grantee documentary evidence that the land was swamp and overflowed, and a further assurance of title.</p> <p>Id.—Plat of Survey of Township—Approval by Surveyor-general —Conclusiveness as to Character of Land—Vesting Title.— Under section 4 of the act of Congress of July 23, 1866, quieting land titles in California, the plat of the survey of a township, having lands represented thereon as swamp and overflowed, upon being approved by the United States surveyor-general for California, is conclusive between the state and the United States as to the character of the lands so represented, and vests the title thereto in the state, as of the 28th of September, 1850, the date of the passage of the swamp-land act; and this result follows,, although the commissioner of the general land-office has neglected to certify the land over to the state as swamp and overflowed, as required by the act of July 23, 1866. After the plat has been so approved, the United States land department has no power to determine that the land represented thereon as swamp and overflowed is not of that character, or to dispose of the same under the homestead or preemption laws.</p>

<p>Turnpike Corporations—Demand and Receipt op Excessive Tolls — Penalty. — Under section 31 of tlie act of May 12, 1853, providing for the formation of corporations for the construction of plank and turnpike roads, a toll-gatherer who receives from any person more than he is authorized to collect as toll is not liable for the penalty imposed by that section, unless he also demanded the excessive amount of the person paying the same.</p> <p>Id.—Failure of Supervisors to Fix Tolls.—The failure of the board of supervisors of the county through which a toll-road passes, to fix the rates of toll to be collected thereon during a particular year, as required by the act of April 28 1857, amending the act of May 12, 1853, does not render a person who demands and receives tolls thereon during such year liable for the penalty prescribed by section 31 of the latter act for demanding and receiving excessive tolls.</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>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, and in the dissenting opinion of Justice McICinstry.</p>

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

<p>Appeal—New Trial as to One Defendant—Order Granting—Party Aggrieved. —The action was brought against the Central Pacific Railroad Company and the South Pacific Coast Railroad Company to recover damages for personal injuries alleged in the complaint to have been caused by the joint negligence of the defendants. Each of the defendants answered separately, denying the negligence imputed to it. • The jury rendered a verdict in favor of the plaintiff against the Central Pacific Railroad Company, but which was silent as to the South Pacific Coast Railroad Company. Judgment was entered according to the verdict. The Central Pacific Railroad Company subsequently moved for a new trial, which was granted as to it. From the order granting the new trial, the South Pacific Coast Railroad Company appealed. Held, that the appeal should be dismissed,-as the-appellant was not a party aggrieved by the order.</p>

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

<p>Will — Absolute Estate—Postponement oe Right oe Enjoyment — Vested Estate — Indefinite Restraint on Alienation.—A provision in a will bequeathing a sum of money absolutely, with directions that it be distributed to the legatee upon the expiration of a specified time after the death of the testator, creates a vested interest in fee in the legatee, postponed merely in enjoyment; and a further provision indefinitely restraining the right of the legatee to alienate the subject-matter of the bequest is void.</p> <p>Id. — Construction of Will—Jurisdiction oe Superior Court.—The Superior Court, as a court of equity, has power in proper cases to hear and determine questions relating to the rights and duties of executors and beneficiaries under wills which have been admitted to probate.</p>

<p>Appeal from an order of the Superior Court of Mendocino County directing the payment of costs, alimony, and counsel fees in an action of divorce.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorcie—Extreme Cruelty—Physician—Privilege—Hypothetical Question—Evidence. —The action was brought by a wife,for a divorce on the ground of cruelty. On the trial, a physician, who had acted professionally for each of the parties, was called as a witness for the plaintiff, and asked a hypothetical question as to the effect which would probably result to the plaintiff, in the condition in which he found her, from the acts of the defendant, which constituted the alleged cruelty. The plaintiff thereupon released the witness from any obligation of secrecy, but he refused to answer, on the ground that he might be compelled on cross-examination to reveal professional secrets confided to him by the defendant. Held, that the question did not concern a privileged matter, and that the court erred in not compelling an answer.</p> <p>Id.—Impeaching Witness—Rejection oe Testimony before Question. —Where a proper foundation has been laid for the purpose of impeaching a witness, it is error to sustain an objection to the testimony offered for that purpose before any further question has been asked.</p> <p>Id. — Supplemental Complaint—New Cause of Action — Commencement of Action. —Where a supplemental complaint setting up a new cause of action is filed in an action of divorce, the action as to the new ground of complaint must be considered as being commenced when the supplemental complaint was filed.</p> <p>Id.—Separation of Parties — Infliction of Cruelty Pending — Question for Court. —■ In such an action, the question whether a false and malicious charge made by the defendant against the plaintiff, after they had actually separated, would be less apt to inflict grievous mental anguish for that reason, is for the trial court to determine, in view of all the facts.</p>

The action was brought to determine the right of possession to certain placer mining ground situated in Butte County, California, known as the south three fourths of the southwest quarter of section 13, in township 23 north, range 3 east, Mount Diablo base and meridian. The plaintiffs and the defendant each claim to be entitled to the possession under respective placer locations, each of which embraced the land in controversy.

<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 Colusa County.</p> <p>The facts are stated in the opinion of Justice McFarland.</p>

<p>Negligence—Railroad—Crossing Track without Looking fob Train. — A person of mature age, in the full possession of his faculties, while driving along a public road as appears a railroad crossing, from which road a clear and unobstructed view of the railroad track could he had for a considerable distance, is guilty of contributory negligence in driving over the crossing without first looking for the approach of coming trains; and if in attempting to cross the track under such circumstances he is killed by a passing train, the railroad company is not liable, notwithstanding the engineer of the train omitted to ring his bell or blow his whistle as the train approached the crossing.</p> <p>Id.—Question of Contributory Negligence when fob the Court__ In an action to recover damages for personal injuries alleged to have been caused by the defendant, the question of contributory negligence is one ■ of law for the court, when the evidence of the plaintiff indisputably shows that the person injured failed to exercise such care as men of prudence usually exercise in positions of like exposure and danger.</p>

<p>Municipal Corporation—Ordinance Punishing Acts Punishable by General Law — Constitutional Law.—A municipal corporation has no power, under section 11 of article 11 of the constitution, to pass an' ordinance punishing precisely the same acts which are punishable under the general laws of the state.</p> <p>Id.—Ordinance Prohibiting Opium-smoking.—Section 3 of ordinance 192 of the city of Stockton, prohibiting two or more persons from assembling, being, or remaining in any room or place for the purpose of smoking opium, or inhaling the fumes thereof, punishes precisely the same acts as are punishable under section 307 of the Penal Code; the section of the ordinance is therefore in conflict with the general law and void.</p>

<p>Mortgage of Leasehold Estate — Priority of Mortgagee against Subsequent Assignee or Purchaser. — Where a lessee -executes a mortgage of Ms leasehold estate, and of certain machinery erected thereon by Mm, which mortgage purports to be of the fee of the leased premises, and is duly recorded as such, the mortgagee thereunder is entitled to priority in the mortgaged property, both as against a subsequent assignee of the lease and a subsequent purchaser of the machinery at an execution sale against the lessee.</p>

<p>Agreement to Cut Wood — Retention of Property by Vendor until Payment of Price — Conversion — Lien — Damages.—The action was brought to recover damages for the conversion of certain wood which had been cut from the land of the plaintiff by one Rachael Ba-shore, under an agreement whereby the latter was to cut the wood, and when cut it was to remain the property of the plaintiff until she had paid therefor at the rate of one dollar a cord. This price was never paid. After the wood was cut, it was seized and sold as the property of the husband of Rachael Bashore, under an execution issued against him. Held, that the plaintiff did not have a mere lien on the wood to the extent of one dollar a cord, but had the exclusive property therein, and was entitled to recover its entire value as damages for its conversion.</p> <p>Id. — Evidence—Irrelevant Questions. —Certain questions asked a witness on the trial, held irrelevant.</p>

<p>Purchase by Trustee. — A trustee cannot purchase from himself, either directly or indirectly. If he attempts to do so, the transaction is voidable at the election of the cestui que trust.</p> <p>Id. — But a trustee may purchase from his cestui que trust if the transaction is fair in all respects.</p> <p>Id. — Adequacy of Consideration.—As a general rule (subject to some exceptions), it is essential to the fairness of such a transaction that the consideration should be adequate. While inadequacy of consideration is not itself the ground for setting the sale aside, yet, taken by itself, it raises a presumption of unfairness which, unless rebutted, renders the transaction constructively fraudulent. Section 2235 of the Civil Code does not change this rule.</p> <p>Id. —It is not necessary that the highest possible price should be obtained; nor is a subsequent increase in value material. The fair value at the time is what is required.</p> <p>Id. — Findings. — Inadequacy of consideration is one of the facts constituting the fraud, and when put in issue must be found.</p> <p>Decree of Distribution. — If it be assumed that the above question may be litigated on the application for distribution, yet, if not so litigated, the decree of distribution does not conclude the question.</p>

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

<p>Ejectmemt—Improvements Erected bv Defendant—Failure to Find as to when Immaterial.—In an action of ejectment, a judgment in favor of the plaintiff will not he reversed for the failure of the court to find on an issue made by the answer in relation to improvements on the land, the value of which the defendant seeks to set off against the damages for withholding the property, when the answer fails to aver that such improvements were made in good faith, and there was no evidence offered at the trial, either of the nature of the improvements or their value.</p>

The action was brought to recover the possession of certain land. Each party claimed title to the premises under Manning and Steffin, who were the owners thereof prior to the execution of the deed to the plaintiff. The further facts are stated in the opinion.

<p>Appeal from an order of the Superior Court of San Joaquin County refusing to change the place of trial.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Pleadings—Complaint—Immaterial Variance in Copy—Service of Summons. — The complaint, after setting forth several cause's of action against the defendant for work and labor, alleged that the defendant was indebted to the plaintiff thereon “in the sums hereinbefore, stated.” In the copy of the complaint which was served on the defendant with a copy of the summons, the word “hereinbefore” was written “hereinafter.” Held, on a motion to set aside the service of summons, that the variance was immaterial, and could not have misled the defendant, or affected its substantial rights.</p> <p>Id.—Causes of Action for Work and Labor—Joinder of.—A cause of action for work and labor performed by the plaintiff for the defendant, and a cause of action for work and labor performed for the defendant by an assignor of the plaintiff, may be united in the same complaint.</p> <p>Id.—Improperly Uniting Causes of Action in One Count—Demurrer. —An objection that several causes of action which might properly be united in the same complaint are improperly united in one count, cannot be taken advantage of by a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action, or that several causes of action are improperly united.</p> <p>Id. —Assignee may Sue on Day of Assignment. —An assignee of a present existing cause of action may commence an action thereon on the same day that the assignment to him is made.</p>

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

<p>Adverse Possession—Claim of Title under Tax Deed—Title how Acquired by. —Prior to the amendment of 1878 to section 325 of the Code of Civil Procedure, one who in good faith entered into possession of real estate, claiming title thereto under a void tax deed, and under such claim of title openly, notoriously, and visibly maintained the possession thereof for a sufficient length of time adversely as against the whole world, including the owner of the paper title, acquired title to the land by adverse possession.</p>

The action was brougnt to procure the reformation of a deed executed to the defendant Nichols by the grantor of the plaintiff, on the ground that the description contained therein, by a mutual mistake of the parties, included other land than that intended to be conveyed. Subsequent to the execution of the deed, the defendant Nichols mortgaged the land to one Genasci, as the guardian of certain minors.

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

The action was brought by a banking corporation against its cashier to recover the amount of a loss alleged to have been sustained by the bank by reason of certain loans negligently made by the cashier to one De Blainville. These loans were made by him without any security being taken therefor, and no entry or memorandum thereof was made in the books of the bank.

<p>Appeal from an order of the Superior Court of San Joaquin County appointing a special administrator.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of San Joaquin County amending a proposed statement on motion for a new trial.</p> <p>The defendant recovered judgment in the court below, which was entered on the 8th of July, 1884. On the 17th of July, 1884, the plaintiff duly filed and served notice of intention to move for a new trial, and on the 25th of June, 1885, filed in court his proposed statement, which had been prepared and served on counsel for the defendant within the time stipulated for by them. The statement as proposed contained no specification of particulars of any kind, and was not settled or certified to by the trial judge. On the 6th of November, 1886, the plaintiff moved to amend the proposed statement by adding thereto specifications of the particulars wherein he claimed the evidence was insufficient to justify the verdict. The court subsequently granted the motion. The further 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 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 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 Tehama County.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Cbiminal Law—Exclusion of Spectators from Court-room—Public Trial.—During the progress of a criminal trial, the defendant having become greatly excited, so as to disturb the progress of the trial, the court made an order that the lobby outside of the court-room should be cleared of spectators, and that no persons, except officers of the court, reporters of the public press, friends of the defendant, and persons necessary for her to have on the trial, should be allowed to remain. The order did not require the doors of the court-room to be closed, and was made on behalf of the defendant, as well as to preserve order, because the attendance of a crowd of spectators in the court-room tended to excite her. Held, that the order was not in violation of the defendant’s right to a public trial.</p> <p>Id.—Moral Insanity not a Defense.—Moral insanity, as distinguished from mental derangement, is not an excuse for crime; nor does it furnish an exemption from punishment therefor.</p>

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

The petitioner was arrested upon a warrant issued out of the Police Court of the city of Stockton, charging her with the offense of frequenting, for the purpose of prostitution, a house kept for the purpose of prostitution.

<p>Public Office — Federal Official cannot Hold State Office — Constitutional Law. — The word “ eligible,” as used in section 20 of article i of the constitution, providing that “ no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under the state, ” refers to the capacity to hold as well as to be elected to office; consequently, a person who was duly eligible and elected to a civil office of profit under the state can no longer hold that office after he has accepted and is in the incumbency of a lucrative federal office.</p> <p>Id.— Lucrative Office — Civil Office of Profit.—Under the proviso in that section of the constitution, to the effect “that officers in the militia who receive no annual salary, local officers or postmasters whose compensation does not exceed five hundred dollars per annum, shall not be deemed to hold lucrative offices,” the words “lucrative office” refer solely to the office under the United States; and if the salary of that office exceeds five hundred dollars per annum, its incumbent cannot hold any civil office of profit under the state, notwithstanding the profit of the state office is less than five hundred dollars per annum.</p>

The act under which the levee district in question was organized was entitled “An act to provide for the protection of certain lands in the county of Sutter from overflow,” approved March 25, 1868. The further facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of Stanislaus 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 Santa Clara County, and from an order refusing to allow an amendment to the complaint.</p> <p>The facts are stated in the opinion of the court.</p>

The defendant was convicted of an assault with a deadly weapon with intent to do great bodily harm, and was subsequently granted a new trial. The further facts are stated in the opinion of the court.

The defendant was convicted of murder in the first degree, and moved for a new trial upon the ground of errors of law, insufficiency of evidence, and newly discovered evidence. The defense at the trial was that of insanity. The newly discovered evidence set forth in the moving affidavits was, that certain relatives of the defendant had been afflicted with insanity.

<p>G-bant-of Right of Wat for Ditch—Construction—Waste Water.— A deed conveying to a mining company the right to erect and maintain a reservoir upon the land of the grantor, with a right of way across such land for a water ditch leading from the reservoir to a mine of the grantee, in consideration that the grantor shonld have the right to appropriate to his own use, and to conduct, wherever he should desire, so much of the waste water flowing from the reservoir as he saw fit, does not impose any restriction upon the disposition that the grantee may make of the waters of the reservoir, or prevent it from allowing another person to tap its ditch and conduct the water therefrom at a point between its mine and the land of the grantor.</p> <p>Evidence—Written Contract—Conversations Showing Understanding of Parties. —-In an action to enforce a written contract which is perfectly clear in its terms, parol evidence of prior conversations between the parties as to their understanding of its meaning is inadmissible.</p> <p>Appeal — Judgment—Respondent cannot Question.—A party not appealing from a judgment cannot qnsstionjits correctness upon an appeal taken by his adversary.</p>

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

The provisions of the act of 1869-70, requiring the fees of the sheriff for his services in an attachment suit to be fixed by an order of court, are quoted in the preceding case of Shumway v. Leakey, ante, p. 260. The further facts are stated in the opinion.

<p>Deposit by Clerk op Court—Duty op Treasurer to Receive—Act op 1864—Repeal op by Codes. —The act of 1864, requiring the clerks of courts of records, in all eases in which deposits of money are made into court, to deposit the same with the treasurer of the county, and making it the duty of the treasurer to receive such deposits, was not repealed upon the taking effect of the codes on the 1st of January, 1873, nor until the adoption, in 1874, of section 2104 of the Code of Civil Procedure.</p> <p>Id.— Irregularity in Manner op Deposit — Liability op Sureties.— Where a deposit is made by the clerk and receipted for by the treasurer, as required by the act of 1864, and the latter regularly turns it over to his successor in office, by whom it is embezzled, any irregularity that there may have been in the manner of making the original deposit will not release the sureties on the official bond of the succeeding treasurer from liability.</p> <p>Id.—Joint and Several Bond — Joinder op Parties in Action on.— Under section 383 of the Code of Civil Procedure, one or more of the sureties jointly and severally liable on an official bond may be joined as defendants in an action on the bond, at the election of the plaintiff.</p> <p>Id.—County Treasurer — Successive Terms—Liability por Misappropriation op Funds — Sureties on Last Bond. —Where the same person is elected and acts as county treasurer during three successive terms, and it is afterwards discovered that money deposited with him had been misappropriated, it will be presumed, in the absence of evidence to the contrary, that this misappropriation took place at the end of his lasiterm, and the sureties on his last official bond are liable therefor.</p> <p>Id. —Form or Judgment against Sureties. —People v. Love, 25 Cal. 520, and People v. Rooney, 29 Cal. 643, affirmed to the point that a judgment 'against the sureties on an official bond, for a defalcation of the principal, should first fix the amount of the defalcation, and then proceed with a separate judgment against each of the sureties for the full amount for which he made himself liable in the bond, and costs, and then close with a proviso that the judgment shall be satisfied by the collection or payment of the amount of the defalcation and costs.</p>

The action was brought against the defendants, a divorced husband and wife, to foreclose a mortgage which had been executed by the wife alone. During the marriage of the defendants, the wife filed a declaration of homestead on certain community property. Soon after the declaration was filed, the marriage was dissolved by a decree of divorce, but no disposition of the homestead ■ was made by the decree.

<p>Pleading—Admission of Genuineness and Execution of Contract Contained in Answer — Joint and Several Contract.—The action was brought by the plaintiffs on a contract alleged to have been made with them jointly by the' defendant for the manufacture and sale to them of two machines. The answer denied the execution of any joint contract with the plaintiffs, and alleged the execution with each of them severally of two written contracts for the sale to them respectively of one machine each. Copies of these alleged contracts were annexed to the answer, and the plaintiffs, by failing to filé the affidavit required by section 448 of the Code of Civil Procedure, admitted their genuineness and due execution. On the trial, the plaintiffs offered to prove by parol the contract alleged in the complaint, but the court excluded the evidence. Held, that the ruling was error.</p>

<p>Appeal from an order of the Superior Court of Placer County refusing to set aside a sale under execution.</p> <p>The facts are stated in the opinion.</p>

<p>Estate of Decedent—Proceeding to Determine Heirship — Administrator, cannot Litigate Claim of One Heir against Another. — In a proceeding under section 1664 of the Code of Civil Procedure, to ascertain the rights of persons claiming to he heirs to the estate of a decedent, and to determine to whom distribution thereof should he made, the administrator of the estate, although made a formal party, has no right to litigate the claim of one alleged heir as against another, and consequently cannot propose cross-interrogatories to he annexed to a commission issued at the request of one heir to take the depositions of witnesses in support of his claim.</p>

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

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

<p>Mortgage—Deed Absolute in Form — Redemption — Possession by Mortgagee—Adverse Possession.—In August, 1874, the plaintiff, for the sole purpose of securing an indebtedness due from him to the defendant, executed to the latter a deed, absolute in form, of the land in controversy. Simultaneously with the execution of the deed, the parties entered into an agreement by which the defendant promised that whenever the plaintiff could sell the land for a sum sufficient to pay the indebtedness, and should pay the same, he would reconvey the land, and the plaintiff promised upon his part that whenever he could sell the land for such amount he would do so, upon the demand of the defendant, and would pay the indebtedness and redeem the land. It was further mutually agreed that until such redemption the defendant should have the use and occupation of the land in lieu of interest on the indebtedness. In pursuance of this agreement, the defendant entered and has since been in possession of the premises. The plaintiff never made any effort to sell the land, although at any time after January, 1879, it would have sold for enough to pay the indebtedness, and the defendant never demanded that he should sell or redeem. On the 22d of January, 1885, the, plaintiff offered to redeem the land, but the defendant refused. The present action is brought for a redemption. Held, that the defendant, having entered into the possession under the deed and agreement, exclusive of any other right, his possession did not become adverse to the plaintiff prior to his refusal of the offer to redeem.</p> <p>Id. —Statute of Limitations — Right of Redemption when Barred. — Under section 316 of the Code of Civil Procedure, the right of a mortgagor to redeem against the mortgagee in possession is not barred, unless the latter has continuously maintained an adverse possession of the mortgaged premises for five years after the breach of some condition of the mortgage.</p> <p>Findings — Conflict in — Specific Control General. —Where there is a discrepancy between specific findings of particular facts, and findings that are general in their nature, the former must control.</p>

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

The action was brought to recover damages for an alleged libel. The complaint was filed without the plaintiff giving any undertaking for costs, as required by the act of March 23, 1872. The defendant moved to dismiss the case on that ground, and pending the motion the plaintiff dismissed it himself. The defendant thereupon filed a cost bill containing an item of one hundred dollars as attorneys’ fees, as provided by section 7 of the act of March 23, 1872.

<p>Pleading — Ultimate Pact — Conclusion oe Law. —In general, the allegation that one is “the owner” of land is of an ultimate fact. But the context may be such as to show that it is a mere conclusion of law. The allegation in this case held to be a mere conclusion of law.</p> <p>Denial. —The denial of a conclusion of law raises no issue.</p> <p>Admissions in Pleadings. —It is error to admit evidence to contradict admissions in the pleadings, if a proper objection be interposed.</p>

<p>Pledge — Shae.es of Stock—Advebsb Possession by Pledgob—Statute of Limitations.—A pledgee of shares of the capital stock of a corporation has a right to retain their possession until the debt to secure which they were pledged is satisfied; and while so holding, he cannot claim them adversely, and thereby acquire a title under the statute of limitations.</p> <p>Id. —Legal Title Remains in Pledgob. —Upon the pledge of shares of the capital stock of a corporation as security for a debt, the legal title thereto, as between the pledgor and pledgee, remains in the former.</p> <p>Id.—Action fob Dividends—Assignment of Shabes—Judgment.— The action was brought by the pledgee of shares of the capital stock of a corporation, against the latter, to recover certain dividends which had accrued upon the stock. The corporation paid the money into court, and had the pledgor, the original owner of the stock, and a person to whom it had been assigned, substituted as defendants. Upon the trial, it appearing that the debt to secure which the stock was pledged had been satisfied, judgment was rendered with the consent of the pledgor in favor of the assignee for the entire amount of the dividends. Held, that the plaintiff had no interest in the money, and could not question the correctness of the judgment in so far as it awarded to the assignee the dividends which accrued prior to the assignment.</p>

<p>Nfw Trial—Notice of Motion — Extension of Time for Serving — Notice of Decision—Service bt Mail. —Under section 1013 of the Code of Civil Procedure, where the party in whose favor judgment is rendered serves by mail a notice of the decision on the attorney of the adverse party, whose office and residence are distant seventy miles from the place of deposit, the latter has twelve days from the date of the deposit within which to serve and file a notice of his intention to move for a new trial.</p> <p>Id__Settlement of Statement — Presumption of Regularity.—In the absence of a showing to the contrary, a statement on motion for a new trial, which is certified to by the trial judge as having been properly settled, is presumed to have been served as required by law.</p> <p>Id. — Order Granting Motion—Insufficiency of Evidence — Appeal. — Where one of the grounds of a motion for a new trial is, that the evidence is insufficient to justify the findings, and the record shows that the evidence is conflicting, an order granting the motion, without any reasons being stated for such action, will not he reversed on appeal.</p> <p>Practice — Bulbs of Court — Suspension of. —The trial judge has power to suspend a rule of court requiring a copy of all ex parte orders to he served on the attorney of the adverse party, or may except a particular case from its operation.</p>

<p>Municipal Corporations — Act of March1 2, 1883 — Constitutional Law.—The act of March 2, 1883, providing for the classification of municipal corporations according to their population, is constitutional, and is a general law within the meaning of section 6 of article 11 of the constitution.</p> <p>Id.—Municipal Corporation of Sixth Class—Marshal — Compensation OF MUST BE PlXED BY ORDINANCE—PLEADING.—Under sections 855 and 881 of the act of 1883 for the government of municipal corporations, the marshal of a municipal corporation of the sixth class is not entitled to compensation for services performed by him in executing processes in criminal cases, unless the board of trustees of the municipality have fixed by ordinance the compensation to be paid him therefor; and in an action by the marshal to recover for such services, the complaint must allege the class to which the municipality belongs, the ordinance fixing his compensation, and that the claim for services accords with the ordinance.</p>

The defendant, together with several other persons, was charged by information with the murder of one George Erickson. The persons accused all asked for separate trials, which being granted, the defendant was tried and convicted of murder in the first degree.

<p>Practice — Reversal on Account of Erroneous Finding — New Trial —Evidence mat be Confined to Particular Issue.—Where a judgment is reversed on appeal solely on account of the insufficiency of the evidence to sustain a particular finding, and the cause is remanded for a new trial, subject to the views expressed by the Supreme Court in reference to such finding, the lower court, on the return of the case, need not try the entire cause anew, but may confine the testimony to the issue erroneously decided, and in other respects pass upon the issues in the light of the testimony already before it, or adopt the facts already found upon such testimony.* „</p>

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

<p>Criminal Law—Murder—Deadly Intent — Assault — Evidence. — In a prosecution for murder, the evidence reviewed, and held sufficient to show that the assault made on the deceased by the defendant, and from the effects of which he died, was inflicted with deadly intent.</p>

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

The action was commenced on the 4th of June, 1862, to recover the possession of a tract of land in the city and county of San Francisco.

<p>Criminal Law—Assault with Intent to Murder—Verdict. —In a prosecution for an assault with intent to commit murder, a verdict finding the defendant guilty is sufficient in form to convict him of the offense as charged.</p> <p>Id. — Conversation between Jurors — Immaterial Error.'—In such a case, injury to the defendant will not be presumed from the fact that one of the jurors, at the close of the instructions, stated to the court that there was a disagreement among them as to the testimony upon a particular point, although the court had previously admonished them not to talk, among themselves about the merits of the case.</p> <p>Id.—Evidence of Conversations — Cross-examination. —In a prosecution for an assault with intent to commit murder, a witness for the defense testified that the prosecuting witness, on the morning after the assault, stated to him that he did not know whether it was the defendant or some other person who had committed the assault. On cross-examination, the witness was asked whether, on the evening before, the prosecuting witness had not told him that it was the defendant who had assaulted him. Held, that the question was proper.</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>

On the trial, the defendant interposed a challenge to the entire panel of jurors, on the ground that the manner in which they had been drawn and returned did not comply with the requirements of the Code of Civil Procedure in the following particulars: 1. That the supervisors selected a list of jurors from their respective townships, without any apparent effort to arrive at a proper proportion of the inhabitants; 2.

<p>State Lands — Certificate of Purchase—Execution Sale of Land — Right of Purchaser to Patent — Surrender of Certificate. — Under the act of March 27, 1872, where land has been sold by the state, and a certificate of purchase issued upon part payment of the purchase-money, and afterwards the land has been sold under execution, and a sheriff’s deed issued therefor, the grantee named in such deed is entitled to receive a patent for the land upon producing and surrendering the sheriff’s deed and making full payment. In such a case, the provisions of section 3519 of the Political Code, requiring the surrender of the certificate of purchase before the issuance of the patent, does not apply, as the act of March 27, 1872, having been passed at the same session of the legislature as the Political Code, prevails over any provisions of the code which are inconsistent therewith.</p> <p>Id.—Act of March 27, 1872 — Repeal of. — The act of March 27, 1872, was not repealed by implication by the amendment of 1874 to section 3518 of the Political Code, permitting the owner of a certificate of purchase which is lost, destroyed, or beyond his control to make proof thereof as provided in such section, and procure a duplicate certificate.</p>

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

The defect in the application to purchase, which the. plaintiff relied on as vitiating the patent, consisted in the failure of Mack to state in his application the fact whether or not there were settlers upon the land, as required by section 3443 of the Political Code. The further facts are stated in the opinion.

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

The action was brought to recover possession of certain land to which the plaintiff claimed title under a patent from the United States issued to one Benjamin D. Gano on the 30th of April, 1883, as a soldier’s additional homestead, and upon a deed therefor, executed by the said Gano by one A. L. Coombs, his attorney in fact. Prior to the date of the patent, the land was public land of the United States.

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

<p>Evidence — Expert’s Books—Admissibility of. —In an action for dissolution of a copartnership and an accounting, when the books of the firm have been kept in such a manner as to be unintelligible, and in view of that fact a stipulation is entered into by the attorneys, allcvwing the referee appointed by the court to employ experts to reduce the accounts of the firm into a tangible form, the books prepared by the expei-ts are admissible in evidence in connection with the report of the referee, for the purpose of enabling the court to comprehend the accounts.</p> <p>Id.—Real Estate — Firm Property—Evidence.—A finding that cer-' tain real estate standing in the individual names of the partners is partnership property is warranted by the evidence, when it appears that the property was purchased and used for the benefit of the firm in its business, was paid for out of the firm assets, and was assessed to it.</p> <p>Id. — Settlement of Accounts —Matters Accruing Subsequent to Action. — In an action of accounting between partners, it is the duty of the court to make a complete settlement, although it includes items accruing after the commencement of the action.</p> <p>Complaint—Misjoinder of Causes — Demurrer. — Where it appears from the face of the complaint that there is a misjoinder of causes of action, the objection must be taken by demurrer, and cannot be raised for the first time on appeal.</p> <p>Appeal—New Trial—Judgment—Excessive Relief.—An objection that the relief awarded by the trial court was not warranted by the facts proved cannot be considered on an appeal from an order refusing a new trial, but must be presented on an appeal from the judgment.</p> <p>Answer—Verification of — Inference.—Where there is but one. defendant in an action, and the record states that the answer is verified, the inference is that it was verified by the defendant.</p>

<p>Sale—Change of Possession—Assumption of Ownership by Vendee. — A sale of personal property, accompanied by such open and unequivocal acts on the part of the vendee as to give evidence to the world of his ownership, and to show that the ownership and possession of the vendor had wholly ceased, is valid, under section 3440 of the Civil Code, as against creditors of the vendor.</p> <p>Id.—Possession by Vendor — When Allowed.—Where the circumstances attending the change of ownership and possession are sufficient to raise a presumption that the creditors of the vendor had notice of the sale, the vendee may loan, let to, or employ the vendor to perform services on the property sold to the same extent as though he were a stranger.</p>

<p>Criminal Law — Murder—Evidence — Dying Declarations.—In a prosecution for murder, it appeared that after the infliction of the mortal wound the deceased was informed by the attending physician that he was about to die, and on the following day expressed a desire to make a dying declaration, the opening sentence of which was as follows: “I, Fernando Asero, believing I am about to die, do make this my dying statement. ” Held, that the declaration was made under a sense of impending death, and was properly admitted in evidence.</p> <p>Id. — Cross-examination. —■ In such a case, where the defendant attempts to establish by a witness on his examination in chief that the deceased was exhibiting a belligerent propensity immediately before the homicide was committed, it is competent for the prosecution to cross-examine the witness as to matters tending to show the reverse.</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>Promissory Note—Action on—Immoral Consideration—Throwing Dice. —The payee of a promissory note, given for money loaned by him in good faith to be used in throwing dice, may maintain an action thereon against the maker, although he knew the purpose for which the money was intended to be used, when it does not appear that he won any of the money, or that the maker of the note lost any of it, in the dice-throwing.</p>

<p>Appeal from, a judgment of the Superior Court of Tehama County, and from an order refusing a new trial.</p> <p>The action was brought to recover the possession of certain land, and was tried before a jury. As a defense to the action, the defendant set up a right to the possession under a parol gift from a former owner of the land. A verdict was rendered in favor of the defendant, in accordance with which judgment was entered. The further facts are stated in the opinion.</p>

<p>Statute of Limitations—Defense of how Pleaded.—The defense of the statute of limitations must be pleaded either by alleging the facts constituting the defense, or by a general statement that the cause of action is barred by the provisions of the particular section of the Code of Civil Procedure relied upon, giving the number of the section, and its subdivision, if subdivided. A general allegation that the cause of action is barred by chapter 3, title 2, part 2, of the code, is insufficient.</p> <p>Instructions—Refusal—Immaterial Error. —Error in refusing to give a proper instruction is cured if the court subsequently give an instruction covering the same ground.</p> <p>Pleading—Action on Account — Indebitatus Assumpsit—Quantum Meruit.—Where the complaint in an action to recover a balance alleged to be due on a mutual, open, and current account for work and labor is in the ordinary form of indebitatus assumpsit, the plaintiff is entitled to recover, if he has performed services for the defendant, such sum as the defendant agreed to pay him therefor, or if no price was fixed, then such sum as his services were reasonably worth.</p>

<p>Estate of Decedent—Successive Administrations—Liability of Sureties —Negligence. — The negligence of the administrator of the estate of a decedent, who has succeeded a former administrator, to collect from the latter a balance found to be due from him to the estate upon the settlement of his accounts, does not release the sureties on the bond of the former administrator from liability for such balance.</p>

<p>Ejectment—Homestead—Divorce—Evidence Admissible under General Issue. —In an action by a divorced wife against the administrator of the estate of her deceased husband to recover the possession of certain land which was formerly community property, and on which the husband during the marriage had filed a declaration of homestead, the judgment roll in the action of divorce setting aside the land to the husband, together with a stipulation filed therein authorizing such disposition, and the will of the husband devising the land to third persons, are admissible in evidence under the general issue.</p> <p>Id. — Stipulation for Disposition of Property—Decree. — In an action of divorce brought by a wife against her husband, the complaint described a specific tract of land as the homestead of the parties, and alleged that it and certain personal property was all community property. By a stipulation filed in the action, the plaintiff, in the event that the court should be of the opinion that she was entitled to a divorce, waived all claim to such property. The decree granted a divorce to the wife, and in general terms set aside all the community property to the husband. Held, that the homestead, being described as community property in the complaint, passed to the husband under the decree.</p> <p>Id. —Extreme Cruelty — Homestead may be Awarded to Guilty Party. —In an action by a wife for a divorce on the ground of extreme cruelty, in which she waives all claim to the community property, the court has power, under subdivision 3 of section 146 of the Civil Code, in the judgment granting her the divorce, to set aside a homestead which had been declared upon community property to the husband,</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, Brewer & Co. sold to Cooke and Son, the assignors of the plaintiff, a car-load of grapes, which were not then on hand, but which were procured in a few days, and which Cooke then asked .to be shipped to the defendants for sale. The goods were shipped accordingly by rail to the defendants in Chicago, in the name of Brewer & Co., because that firm had a yearly guaranty with the railroad company exempting them from paying freight in advance on shipments of fruit. As soon as the bill of lading was Issued, both the original and the duplicate were assigned to Cooke and Son, who advised the defendants by letter of the shipment. With the same train on which the grapes were sent, a letter was forwarded to the defendants, informing them that the fruit belonged to Cooke and Son. The bill of lading, when received by the defendants, bore the indorsement of the assignment of Brewer & Go. The defendants received the goods, and sold them, and after paying the charges thereon, refused to pay over the balance, claiming to be entitled to apply it to a general balance due them from Brewer & Co. The defendants did not make any specific advance on the shipment in question. The further facts are stated in the opinions.</p>

<p>Appeal from certain portions of an interlocutory decree in partition, rendered in the Superior Court of Santa Clara County.</p> <p>The action was brought for the partition of the Los Animas rancho, situated in Santa Clara County. The appeal was taken from so much of the interlocutory decree as directed the allotment of one sixteenth of the rancho to Henry Miller, and others not named in the notice of appeal. In the decree, specific tracts were allotted to Miller, and other specific tracts were allotted to others. The claim made by the appellants, and denied by the court below, was to a specific part of the land. The respondents moved to dismiss the appeal, on the ground that the notice of appeal was not addressed to or served on all the parties interested therein. The further facts are stated in the opinion of the court.</p>

<p>Criminal Law—Petit Larceny—Prior Conviction—Arraignment— Voluntary Confession of — Verdict — Sentence. — In a prosecution for petit larceny under an information which also charges the defendant with prior convictions for like offenses, when the defendant on his arraignment pleads not guilty of the offense charged in the information and voluntarily confesses the prior convictions, and the jury returns a verdict finding him guilty of petit larceny, the court has jurisdiction to impose a sentence as upon a conviction of petit larceny, second offense, as provided by section 667 of the Penal Code.</p>

<p>Mortgage—Foreclosure—Certificate of Notary—Reformation of — Parties Defendant.—In an action to foreclose a mortgage executed by a married woman, and to reform the certificate of the notary before whom the same was acknowledged, the notary is not a necessary party defendant.</p> <p>Id. —Reformation and Enforcement of—Joinder of Causes—Pleadings. — A complaint which seeks to reform a mortgage, and to enforce the same as reformed, states but one cause of action.</p> <p>Id.—Statute of Limitations — Amended Complaint — Filing of—Appeal—Relation. —The mortgage in question was executed on the 3d of September, 1878, to secure a promissory note which matured one year thereafter. The present action to foreclose the mortgage was commenced on the 25th of March, 1880. On the 19th of August, 1880, the plaintiff asked leave to amend her complaint so as to obtain a reformation of the mortgage and its foreclosure as reformed. The court refused to allow the amendment, and rendered judgment for the defendants. The judgment was reversed on appeal on the 28th of March, 1883, and the amended complaint was filed on the 11th of May, 1883. Held, that pending the appeal the statute of limitations did not run against the right of the plaintiff to have the mortgage reformed, and that the amended complaint should be treated as filed as of the date of the application therefor.</p> <p>Id.—Evidence of Mistake — Conflict.—In an action to reform a written instrument on the ground of mistake, the relief prayed for will not necessarily be refused merely because there is a conflict of testimony as to the mistake, if upon all the evidence the mistake is established in a clear and convincing manner to the entire satisfaction of the court.</p>

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

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

<p>Practice—New Trial—Settlement oe Statement—Time eor Presentation oe—Adoption oe Amendments. — Where a proposed statement on motion for a new trial is served on the attorney of the adverse party within the time limited by law, and the proposed amendments thereto are adopted by the moving party, the statement as amended may be presented to the judge or delivered to the clerk for settlement within any reasonable time thereafter. Under such circumstances, subdivision 3 of section 659 of the Code of Civil Procedure does not limit the time within which to present the statement for settlement.</p>

<p>Mirara Claim — Town-site Patent — Quartz Ledge within Lot—Tunnel under Lot. —An owner of a lot of land under a town-site patent issued by the United States prior to the passage of the act of 1872, regulating the width of quartz-mining claims, in which lot a gold quartz ledge was known to exist at the date of the patent, has an absolute title in fee-simple to the land not actually included in the quartz ledge; and a third person, for the purpose of working the quartz ledge, has no right, without the consent of the owner, to run a tunnel under the portion of the land not included in the ledge.</p> <p>Id.—Permission to Construct Tunnel—Want as Consideration.— A permission to construct such a tunnel, given by the owner of the lot to the person working the quartz ledge, without any consideration therefor, is not binding upon the owner, or his subsequent grantee.</p>

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

<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 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>Evidence—Declaration of Donor—Fraud—Gift.—Declarations made by a donor of personal property after parting therewith are inadmissible in evidence against the donee, either for the purpose of proving that the gift was fraudulent or otherwise.</p>

The action was brought to recover the possession of a certain placer mining claim. In 1855, the predecessors in interest of the plaintiffs located the claim in controversy, and from that year up to the 31st of December, 1883, continued in the possession thereof, working and developing the same. Previous to the commencement of this action, the plaintiffs succeeded by mesne conveyances to the rights of the original locators.

<p>Contract—Action bt Party Incidentally Benefited. —A person who is not a party to a contract, and for whose benefit it was not expressly made, cannot maintain an action thereon, notwithstanding the contract, if performed by the parties to it, would incidentally inure to his benefit.</p>

After the trial of the action, the defendants presented to the court a document embodying what they claimed should be the appropriate findings in the case, and requested the court to adopt them as such. The court refused so to do, and adopted other findings. The further facts are stated in the opinion of the court.

<p>Murder—Instructions— Premeditation and Deliberation. —In a prosecution for murder, in which the defendant was convicted of murder in the first degree, the court, in its instructions, after correctly defining the different degrees of murder, charged the jury that if they believed from the evidence that certain facts which it recited to them, and which the evidence tended to prove, were true, and that under such circumstances the defendant, “without further cause or provocation, ” killed the deceased, he was guilty of murder in the first degree. Held, that the instruction was erroneous and prejudicial to the defendant, in omitting the element of premeditation and deliberation which is essential to constitute murder in the first degree.</p>

<p>Application for a writ of mandate to compel the Superior Court of Sacramento County to settle a bill of case. The facts are stated in</p>

<p>Mining Claim — Priority between Locations.—Where a prior location of a mining claim ia valid, and the locators have kept it so by complying with the requirements of the mining laws, a subsequent location, however regular in form, is of no effect.</p> <p>Id.—Right of Possession—Subsequent. Location.—A party who is in the prior possession of a piece of mining ground is entitled to the possession as against a mere intruder, but not as against one who has subsequently located the same in compliance with the mining laws.</p> <p>Id.—Transfer must be in Writing.—Under section 1091 of the Civil Code a transfer of a mining claim must be in writing.</p> <p>Id.—Parol Agreement as to Boundary—Erection of Improvements — Estoppel —Instructions. —In an action of ejectment between conflicting locators to recover the possession of a mining claim, an instruction that the erection of improvements by the subsequent locator on the premises in dispute, in pursuance of a parol agreement between them establishing their boundary, would estop the prior locator from claiming contrary to the agreement, is erroneous, when there is no evidence that any such improvements were made under the agreement or otherwise.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco settling the accounts of an administrator, from a decree of distribution, and from an order refusing to act upon a motion for 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>

The action was brought under section 738 of the Code of Civil Procedure, against one Cornelius Jensen, to quiet title to certain land. In the second amended complaint, under which the action was tried, the plaintiff alleged that it was the owner of a certain tract of land, and that the defendant claims an interest therein adverse to the plaintiff, but that the claim of the defendant is without right.

<p>Estate of Decedent — Revocation of Probate of Will—Judgment— Partial Revocation. — On a contest for the revocation of the probate of a will, where a verdict is rendered determining its invalidity, a judgment should be entered entirely annulling the probate, and revoking the powers of the executors; and a judgment entered in pursuance of a stipulation of the parties to the contest, whereby the probate is annulled merely as to the contestant, and to the extent to which she is interested in the estate, is void.</p>

<p>Estate of Decedent—Sale of Realty—Publication of Notice—Obdbb fob. — Section 1537 of the Code of Civil Procedure, requiring a notice of the sale of real estate of a decedent to be published for “three weeks successively,” simply indicates the time during which the sale must be advertised, and not the manner of the publication. Under section 1705 of the code, the court may order the publication to be made for a less number of times than each issue of the paper in which the notice is to be published.</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 an order of the Superior Court of the city and county of San Francisco refusing a new trial.</p> <p>The facts are stated in the opinion of Mr. Justice- Mc-Kinstry.</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>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Estate of Decedent — Homestead— Order Refusing to Set Apart— Failure to Make Findings — Appeal — Bill of Exceptions.—An order refusing to set apart to a widow a homestead out of the separate property of her deceased husband will not be reversed on account of the failure of the court to find upon the issues made by the pleadings, when the bill of exceptions on which the appeal is taken fails to show that findings were not waived.</p> <p>Id.—Property Subject to Homestead — Separate Property of Deceased. — Under section 1465 of the Code of Civil Procedure, if no homestead has been selected during the lifetime of a deceased husband, the court, pending the settlement of his estate, cannot set apart to his surviving wife as a homestead a portion of his separate property which could not have been selected as a homestead during the continuance of their marriage.</p> <p>Id. — Business Property—Inability to Divide without Injury.— Under that section, a homestead cannot be set apart to the surviving wife out of separate real property of her deceased husband, on which a four-story building of the value of twenty-five thousand dollars has been erected and used exclusively for business purposes, when the property cannot be divided without material injury.</p> <p>Id. — Money in Lieu of Homestead.—Where there is not property belonging to the estate of the deceased husband out of which a homestead can be set apart to the surviving wife, the court has no power to order that a sum of money be paid her in lieu of the homestead.</p>

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

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

The action was brought to quiet the plaintiff’s alleged title to a certain fifty-vara lot in the city and county of San Francisco, lying without the corporate limits of the charter line of 1851.

<p>Taxation—Action to Recoven Delinquent Taxes—Judsment— Lien — Statute oe Limitations.—An action brought by the city and county of San Francisco, under the act of April 23, 1880, to recover a personal judgment for delinquent taxes, is not an action on a judgment or to foreclose a lien, within the meaning of sections 3716 and 3717 of the Political Code. Such an action is barred by the statute of limitations, when commenced more than seven years after the cause of action accrued.</p>

<p>Gift Causa Mortis—Delivery—Intention to Give. — Where a person in extremis takes a package of bonds from beneath his pillow and hands it to a donee, saying, in substance, “ These bonds are for you,” an intention to give is sufficiently manifested to constitute a valid gift causa mortis.</p> <p>Id. — Fraud —Mental Capacity of Donor to Give—Burden of Proof. —In the absence of circumstances surrounding a gift causa mortis, tending to create a suspicion of wrong, the burden of proof does not rest upon the donee, to show that no fraud was practiced upon the deceased; or that he was of sound and disposing mindatthetimeof the gift.</p> <p>Id.—Identity of Property Given—Evidence.—In an action to compel the administrator of the estate of a deceased person to make a written transfer of certain United States registered bonds alleged to have been given to the plaintiff by the deceased, held, that the evidence was sufficient to identify the bonds given with those described in the complaint.</p>

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

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

<p>Taxation—Collection of Delinquent Taxes—Form of Complaint.— The legislature had power, prior to the adoption of the constitution of 1879, to prescribe the form of the complaint to be used in an action for the collection of delinquent city taxes authorized to be levied and assessed under the charter of the city.</p> <p>Id. — City Charter — Special Laws — Constitutional Law. — Section 21 of the charter of the city of Stockton, approved March 27,1872, prescribing a general form of complaint to be used in all actions for the collection of city taxes authorized to be assessed and levied under that charter, is not obnoxious to anything contained in section 6, article 11, of the constitution of 1879, and is still in force.</p> <p>Id. — Time of Assessment — Mortgage — Tax. — Sections 15 and 17 of the charter, authorizing the city council to annually assess, levy, and collect taxes upon all taxable property within the city, and requiring the city assessor to prepare a list of such property between the first day of January and the first Monday of April of each year, were not repealed by section 8 of article 13 of the constitution of 1879, providing that the legislature shall by law require each tax-payer to annually make and deliver to the county assessor a statement of the property owned by him, or in his possession, or under his control, at 12 o’clock M. on the first Monday in March; and an assessment of a mortgage made in conformity with such provisions of the charter is not invalid, although the mortgage was not executed until after the first Monday in March.</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>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>License—Selling Spirituous Liquors—Municipal Corporation.—Under section 11 of article 11 of the constitution, the city of Eureka has power to enact an ordinance imposing an annual license tax of two hundred dollars upon the business of selling spirituous liquors within the city limits, and to provide that a violation of the ordinance shall constitute a misdemeanor.</p>

The action was brought by the plaintiff, as the assignee for the benefit of the creditors of Wicktor Ohlson, to recover damages for the alleged conversion of certain personal property. Judgment was rendered in favor of the defendants, from which, and an order refusing a new trial, the plaintiff appealed.

<p>Application for leave to file an undertaking on appeal, and for a stay of proceedings. The facts are stated in the opinion of Mr. Chief Justice Searls.</p>

The action was brought by the plaintiff to establish his rights in the waters of a certain stream known as Mill Creek, and to enjoin the defendants from interfering therewith. The further facts are stated in the opinion of the court.