Volume 75 — California Reports

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

<p>Mining Claims—Union of Veins—Prior Locator Entitled to below Junction—Evidence of Prior Location.—The action was between the owners of two adjoining quartz mining claims, the respective veins of which united below the surface of the ground, and involved the determination of the question as to who was entitled to the vein below the point of junction. Under section 2336 of the United States Revised Statutes, where veins so unite, the oldest or prior location is entitled to the vein below the point of junction. The defendant claimed under a patent from the United States, dated the 19th of September, 1874, and on the trial introduced in evidence the preliminary papers and proceeding in the United States land-office upon which the patent was based, for the purpose of showing a valid location prior to the date of the patent. The court found that no valid location of the plaintiff’s claim was made until 1879. Held, that the defendant’s location must be considered as having been made at least from the date of its patent, and that the introduction of evidence to show a prior location, conceding it to have been erroneous, was immaterial.</p> <p>Id.—Injunction — Threatening to Work Claim.—A plaintiff, claiming . to be the owner of a mining location, is not entitled to an injunction to restrain the defendant from mining upon such location, if the defendant never has mined thereon, and never has threatened to do so.</p> <p>Id.—Adjoining End Lines — Divergence of End Lines.—Where the north end line of one quartz mining claim is identical with the south end line of an adjoining claim, at a place where the ledge crosses from the ground of one into that of the other, and such end lines at another place diverge, the owners of the claims have the entire ownership of the ledge included within their extreme end lines, with the exclusive right to follow its dips and angles laterally; and may, as against a subsequent locator, agree between themselves as to the right to work the portion of the ledge included within the piece of ground formed by the divergence of their end lines.</p>

<p>Promissory Note—Want op Consideration—Bona Fide Pledgee.— A bona fide pledgee of a promissory note which was executed without consideration cannot hold the maker liable thereon to any greater extent than the amount of the debt for which it was pledged.</p> <p>Id.—Note Given in Settlement op Claim por Damages. — A promissory note given by the maker in settlement of a claim for damages for which he was not liable, and for which the payee of the note admitted he was not liable, but which he was induced to execute by reason of threats that if he did not he would be sued on the claim, and thereby be put to a corresponding expense, is without consideration.</p>

<p>Contempt — Bribes. —Abuse of the judge of the trial court in a brief filed in the appellate court will be treated as contempt of the latter court.</p>

The defendant was prosecuted and convicted of robbery. On the trial, the prosecution offered in evidence the deposition of the prosecuting witness, taken on the preliminary examination, which showed that the offense had been committed by a person of the same name as the defendant. In instructing the jury, the court charged them that identity of person is presumed from identity of name. The further facts are stated in the opinion of the court.

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

<p>Impeachment of Wetness. —A witness cannot be impeached by contradicting him upon collateral matters.</p> <p>Ibbelevant Evidence. — Irrelevant evidence on one side does not justify irrelevant evidence on the other.</p> <p>Id. — Upon the trial of a party accused of murder, somewhat remotely growing out of the improper relations of the prisoner’s wife with another man, which fact appeared in the prisoner’s evidence, and in the cross-examination, it is error to allow the prosecution in rebuttal to prove that some time after the killing the prisoner had sent his wife to demand money from the man with whom she had had the improper relations.</p> <p>Pboof of Agency t-Deolabation of Agent.—The mere declaration of a party is not proof that he is the agent of another.</p>

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

The action was brought for the claim and delivery of certain personal property. The defendant attempted to justify the taking under a writ of attachment issued in an action against one Elliott. Judgment was rendered in favor of the plaintiff. The defendant moved for a new trial, and his motion being denied, appealed from the judgment and order. The appellant had printed specifications in the transcript.

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

<p>Mortgage op Aiter-acquired Property — Knowledge op Terms op Purchase — Priority. — A prior mortgagee, who pending the negotiations for his mortgage acquires knowledge that the property offered as security belongs to a third person, and was to be purchased by the mortgagor, and that negotiations for its purchase were then pending, is charged with notice of the terms upon which the purchase is made; and where such terms involve the execution by the purchaser of a mortgage to the vendor to secure the purchase price, the latter mortgage, although subsequently recorded, is entitled to priority over the other.</p> <p>Id.—Means on Knowledge — Notice.—A mortgagee, having readily accessible means of. acquiring knowledge of a fact affecting the title to the mortgaged property, which he might have ascertained by inquiry, is charged with notice and knowledge of such fact.</p> <p>Id.—Estoppel — Statements when Operate as.—Statements to operate as an estoppel must be made with the express intention to deceive, or with such carelessness or culpable negligence as to amount to constructive fraud. In accordance with this rule, the statements of the secretary of the defendant corporation, relied on as estopping it from setting up the priority of its mortgage, held, not to operate as an estoppel.</p>

<p>Opinion—Findings.—An opinion of the trial court is not the “findings.”</p> <p>ID. —Collateral Attack. —The question of the sufficiency of the findings support the judgment cannot be made on a collateral attack. Service oe Summons—Appearance—Fictitious Name — Insertion oe True Name — Collateral Attack. —Where a person is not named as a par(;y the action, or served with summons, but files an answer which recites that he was sued under a certain fictitious name, to which no objection is made, and the ease is tried and judgment rendered against him, he is hound by such judgment. The non-insertion of his true name by amendment to the complaint does not render the judgment void on a collateral attack.</p> <p>Foreclosure — Litigation or Adverse Interests — Collateral Attack. — While adverse interests cannot properly he litigated in foreclosure, yet if they are put in issue, tried and determined, the judgment is not void on a collateral attack.</p> <p>Law or the Case. — Instance of an application of the rule.</p> <p>Community Property—Act or 1850—Power or Survivor — Mortgage. — Under the act of 1850, the surviving husband had authority to keep alive a debt and mortgage made before the wife’s death; and in determining the identity of the debt and mortgage, equity will look beneath the form of the transaction. But he had no authority to make an entirely new mortgage to raise money for the prosecution of new enterprises.</p> <p>Condition or Equitable Belief. —Where the interest of a mortgagor escapes being bound by a decree in foreclosure through a slip in the proceedings, and he subsequently comes into equity to be relieved of the cloud cast upon his interests by reason of such proceedings, he will be required, as a condition of relief, to pay his proportion of the mortgage debt.</p> <p>Id. — In imposing a condition, a court of equity will take into consideration, all the circumstances, in order to arrive at the justice of the case, without regard to the strict legal rights of the parties.</p>

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

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

<p>Ostensible Agency. —Where a person is the agent of another in the commencement of a transaction, and such other is chargeable with knowledge that the first is continuing to act in the matter in some way, the inference which he ought to draw is that the person assuming to act as agent is continuing to act in the same capacity in which he commenced, and it is negligence not to repudiate the agency.</p> <p>Id. — Promissory Note — Payment. —Where the holder of a note, residing at a different place from the maker, employs an attorney at law, who resides in the same place as the maker, to collect the note; and an arrangement is effected by the attorney by which a new note is given for a larger amount, which note is deposited in a bank at the residence of the holder; and the maker in good faith pays most of the interest and a part of the principal to the attorney, who forwards the same to the bank, which credits them upon the note; and the last payment of the principal is embezzled by the attorney, he must be taken to be the ostensible agent of the owner of the note, and the loss must fall upon the latter.</p> <p>Id. —Collection by Owner of Note Debosited in Bank. —The owner of a note deposited in bank for collection may receive payment through another agent. The want of possession of the note, although a circumstance to be considered, is not conclusive.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County refusing to remand an appraisement of a homestead for further report as to its value.</p> <p>The facts are stated in the opinion.</p>

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

The action was brought to recover a sum of money alleged to be due on account of state and county taxes, levied upon real and personal property belonging to the defendant, for the fiscal year 1884-85, together with interest, penalty, and cost of advertising.

<p>Negligence—Liability of Notary Public—Certificate of Acknowledgment to Mortgage—Damage without Injury. —The negligence of a notary public in making his certificate of acknowledgment to a chattel mortgage, by reason of which the lien of the mortgage was lost, will not entitle the mortgagee to recover damages against him, when the property intended to be secured by the mortgage was wholly valueless. Id.—Nominal Damages—Immaterial Error—Appeal.—Where the findings show the plaintiff to be entitled to recover nominal damages only, a judgment rendered in favor of the defendant will not be reversed on appeal. In such a case, the maxim, De minimis non mrat lex, is applicable.</p>

from an order refusing a new trial. The action was brought by the assignee in insolvency of the firm of Mattie Brothers, for the claim and delivery of certain personal property assigned to them by the insolvents, on the 4th of December, 1884.

The facts are stated in the opinion of the court. The word “ornaments,” as used in the bequest, must be restricted in its meaning to chattels, ejusdem generis with those enumerated. (Dole v. Johnson, 3 Allen, 366; Rawlings v. Jennings, 13 Ves. 39; Tefft v. Tillinghast, 7 R. I. 434; Bouvier’s Law Diet., tit. Ejusdem Generis; Bulloch v. Goffe, 20 Pick. 252; Benton v. Benton, 63 N. H. 289; Young v. Young, 3 Jones Eq. 216; Boon v. Gornforth, 2 Ves. Sr. 277; Johnsons.

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

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

The act of March 12, 1885, should not be so construed as to give a person performing labor upon a thrashing machine, at the request of a person not the owner, a lien thereon as against the owner. Such a construction would render the act unconstitutional. (Hollingsworth v. Dow 19 Pick. 228; Phillips on Mechanics’ Liens, sec. 496; Quillian v. Central R. R., 52 Ga. 374; Landry v. Blachard 16 La.

<p>Jurisdiction—Personal Tort Inflicted in Foreign Country—Aliens, —The courts of this state have jurisdiction of an action brought by one resident alien against another resident alien who is personally served with summons, to recover damages for personal injuries inflicted on the plaintiff in a foreign country.</p>

<p>Hew Trial—Insufficiency oe Evidence to Support Decision — Statement must Specify Particulars.—Where a motion for a new trial is made on the ground of the insufficiency of the evidence to justify the decision, and the statement of the case contains no specifications of the particulars wherein the evidence is claimed to he insufficient, the court, on the hearing of the motion, must disregard the statement as to that ground for a new trial.</p> <p>Id. —Absence of Exceptions—Decision against Law. —Where the statement of the case shows that no exceptions were taken during the trial to any act of the court, a motion for a new trial on the ground that the decision is against law is properly denied.</p> <p>Id.—Mechanic’s Lien—Sureties on Bond of Contractor—Findings — Estoppel in Pais. — The action was brought to foreclose a mechanic’s lien, and judgment was rendered in favor of the plaintiffs. The statement on motion for a new trial showed that a certain bond, executed by the plaintiffs as sureties for the contractor, and introduced in evidence without objection, contained a stipulation that the building should he delivered over to the owner free of all liens. The findings contained nothing showing that any such clause was in the bond, and no issue was made by the pleading as to the bond operating as an estoppel. Held, that as the statement contained no specification as to the particulars in which the evidence was insufficient to justify the decision, such clause in the bond could not be held as operating as an equitable estoppel in pais to prevent the plaintiffs from foreclosing their lien.</p> <p>Id. — Liquidated Damages — Delay in Completing Building—Evidence. — A stipulation by the contractor in a building contract to pay the owner a specified amount as liquidated damages for each day’s delay in completing the building is not sufficient of itself, in the absence of other evidence showing the impracticability or extreme difficulty of fixing the actual damage caused by the delay, to entitle the owner to recover the amount stipulated for as liquidated damages, upon the failure of the contractor to complete the building within the contract time.</p> <p>Id. — Materials Burnished to be Used in Building—Pleading —Bindings. —In an action to foreclose a lien for materials furnished a contractor and used by him in the construction of a building, the complaint must allege and the findings show that the materials were furnished to he used in the building; and a finding that the materials were furnished to be used and were used in the construction and erection thereof is sufficient.</p> <p>Id. — Assignment oe Claim. —■ In an action by an assignee to foreclose a lien for materials furnished for and used in the construction of a building, it is not necessary to support a judgment for the plaintiff that the complaint should specifically allege, or that the findings should show, that the assignment of the claim on which the lien is based was in writing. An allegation and finding that the claim was assigned to the plaintiff is sufficient.</p> <p>Id. — Laborer Entitled to Lien.—A person who performs labor upon and in the construction of a building, at the request of the contractors, is entitled to a lien thereon, under section 1183 of the Code of Civil Procedure.</p>

Bernard Newman died intestate on November 15, 1886, a resident of the county of Los Angeles. He had never married, and at the time of his death had no blood relations nearer than brothers and sisters.

The action was commenced on the 16th of October, 1883, against the personal representatives of one Charles G. Mason for an accounting. The plaintiff bases his right to an accounting upon a certain agreement entered into by him and Mason on or about the 20th of August, 1863.

<p>Certiorari—Insolvency—Order Appointing Attorney bob Absent? Creditor—Election ob Assignee.—Orders appointing an attorney to vote for an absent creditor at the election of an assignee in an insolvent proceeding, and appointing as assignee the person chosen at such election, even if erroneous, cannot he reviewed on cerliorm'i, as the court had jurisdiction of the proceeding.'</p>

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

<p>Bill of Exceptions—Settlement bt Supreme Court—Contents of Petition. — A petition to the supreme court for the settlement of a bill of exceptions should set forth the statements of the bill as settled by the judge of the trial court, which are alleged to be contrary to the facts, together with a statement of the facts and the point of the exceptions. A mere statement in the petition that the bill as settled by the trial judge does not state sufficient of the testimony of witnesses to explain the questions to which objections or exceptions were taken, is insufficient.</p>

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

The action was- brought by a lessor against an assignee of a portion of the leased premises to recover for the breach of a covenant by the lessee to pay taxes. The leased premises consisted of certain lots in the city and county of San Francisco, an irregular portion of one of which the lessee had assigned to the defendant.

<p>Appeal from a judgment for 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>Deed — Possession by Grantee—Delivery.—The possession of a deed by the grantee named therein, or by a person claiming under him, is prima facie evidence of its delivery.</p> <p>Id. —Date of Delivery —Presumption. —Under section 1055 of the Civil Code, a deed duly executed is presumed to have been delivered at its date.</p> <p>Id.—Identity of Grantor—Presumption from Identity of Name.— In an action to quiet title by a person claiming under a deed from a grantor having the same name as the defendant, the identity of the grantor with the defendant is presumed from the identity of name. Judgment—Foreclosure of Street Assessment—Collateral Attack. — A decree foreclosing the lien of a street assessment which is valid on its face, and rendered in an action in which the court bad jurisdiction of the subject-matter and the person of the defendant, cannot he collaterally attacked by a person claiming under Mm, by showing that prior to the decree the assessment in question had been paid.</p> <p>Sheriff’s Deed—Assignment of Certificate of Purchase — Subsequent Deed to Purchaser. —Where a purchaser of land at a sheriff’s sale, after the time for redemption has expired, quitclaims his interest in the land before a sheriff’s deed is given, the quitclaim deed is equivalent to an assignment of the sheriff’s certificate of sale, and if the sheriff afterward execute a deed to the purchaser, the same is void as between the parties.</p>

<p>Life Insurance—Payment Subject to Disposition of Will—Executor may Maintain Action. —Where a policy of life insurance does not designate any particular beneficiary, but provides that it shall be paid subject to the will of the insured, and the latter by his will bequeaths his entire estate to a particular person, subject to the payment of his debts, the executor of the insured is the proper person to whom the insurance money should be paid, and he may maintain an action therefor in his own name without joining the legatee.</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>Pleading—Statute of Limitations—Waived.—The right to interpose the plea of the statute of limitations is waived unless taken advantage of by demurrer or answer.</p> <p>Id.—Presumption that Agreement was in Wetting. — An agreement which is required by statute to be in writing, if in other respects properly pleaded, will be presumed, for the purpose of testing the sufficiency of the pleading, to have been in writing. The exception to the rule arises only in cases where the agreement must necessarily be in writing to confer jurisdiction on the court.</p> <p>Id.—Justice’s Court—Judgment by Default—Certiorari.—A judgment by default rendered by a justice’s court, even if erroneous, will not be reviewed on certiorari, when the court had jurisdiction of the subject-matter and of the person of the defendant.</p>

<p>Estate of Decedent—Attorney of Absent Heirs—Allowance oe Fee may be Vacated. —The appointment of an attorney to represent absent heirs in a proceeding for the settlement of a decedent’s estate, and the allowance to him of a fee, are matters entirely within the discretion of the lower court, and if such allowance be improvident or indiscreet, the court may vacate it at the suggestion ot any one, or upon its own motion.</p>

<p>Estate of Decedent—Sale of Real Estate—Order for Public or Private Sale. — Under section 1544 of the Code of Civil Procedure, an order for the sale of the real estate of a decedent, made at the instance of a creditor, should direct that the sale be made at public auction, unless in the opinion of the court the best interests of the estate would be sub-served by a private sale. Where, however, a private sale is asked for in the petition, the court may act upon the opinion of the executor or administrator and order such a sale to be made.</p> <p>Id. — Time for Private Sale. — An order for the private sale of certain real estate of a decedent which limits the time within which the sale can be made to a period sufficient to give twenty days after the publication of notice of the sale for the reception of bids, is not unreasonable.</p>

<p>Appeal from an order of the Superior Court of Colusa County quashing an execution.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. The instrument in question is not a promissory note, as it does not promise to pay anything. (Norwich Bank v. Hyde, 13 Conn. 279; Boyd v. Brotherson, 10 Wend. 93; Smithy. Smith, 1 R. I. 398; 53 Am. Dec. 652; Poorman v. Mills, 39 Cal. 350; 2 Am. Rep. 451.)

On and prior to the 26th of June, 1883, one Richard White was the owner and in possession of a crockery store and contents at No. 340 Third Street, in the city and county of San Francisco, and was living with his family in a room back of the store. On that day he sold the store and its contents to one M. Seligman, and after-wards never had anything to do with the business, and never went near the place again.

On the 10th of July, 1884, the defendant located the ground in controversy as a quartz mining claim, and during the year 1885, expended thereon, in labor and improvements, the sum of sixty dollars. On the 1st of January, 1886, at the hour of one o’clock, A. m., the plaintiff went upon the ground and posted thereon a notice of location in his own name, but did not mark or establish any boundaries of his location until the 5th of the same month.

<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>

v Appeal from a judgment of the Superior Court of the • city and' county of San Francisco, and from an order refusing a new trial. The facts are stated in the opinion.

<p>Criminal Law—Murder—Instructions—Assumption of Guilt.—In a prosecution for murder, an instruction which inadvertently assumes the guilt of the defendant is cured, if the court subsequently states to the jury that it did not intend to make any intimation as to the guilt of the defendant, and fully charges them as to the burden of proof, and as to the necessity of the prosecution proving every essential fact beyond a reasonable doubt.</p> <p>Id. —Instruction to Acquit—Malice. —An instruction asked by the defendant, to the effect that unless it was established by the evidence that the killing was unlawful and with malice aforethought the jury must acquit, is properly qualified by adding the words “ of the crime of murder.” Id.—Appeal—Instruction not Warranted bt Evidence.—On an appeal in such a case, an instruction upon the subject of insanity will not' be held unwarranted by any issue in the case, in the absence of a bill of éxception containing the evidence.</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 — Construction — Community Property. — The will in question construed, and held, that the half of the community property to which the testator’s wife would have been entitled had she survived him was not disposed of by the will.</p>

<p>Lessor and Lessee — Farming on Shares — Growing Crops — Tenants in Common. — Where a lease of agricultural lands provides that the lessor shall receive a proportion of the crops grown on the demised premises after the same are harvested, the lessor becomes a tenant in common with the lessee of the crops while the same are growing.</p> <p>Id. — Partition op Growing Crop — Appointment op Receiver. — Where a tenant in common of a growing crop is in the sole possession thereof, and denies the right of his co-tenant to any part thereof, and threatens to sell the entire crop and appropriate the proceeds to his own use, the co-tenant may maintain an action for the partition of the crop. In such an action, a receiver pendente lite may be appointed.</p>

<p>Rape — Information—Force and Violence—Evidence of Fraud or Artifice. — Under an information for rape, which alleged that the defendant committed the offense “by force and violence,” and against the will of the prosecutrix, and did “ feloniously ravish ” her, evidence is admissible that the offense was committed by means of an intoxicating or narcotic substance, administered to her by the defendant.</p> <p>Id.—Evidence of Complaint by Prosecutrix.—In a prosecution for rape, evidence is admissible that the prosecutrix made complaint of the injury while it was recent.</p>

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

By the decree in question, the court ordered that the bequest to the Old Ladies’ Home be paid to the repondent, the Sisters of Mercy. The further facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of El Dorado County refusing a writ of assistance.</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 a judgment of the Superior Court of Nevada County.</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 for the payment of an attorney fee from the estate of a decedent.</p> <p>The facts are stated in the opinion of the court.</p>

The notice of appeal from the judgment and order refusing a new trial was filed on the 26th of April, 1887.

The action was brought by the assignee in insolvency of Jacob Zech, to set aside an assignment of certain personal property, made by him to his brother-in-law, the defendant Jacob Koch, on the ground that the same was made for the purpose of hindering, delaying, and defrauding the creditors of Jacob Zech.

The action was brought to foreclose the lien of a street assessment on a lot of land in the city and county of San Francisco, for work done under the act of April 1, 1872. Judgment was rendered in favor of the plaintiff, from which the defendants took an appeal on the judgment roll alone. The main points relied upon by the appellants for a reversal were: 1.

The action was brought to recover damages for breach of a contract of agency. The plaintiffs, Parke and Lacy,| are San Francisco importers and dealers in machinery| etc., and the defendant, A. H. Frank, under the name of Frank & Co., is a manufacturer of planers and other ; o wotd-working machines in Buffalo, New York.

<p>Application for a writ of certiorari. 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>Judgment by Default—Proof of Service of Summons — Affidavit must Show Age of Person Serving. — The superior court does not acquire jurisdiction to enter a judgment by default against a defendant who has not appeared in the action, when the affidavit of service of summons fails to affirmatively show that the party making the service, if other than the sheriff, was over the age of eighteen years at the time of service.</p> <p>Id.—Judgment Boll — Affidavit of Service Part of.—Where a defendant has not appeared in the action, and a personal judgment by default is rendered against him, the affidavit or proof of service of summons is a necessary part of the judgment roll.</p>

<p>Estate of Decedent—Homestead—Minors not Children of Decedent. — A homestead cannot be set apart from the estate of a decedent to minor children who are not the children of the decedent either in fact or by adoption.</p> <p>Id.—Children Born during Coverture—Presumption of Legitimacy. — Children born to a married woman during her coverture are presumed to be legitimate, and to be the issue of their mother’s husband.</p> <p>Id. — Presumption of Adoption. — There is no presumption that minor children living with a man who is not their father have been adopted by him.</p>

the Superior Court of the city an county of San, Frafieisco, and from.;'an order refusing a new trial. The facts are stated in the opinion of the court.

<p>Mexican Gbant—Pueblo Lands — San Fbancisco — Tide-lands — Conclusiyeness or Patent and Subvey. — The patent from the United States government to the city and county of San Francisco for the pueblo lands confirmed to it under the acts of Congress of March 3, 1851, and of July 1, 1864, hy the decree of the United States circuit court, which patent conforms in its description of the lands granted to the final survey made, as provided in the latter act, in accordance with the instructions of the commissioner of the general land-office, is conclusive evidence, as against the state of California, of the right of the city and county of San Francisco to all the lands embraced within the exterior limits of the survey, including tide-lands lying below the line of ordinary high tide.</p> <p>Id. — Act of March 3, 1851 — State not Third Person. — The state of California is not a “third person,” within the meaning of section 15 of the act of March 3, 1851, providing that any patent issued under the act shall be conclusive between the United States and claimants only, and “shall not affect the interests of third persons.”</p>

<p>Criminal Law—Conspiracy — Circumstantial Evidence. — A conspiracy may be proved by circumstantial evidence.</p> <p>Id. — Evidence Showing Conspiracy—Res Gestas.—In a prosecution for an assault to murder, evidence of the acts of an alleged co-conspirator, done before the commission of the crime, and tending to show the probability of an understanding between him and the defendant in regard to its perpetration, are admissible to prove the conspiracy as part of the res gestee.</p> <p>Id.—Assault to Murder — Conviction of Assault with Deadly Weapon. — A defendant may be convicted of an assault with a deadly weapon under an information charging him with an assault to commit murder.</p>

<p>Criminal Law—Refusal of Continuance—Discretion.—It is within the discretion of the trial court to refuse a continuance on the ground that the prior engagements of counsel were such as to prevent him from making due preparations for the trial, and its action will not be interfered with on appeal, unless it clearly appears that there has been an abuse of discretion.</p> <p>Id. —Evidence — Immaterial Error. —Error in admitting evidence which is without prejudice to the appellant should be disregarded.</p>

<p>Divorce—Sale of Community Property—Confirmation not Necessary to Validity. —Under section 684 of the Code of Civil Procedure, a sale of community property, made in pursuance of a decree granting a divorce, is effective and valid without being confirmed by the court, when the order for the sale does not expressly require a confirmation.</p>

<p>Criminal Law — Evidence—Confession—Impeachment of Witness— Contradictory Statements.—The defendant in a criminal prosecution, who is a witness in her own behalf, cannot be compelled, on cross-examination, to testify to statements made by her out of court, which amount to a confession of the crime, unless it be first shown that the confession was voluntary. And this is so, although the evidence be offered by the prosecution, not as a confession, but merely as contradictory statements, for the purpose of impeaching the witness.</p> <p>Id.—Evidence of Part of Same Transaction.—One of the confessions introduced was a letter written by the defendant when in jail, to the prosecuting witness. The defendant testified that the letter was written at the request and on the advice of her mother, who visited her at the jail with one Oxendine, and told her that she had consulted an attorney, who advised the writing of the letter. In this connection, the defendant offered to prove by her own testimony, and by the testimony of her mother and of Oxendine, that at that conference she told them she was entirely innocent. The court excluded the evidence. Held, that the ruling was error, as the conference and the writing of the letter should be considered as one transaction.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco directing an administrator of the estate of a decedent to file his final account, and settling the same.</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 — Judgment—Dismissal. —An appeal from a judgment which is not taken within one year from the date of its entry must be dismissed.</p> <p>Riparian Rights—Injunction—Unlawful Diversion — Inconsiderable Injury. — The injury caused to a riparian proprietor by the unlawful diversion of the waters of a stream adjoining his land for a distance of thirty miles cannot be deemed inconsiderable merely because it is incapable of ascertainment, or of being estimated in damages.</p> <p>Id. —Injury Incapable of Ascertainment. —A riparian proprietor is entitled to an injunction to restrain the unlawful diversion of the waters of a stream adjoining his land, although the injury caused by the diversion is incapable of ascertainment, or of being estimated in damages.</p> <p>Id. —Justification of Diversion — Unlawful Appropriation. — A party claiming a certain quantity of the waters of the stream, adversely to the riparian proprietor, under an unlawful appropriation thereof, cannot justify his diversion by showing that there was no appreciable difference in. the quantity of the water flowing in the stream at a time when he took the water, and at a time when he did not.</p> <p>Id. —Upper Riparian Proprietor cannot Authorize Unlawful Diversion. —A riparian proprietor cannot, as against a lower proprietor, authorize a corporation to take water from the stream to be conducted to a distance and there sold.</p> <p>Id. —Tenant may Enjoin Diversion. — A tenant for years of land bordering upon a natural stream may enjoin the unlawful diversion of the waters thereof, the injunction necessarily becoming inoperative at the termination of his estate.</p> <p>Id.—Prior Action when not Pleadable in Abatement.—An action to restrain the diversion of the waters of a stream, and for the recovery of damages, cannot be pleaded in abatement of a subsequent action brought by the same plaintiffs and others against the same defendant, in which no damages are asked, and in which the complaint charges the actual diversion and threats to continue the same at a date subsequent to the bringing of the first action.</p>

The plaintiff brought the present action against the defendant Cummings for a divorce, and for a division of the community property. Morgan L. Ketchum, James L. Simpson, and the Bank of Watsonville were also -made defendants, on the alleged ground that they had an interest in the property.

<p>Swamp-land—Assessment—Record of Order op Supervisors—Alteration op—Evidenoe. — In an action to enforce the payment of a swampland assessment, the record as entered in the minute-book of the board of supervisors of the order of the hoard appointing commissioners to view the land and make the assessment is prima facie evidence of the facts stated therein; and where the record as originally entered is shown to have contained a clerical error, it may be altered so as to conform to the order as actually passed by the board, and as so altered is admissible in evidence.</p> <p>Id,—Description of Land Assessed.—In the assessment list the land assessed to the defendant was described as being a portion of two swampland surveys “hounded on the north by the lands of Mrs. R. F. Davis, on the east by the lands of L. C. Rube, on the south by the lands of the Pacific Mutual Life Insurance Company, and on the west by Old River; number of acres, one hundred”: held, that the description was sufficient.</p> <p>Id.—Presumption of Regularity of Assessment.—In the absence of evidence to the contrary, it will be presumed that the commissioners in viewing the land and making the assessment conformed to the requirements of section 3456 of the Political Code.</p> <p>Id.—Dollar-mark — Omission . of when Immaterial.—The failure to place a dollar-mark before the figures intended to designate the amount of the charges assessed against a particular person is not fatal to the assessment against him, when it appears from the record that such assessment was only one of a number of others contained in the list, and that in a number of cases there was a dollar-mark preceding the figures in columns headed with the words “amount of charges assessed.”</p> <p>Id. — Oath of Commissioners. — Such an assessment is not rendered invalid by the failure to show that the commissioners took, subscribed, and filed their oath of office in the office of the county clerk before they assessed the land and made the assessment list, where it appears that they were sworn verbally by a justice of the peace before they went to view the land.</p>

<p>Bonds—Road Bonds on Yuba County—Time on Payment—Act on Mabch 28, 1872. — Bonds issued by the county of Yuba in pursuance of the act of March 28, 1872, for the purpose of constructing, repairing, and improving wagon-roads and bridges within the county, cannot be paid by the county, without the consent of the holders, prior to the expiration of twenty years from the date of their issue, except in the manner and from the fund provided for in the statute; and an attempt by the county to make a prior payment thereof from a different fund is ineffectual as against a non-consenting holder.</p> <p>Id. —Coupons — Intebest. — The coupons on such bonds, after they become payable, bear interest from the time they are presented to the county treasurer for payment.</p>

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

The findings of the lower court show in substance that the Butte Canal and Ditching Company was incorporated September 19, 1857, to divert the waters of the north fork of the Mokelumne River from a point known as Pine-log Crossing, in Amador County, and by means of ditches, flumes, etc., convey said waters therefrom to Hoodville, and other points south and west of Butte City, to be used for mining, agricultural, mechanical, and chemical purposes; that the said Butte Canal…

<p>Appeal from a judgment of the Superior Court of Colusa County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</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 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 action is brought by a husband and wife to recover damages for personal injuries caused to the wife through the alleged negligence of the defendant. 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 the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

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

<p>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 decree of the Superior Court of Marin County partially distributing the estate of a decedent, and from an order refusing to change the record of the date of the entry of said decree.</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 — Entry op Judgment.—An appeal from a judgment prior to its entry is premature, and will be dismissed.</p> <p>Street Assessment—San Francisco—Grading Bay Street—Government Reservation. — Under the act of April 1, 1878, providing that the city and county of San Francisco should be liable for grading Bay Street, in front of the United States reservation, upon the refusal of the government of the United States to pay therefor, a refusal to pay, made by the general in command of the forces on the reservation, by the assistant treasurer of the United States, and by the Secretary of War, is sufficient to fix the liability of the city and county.</p> <p>Id. — Statute op Limitation. —An action to enforce the liability of the city and county for grading done in front of such reservation, under a contract providing for such work, is based either on a contract founded on an instrument in writing, or on an obligation or liability arising out of an assessment made in writing, both executed in this state, and consequently could not be barred by the provisions of subdivision 1 of section 389 of the Code of Civil Procedure, which relates to a contract, obligation, or, liability not founded upon an instrument in writing, or upon an instrument in writing executed out of the state. A plea of such section, therefore, raises no issue.</p>

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

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

<p>Adverse Possession—Pasturage.—Instance of a sufficient adverse possession by pasturage within the rule laid down in Weber v. Clarice, 74 Cal. 11.</p>

The action was brought by the plaintiff Emma Daniel and her husband, claiming to be the donee under a gift causa mortis from one Abraham Fielding, to recover the property claimed to have been the subject of the gift, to wit, the sum of $532.99 deposited in the Hibernia Savings and Loan Society in the name of Fielding.

The action was brought to redeem the land in question from, a mortgage thereon held by the defendant, and upon such redemption, for the possession of the land.

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

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

<p>Account Stated—Implied Assent—Instance. — The assent to an account necessary to make it an account stated may be implied. Where an account was presented, and the party examined it, and made no objections for three months, held, to be an account stated.</p> <p>Id.—Mistake—Pleadings.—An account stated is a contract; and while it can be attacked for mistake, in cases in which other contracts can be so attacked, the mistake must be put in issue by . the pleadings.</p> <p>Partnership in Use op Ship. —An agreement between part owners of a ship to use it in a joint enterprise, and share the profit and loss in certain proportions, creates a partnersMp in the use of the ship, as distinguished from the ship itself.</p> <p>Id. — Statute oe Limitations. — The statute of limitations does not run between partners until the accounts are settled and a balance agreed upon.</p> <p>Id.—Pleading — Finding.—Where the statute of limitations is pleaded by the defendant, a finding as to matter which, takes the case out of the statute is within the issues.</p>

<p>Criminal Law—Obstructing Railroad—Evidence oe Attempt In a prosecution for an attempt to place an obstruction upon the track of a railroad, the evidence reviewed, and held sufficient to warrant the conviction.</p>

<p>Contempt—Refusal to Pay Alimony — Discharge of Prisoner.—A person confined in jail for a contempt of court for refusing to obey an order directing him to pay alimony is entitled to he discharged, under sections 1143 et seep of the Code of Civil Procedure, upon proof of his inability to pay.</p> <p>Id.—Civil Contempt—Execution.—In a case of civil contempt,—as when a defendant in a civil action is ordered by the court to pay money generally to the plaintiff, and is committed until he shall have paid it, — the prisoner is in custody as under an execution.</p> <p>Id.—Application for Discharge—Mandamus to Compel Hearing.— A person confined in jail for contempt in refusing to obey an order of court directing him to pay alimony will not he awarded a writ of mandate to compel the judge of the superior court to entertain an application for his discharge, when the answer to the petition for the writ, being taken as true, shows that the judge did entertain the application, but refused the discharge, because in his judgment the petitioner was not entitled thereto.</p>

<p>Possession—Natural Barriers. — Natural barriers may be sufficient to form an inclosure for the purposes of the rule in reference to actual possession of real property. Whether they are so or not is a question for the jury under proper instructions.</p> <p>Id. —Instructions. —If there is sufficient evidence to go to the jury upon the question, it is error to refuse an instruction that if the jury believe that plaintiff’s fences, together with natural harriers, formed an inclosure sufficient to turn cattle, it was sufficient for the purposes of possession.</p> <p>Color oe Title. — An entry under a swamp-land certificate, in the belief in good faith that it confers a right to the land, is an entry under color of title.</p> <p>Homestead Entry upon Publio Land—Risht to Possession.—A party who makes a valid homestead entry under the laws of the United States, and pays what is required, has a right to the possession as against third persons, and can defeat an action of ejectment brought upon a prior possession.</p> <p>Id. —Homestead Entry upon Land in Actual Possession op Another— Force. — A homestead entry upon public land in the actual possession of another is invalid, although no force be used to gain possession.</p> <p>Id.—Constructive Possession.—But this rule does not apply where the possession is not actual but merely constructive.</p> <p>Receipt op Receiver of Land-office as Evidence of Payments to Him.—The receipt o£ the receiver of the United. States land-office for payments upon a homestead entry are admissible to show such payments.</p> <p>Map in Register’s Office — Certified Copy.—A certified copy of the map in the office of the register of the United States land-office is admissible upon the question of the character of the land.</p>

The action was brought against the defendants, Henry Schammel, Frank B. Reynolds, and William L. Bolte, to recover the amount due on two promissory notes. The complaint alleged that the defendants, at all times therein mentioned, were copartners, carrying on business as .such under the firm name of Schammel, Reynolds, & Co.; that on certain specified dates they, “ the said defendants, copartners as aforesaid,” executed the notes in question.

<p>Appeal—'Service of Notice—Death of Respondent. — Where an appellant, in ignorance of the death of the respondent, serves a notice of appeal on the attorney who had appeared for the latter, and the service is accepted by him, the appeal will not be dismissed on a motion made by the attorney who accepted the service, on the ground that the service was void, because made after the death of the respondent.</p>

<p>Modes in Which a Decision may be Reviewed__Where a cause has been regularly heard and decided, it can be reviewed only in the modes provided by the statute. The trial court cannot upon an application not authorized by statute set aside its decision for mere error not amounting to want of jurisdiction.</p> <p>Id. —Teems of Court. —This rule is not affected by the fact that terms of court have been abolished.</p> <p>Id. — Orders Improvidently Made — Presumption.—The rule does not prevent the trial court from setting aside orders or judgments which were improvidently and unintentionally made. But it will not be presumed that an order or judgment was of that character; such a case must be affirmatively shown.</p> <p>Review in Unauthorized Mode — Jurisdiction.—The objection that a court has reviewed its decision in an unauthorized mode goes to the power of the court; and its action may be annulled on certiorari.</p> <p>Guardian ad Litem—Probate Proceedings—Attorney for Minors. — The provisions in relation to guardians ad litem for minor defendants, in the chapter on parties to civil actions, do not apply to probate proceedings. The special proceedings as to attorneys for minors govern the matter.</p> <p>Id. — An attorney for minor defendants, appointed by the probate judge, after service of citation, to represent the minor upon a contest as to the validity of a will, is to all intents and purposes a guardian ad litem, although not called by that name.</p> <p>Id. — It is not necessary that there should be a new guardian ad litem, every time a pleading is amended.</p>

The action was brought to restrain the defendant from trespassing into and upon the foundry of the plaintiff. The allegations of the original complaint are stated in the former opinion, reported in 62 Cal. 416. The further facts are stated in the opinion.

<p>Public Road—Petition — Freeholders.—Under section 2682 of the Political Code, a petition for the constrnction of a public road need not allege that the petitioners are freeholders of the road district wherein the proposed road is to he constructed, and taxable therein for road purposes.</p> <p>Id.—Road District—Judicial Notice of Location.—The courts will take judicial notice that a road district alleged to be in Humboldt County is in the state of California.</p> <p>Id. —Approval of Bond. —An order of the hoard of supervisors, recognizing the petition for the construction of the road and the accompanying bond as being such as is required by law, and ordering viewers to be appointed, is sufficient evidence of an approval of the bond by the hoard.</p> <p>Id, — Order for View — Presumptions.—In the absence of affirmative proof to the contrary, it will be presumed, in support of an order appointing viewers, that the board of supervisors determined the fact that the petition was presented and signed by at least ten freeholders of the road district taxable therein for road purposes, that one of the viewers is a surveyor, and that all of the viewers are disinterested citizens of the county, and not petitioners.</p> <p>Id.—Notice to Land-owner.—Under section 2685 of the Political Code, the notice required to be given by the viewers to the owner of the land over which the road passes, of the proposed route, need not be in writing.</p> <p>Id. —Report of Viewers. •—Under section 2686 of the Political Code, the viewers are not required to state in their report as a fact that they have ascertained the necessity for the road, or that the same should be opened.</p> <p>Id. —Survey of Road. —The survey of the road need not appear upon the records of the board of supervisors.</p> <p>Id. —Approval of Report of Viewers. —The order of the board of supervisors approving the report of the viewers cannot be collaterally attacked on the ground that it was made upon insufficient evidence.</p> <p>Id, — Width of Road.—Under section 2681 of the Political Code, the board of supervisors has discretion to make the road sixty feet wide.</p>

<p>Boundary—Establishment of by Agreement. —Where coterminous proprietors of land in good faith agree upon, fix, and establish a boundary line between their respective tracts, in which they acquiesce, and under which they occupy for a period equal to that fixed by the statute of limitations, the line as thus established is binding upon thorn, and those holding under them, or either of them.</p> <p>Id.—Effect of Agreement — How Operates on Title.—Such agreements are not within the statute of frauds, because they are not considered as extending to the title. They do not operate as conveyances so as to pass title from one to the other, but proceed upon the theory that the true line of separation is in dispute, and to some extent unknown, and in such case the agreement serves to fix the line to which the title of each extends.</p> <p>Id. — Location of Boundary. — What are boundaries is a matter of law; but where they are is a matter of fact.</p> <p>Id. — Erection of Division Fence. — A division fence erected by one of the coterminous proprietors in such a manner as to include part of the land of the other will not be considered as the established boundary line, unless the site of the fence was fixed and agreed upon by the respective owners of the adjoining lands as their boundary line.</p> <p>Id.—Finding.—The finding as to the situation of the boundary line in question, held, supported by the evidence.</p>

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

<p>Injunction—Waste when Restrained Pendente Lite—Ejectment.— In an action of ejectment, the plaintiff is entitled to an injunction to restrain the defendant from committing irreparable waste on the demanded premises pending the determination of the issue as to ownership, unless it appears that the title of the plaintiff is had, or at least, that there is no reasonable ground for the assertion of title by him. The mere existence of a doubt as to the title does not of itself constitute a sufficient ground for refusing the injunction.</p> <p>Id. — Order Refusing Injunction — Appeal—Record — Findings.— On an appeal from an order refusing an injunction, it is not necessary to specify in a hill of exceptions the particulars in which the evidence is alleged to he insufficient, nor is the lower court required to make findings in support of the order. The appeal is heard upon the papers used on the hearing in the lower court; and the testimony of witnesses contained in the record, and identified by the judge as having been given on the hearing, will be treated on the appeal as written affidavits.</p> <p>Railroad Grant—Mineral Character of Land how Determined.—A person claiming under a mineral location, to be entitled to the possession of land previously patented to the Central Pacific Railroad Company, in pursuance of the grant made to that company by the act of Congress of July 1, 1862, and the amendment thereto of July 2, 1864, in order to establish his right of possession as against a person claiming under the patent, must clearly show that at the date of the patent the land, under the conditions then existing, was more valuable for mining than for agriculture, and was known to be such. And in determining the relative value of the land for such purposes, subsequent changes in the conditions affecting it cannot be considered.</p>

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

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

<p>Insurance—Parties Severally Liable on Policy—Joinder op.—Two insurance companies severally liable on the same policy may be joined as defendants in an action to recover for a loss.</p> <p>Id. — Complaint—Negativing Excepted Bisks. —In an action on a policy of fire insurance, the complaint must aver the loss, and show that it occurred by reason of a peril insured against, but it need not aver the performance of conditions subsequent, nor negative prohibited acts, nor deny that the loss occurred from the excepted risks.</p> <p>Id.—Allegation Contradicted by Exhibit—Demurrer.—An objection to a complaint that a specific allegation contained therein is contradicted by an exhibit to which reference is made cannot be taken advantage of by general demurrer.</p> <p>Id.—Allegation op Damage.—The complaint in an action on a fire insurance policy, which alleges that the insured was the owner of the property at the time of the insurance and at the time of the fire, its value at those times, and also that it was totally destroyed by fire, sufficiently shows the damage sustained by the insured by reason of the fire.</p> <p>Id. —Performance of Conditions Precedent. —Under section 457 of the Code of Civil Procedure, it is sufficient, in pleading the performance of conditions precedent required by the policy to be performed by the insurer, to allege that all the conditions of the policy have been duly performed by him.</p>

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

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

<p>Practice—Amendment -^-Notice op Motion tor New Trial—Evidence —Accident and Mistake. —An order refusing to allow an amendment to a notice of intention to move for a new trial, which is asked for on the ground of accident and mistake, will not he reversed when the evidence as to the alleged accident and mistake is conflicting.</p>