Volume 74 — California Reports

<p>Appeal from a judgment of a Superior Court of Tehama County, and from an order refusing a new trial.</p> <p>The action was brought to recover damages for a slander, which was alleged to consist in falsely charging the plaintiff with being interested with one Russell Speegle in the larceny of certain cattle, the property of one Thomas Polk, and with receiving the same, knowing them to have been stolen by Speegle. On the trial, the plaintiff, for the purpose of impeaching the testimony of Speegle, ■called A. J. Clark as a witness, and asked him to state a •certain conversation had between himself and Speegle on the night after the latter’s arrest. The defendant objected to the evidence, on the ground that Speegle’s attention had not been first called to the circumstances of the conversation. The court sustained the objection. The further facts are stated in the opinion of the court.</p>

<p>Negligence—Railroad—Pleadings—Evidence of Negligence Other than That Alleged. — In an action against a railroad company to recover damages for the killing of a pair of horses, alleged to have been caused by the negligence of the defendant in running its locomotive and cars, evidence that a fence alongside of the defendant’s track was out of repair, and that the horses came through an open gate in the fence onto the track, is inadmissible, in the absence of any allegation in the complaint showing that the gate was left open, or allowed to remain open, through the negligence of the defendant, which operated as a proximate1 cause of the injury.</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>Municipal Corporations—Prohibiting Sale op Liquors — Constitutional Law. — The city of Pasadena, a city of the sixth class, as defined by the municipal corporation act of March 13, 1883, has power, under section 11 of article 11 of the constitution, to enact an ordinance prohibiting the maintenance within the city limits of any tippling-house, dram-shop, or bar-room, where spirituous, vinous, malt, or mixed liquors are sold or given away. Such an ordinance is not in conflict with any provision of the constitution of the United States, or with any general law of the state.</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 directing the payment of alimony and counsel fees in an action for divorce.</p> <p>The facts are stated in the opinion.</p>

<p>Pure-wine Act — Subject Expressed in Title—Constitutional Law. — The act of March 7, 1887, entitled “An act to prohibit the sophistication and adulteration of wine, and to prevent fraud in the manufacture and sale thereof,” does not conflict with the requirements of section 24 of article 4 of the constitution, which provides that “every act shall embrace but one subject, which subject shall be expressed in its title.”</p> <p>Id.—Due Process of Law.—Such act is not unconstitutional because so unreasonable in its restrictions upon the sale of wines as to deprive persons of their property or liberty without due process of law.</p> <p>Id. —Pure California Wine — Stamp not Required on. — The provision of section 8 of that act, — to the effect that “ it is desired and required that every grower, manufacturer, trader, handler, or bottler of California váne .... shall plainly stencil, brand, or have printed, where it will be easily seen, first, ‘ Pure California Wine, ’ and secondly, his name or the firm’s name,”—is not mandatory, so as to require a pure-wine stamp to be placed upon pure California wine; nor does a failure to place such stamp upon pure California wine constitute any violation of the act.</p>

From 1876, until December, 1877, one Cadman was the owner of a book-store, and carried on the business thereof under the name of “ H. Keller & Co.” On the last-mentioned date he sold a half-interest in the business to Max H. Fay, and thereafter Cadman and Fay carried on the business until May, 1878, when Cadman, with Fay’s consent, sold his half-interest to the plaintiff, E. S. Newell, but remained in the store as an employee, acting as manager for Newell.

<p>Appeal from an order of the Superior Court of" Humboldt County refusing to set aside a judgment.</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 setting aside a verdict.</p> <p>The facts are stated in the opinion.</p>

<p>Stated Account — Action on—Items of Original Account. -- A stated account is an agreement between the parties thereto that all the items therein are true. An action on the stated account is based upon the agreement, the consideration ior which is the original amount. In such an action, it is not necessary to prove the items of the original account, nor can they he inquired into or surcharged, except for some fraud, errori or mistake, which must he set forth in the pleadings.</p> <p>Id. — Bill of Particulars — Copt of Original Account need not be Furnished. — In an action on an account stated, the defendant is not entitled, under section 454 of the Code of Civil Procedure, to he furnished by the plaintiff with a copy of the original accounts upon which the stated account is based.</p> <p>Id. — Failure to Furnish Account when Immaterial. — Conceding that the defendant in such an action is entitled to he furnished with a copy of the original accounts, the failure of the plaintiff to furnish it is without prejudice to the defendant, if be was already in possession of the original accounts rendered him by the plaintiff, and on notice of the latter produced them in court.</p> <p>Id. —Evidence to Explain Ambiguity in Letter. —On the trial, the defendant introduced in evidence a letter written him by the plaintiffs subsequent to the date on which the account was alleged to have been stated, as follows: “We would call your attention to your unsettled account, the balance due us being §2,326.35. Please call and settle same,” etc. Held, that evidence of the writer of the letter was admissible to explain that he used the term “unsettled” in the sense of “unpaid,” and the term “settle” in the sense of “pay.”</p> <p>Id. — Statute of Limitations — Open Account Already Barred — Verbal Statement. — An open account already barred by the statute of limitations cannot be relieved from the bar of the statute by an oral settlement of such account, for the reason that under section 360 of the Code of Civil Procedure, no acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of the statute, unless the same is contained in some writing signed by the party to be charged thereby.</p> <p>Id. — Statement op Account not Barred. — Where, however, the demand is not barred at the date of the account stated, although the statement is verbal, the statute begins to run upon the new cause of action, thus brought into existence, from the date of the settlement and new promise arising thereunder; and if verbal, an action may, under subdivision 1 of section 339 of the Code of Civil Procedure, be brought within two years after such settlement.</p> <p>Id. — Acknowledgment by Debtor — Subscription not Necessary. — Under section 360 of the Code of Civil Procedure, the written acknowledgment by the debtor, required to take the debt out of the operation of the statute of limitations, need not be subscribed by him. It is sufficient if it be evident from any part of the written acknowledgment that the debtor named therein has given to it his assent.</p> <p>Id.—Receipt Written by Debtor — When a Sufficient Acknowledgment. — A receipt indorsed by the debtor on the back of the account, and entirely in his own handwriting, except the subscription of the creditor’s name, by the terms of which the creditor acknowledges the receipt from the debtor, whose name is stated therein, of a certain amount in the account, is a sufficient acknowledgment in writing by the k debtor to remove the account from the operation of the statute of limiW tations.</p> <p>Id.—Interest on Balances — Custom of Merchants—Liability of Debtor. — In this state, when it is shown to be the universal custom of a merchant to charge interest, after thirty days, upon monthly balances due upon open account, and where such account, showing the interest charged up regularly, is received by the debtor and fully understood by him, and afterwards becomes stated, the debtor is bound to pay the balance found due, notwithstanding the interest charged was higher than the legal rate.</p>

<p>Criminal Law—Petit Larceny, Second Offense — Felony.—The-crime of petit larceny, second offense, being punishable by imprisonment. in the state prison not exceeding five years, is a felony, and is properly-designated as such in an information therefor. The superior court has, jurisdiction of such offense.</p> <p>Id. —Plea of not Guilty. — Under an information for petit larceny, which, also charges a prior conviction of a like offense, a plea of “not guilty of the offense charged ” puts in issue the principal offense, and also the ■ charge of prior conviction.</p> <p>Id. — Recent Possession of Stolen Property—Instructions. — On a-, trial for petit larceny, the court, at the request of the prosecution, instructed the jury that “ if the defendant was in recent possession of the-stolen goods, the law raises the presumption that he is the thief, and. this possession, if not competently explained by the defendant, is conclusive evidence of his guilt.” Subsequently, at the request of the defense, the court charged “that the possession of stolen property, although a circumstance in determining the guilt of the defendant, is not alone sufficient to convict,” and that “the possession of stolen articles soon after the missing of the same is an insufficient circumstance upon which to convict. ” Held, that the first instruction was erroneous, and that the error was not cured by the subsequent instructions, as read together the instructions, in effect, charged that the recent possession of stolen goods raises a presumption of guilt, although not sufficient to convict.</p>

<p>Quieting Title — Judgment. — The judgment in the present action construed, and held, to quiet the title of the plaintiff, as against the appellant, to only an undivided thirty-three ninety-sixths of the premises described in the complaint.</p> <p>Id. — Quieting Title to Undivided Interest.—In an action to quiet title, a defendant against whom the plaintiff’s title is properly quieted, to an undivided interest in the premises, cannot object on an appeal taken by himself alone, that the decree, as against other defendants not appealing, quieted the plaintiff’s title to a greater extent.</p> <p>Trust—Advance of Purchase Price of Land — Taking Trust Deed Waives Implied Trust. — No implied trust is created in favor of a person advancing the consideration for the purchase of land, the deed of which is taken in the name of another, when the person making the advance takes from the grantee a deed creating au express trust in the land as security for the advancement.</p> <p>Id__Deed by Person not Owner — Subsequently Acquired Title.— The action was brought to quiet title to an undivided interest in certain land. The plaintiff claims title under deeds of grant, bargain, and sale, executed by one Ellis. At the time of the execution of such deeds Ellis was not the owner of the lands, the title then being in the state. Subsequently Ellis purchased the land from the state, taking the deed therefor in his own name. The consideration for the purchase was advanced by a third person, to whom Ellis executed a deed of trust of his interest in the land to secure him for the rdvance. Held, that no implied trust was created in favor of the person making the advance, and that the plaintiff was entitled to have his title quieted against those claiming under the trust deed, without paying any portion of the amount advanced.</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County, from a motion in arrest of judgment, 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 distributing the estate of a deceased person.</p> <p>The testator, Frank Stewart, died on the 27th of July, 1883, leaving an estate of the value of $429,457, which was entirely community property. He left a surviving wife, but no descendants. The material portions of his will, which was duly admitted to probate, are as follows : ■—■</p> <p>“1. After all my just debts are paid, I give and bequeath to my beloved wife, Bettie Stewart, one half of ' all my estate; the southeast quarter ({-) of block No. 113, east of Center Street, in the city of Stockton, including my present residence, and all of the balance of the east half of said block No. 113, except one hundred feet of the north half of said block fronting on Hunter Street, by one hundred and fifty feet on Flora Street; also all the household and kitchen furniture, to be taken by her at ten thousand dollars, if she choose to accept such property at that price, to be included in the one half of my estate; also give and bequeath to her in cash the sum of three thousand dollars, to be paid to her from the first sales of property, and at once; also give and bequeath to my beloved adopted daughter, Bessie Stewart Payne, twenty shares of stock of the Stockton Building .and Loan Association; .... 7. The remainder of my estate to be distributed equally between my brother and sisters, in four parts; that is to say, to William M. Stewart, Amanda Brown Harris, and Lou V. Moore, and the living heirs of my deceased sister, Betty Ann Winn,-—the heirs to be counted as one of the inheritors, — and the four to have share and share alike."</p> <p>Pending the settlement of the estate, the testator’s widow filed the following acceptance: —</p> <p>“ To the Honorable the Superior Court of said County of San Joaquin: I, Bettie Stewart, the surviving wife of Frank Stewart, deceased, respectfully represent that in and by the last will of said deceased, duly admitted to probate by this court on the twenty-second day of August, 1883, the said deceased gives and bequeaths to me one half of all his estate; the southeast quarter of block 113, east of Center Street, in the city of Stockton, in said county, including his late residence, and all of the balance of the east half of said block No. 113, except one hundred feet of the north half of said block fronting on Hunter Street, by one hundred and fifty feet on Flora Street; also all the household and kitchen furnitqrbe taken by me at ten thousand dollars, iff choose to accept said property at that price,' eluded in the one half of the estate of said deceased; that I hereby make known my election, and accept the said real and personal property under the terms of said will for the said sum of ten thousand dollars, to be included in the one half of said estate.</p> <p>“ Dated April 28, 1885. Mrs. Bettie Stewart.”</p> <p>Upon proceedings for the distribution of the estate, the widow claimed to be entitled to one half of the community property as the survivor of the community, and also to the devises and bequests provided for in the will, to be paid out of the testator’s share of the property. The court, however, found that from the language of the will, and the circumstances under which it was made, it was the intention of the testator to dispose of the entire community property as his own, to the exclusion of any claim therein by his wife; and that she was put to an election between her right to one half of the community property, as survivor of the community, and the provisions made for her by the will. A decree of distribution was rendered accordingly, from which the widow appealed. The further facts are stated- in the opinion of the court.</p>

<p>Appeal—Piling Undertaking—Extension of Time—Filing Transcript. — Under section 1054 of the Code of Civil Procedure, the time for filing an undertaking on appeal, as limited by section 940 of that code, may be extended by the trial court, or the judge thereof, not exceeding thirty days; and where the undertaking is filed within the time as thus extended, the period within which the transcript on appeal may be filed does not expire until forty days after the undertaking is filed.</p>

<p>Application for a writ of review to the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.</p>

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

<p>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>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>Will — Advancements — Subsequent Legacies — Specific Legacies.— The testator, a resident of San Francisco, by his will there executed on the nineteenth day of May, 1883,bequeathed to certain of his relatives residing in Germany one thousand shares of the stock of the Bank of California, the same to be sold by his executors, and the proceeds divided among them in stated proportions. The will provided that any advancements that the testator might “hereafter personally make to the above-named legatees, or to either of them, shall be deemed a partial satisfaction of said legacy, equal in amount to the sum so advanced.” Subsequent to the execution of the California will, the testator went to Germany, and there executed a supplemental will, or codicil, in which, after expressly ratifying the former will, and directing that the testamentary dispositions thereof should remain unchanged, he bequeathed to the same relatives and to others a large sum of money, which he had arranged to have sent from California. Held, that the bequests of the bank stock were specific legacies, and that the legacies given by the codicil were cumulative, and not substitutionary, and were not advancements within the meaning of that term, as used in the former will.</p>

<p>Deed — Proviso to Resell to Grantor—Covenant — Condition. — A . proviso in the habendum, clause of a deed, to the effect that if the grantee should ever sell any of the land conveyed, it should be sold to the grantor at a stipulated price, if construed as a covenant, is merely personal, and not binding on the heirs or assigns of the grantee, unless they are expressly named; if regarded as a condition, it is unreasonable, and contrary to the policy of the law, because in restraint of alienation.</p>

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

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

<p>Partnership—Doing Business under Fictitious Name—Action by Partners — Failure to File Partnership Certificate — Objection how Taken. — In an action by partners doing business under a fictitious name, "upon a contract made or a transaction had in their partnership name, the complaint, if sufficient in other respects, does not fail to state a cause of action merely because it contains no averment that a certificate of partnership had been filed by the plaintiffs, as required by section 2466 of the Civil Code. The objection that no such certificate had been filed is an objection to the legal capacity of the plaintiffs to sue, and must be taken by demurrer, if the grounds for it appear upon the face of the complaint, or by answer if they do not; otherwise the objection is waived.</p>

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

On the twelfth day of November, 1887, one I. W. Lees made and filed an affidavit in the police judge’s court of the city and county of San Francisco, which, after stating the title of the court and cause, proceeded as follows:— “State of California, City and County of San Francisco. “ Personally appears before me, this twelfth day of November, A. D. 1887, I. W. Lees, who, on oath, upon information and belief, makes complaint, and deposes and says that on the 23d of October,…

<p>Stockholder's Liability—Statute of Limitations. — A stockholder’s liability is a “liability created by law,” within the meaning of section 359 of the Code of Civil Procedure, and must be sued upon within three years after the discovery of the facts upon which the liability was created.</p> <p>Id. —Discovery of the Pacts. —For the purposes of the statute of limitations, if the means of knowledge exist, and the circumstances are such as to put the party on inquiry, he must he held to have had knowledge. Therefore, where the fact that defendants were stockholders was shown by the books of the company, a person who advanced money to the company must he held to have had knowledge of the facts upon which the defendant’s liability was created.</p> <p>Estoppel by Admission.—An admission made to a third party, not connected with the plaintiff, does not operate as an estoppel in favor of plaintiff.</p> <p>Transfer of Stock to Escape Liability. — If the rule which prevails in some courts, as to transfer to escape liability, applies at all in California, it does not apply unless the transfer was for the purpose of escaping liability, and to a person whom the stockholder knew to he irresponsible.</p> <p>Transfer to Enable Party to Act as Director. — A transfer upon the books of the company of five shares, to enable a person to act as a director, makes him liable as a stockholder to the extent of such shares.</p> <p>Rule, De Minimis, etc. — Where the amount of a stockholder’s liability is only §1.40, the appellate court may apply the maxim, De minimis non cur it, lex.</p>

<p>Swamp and Overplowed Lands—Application to Purchase — United States Commissioner cannot Administer Oath. —A commissioner of the United States circuit court for California is not authorized to administer the oath on an application for the purchase from the state of swamp and overflowed lands; and an application sworn to before such officer is null and void, and confers no right to purchase on the applicant.</p> <p>Id.—Contest to Determine Right to Purchase — Who mat Contest — Jurisdiction op Court. —A party who has no right to purchase such land, and even if he has not sought to purchase it, may contest the right of another to purchase. And when the contest is referred to the superior court for adjudication, that court acquires jurisdiction to hear the case, and it becomes its duty to determine as to the rights of each of the parties.</p> <p>Id.—Necessary Allegations and Proop on Contest.—In a contest to determine the right to purchase swamp and overflowed land, each party must make out his own case, and to that end must allege and prove that the land is subject to sale by the state, and that he has complied with all the requirements of the statute authorizing its purchase. If neither party makes the necessary showing, judgment should be entered that neither of them is entitled to make the purchase.</p> <p>Id. — Segregation by United States — Averment op.—Under sections 3441, 3443, and 3445 of the Political Code, as amended in 1874, no application to purchase swamp and overflowed land is authorized until the expiration of six months after the land has been segregated as such by authority of the United States; and in a contest to determine the right to purchase, an averment in the answer that the land had been so segregated for more than six months when the defendant’s application to purchase was filed raises a material issue.</p> <p>In. — Insufficient Finding.—In such a contest, the answers of the defendants averred that the land had been segregated by authority of the United States for more than six months when their applications were filed. The evidence showed that their applications were filed in May and June, 1884, and that the plat of the township in which the land is situated was approved by the United States surveyor-general on October 14, 1884. The action to determine the contest w^s commenced on October 1, 1885. The court found that the land had been segregated as swamp and overflowed for more than six months prior to the commencement of the action. Held, that the finding did not respond to the issue raised by the answer, and was insufficient.</p> <p>Id. — Date of Segregation — Approval of Plat.—In the absence of other evidence, the date of the approval by the surveyor-general of the United States of the plat of a township containing swamp and overflowed lands must be treated as the date of the segregation of the lands as swamp and overflowed.</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 an order of the Superior Court of the city and county of San Francisco refusing to stay an execution, or to have a judgment marked satisfied.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Bill of Exceptions—Application to Supreme Court to Prove Exceptions. —Where a bill of exceptions in a criminal prosecution has been settled by the trial judge, a subsequent application to the supreme court, under section 1174 of the Penal Code, for leave to prove the facts in support of the bill, should set forth distinctly wherein the bill as settled is incorrect, and specify the facts which it is desired to prove, as well as their materiality.</p> <p>Id. — Burglary—Description of Building — Ownership — Immaterial Variance.—In a prosecution for burglary, the information charged that the defendant burglariously entered the building of “ one C. E. Benedict, situated on Nineteenth Avenue, between K and L streets, south of Golden Gate Park, in the city and county of San Francisco.” The evidence showed that one J. S. Benedict was interested in the building with C. E. Benedict. It did not appear that there was any other building in the locality which corresponded with the description in the information. Held, that the variance was immaterial.</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 county and city of San Francisco settling the accounts of an executor.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Application for a writ of certiorari to review an order of the Superior Court of Colusa County. The facts are stated in the opinion.</p>

<p>Application for a writ of prohibition to the Superior Court of Monterey County. The facts are stated in the opinion of the court.</p>

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

<p>City of Sacramento—Bonded Indebtedness—Sinking Fund—Revenue Derived from Water Rates—Gross Receipts.—The act of April 24, 1858, incorporating the city and county of Sacramento, and repealing the prior acts incorporating the city of Sacramento, provides in effect that fifty-five per cent of the revenue derived from and within the city limits for municipal purposes, from certain sources, including water rates, when paid into the treasury, should be set apart and appropriated to an interest and sinking fund, which should be exclusively devoted to the payment of the annual interest and the final redemption of bonds issued for city indebtedness; that twelve per cent of such revenue should be appropriated to a salary fund, for the payment of salaries of municipal officers, and the balance to other funds in a manner stated. Held, that the word “revenue,” as used in the act, meant the gross receipts derived from the water rates, and not the net receipts, after deducting therefrom the various items of expense incurred in conducting the water-works, and that consequently the treasurer was bound to set apart and appropriate to the interest and sinking fund fifty-five per cent of the gross receipts so derived.</p> <p>Id. — Contract with Bond-holders — Subsequent Legislation cannot Impair. — The provisions of the act of 1858, for the payment into the interest and sinking fund of fifty-five per cent of the revenue derived from water rates, constitute a part of the contract between the city of Sacramento and its bond-holders, which could not be changed to the hurt of the bond-holders by subsequent legislation of any sort.</p> <p>Id. — Mandamus against Treasurer — Payments Made for Unauthorized Purpose. — The treasurer of the city of Sacramento cannot be compelled by mandamus to set apart and appropriate to the interest and sinking fund any portion of the fifty-five per cent of the revenue derived from the water rates, which had been previously paid out of the treasury upon warrants drawn by the auditor, in payment of bills which had been audited by the board of trustees of the city, but which were not payable out of such fund.</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 Department Two.</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>Appeal from a portion of a judgment of the Superior Court of San Luis Obispo County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County.</p> <p>The action was brought to recover the possession of a piece of land alleged to constitute a part of the homestead of the plaintiffs. Judgment was rendered in favor of the defendant. The further facts are stated in the opinion.</p>

<p>Insolvency—Discharge—Debts Affected by.—A discharge in insolvency only affects such debts of the insolvent as existed at the time his petition was filed.</p> <p>Homestead — Void Execution Sale.—The attempted execution sale of a homestead, under a judgment which cannot be enforced against it, is void.</p> <p>Id.—Abandonment of Homestead—Removal — Second Homestead.— The removal of a party from premises on which he has declared a homestead, after a void execution sale thereof, and his surrender of the possession to the execution purchaser, do not constitute an abandonment of the homestead, within the meaning of section 1243 of the Civil Code, so as to enable him to declare a second homestead on other land.</p> <p>Id.—Party cannot have Two Homesteads.—A party cannot have two homesteads; and if he attempt to acquire a second while the first is in force, the second is void.</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 action was brought to quiet title to certain land. On the 10th of December, 1886, the judge of the lower court, at the close of the trial, ordered judgment for the plaintiff, in accordance with the complaint. On the 20th of that month, before any findings were drawn, signed, or filed, the defendant gave notice of his intention to move for a new trial. This notice was not embodied in the statement on motion for a new trial, although what purported to be a copy of it was printed in the transcript on appeal. On the 24th of December, the findings and decree were signed and filed, and notice thereof served on the attorneys for the defendant on the 31st of December. On the 27th of January, 1887, and within the time allowed by the court, the defendant’s attorneys served and filed a copy of the statement and affidavits on the motion, the plaintiff’s attorneys objecting to the service of the same. A notice of the plaintiff’s objections to the statements and affidavits, and to the service thereof, was served and filed on the 28th of January. On the 7th of February, the plaintiff’s attorneys served and filed a copy of their amendments to the defendant’s statement, which were accepted by the defendant, the plaintiff meanwhile reserving all objections and exceptions to the service of the statement. On the 1st of March, the defendant’s statement was settled by the trial judge. On the 2d of May, 1887, the motion for a new trial was denied, and the appeal from the judgment and order was taken on the 17th of the same month. The further facts are stated in the opinion.</p>

The action was brought to obtain a judgment against the defendant for money alleged to be due upon a promissory note, and to foreclose a mortgage alleged to have been given by her to secure the note.

The action was brought by the plaintiffs, as partners, against the defendants, the San Luis Hotel Company and Armstrong Brothers, to recover a certain sum of ihoney from the latter for materials furnished them for use, and which were used, in the construction of a hotel belonging to the hotel company, and to have the amount due declared to be a lien on the hotel premises, and to have the same sold to satisfy the lien.

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco, directing the executrix of the will of a deceased person to convey certain real estate.</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.</p>

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

<p>■Criminal Law — Procuring False Evidence—Incompetence of Affiant— Intent. —To constitute the offense of procuring a false affidavit to. be used as evidence from a person known to be incapable of making an affidavit, there must have been an intent to produce false evidence for a fraudulent and deceitful purpose; allowing the affidavit to be made through carelessness, however gross, without such intent, is insufficient.</p> <p>Id.—Means of Discovering Incompetence—Knowledge—Instruction, — In a prosecution for such an offense, an instruction which implies that a duty rested upon the parties procuring the affidavit to investigate as to the competency of the affiant, independently of any doubt or suspicion actually entertained by them, and if by the use of reasonable diligence they could have discovered the affiant’s incompetency, such means of knowledge was equivalent to knowledge, is erroneous.</p>

<p>Estate of Decedent—Partial Distribution — Petition by Executor.—In a proceeding for the settlement of the estate of a decedent, the court has no authority, under section 1658 of the Oode of Civil Procedure, to decree a partial distribution upon the petition of the executor.</p>

On the 18th of November, 1882, the defendants executed a contract for the sale of certain tracts of land to James and Joseph Brown, and also to sell them “ a full and abundant water right for all of the above land.” On the 23d of December, 1882, the Browns transferred their right under the contract to the plaintiff.

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

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

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

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

<p>Appeal from an order of the Superior Court of Alameda County granting letters of administration with "the will annexed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Justices’ Courts—Provisions of Code Applicable to — Powers of, how Determined. —When that part of the Code of Civil Procedure which expressly deals with proceedings in justices’ courts prescribes the powers of those courts in relation to a general subject about which the powers of courts of record are expressly prescribed in another part of the code, then the powers of the justices’ courts with respect to that subject are to be determined by the provisions of the code expressly applicable to them, and not by the provisions expressly applicable to courts of record.</p> <p>Id.—Power to Set Aside Judgments. —Justices’ courts have no power to review their own judgments, unless in some method expressly provided by law.</p> <p>Id.—Order Setting Aside Judgment—Certiorari—Judgment by Default. — Under section 859 of the Code of Civil Procedure, a justice’s court has no power to vacate its judgments, except judgments by default, and an order attempting so to do, not being appealable, will be annulled on certiorari.</p>

<p>Married Woman—Mortgage of Separate Estate—Defective Acknowledgment.— A mortgage executed by a married woman upon her separate real estate is an “instrument ” and “conveyance,” within the meaning of those words as used in sections 1186 and 1187 of the Civil Code, and unless acknowledged by her after an examination separate and apart from her husband, as provided in section 1186 of that code, is void.</p> <p>Id.— Estoppel to Dispute Validity of Mortgage.— A married woman is not estopped to dispute the validity of a mortgage given by her upon her separate estate, but which is invalid by reason of a defective acknowledgment, when it does not appear either that the debt to secure which the mortgage was given was for money advanced to her, or for anything of which she had the benefit, or that the mortgagee was deceived into allowing the debt to be contracted upon the faith of her executing a mortgage to secure it.</p>

<p>Mortgage—Deed—Defeasance—Specific Performance—Redemption. — Where a mortgage is given consisting of a deed absolute in form, and a defeasance in a separate instrument, an action to compel a specific performance of the agreement to reconvey is in effect an action for the redemption of the land.</p> <p>Id.—Action of Foreclosure—Previous Action to Redeem—Judgment Roll — Evidence. — The action was brought to foreclose a mortgage against the original mortgagor, and a subsequent purchaser of the mortgaged premises. The mortgagor disclaimed all interest in the premises, and no personal judgment was asked or had against him. On the trial, the judgment roll in a previous action brought by the subsequent purchaser against the mortgagee to redeem from the mortgagee, in which action the mortgagor had not been made a party, was introduced in evidence by the mortgagee. Held, the real parties in interest in both actions being the same, the judgment roll was properly admitted.</p>

The proceeding was instituted by Thomas F. Langan for the probate of the will of Honora Langan. John A. Langan and others opposed the admission of the will to probate, and filed a contest, in which they alleged as grounds of opposition: 1. That the instrument was not the last will of the deceased; 2. That the deceased, at the time of signing the alleged will, was not of sound mind; 3.

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

<p>Promissory Note Payable on Demand with Interest—Presentation for Payment—Delay does not Release Indorser.—Under the provisions of the Civil Code, an indorser on a promissory note payable with interest at sight or on demand is not exonerated by the mere failure of the payee to present the note for payment, after its apparent maturity.</p> <p>Id.—Accommodation Indorsers—Payment of Note by One—-Contribution. — One of two accommodation indorsers on a promissory note, upon being sued thereon, has a right to pay the same without waiting for a trial of the action, and to then enforce contribution from his coindorser.</p>

<p>Will—Construction of—Common Property does not Include Separate Property—Determinable Lire Estate—Devise by Implication. —The will in question contained a provision as follows: “I give and bequeath to my said husband the use and income of all my property of which I may die possessed, to his sole use and benefit, as long as he remains my widower; provided, however, and it is hereby made an express condition, that he shall not be authorized to sell, convey, or dispose of, or mortgage or in any way encumber, any of such property. But in case he should marry again, then I direct that my share in the common property shall go to my children.” At the time of her death, the testatrix had no property that was not her separate estate. She left surviving her husband and four children. Held, that the term “common property,” as used in the will, could not be construed to mean “separate property”; that the husband took under the will a determinable life estate only, and that, there being no devise to the children by implication, as to all the estate except such determinable life estate the decedent died intestate, and the same should be distributed, one third to the husband, and the remaining two thirds to the children.</p>

<p>Oppicial Bond—License Collector—Form op Bond—Action on mat bb Brought bt State. —The board of supervisors of a county has authority to appoint a collector of license taxes, and the bond given by that officer for the faithful performance of his duties is an official bond, and under section 958 of the Political Code should be made payable to the state of California. And under section 369 of the Code of Civil Procedure, an action to enforce such a bond is properly brought in the name of the state.</p> <p>Id. — Sureties — Liabilitz oz Those Signing. — Sureties signing an. official bond without affixing any condition or limitation to their liability are jointly and severally liable thereon alter its acceptance and approval, although a person named in the body of the bond as surety did not sign it, and although as to one of the sureties signing no sum was stated in the bond for which he was bound.</p>

<p>Sale—Want of Possession — Attaching Creditors of Vendor—Lease on Shares — Growing Crop.—The plaintiff, being the owner of a tract of land, leased the same in-1883 to one Armfield, on shares, to be cultivated in wheat. Subsequently, in the same year, the parties agreed that the plaintiff should furnish Armfield one hundred sacks of seed wheat, in consideration of which Armfield promised to return for it two sacks for one, out of the next season’s crop. In pursuance of this agreement, the plaintiff furnished the one hundred sacks. In 1884 Armfield’s crop was light, and he being desirous of retaining the two hundred sacks until 1885, the plaintiff told him to keep them on the same terms, and subsequently furnished Mm with forty-eight sacks more. In 1885 the parties agreed that the plaintiff was entitled to receive 496 sacks on account of those that he had furnished for seed, and that Armfield, after harvesting and sacking his crop, should haul the sacks going to the plaintiff to a neighboring town and deliver them to Mm there. Armfield thrashed and sacked his crop, and piled the sacks, including those going to the plaintiff, in one pile on the leased ground. The sacks as piled were not segregated, and had no distinguishing marks upon them. While there the entire pile was attached as the property of Armfield. Held, that as to the 496 sacks the plaintiff was to be treated as a purchaser, and not as a tenant in common of a growing crop, and that not having taken them into his possession, the transfer was void as against the attaching creditors of his vendor.</p>

<p>Insolvency—Binding of Indebtedness—Sufficiency of.—A finding in a proceeding of involuntary insolvency that the debtor is indebted to one of the petitioning creditors in an amount equal to the exact aggregate of several items of indebtedness set forth in the petition is sufficient to support an adjudication of insolvency, although the finding does not show that the indebtedness arose in the manner stated in the petition.</p> <p>Id. — Order for Verification of Inventory — Appeal. — An order directing an involuntary insolvent to verify his schedule and inventory is not appealable under the insolvent act of 1880.</p>

<p>Estate of Decedent—Probate of Will — Contest—Limitation.— Under section 1333 of the Code of Civil Procedure, a party interested in the estate of a testator who was under no disability at the time of the admission of the will to probate cannot contest its validity, or the validity of any of its items, in the proceedings for the settlement of the estate, after the expiration of one year from the time the will was probated.</p>

<p>Attorney at Law—Cannot Change Sides on Subsequent Trial—Presumption of Injury to Former Client. — The trial court has power, and it is its duty, if satisfied that an attorney has acted as such on the side of one party in a former trial of an action, to prohibit him from acting as an attorney on the other side in a subsequent trial; and if the court refuses so to do, and a judgment on the subsequent trial is rendered against the attorney’s former client, injury will be presumed to have resulted to him whereby he was prevented from having a fair trial.</p>

<p>New Trial—Newly Discovered Evidence.—A new trial will not be granted on the ground of newly discovered evidence, if the evidence might have been discovered by reasonable diligence in time to have been produced at the trial.</p> <p>Criminal Law — Robbery — Evidence.—On a trial for robbery, the complaining witness, after testifying that he had, on the day of the robbery, collected the money, of which he was robbed, from a relative with whom, he had deposited it, was asked, on cross-examination, whether his relative had procured it from a safe or a trunk. Held, that the question was immaterial and was properly excluded.</p> <p>Id. — Impeachment of Witness — Contradictory Written Statements — Preliminary Examination.—On such a trial, a witness cannot he impeached hy showing that he had made statements on the preliminary examination inconsistent with his statements on the trial, unless his testimony given on the preliminary examination, if reduced to writing, he first shown to him. And in the absence of any evidence to the contrary, it will he presumed that the testimony given on the preliminary examination was in writing.</p> <p>Id.—Witness not Able to Read — Unknown Language.— When the witness sought to be impeached by bis prior written statements cannot read, or where the writing is in a language to him unknown, he is entitled to have it read to him before it can be used for the purpose of impeachment.</p> <p>Id. — Cross-examination — Immaterial Error.— On the cross-examination of the prosecuting witness, after he had detailed the circumstances immediately preceding and attending the robbery, he was asked whether, at the time of the robbery, he had suspected that the defendants had any intention of robbing him. The court excluded the question. Held, that while the question should have been allowed, its exclusion, under the circumstances of the case, was without prejudice to the defendants, and did not warrant a reversal.</p> <p>Id.—Request to Ascertain Pact—Refusal not Rbviewable.—The refusal of the trial court to request a witness during recess to ascertain a fact necessary to enable him to answer a question is not reviewable on appeal.</p> <p>Id. —Instructions — Credibility of Evidence.—In its instructions, the court charged the jury, in reference to the evidence of certain witnesses, as follows: “You should carefully determine the amount of credibility to which their evidence is entitled. If convincing and carrying with it a belief in its truth, act upon it; if not, you have a right to reject it. ” Held, that the instruction was proper.</p>

<p>Swamp and Overflowed Lands—Refunding Purchase Price—Repeal of Act of March 27, 1872. — Section 3 of the act of March 27, 1872, authorizing the board of supervisors of a county to draw a warrant on the county treasurer for the repayment of money paid for the purchase of swamp and overflowed land which afterwards is proved not to have been the property of the state, was repealed by sections 3571 and 3572 of the Political Code. Under the latter section, as amended in 1878, it is the duty of the county auditor, without any action by the board of supervisors, to draw such warrant.</p>

<p>Judgment by Default—Service by Publication — Summons — Want of Jurisdiction of Person.— A judgment by default, rendered upon an attempted service of the summons by publication, is void for want of jurisdiction over the person of the defendant, when the judgment roll fails to contain any affidavit for the publication, or order of the court directing it, or any sufficient affidavit that the summons was in fact published.</p> <p>Id.— Motion to Set Aside Judgment—Order Denying—Appeal.— A motion to set aside a judgment is a direct and not a collateral attack on the judgment; hence errors which might be the subject of review on appeal therefrom may be considered on an appeal from an order denying the motion.</p> <p>Id.— Void Judgment—When may be Set Aside.—A judgment which is void upon its face, and which requires only an inspection of the judgment roll to show its invalidity, may be set aside by the court rendering it at any time after its entry. In such a case, the provisions of section 473 of the Code of Civil Procedure limiting the time within which to move to set aside judgments in certain cases does not apply.</p>

The defendant was convicted for an assault with a deadly weapon. The further facts are stated in the opinion of the court.

<p>Pleading—Foreclosure—Unverified Answer—Admission of Genuineness and Due Execution.— Under section 447 of the Code of Civil Procedure, where the complaint in an action of foreclosure contains a copy of the note and mortgage sued upon, and the answer is unverified, the genuineness and due execution of those instruments are admitted.</p> <p>Id.— Recitals in Mortgage—Presumption of Truth. — Under subdivision 2 of section 1962 of the Code of Civil Procedure, recitals in a mortgage, as between the parties thereto, must be held as true.</p> <p>Id.— Suretyship — Mortgage—Recitals in—Judgment—Demurrer.— In an action by a surety on a promissory note to foreclose a mortgage given to secure him from liability thereon, a judgment in favor of the plaintiff will not be reversed for want of a sufficient allegation in the complaint of the plaintiff’s suretyship, when the language of the mortgage, as set out in the complaint, is sufficient to show, in the absence of any proof to the contrary, that the plaintiff was a surety, and no demurrer was interposed pointing out any special defects in the complaint.</p> <p>Id.—Indorsement to Surety—Presumption of Payment and Ownership. —An indorsement upon a promissory note to the effect that it was indorsed by the payee to the surety for value received, together with the possession of the note by the surety, is sufficient, in the absence of evidence to the contrary, to raise the presumption that the surety had paid the apparent value of the note and was its owner.</p> <p>Id.—Payment by Surety—Equitable Assignment.—A surety upon a promissory note, upon being compelled to pay the same, becomes the equitable assignee of the note, and entitled to enforce its payment according to its tenor and effect, as the holder thereof, and also to foreclose a mortgage given to secure him from liability on the note.</p> <p>Id.—Right of Surety to Reimbursement—Interest.— A surety upon a promissory note, after paying the same, is not entitled to reimbursement to any greater extent than the amount of the principal and interest that he has been obliged to pay, together with legal interest upon the gross sum so paid from the date of its payment.</p>

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

On the trial, the court, in its first instruction to the jury, used the following language: “ The defendant relies upon a written release, which has been introduced in evidence by the plaintiff as a bar to this action. In ascertaining whether it is a bar or not, you will first ascertain from the evidence how and by whom it was signed.

<p>Guardian—Jurisdiction to Appoint—County in Which Minor Resides. — Under section 1747 of the Code of Civil Procedure, the superior court of the county of which a minor is an inhabitant or resident has jurisdiction to appoint a guardian for him.</p> <p>Id. — Change of Residence by Minor — Vacancy in Guardianship — A minor who continuously resides for a period of three years in a particular county, and during that time makes his home exclusively there, becomes an inhabitant or resident thereof within the meaning of section 1747 of the Code of Civil Procedure; and if, while residing there, a vacancy occur in his guardianship by reason of the death or removal of a former guardian, the superior court of that county has jurisdiction to appoint another guardian for him, notwithstanding the fact that the superior court of a different county, of which the minor had previously been a resident, had appointed the former guardian.</p> <p>Id, —Order Revoking Appointment—Appeal—Bul of Exceptions— Ground of Removal— Presumption. —On an appeal from an order revoking letters of guardianship taken on a bill of exceptions which fails to contain any of the evidence, but which shows that the order was made on the sole ground of the supposed want of jurisdiction, in the court to make the appointment, it will not be presumed that the order was made on the ground that the guardian was an unsuitable person, although the latter was alleged in the petition as one of the grounds for which the removal was asked.</p>

<p>Deed—Transposition of Initials of Grantor—Evidence—Certified Copt of Record — Acknowledgment.—The action was brought to quiet the title to certain land against one P. D. Green. On the trial, the plaintiffs, after proving that the defendant had formerly owned the land, offered in evidence a certified copy of a deed taken from the records of the county recorder’s office, dated on the 6th of February, 1869, and purporting to be signed by P. D. Green. In the body of the deed the grantor was named D. P. Green, and proof of its execution was made by a subscribing witness, whose affidavit stated “that he was present and saw D. P. Green, known to him to be the same person described in and who executed the annexed instrument as a party thereto, sign, seal, and deliver the same,” etc. The defendant objected to the admission of the copy on the ground that it did not purport to have been acknowledged by the party who signed it. Held, that the objection to the copy on the ground that it had not been shown that the original was not in the possession or under the control of the plaintiff, not having been made on the trial, was waived and could not be raised on appeal; and that the copy was admissible and sufficient to cast the burden upon the defendant of showing that he did not in fact execute the deed.</p> <p>Id.—Statute of Limitations — Title Acquired bt.— After the introduction of the foregoing deed, the plaintiffs further proved that the grantee therein had conveyed the land to one Doland on the 16th of April, 1869, and that he, on the 19th of February, 1870, had conveyed it to one Dana; that Dana died in 1870, and thereafter the land was known as the Dana tract; that it was fenced as early as 1872 or 1873, and remained inclosed until about 1883; that shortly after it was inclosed, the land was rented by the agent of Dana’s estate, and was used by the tenants as a vegetable garden for about ten years; that on the 19th of June, 1883, the land was conveyed by the guardian of the minor heirs of Dana to one Gardiner, the grantor of the plaintiffs; and that from the years 1875-76 to 1883-84, the property was assessed to the estate of Dana or the Dana minors, and the taxes were paid. Held, that the evidence was sufficient to justify the finding that the plaintiffs had title under the statute of limitations.</p>

<p>Appeal from, a judgment of the Superior Court of Alameda County.</p> <p>The agreed statement of facts upon which the action was tried, after stating the facts recited in the opinion of the court, further stated “that the question in difference between the parties herein is' as to whether or not the assessment of the land and premises above set out, as made to the owner thereof, without deducting the value of the mortgage thereon, is a legal assessment. The plaintiff contends that the assessment of said real estate should be made, less the value of the mortgage, and the defendant contends that the mortgage to the regents, being exempt from assessment and taxation, has no value for the purpose of assessment, and hence should not be deducted. The said question might be the subject of a civil action between these parties for the recovery of a thousand dollars or more, and involves the legality of the said assessment.” The court rendered judgment “that the value of said mortgage in favor of said regents of the University of California upon the plaintiff’s land, described in the agreed statement of facts, can be lawfully deducted from the value of said land when assessing said land for revenue, .... and that the said assessment of said land to the plaintiff, the owner and mortgagor thereof, so made by said defendant, without deducting the value of said mortgage, . . . . is not a legal and valid assessment, and that the said value of said mortgage must be deducted from the assessed value of said land.” The further facts are stated in the opinion of the court.</p>

The action was brought to foreclose the lien of a material-man for materials used in the construction of a building. On the 1st of October, 1883, the defendant Sarah Knight commenced the construction of a dwelling-house, of which she was the owner.

On the 26th of April, 1860, A. Gray Morgan died intestate in the city and county of San Francisco, being at the time the owner of an undivided half-interest in a mine situated in Calaveras County, state of California, known as the Morgan mine.

The action was brought for the partition of certain lands, to an undivided part of which the plaintiffs claim title under a deed from Clarence L. Carr to Thomas H. Bush, dated on the 3d of June, 1871, and recorded on the 8th of July, 1885. The defendants claim title to the whole of said land under a deed from Clarence L. Carr to Elizabeth R. Carr, dated on the 10th of August, 1878, and recorded on the 15th of the same month.

<p>Mexican Grant—Perfect Title under Mexican Law. —Mexicans who, previous to the acquisition of California by the United States, had acquired from the governments of either Spain or Mexico a perfect title to lands in California, and who chose to remain in the acquired territory, were, by the treaty of Guadaloupe Hidalgo, protected in the ownership and enjoyment of their lands the same as though no change of sovereignty had occurred.</p> <p>Id. — Confirmation by Land Commissioners.—Persons whose titles to lands were perfect at the time of the acquisition of California by the United States were not compelled to submit them for confirmation to the board of land commissioners appointed under the act of Congress of March 3, 1851, nor did they forfeit their lands by a failure to present them to such board for confirmation; and titles thus vested may be asserted and maintained like other perfect titles in the courts of California.</p> <p>Id. — Presentation for Confirmation. —The holders of titles to land in the ceded territory which were perfect at the date of the treaty could, if they so elected, present them to the board of commissioners for confirmation, but were not bound to do so.</p> <p>Id. — Steps Essential to Perfect Title. — Under the Mexican law, a grantee of a tract of land acquired a perfect title when he was able to show therefor a petition, with a diseño, an order of reference, an informe by the proper officer, a decree of concession, a titulo, the approval of the departmental assembly, the order for survey and; judicial possession, with the report of the proper officer that such survey was made and possession given.</p> <p>Id.—Description of Grantee — Omission of Middle Name. — The validity of a title under the Mexican law is not affected by the fact that in some of the documents constituting the chain of title the grantee was described without stating his middle name when the identity of the grantee is otherwise sufficiently shown therein.</p> <p>Id.—Description of Land by Name.—A Mexican grant which describes the land intended to be conveyed by its known designation, by which it can be identified without specifying its boundaries, is valid.</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 action was brought to recover possession of certain lands in Los Angeles County. The plaintiff claims title thereto as the daughter and heir at law of Apolonio Dominguez, deceased, who acquired title to the premises by mesne conveyances from Nemesio Dominguez, one of the grantees of the Mexican grant known as “ Las Vírgenes,” dated on the 1st of October, 1834. The defendants are American citizens, in possession of a part of the land claimed, and plead title in the United States. The trial court held that the plaintiff’s predecessors in interest had acquired a perfect title under the Mexican law before the acquisition of California by the United States, and that the failure to present the grant for confirmation to the board of land commissioners did not invalidate or otherwise affect her title. The questions presented by the case are the same as those decided in the case of Phelan v. Poyoreno, ante, p. 448, with the exception that in the present case the juridical possession of the land included in the grant was given prior to the approval of the grant by the departmental assembly. Judgment was rendered in favor of the plaintiff, from which, and from an order refusing a new trial, the defendants appeal.</p>

<p>Practice—Nonsuit — Appeal — Exception to Order — Specification of Error. — Error in granting a nonsuit is an error of law, and cannot be reviewed on an appeal from an order refusing a new trial, unless it was excepted to on the trial, and specified as error in the statement or bill of exceptions.</p> <p>Evidence—Parol cannot Contradict Writing—Bill of Sale.—Parol evidence as to what was intended by a bill of sale, or what was included in it, is not admissible to contradict or add to the writing.</p> <p>Id. — Offer of Proof must be Specific.—An offer of proof which is not directed to some specific material fact should be denied on account of its vagueness.</p>

<p>Finding—Money Loaned to Wife — Agency.—In an action to recover money alleged in the complaint to have been borrowed by the wife of the defendant as his agent, a finding that the wife borrowed the money for her own use and benefit is a sufficient finding on the allegation, as it necessarily precludes the truth of the averment that she contracted as agent for her husband.</p>

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

The action was brought to quiet title to a tract of land, and was heard upon an agreed state of facts, from which it appeared that the plaintiff, on the 21st of May, 1878, mortgaged to one Andreo Briswalter two tracts of land, a 909-acre tract and a 212-acre tract, describing the former in her mortgage by metes and bounds, and-then excepting therefrom' those portions of the tract described in certain conveyances made by herself, and referred to the book of record of the…

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

<p>Bond of Indemnity—Cause of Action when Accrues—Sheriff— Execution—Damages. —A cause of action in favor of a sheriff for the breach of a covenant in a bond of indemnity to save him harmless from “all damages, expenses, costs, and charges,” which he might sustain by reason of the sale or retention of certain property taken under an execution, does not accrue until the sheriff has been compelled to pay and has paid such damages.</p> <p>Id.—Sureties—Discharge from Liability—Payment of Proceeds of Execution Sale. — The sureties on a bond given by an execution creditor, to indemnify a sheriff for any damage sustained by him by reason of his enforcing the execution against property claimed by a third person, are not discharged from liability thereon by reason of the fact that the sheriff wrongfully paid the proceeds arising from the execution sale to the execution creditor, instead of to the person claiming the property.</p> <p>Id.—Extension of Time to Execution Creditor—Appeal by Sheriff — Stay Bond. — A sheriff by appealing from a judgment rendered against him for the conversion of property wrongfully taken under execution, and by giving a stay bond pending the appeal, does not grant such an extension to an execution creditor who has given a bond to indemnify the sheriff from all damages sustained by him by reason of his enforcing the execution as to discharge the sureties on the bond.</p>

The libel of which the defendants were convicted was ■contained in a pamphlet published by them, entitled Life of Horace Bell.” The further facts are stated in ■the opinion of Mr. Justice Sharpstein.

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

<p>Action to Determine Adverse Claim to Land—Legal Title in Plaentief — Defendant in Possession. — An action to determine an adverse claim to land, under section 738 of the Code of Civil Procedure, may be maintained by the holder of the legal title against a defendant in the actual adverse possession of the premises in controversy.</p> <p>Id. —Jurisdiction of Superior Court — Jury Trial. —The legislature has power to confer jurisdiction on the superior court of such an action; and conceding that the defendant therein is entitled under the constitution to a trial by jury of the legal issues so raised, such right is waived by a stipulation between the parties expressly waiving a trial by jury.</p> <p>Id.—Laches—Cloud on Title—Plaintiff in Possession.—A plaintiff who has been in the possession of land cannot be guilty of laches in the bringing of an action to remove a cloud, at any time before an action has been brought to disturb his possession, or to deprive him of any enjoyment of his right.</p> <p>Id.—Certificate of Purchase of State Land—Judgment Annulling Bight of Purchaser—Subsequent Purchaser.—The action was brought on the 26th of December, 1883, to determine an adverse claim to certain land. The plaintiff claims by mesne conveyances under two certificates of purchase from the state issued to one Greene on the 16th of November, 1868. The defendant claims under certificates of purchase issued by the state to his grantors on the 15th of March, 1883, and a patent issued in pursuance thereof on the 25th of February, 1884, and under a judgment which was void on its face, rendered on the 21st of November, 1872, and purporting to foreclose and annul the interest of Greene in the certificates of purchase issued to him. It did not appear that the grantors of the defendant ever had possession of the land, nor when he took possession of it or improved it. Held, that conceding the action should be treated merely as a bill in equity to quiet title or remove a cloud, the plaintiff had not been guilty of such laches as to deprive him of his right to equitable relief.</p> <p>Id. — Invalidity of Judgment — Allegation of. — In an action to remove a cloud upon title, an allegation in the complaint that the judgment constituting the cloud was rendered without jurisdiction is a sufficient averment, in the absence of a demurrer, as to the invalidity of the judgment.</p> <p>Id.—Judgment by Default—Service by Publication—Insufficient Affidavits of Service. —A judgment by default, rendered after an attempted service of summons by publication, is void, and may be collaterally attacked, when the affidavits of service are insufficient to authorize the entry of the judgment.</p> <p>Id.—.Judgment Annulling Certificate of Purchase — Filing Copy of with Begister — Subsequent Purchaser.— A certified copy of a judgment purporting to foreclose and annul the interest of a purchaser in a certificate of purchase of state land, upon being filed with the register of the state land-office, as provided in the act of 1868, is not conclusive evidence of the validity of the judgment so as to protect subsequent purchasers from the state of the land included in the certificates.</p>

<p>Board of Supervisors—Erection of County Jail — Adoption of Plans on Condition. — A resolution of a board of supervisors of a county adopting certain plans submitted to them by an architect for the erection of a county jail in pursuance of their proposal therefor, on condition that the board receive a bid from a reliable party who would give sufficient bonds to erect the jail in conformity with the plans for a specified sum, is an “adoption ” of such plans, within the meaning of subdivision 9 of section 25 of the county government act.</p> <p>Id. — Fulfillment of Condition. — The condition contained in the resolution is fulfilled if the board receive a bid from a reliable party to construct the jail in accordance with the plans for the amount limited, and who is willing to enter into a sufficient bond therefor. It is not necessary to the fulfillment of the condition that the board actually accept the bids.</p> <p>Id. — Rescission of Contract—Fraüddlent Representations—Slander of Members of Board. —The board of supervisors are justified in rescinding the contract if they had been induced to execute it through the fraudulent representations of the architect, but cannot rescind it on the ground that the architect had slandered certain members of the board.</p>

The action was brought to recover the possession of certain land. The further facts are stated in the opinion of the court.

<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>Claim and Delivery—Allegation oe Value — Finding.—In an action for the claim and delivery of a stated number of hogs, of which the aggregate value only is alleged in the complaint, a finding that each hog was of the value of four dollars is proper, and will be held supported by the evidence, when the only evidence of their value is that they were worth four or five dollars a head.</p> <p>Id.—Return of Part of Property Recovered—Execution for Balance. —• In such an action, where a judgment is rendered in favor of the plaintiff for the return of the number of hogs sued for, or for their value at four dollars a head in case a delivery could not be had, and the sheriff returns such part only of the hogs as he is able to find, an execution for the value of the hogs not returned, may be enforced against the defendant.</p>

<p>Appeal from a decree of the Superior Court of the city and county of San Francisco distributing the estate of a decedent, and from an order refusing to have certain property segregated from the property of the decedent.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mutual Account—Payment on Account—Set-obt.—A payment, whether of money or of personal property of a stipulated value, made on an account and intended as a payment, and not as a set-off pro tanto, does not make the account mutual.</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>Appeal from a judgment of the Superior Court of Butte County, and from an order refusing' a hew trial.</p> <p>The facts, are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco settling the accounts of an executor, and from an order modifying such order.</p> <p>The facts are stated in the opinion.</p>

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

. The action was brought by the administrator of the estate of one Irwin McFarlane, deceased, against the administrator of the estate, and the heirs of one William McCain, deceased, for an accounting of the property belonging to the estate of the latter, and for a judgment directing his administrator to deliver one half of such property to the plaintiff.

<p>Criminal Law—New Trial—Newly Discovered Evidence—Affidavits. — In order to entitle a defendant convicted of a criminal offense to a new trial, on the ground of newly discovered evidence, the affidavits used on the motion must show that the defendant could not, with the exercise of reasonable diligence, have discovered and produced on the trial the evidence claimed to he newly discovered, and that the evidence is such as to render a different result probable if a retrial were had.</p> <p>Id. —Motion to be Regarded with Disttost. — An application for a new trial in a criminal ease, on the ground of newly discovered evidence, should be regarded with distrust and disfavor.</p>

The action was brought by the people on the relation of the attorney-general, to obtain a judgment declaring that the defendants have usurped and exercised powers and franchises as trustees of a pretended Reclamation District No. 366, without authority of law. Judgment was rendered in favor of the plaintiff. The further facta are stated in the opinion of the court.

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

<p>Specific Performance — Costs.—Where specific performance is refused because of the fraudulent misrepresentations of the plaintiff, and the defendant is free from blame, costs should not be awarded to the plaintiff, but should be awarded to the defendant.</p>

<p>Estate of Deceased Person—Allowance of Claim—Interest.—A claim against the estate of a deceased person draws interest from the time of its allowance by the administrator and the probate judge, at legal rates.</p> <p>Id. —Rate. — Whether the interest would be at a different rate where one was agreed upon by the parties, not decided.</p>

The defendant was prosecuted for murder, was found guilty of murder in the first degree, and was sentenced to death. He appeals from the judgment of conviction, and from an order refusing a new trial. On the trial, after the evidence was concluded, the judge of the court, at the request of the counsel for the defendant, made an order that the jury view the locus in quo.

The proceeding was brought for a writ of mandate to compel the defendant to fix the water rates to be charged by the Anaheim Union Water Company. The plaintiff's demurrer to the defendant’s answer was sustained, and after trial, judgment was rendered in favor of the plaintiffs. The defendant moved for a new trial, which was denied. The further facts are stated in the opinion of the court.

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

The action was brought to recover the amount of a license attempted to be established by an ordinance of the board of supervisors of San Luis Obispo County. Judgment was rendered in favor of the plaintiff. The further facts are stated in the opinion of the court.

<p>State Land — Right to Purchase—Contests Affecting Different Portions of Land. — An applicant for the purchase of state land, whose right to purchase has been sustained in" an action brought to determine a contest between himself and an adverse applicant for a particular portion of the land, is not entitled to have a patent issued to him for the entire tract claimed by him, while an action to determine another contest, affecting a different portion of the land, is pending between himself . and another applicant.</p>

<p>Vendor’s Lien—Indorsement of Purchase-price Note — Revival of Lien. — Under section 3047 of the Civil Code, the indorsement and transfer by a vendor of land of a promissory note given him by the vendee in payment, of the purchase price does not operate to destroy the lien of the vendor, if he is subsequently compelled to take up the note by reason of its non-payment by the vendee. In such a case, the lien of the vendor is merely suspended, and revives when he takes up the note.</p>

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

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

The court found that the bonds in question were issued for the loss and destruction of the property of A. L. Pardee during the Indian war. The further facts are stated in the opinion of the court.

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

<p>Warrant op Controller—Payment—Expenses op Supreme Court—. Official Capacity of Payee. —The state treasurer is not justified in refusing to pay a warrant of the controller, drawn to the order of the individual who is the clerk of the supreme court, and made payable out of the appropriation for the expenses of that court under section 47 of the Code of Civil Procedure, merely because the warrant omits to describe the payee by his official designation, nor because the various items of expense allowed by the board of examiners, for the payment of which the warrant was intended, had not been actually paid by the clerk to the parties to whom they were due.</p> <p>Id. —Assignment of Warrant—Action by Assignee. —Such a warrant although not a negotiable instrument, may be assigned, subject to all legal and equitable defenses to which it was subject in the hands of the original payee, and the assignee may maintain an action in his own name to enforce its payment.</p> <p>Id.—Indorsement and Delivery—Equitable Assignment of Debt.—• . The indorsement and delivery of the warrant by the payee named therein is an equitable assignment of the debt, and an authorization to the assignee to receive the money due thereon.</p> <p>Id. —Warrant Prima Facie Good. — A warrant of the state controller, drawn to the order of the clerk of the supreme court in payment of the expenses of the court, is prima facie good.</p>

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

The action was brought to quiet the plaintiff's title to a tract of land. The complaint alleged that the plaintiff's intestate, P. 0.

Motion to dismiss appeal. The notice of the appeal in question, and the undertaking referred to in the opinion, were filed on the 31st of August, 1887. After discovering the defect in the undertaking, on the 9th of November, 1887, the appellant executed another undertaking on the appeal from the order refusing a new trial, and after its approval by one of the justices of the supreme court, he filed the same in that court.

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

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

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

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