Volume 76 — California Reports

<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>

<p>Joint Debtors — Release of One — Promissory Note.—Under section I5á3 of the Civil Code, the release of one on a promissory note,/who are not mere other oo-ohligors.</p>

<p>Appeal fbom Judgment — Time fob Taking — Dismissal.—An appeal from a judgment must be taken within one year after its entry; if taken subsequently, the appeal will be dismissed.</p> <p>Id.—Ruling on Demubbeb — How Reviewed.—Alleged error in overruling a demurrer to the complaint can be reviewed only on an appeal from the judgment, and not on an appeal from an order denying a new trial.</p> <p>Id.—Finding—Insufficiency of Evidence—Specification of Pabticulaes. — A finding against the issue raised by a plea of the statute of limitations will not be reviewed on appeal, on the ground that it is not justified by the evidence, when the statement on motion for a new trial fails to contain a specification of the particulars in which the evidence is alleged to be insufficient. A general specification that the court erred in finding as it did, and in not finding contrary thereto, is insufficient to present the question.</p>

The action was brought to recover damages caused to plaintiffs’ lands by reason of the acts of the defendant in diverting the waters of a natural watercourse called Kings River, and also to obtain a perpetual injunction restraining defendant from diverting the water, or in any manner obstructing or interfering with its free flow in the channel of the stream to plaintiffs’ lands.

county of San Francisco refusing a new trial. The action was brought to recover possession of certain land in the city and county of San Francisco, forming part of Lafayette Park. The plaintiff claimed to hold the legal title to the land in trust for the people, under the act of Congress of July 1, 1864, and the act of the legislature of March 11, 1868.

The action was brought by the plaintiff, a stockholder in the corporation defendant, to restrain the sale of his stock for a delinquent assessment, and for the appointment of a receiver to take charge of and wind up the affairs of the defendant. The court granted a preliminary restraining order, which was afterwards set aside, and judgment rendered in favor of the defendant. The further facts are stated in the opinion of the court.

The action was brought by the plaintiff, a stockholder in the corporation defendant, to restrain the sale of his stock for a delinquent assessment, on the ground that the notice of sale had been published for an insufficient length of time. The assessment in question was levied on the 6th of April, 1885, and not being paid by the plaintiff, the corporation, on the 2d of June, passed an order for the sale of the stock on the 15th of June.

<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>

The action was brought to establish a partnership, decree its dissolution, and for an accounting of the partnership affairs.

<p>Fire Insurance—Application—Occupation op Insured Premises. —An application for a policy of fire insurance stated, with reference to the occupation of the premises, that the first story was occupied by “applicant as a brewery,” and the second story “as a lodging-honse and family residence.” The application further stated that the second story was occupied by a tenant. Held, there was no representation that the applicant personally resided on the premises.</p> <p>Id. —Misstatements bt Agent op Insurer. —Misstatements contained in an application for a policy of fire insurance, which was made out by the agent of the insurer, cannot he taken advantage of for the purpose of defeating the policy, if the agent knew the statements to he false when he made out the application.</p> <p>Id. —Evidence as to Property Destroyed at Fire. —In an action on a policy of fire insurance,- where the defense is made that the plaintiff himself set fire to the premises, evidence is admissible on behalf of the plaintiff that property belonging to him, other than that covered by the policy, was destroyed by the-fire.</p> <p>Id.—Appidavit in Proop op Loss—Immaterial Error.—In such an action, the admission in evidence of an affidavit made by the plaintiff soon after the fire, in proof of the loss, is an immaterial error, when the plaintiff testifies to the same facts as those stated in the affidavit, and the court expressly limits the effect of the paper as evidence to showing that the affidavit had been made.</p> <p>Finding—Insuppioienoy op Evidence—New Trial. —The sufficiency of the evidence to sustain afinding.will not be considered on appeal, unless the statement on motion for a new trial contains a specification of the particulars wherein the evidence is claimed to be insufficient.</p>

The action was brought to recover the possession of certain property which had been taken possession of by the defendant, as sheriff of the city and county of San Francisco, under a writ of attachment, issued in a certain action entitled Shain v. Robinett.

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

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

<p>Specific Performance—Non-payment of Purchase Price—Delay. — The specific performance of a parol agreement for the sale of land refused on account of the non-payment of the purchase price, and of the great delay in the commencement of the action.</p>

<p>Evidence—Books of Account—Contbact fob Sale of Land—Nonfayment of Purchase Price. —In an action by a vendor to a contract for the sale of land to recover the possession thereof, on the ground that the vendee had not performed the conditions of the contract with respect to the payment of the purchase price, the books of account of the vendor, showing part payment of the purchase price on certain days, are not admissible to establish that no further payments had been made, when there is no evidence that the book was one of original entries, and when the person who kept the same, being present at the trial, does not testify that the entries were made at the date of the transactions they purport to record, or that the entries were correct of his knowledge when he made them.</p>

The complaint alleged, in substance, that the plaintiff was engaged in the business of raising cattle for sale in the counties of Tuolumne, Merced, and Mariposa, and was the owner of and uses a brand “ D. H.,” in branding animals “required to be branded by” section 3167 of the Political Code, and that he caused the brand to be recorded in the office of the respective recorders of the three counties named; that he transferred his cattle to defendant as security, and delivered…

The aetion was brought to recover certain fees received by the defendant Darke, as recorder of San Luis Obispo County, from the 1st of January, 1883, to the 1st of January, 1885. Judgment was rendered in favor of the defendants, from which the plaintiff appealed. The further facts are stated in the opinion of the court.

The action was brought on an account stated. Judgment was rendered in favor of the plaintiff for the entire account, including the item marked as subject to investigation. From this judgment, and an order refusing him a new trial, the defendant appealed. 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 action was brought to foreclose a street assessment for work done in the city and county of San Francisco, under the act of April 1, 1872. The work consisted in constructing basalt block gutter-ways on Tyler Street, from the easterly line of Scott Street to Devisadero Street, in macadamizing the roadway thereof between the gutter-ways, and in laying granite cross-walks across Scott Street and across Seymour Avenue, at their intersection with Tyler Street. The property affected by the assessments in question was marked as lot 13 on the diagram accompanying the assessment, and consisted of a fifty-vara lot, having a frontage on Tyler Street of 137£ feet, in the middle of the block between Scott and Devisadero streets, and directly opposite Seymour Avenue. The following is a copy of the diagram, showing the situation of the lot:—</p> <p> </p> <p>SCOTT STREET.</p> <p>Separate assessments for the work were made against the whole lot, as follows: For gutter-ways and macadam, in the sum of $647.41, and for the crossing of Scott and Tyler streets, in the sum of $62.90. The act of April 1, 1872, under which the work was done, provides in section 8, subdivision 3, that “the expenses of work done on main street crossings .... shall be assessed upon the four quarter blocks adjoining and cornering on the crossings, and each lot or part of lot in such quarter blocks fronting on such main street shall be separately assessed according to its proportion of frontage on the said main street.” The court found that the sum of $710.31 was properly charged against the lot as its proportion of the total expense of the work, and rendered judgment accordingly for the foreclosure of the lien and the sale of the lot. The defendants moved for a new trial, which was denied, and appealed from the judgment and order. The further 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>Life Insurance—Temperance Association—Forfeiture of Policy by Intemperance. —A certificate of life insurance issued by a beneficial temperance association upon the life of a member, on the express condition that the insured, while a member of the association, should in every particular comply with the laws, rules, and requirements of the association, becomes forfeited if the insured, after its issuance, uses liquors as a beverage, in violation of a requirement of the association.</p> <p>Id. — Suspension or Expulsion not Necessary to Forfeiture.—The fact that a by-law of the association made a breach of such requirement punishable by suspension or expulsion does not render suspension or expulsion necessary in order to work a forfeiture of the policy.</p>

The action was brought to recover damages for the breach of a contract whereby the plaintiff was employed, as am attorney at law, to prosecute certain actions. The further facts are stated in the opinion of the court.

<p>Lessor and Lessee—Successive Leases—Covenant by Lessee to Restore Alterations. —A lessee of a building during the term made certain alterations in the building, with the consent of the lessor. Prior to the- expiration of the term, the parties entered into a new lease, to take effect upon the expiration of the former. This lease contained a provision to the effect that any alterations or changes made in the property by the lessees should be replaced, and the property left in its original condition. At the expiration of the second lease, the parties entered into a third, which contained a similar provision. Held, that upon the expiration of the third lease, the lessee was obliged to restore the premises to the original condition in which they were while holding under-the first lease.</p>

<p>School Land—Purchase of — False Statement in Application. —Under section 3495 of the Political Code, an application for the purchase of school land which falsely states-that there is no occupation of the land adverse to that of the applicant, is invalid, and confers no right of purchase on the applicant.</p> <p>Id.—Applicant must be Actual Settler__Under section 3495 of the Political Code, as it existed in January, 1884, an applicant for the purchase of school land, who was not an actual settler thereon, could acquire no right of purchase.</p> <p>Id. — Contents of Affidavit — Trial of Contest — Facts Alleged must be Proved. —An applicant for the purchase of land from the state must set out in his affidavit the facts required by the statute to be stated therein, and unless such facts are proved at the trial of a contest to determine the right of purchase, no right accrues to the party alleging the same.</p>

<p>Public Officer—Immigration Commissioner—Liability to State for Fees Collected. —Under section 2955 of the Political Code, the commissioner of immigration is required to pay into the state treasury all the fees collected by him, less four thousand dollars a year and office expenses, which payments are to be used by the state for the maintenance of lepers’ Quarters when.required for that purpose.</p> <p>Id.—Action by State to Recover eor Fees—Statute oe Limitations.— A cause of action to recover for fees unlawfully retained by the commissioner accrued in favor of the state upon the expiration of his term of office, without any demand being made therefor, and under section 338, subdivision 1, of the Code of Civil Procedure, became barred by the statute of limitations after the lapse of three years.</p> <p>Id. —Demand by Controller eor Accounting. — A demand made by the controller on the commissioner, under section 437 of the Political Code, for an accounting for the fees collected by him, does not create a new cause of action in favor 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>

' 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 action was brought to recover moneys alleged to have been laid out and expended by the plaintiff for the use and benefit of the defendant, and at his request.

<p>Forcible Detainer—Entry during Absence oe Occupant—Demand for Surrender. — An occupant of land which has been unlawfully entered upon by another during his temporary absence cannot maintain an action of forcible detainer against the intruder without first making the demand for its surrender required by subdivision 2 of section 1160 of the Code of Civil Procedure.</p> <p>Id. — Forcible Entry — Scrambling Possession. — One who has never had the actual peaceable possession of a building, and whose only possession has been a scrambling one, cannot maintaim an action for a forcible entry, under subdivision 1 of section 1159 of the Code of Civil Procedure.</p> <p>Evidence—Immaterial Error. —The admission of irrelevant and immaterial evidence which is without prejudice is not a reversible error.</p>

The action was brought to foreclose a street assessment for work done in the city and county of San Francisco under the street law of April 1, 1872. The further facts *e stated in the opinion of the court.

<p>Void Tax Deed—Recording—Notice. —A tax deed which is void on its face does not affect the title, and its registration gives no notice to any person.</p> <p>Tenants in Common—Dctt to Pat Taxes. — A tenant in common of land is under no duty to pay the taxes assessed upon the undivided interest of his co-tenant.</p> <p>Id.—Adverse Possession—Purchase of Tax Title. ■—The attempted purchase at a tax sale by a tenant in common of his co-tenant’s title, and the taking of a tax deed void on its face, purporting to convey the same, indicate a purpose by the purchaser to claim the whole title adversely to his co-tenant.</p> <p>Id. —Ouster of Co-tenant—Evidence of. — An ouster or disseisin by a tenent in common is not to be presumed from the mere fact of sole possession, but it may be proved by such possession accompanied-by a notorious claim of exclusive right.</p> <p>Id. — Finding — Evidence.—A finding that a tenant in common of the land in question had acquired title to the same by adverse possession as against his co-tenant, held, supported by the evidence.</p>

<p>Marine Insurance—Explosion oe Boiler — Perils op Sea.—A loss occasioned to a steamboat by the bursting of its boiler is nota loss caused by the “perils of the sea,” within the meaning of a marine policy insuring against such perils.</p> <p>Id.—Liability Imposed by Customs op Insurance—Pleading. — In an action to recover for a loss occasioned by the bursting of the boiler, under a clause in the policymaking the insurer liable for losses “for which insurers are liable by the rules and customs of insurance ” in a particular place, the complaint must allege that, by the customs of insurance in that place, insurers are liable for losses caused by the explosions of boilers.</p>

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

The action was brought by the plaintiffs, stockholders in the People’s Ice Company, a corporation organized and existing under the laws of California, to restrain the defendants, who were directors of the corporation, from selling certain shares of the capital stock of the corporation belonging to the plaintiffs, under an alleged levy of an assessment claimed to have been made on the 9th of October, 1883.

<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>Attorney and Client—Contingent Pee—Evidence of Happening of Contingency. —In an action by an attorney to recover a fee which the defendant had agreed to pay in the event that the Secretary of the Interior should grant a rehearing in a matter which had been previously heard and decided by him, certain, evidence, consisting of letters and telegrams from the secretary, Mid, sufficient to show that a rehearing had been granted.</p> <p>Id.—Evidence of Practice of Land Department.—In such an action evidence is admissible to show that it is the practice of the United States land department to conduct its proceedings by communications,</p>

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

The action was brought to recover the possession of certain land lying along the bank of Eel River, in Humboldt County, which had been formed by accretion to the fractional southeast quarter of the northwest quarter of section 25, in township 3 north, range 2 west, Humboldt meridian. Prior to 1859, the United States government, by its patent, conveyed the said fractional quarter of the quarter-section to one G. G. Dudley.

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

The action was brought to determine a contest as to the right to purchase certain school lands.

<p>Vendo» and Vendee—Contract for Sake of Land—Perfect Title. — The title to land is not perfect, within the meaning of a contract for the sale thereof, unless it be free from litigation, palpable defects, and grave doubts, and consists of both the legal and the equitable titles, and is fairly deducible of record.</p> <p>Id. — Conveyance by Attorney — Interest of Mortgagee. — Where the authority of an attorney in fact to sell land is limited to such property as the principal owned or was interested in at the time of the execution of the power, a deed subsequently made by the attorney for land which the principal then owned, but in which his only interest at the time of the execution of the power was that of a mortgagee, does not convey a perfect title within the meaning of the rule.</p> <p>Id.—Eoreisn Will—Eailtjre to Probate nr This State.—The title to lands in this state is not perfect, within the meaning of the rule, when it is acquired through a quitclaim deed from a devisee under a foreign will which has never been admitted to probate in this state.</p>

<p>Jurisdiction of Superior Court—Action Involving Title to Real Property — Contract for Sale of Land — Defective Title.—An action by a vendee to a contract for the sale of land to recover a part payment made on the purchase price, because of a defect in the title of the vendor, involves the title of real property, within the meaning of article 4, section 5, of the constitution, so as to vest original jurisdiction in the Superior Court, although the amount in controversy is less than three hundred dollars.</p>

The action was brought to determine a contest as to the right to purchase certain school lands, forming part of a twentieth and of a twenty-ninth section, which had been listed to the state under a selection in lieu of a sixteenth and of a thirty-sixth section.

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

After the jury had retired for deliberation, they returned into court and asked the judge what they should do with the old notes, referred to in the opinion. The court replied: “They are in evidence; you are to determine that, under the instructions which I have given you.” The plaintiff then moved the court to read the particular instructions, touching the matter, to the jury.

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

This is an action in ejectment, brought to recover possession of two tracts of land. Held: that inasmuch as the consideration of the deeds was entire, and in part illegal, the deeds were void ab initio, and transferred nothing to the plaintiff, and thereupon rendered judgment in favor of the defendant.

<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>

Superior Court of Napa County, and from an order refusing a new trial. The action was brought to foreclose a street assessment for work done in the improvement of Randolph Street in the city of Napa. On a former trial, judgment was entered in favor of the plaintiff, which was reversed on appeal, the opinion being reported in 61 Cal. 518,. The further facts are stated in the opinion.

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

The action was brought to recover the possession of a quarter-section of 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, an order of the Superior Court of the city and county of San Francisco granting a now trial.</p> <p>The facts are stated in the opinion.</p>

<p>Instructions — Assumption op Controverted Fact. — An instruction which assumes, as proved, a material fact in controversy, in regard to which the evidence is conflicting, is erroneous.</p> <p>Id.—Goods Sold and Delivered — Purchase Price—Receipt and Acceptance —Evidence. — In an action for goods sold and delivered, held, that the evidence tended to show the price agreed to be paid for, and the receipt and acceptance of the goods.</p> <p>Id. —Instructions — Commission. —In an action to recover for goods sold and delivered under a contract whereby the purchasers were entitled to a certain percentage of the purchase price as a commission, an instruction that the plaintiffs were entitled to recover the entire purchase price, ignoring all reference to the deduction of the commission, is erroneous.</p>

<p>Public Officers—Indemnity Bond Given by Deputy—San Francisco— Default of Principal. — A bond of indemnity executed to the sheriff of the city and county of San Francisco by his deputy is the property of the sheriff, and any recovery had thereon on account of the deputy’s default belongs to him. The city and county has no interest therein superior to that of any other creditor of the sheriff, nor is it entitled, upon his default, to be subrogated to his rights in the bond given him. And this is so, although the default of the deputy consisted in his failure to pay over moneys for which the sheriff was accountable to the city and county. For any default of the sheriff, the remedy of the city and county is on his official bond.</p>

The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused through the negligence of the defendant, in allowing a water ditch owned by it to be and remain in a dangerous condition at a place where it crossed a highway.

<p>Public Lands—Prior Possession—Right of Possession—Inclosure— Indicia of Ownership. —In an action of ejectment for public lands, in which the plaintiff bases his right of recovery upon prior possession, the question is for the jury to determine whether or not the artificial barriers erected by the plaintiff, and his acts of dominion, were sufficient to notify the public that the land was appropriated, and to impart to the claim of appropriation the characteristic notoriety and indicia of ownership.</p> <p>Id.—Grantee of Prior Possessor—Constructive Possession.—Subsequent Intruder into Possession.—The grantee from an actual prior possessor of a tract of public land, the whole of which has been inclosed with a substantial fence, and on which valuable improvements have been erected, by entering into the actual possession of a portion of the tract, acquires a constructive possession of the whole as against a subsequent intruder.</p> <p>Id. — Possession by Agent or Tenant. —la order that the grantee may succeed to the right of possession of his grantor, it is not necessary that he should have a personal residence on the land, or should personally cultivate it. It is sufficient if he enter into the possession through an agent or tenant.</p>

<p>Partnership — Agreement to Pat Individual Debt—Firm Note.—. Where a partnership agreement provides that an existing individual debt of one of the partners shall be assumed and paid by the firm, either of the partners has authority to execute the note of the firm to secure the payment of such indebtedness.</p>

<p>Appeal from a judgment of the Superior Court of Alameda 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 Benito 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 title to a tract of mining ground in Calaveras County, as against an adverse claim asserted thereto by the defendant under a certificate of sale for taxes. The complaint alleged that upon the assessment roll the assessor described the property as follows: — “‘BOSTON QTZ.

Appeals from the judgment of the Superior Court of the city and county of San Francisco, rendered upon an application for a writ of mandate. Cross-appeals were taken by the people and by the treasurer and auditor of the city and county. The facts are stated in the opinion of the court.

<p>Criminal Law — Oral Instruction. —Although an oral charge in a criminal case, which is not taken down by the phonographic reporter, as required by section 1093 of the Penal Code, is ground for the reversal of a judgment of conviction, or of an order denying a new trial, if the character or effect of the oral instruction does not appear; yet, where the record shows that the language used, which was not taken down by the reporter, merely led up to an instruction which was properly taken down, and did not affect nor in any way qualify the charge which was taken down, it is not ground for reversal.</p> <p>Id. —Bill of Exceptions—Notes of Reporter. —The notes of the shorthand reporter, and his transcription of them, are but prima, facie evidence of the charge of the court; and the judge in settling the bill of exceptions should insert what he actually said to the jury, as a substitute for what the reporter erroneously stated was said. The settled and certified bill of exceptions imports absolute verity if the settlement is not attacked as provided by statute. If the judge should refuse to insert what was actually said, the remedy is to apply to the supreme court for" leave to prove an exception which the judge below refused to settle according to the facts, as provided by section 1174 of the Penal Code. But such a refusal can never be assumed.</p> <p>Id.—Homicide—Exhibition of Weapons.—The exhibition of a bowie-knife, pistol, and coat of mail, which are brought into court by the sheriff, and laid upon the table in sight of the jury by the district attorney, but not offered in evidence, upon the trial of a defendant accused of murder, is not a sufficient reason for reversing the judgment of conviction, if no objection is taken at the time to the action of the sheriff or district attorney, and the court is not requested to rule or charge with reference to the articles, but instructs the jury that they are to be governed alone by the evidence admitted.</p> <p>Id. — Murder m First Degree—Express Malice. —To constitute murder in the first degree, express malice is necessary. If the evidence proves beyond a reasonable doubt that the killing was willful, deliberate, and premeditated, express malice is proved. A charge that “when a person deliberately, premeditatedly, and unlawfully kills another, he is presumed to do so with express malice,” is sufficiently favorable to the defendant.</p>

The action was brought to recover the possession of certain lumber or its value. The lumber in question was part of the cargo of a vessel which was wrecked in February, 1887, and which was rescued by Frederick Wilson and others from the sea. The plaintiff having taken possession of the lumber from Wilson and the other salvors, they brought an action of claim and delivery in the justice’s court to recover its possession.

<p>Mortgage—Provision for Payment of Tax on Mortgaged Premises— Constitutional Law — Interest. — A clause in a mortgage authorizing the mortgagee to pay taxes imposed upon the mortgaged premises which are chargeable thereon, and providing that such payments and interest thereon shall be considered as-secured by the mortgage, does not have the effect, under sections 4 and 5 of article 13 of the constitution, to render void the agreement for the payment of interest on the mortgage debt.</p>

<p>Escheat—Prematorjs Proceeding to Establish.—A proceeding by the " attorney-general, brought in behalf of the state, under title 8, part 3, of the Code of Civil Procedure, for the purpose of obtaining a decree declaring that the property of an alien dying intestate had escheated to the state, is premature if commenced within five years after the death of . the intestate.</p>

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

<p>Negligence — Want of Skill—Action against Physician—Evidence. —In. an action against a physician to recover damages for alleged incompetency and negligence, evidence that the defendant had obtained a certificate from the state board of examiners, without an examination as to his qualifications, and upon the presentation of diplomas from certain medical schools which were irregularly obtained, is immaterial and irrelevant in support of the issue of negligence and incompetency.</p>

<p>Sale—Ownebshif—Want of Change of Possession—Findings.—The action was brought by an alleged vendee of personal property to recover the possession thereof from a sheriff who had taken it under a writ of attachment against the vendor. The answer denied the allegations of' the complaint as to the plaintiff’s ownership and possession, and averred that the property belonged to the attachment debtor at the date of the levy, and that the sale to the plaintiff was fraudulent because made for the purpose of defrauding creditors. The main question on the trial was, whether the sale had been accompanied by an immediate delivery and actual and continued change of possession. The court did not specifically find that the sale to the plaintiff was fraudulent, or that the vendor was the owner of the property at the date of the attachment, but it did find that the plaintiff was not the owner. Held, that the findings were sufficient to sustain a judgment for the defendant.</p> <p>Id. —Evidence of Indebtedness ■—Judgment Roll in Attachment Suit. — In such an action, the judgment roll in the attachment suit, if admitted without objection, is sufficient evidence to show an indebtedness to the attaching creditor which antedated the sale to the plaintiff, and justified the issuance of the writ and seizure of the property.</p>

<p>Street Assessments — San Francisco—Intersections of Montgomery Avenue with Other Streets. —The act of April I, 1872, providing for street work in the. city and county of San Francisco, contains no provision for an assessment for work done on the spaces included within the intersections of Montgomery Avenue and other streets.</p> <p>Id.—Act of March 19, 1878—Legislature cannot Legalize Void Assessment. — The act of March 19, 1878, in so far as it purports to provide a mode of assessment against property owners for work previously done on such spaces of intersections, is invalid.</p>

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

<p>Street Assessment in San Francisco—Apportionment op Burden.— The San Francisco street law does not provide that each lot in the district assessed shall pay for the work done in front of it.</p> <p>Id. — District Assessed. — Where the hoard of supervisors order “ that plank sidewalks be constructed on Olive Avenue between Laguna and Buchanan streets where not already constructed, and that the roadway be macadamized where not already done,” the district to be assessed is the block between the streets mentioned, subject to the provision of subdivision 10 of section 8 of the consolidation act as to work done on one side of the center line of the street.</p> <p>Id. — Omission op Lot prom Assessment. —Where a lot within the district to be assessed and liable to assessment is omitted, the whole assessment is void.</p>

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

<p>Public Officers—Gas Inspector of San Francisco—Salary when Becomes Payable — Presentation for Allowance. — Under section 90 of the consolidation act of the city and county of San Francisco, and the act of March 4, 1878, the salary of the gas inspector of the city and county becomes due and payable monthly, at the end of each month of his term of office; and unless his claim for such monthly salary be presented to the board of supervisors for allowance within the time limited by section 90 of the consolidation act, it becomes barred, and thereafter cannot be paid from the treasury.</p>

<p>Criminal Law — Homicide — Change of Vende—Discretion — Appeal. — It is ground, for a change of the place of trial of a prisoner accused of homicide when, at the time of trial, the public mind is wrought into frenzy against the accused, and the public press sustains enraged citizens in unlawful attempts to overcome the officers of the law, whose superior force alone prevents mob execution. But where such facts existed only during a few days after the homicide, and the public excitement does not prevail at the time of the application for change of venue, the application is addressed to the sound discretion of the court; and the appellate court will not interfere unless the record shows a clear case of abuse of discretion.</p> <p>Id. — Conditional Order Refusing Change of Venue. — If a motion for change of venue on the ground that a fair and impartial trial cannot be had is denied conditionally or temporarily, with leave to renew the application, and a jury is not impaneled until after the lapse of a time, during which great changes might occur in public opinion touching the guilt of the defendant, it is the duty of the defense to renew the application at the time suggested by the court, and if it is not renewed, the order denying the application will not be disturbed.</p> <p>Id.—Continuance—Proof of Insanity—Appeal—Error without Prejudice. — The absence of depositions to prove insanity of the defendant’s grandfather upon a trial for homicide is not a ground on which an order denying a continuance will he reversed, when the record on the appeal shows that the fact of such insanity was not denied, but was established by uncontroverted evidence, so that the defendant could not have been prejudiced by the absence of the depositions.</p> <p>Id. — Absence of Attorney. — The absence of one of the defendant’s counsel, who is engaged in trying a civil case in which he- became employed after the criminal case had been set for trial, is no ground of continuance. Absence of an attorney of record who is in attendance upon a session of the legislature is no ground for a continuance, under section 595 of the Code of Civil Procedure, unless it appears that his engagement as attorney was made before the commencement of the session of the legislature.</p> <p>Id.—Appointment of Attorney by Court.—The court may appoint attorneys for a defendant accused of homicide, who makes a defense upon the ground of insanity, when the counsel engaged by him are absent from the trial, and he declines to choose any others.</p> <p>Id.—Motion to Set Aside Indictment — Grand Jury.—Irregularities in the formation of a grand jury cannot he considered on motion to set aside the indictment. Such motion can he addressed only to irregularities in the proceedings of the grand jury. Nor is it ground for a motion to set aside the indictment that the grand jury investigated the charge without notice to the defendant, or giving him an opportunity to be heard, or to have witnesses examined before them.</p> <p>Id. — Examination before Committing Magistrate. — An examination before a committing magistrate is only required to precede an information, and does not apply in cases of indictment, and its absense is not ground for motion to set aside an indictment.</p> <p>Amendment — Return of Service. —The court may properly direct its officers to amend a return of service so as to conform to the facts.</p> <p>Criminal Law—Jury—Challenge to Panel.—The court may properly disallow a challenge to a panel of jurors specially summoned, for bias of the sheriff and his deputies, when their examination shows that there is no foundation in fact for the charge. A challenge to the entire panel of trial jurors will not be reviewed when the transcript does not disclose any evidence offered in support thereof.</p> <p>Id.—Challenges to Jurors—Conscientious Scruples—Further Examination. — The court may refuse to allow further examination of jurors who express conscientious scruples against conviction, when the penalty is death, after becoming satisfied that such opinions existed.</p> <p>Id. — Actual Bias of Jurors.—Bill of Exceptions.—The decision of the court, upon a challenge to a juror for actual bias, is final upon the question of fact. Evidence given by the jurors when examined upon their voire dire may be excluded from the bill of exceptions, unless exceptions are reserved to the ruling of the court, on the admission or rejection of evidence on the trial of the challenge.</p> <p>Id. — Peremptory Challenges—Appeal —Error without Prejudice. — When the defendant exercises all the peremptory challenges to which the statute entitles him, he is not prejudiced by the failure of the court to notify him that if he intends to challenge an individual juror, he must do it before he is sworn, as provided by section 1066 of the Penal Code.</p> <p>Id. —Retrial of Challenges. —The court may properly deny the defendant’s motion for a retrial of certain challenges after the jury is completed and sworn to try the case.</p> <p>Id. —Arraignment — Copy of Indictment. —If the defendant receives a copy of the indictment upon his arraignment, the court is not bound to supply his counsel with a second copy.</p> <p>Id.—Evidence — Identification of Prisoner.—An order of court compelling the prisoner to stand up for identification before the jury, by a witness who has already referred to him in his testimony as “ this young man,” is proper, and does not compel the defendant to become a witness against himself.</p> <p>Id. —Trial — Opening Statement. —The court may properly direct counsel for the defendant in his opening statement to cease reflecting on the action of the court in refusing a continuance; and may properly refuse to allow him therein to refer to other cases or to read law in illustration of his argument; and may require him to confine himself to a statement of the facts, the effect thereof, and his conclusions therefrom, without any argument upon the evidence introduced by the prosecution.</p> <p>Id. — Evidence — Medical Books. — Medical treatises are not admissible in evidence, whether proved to be standard works or not, except to discredit a witness who based his testimony upon them. They cannot be introduced in evidence, in effect, by asking a medical witness to name the circumstances of cases he had read bearing on the subject of his testimony. If portions of medical books which are excluded have a tendency to discredit a medical witness, they, must be incorporated in the bill of exceptions.</p> <p>Id.—Cross-examination — Character.—Where the testimony of a witness for the prosecution on cross-examination discloses prejudice against the family of the defendant on account of what was heard about their character, the particular reason for the prejudice is immaterial, and a question as to what the character was which the witness speaks about may be ruled out without prejudicial error.</p> <p>Id. —Leading Questions—Discretion. —It is within the discretion of the court to permit the district attorney to put leading questions to his own witness.</p> <p>Id.—Confession of Defendant — Examination in Chief—Conclusion of Law. — When the evidence shows that a confession of the defendant was freely and voluntarily given, without inducements or threats, it is admissible against him. When the witness to the confession testifies in chief that it was so given, and there is opportunity for cross-examination as to whether or not it was a free and voluntary statement, the testimony in chief of the witness cannot be stricken out before cross-examination, as being a conclusion of law.</p> <p>Id. —Expert — Hypothetical Question. —All the testimony given in the case cannot properly be read as part of a hypothetical question to a medical witness. Counsel should assume certain facts, and put the usual hypothetical question.</p> <p>Id. —Homicide-—Trial.—The court may properly prevent counsel for a defendant who is on trial for homicide from commenting on the actions of the juries in other homicide cases which were tried in the same place.</p> <p>Id.—Bill of Exceptions — Discretion.—It is in the discretion of the court to refuse to settle bills of exceptions during the trial of a criminal case, and to delay the settlement beyond the statutory time, and it is its duty to see that the record is correct, whether any objections are made by the district attorney to the proposed bill of exceptions, or not. The bill of exceptions imports absolute verity, and no suggestion can be received as to the elimination of material matters therefrom.</p> <p>Id.—New Trial—Misconduct of Jury.—Affidavits of the jurors are admissible to deny alleged misconduct on their part, when urged as a ground for a new trial, and are conclusive as to whether newspaper articles were read by them which influenced them in finding their verdict. The court should see to it, by proceedings in contempt if necessary, that no newspaper articles tending to prejudice the defendant’s cause should reach the jury.</p> <p>Id.—Newly Discovered Evidence.—Newly discovered evidence which is merely impeaching or cumulative in character is not ground for a new trial.</p> <p>Id.—Trial — Conduct of Presiding Judge.—Whether the conduct of the presiding judge shows hostility to the defendant so as to prejudice the minds of the jurors, and contribute to his conviction, cannot be considered any further than is disclosed by the record, in the language-used in his rulings, questions, and remarks. The trial judge holds a great trust and responsibility in this regard, which can be controlled only by his own conscience, and a desire for equal and exact justice, except in cases of palpable abuse of power. The court cannot be too careful in guarding both itself and the jury from all suspicions of prejudice.</p>

J. Murphy, Judge. J. Milton Bowers was indicted for the murder of his wife. The court, after the case for the prosecution had closed, and the defendant’s ease had begun, permitted a witness for the prosecution to be called under Penal' Code of California, section 1094, which provides that, for good reason, the court, in its discretion, may change the order of trial as provided by the statute. Defendant was convicted, and sentenced to be hanged, and appeals.

<p>Appeal—Actual Entby of Judgment — Entby Nuno pbo Tuno__The rights of parties in respect to an appeal are determined by the date of the actual entry of the judgment, and they cannot he affected hy the entry of the judgment nunc pro tunc as of a prior date.</p> <p>Id. —Premature Appeal. — An appeal from a judgment taken prior to the date of its actual entry is premature and will he dismissed. -</p>

<p>Practice—Appeal — Bill op Exceptions—Errors op Law—Specification op Particulars. —Where an appeal is taken on a bill of exceptions, errors of law occurring at the trial may be reviewed, although no specification of the particular errors of law on which the appellant relies is contained in the hill.</p> <p>Id. — Amending Answer—Refusal when not Error.—The refusal of leave to file an amended answer is not error, when the motion therefor is made on the eve of the trial, and the jury is in attendance; and especially is this so when the case is afterwards tried as if all the matters set forth in the amended answer were pleaded.</p> <p>Evidence — Question Involving Legal Opinion.—A question calling for the opinion of a witness upon a legal proposition, which erroneously proceeds upon the supposition that the law is as stated in the question, is properly refused.</p> <p>Consideration—Promise to Pay Debt op Another—Forbearance.— Forbearance by a creditor to present a claim to the executor of the. will of a deceased person is not a consideration for a promise on the part of the widow of the testator to pay such claim, unless there was an agreement for forbearance.</p> <p>Id.—Bar op Original Claim. —In an action on a written promise to pay a claim against a third person, the question whether the claim was barred as against such third person prior to the execution of the written promise is immaterial.</p>

This is a proceeding to compel the respondent, the secretary of Turlock Irrigation District, to sign certain bonds ordered to be issued against said district by the board of directors thereof. ' The act under which said district was organized, and upon the authority of which it is asked that the respondent be compelled to sign said bonds, was approved March 7, 1887.

On the 30th of July, 1886, the petitioner brought an action for divorce against his wife, Emily C. Page. The defendant answered on the 3d of December, 1887, without claiming any affirmative relief, but praying for alimony and costs. On the 15th of December, 1887, the court made an order awarding her alimony and counsel fees, which order was on the 3d of January, 1888, set aside, and the motion for alimony set for hearing on the 23d of January, 1888.

Motion to dismiss appeal. The action was brought to foreclose a mortgage. Judgment was rendered in favor of the plaintiff, from which the defendants appealed.

<p>Arbitration — Submission Made Pending Action—Discontinuance.— The submission of a cause of action to arbitration, made pending an action thereon, operates as a discontinuance of the action, and thereafter the court has no jurisdiction to further proceed.</p>

The nature of the case is stated in the opinion rendered on the prior appeal, reported in 63 Cal. 505. The farther facts are stated in the opinion.

On the 21st of February, 1887, the defendent, by an instrument in writing, made an offer to sell certain land to the plaintiffs for sixteen thousand dollars, one third to be paid in cash, and the balance secured by a mortgage, subject to an acceptance of the offer by the plaintiffs within a reasonable time. The offer was communicated on the same day to one C. H. Condee, who was acting for both parties in the negotiations for the sale and purchase of the land.

The defendant was convicted of the crime of assault, and appeals from the judgment, and from an order refusing him a new trial. The further facts are stated in the-opinion of the court.

<p>Contract in Restraint or Trad® — Combination among Lumber Manufacturers—Illegal Contract.—The plaintiff and the defendants, who were each manufacturers of lumber, entered into a contract, by the terms of which the defendants agreed to make and deliver to the plaintiff during the year 1881 two million feet of lumber at eleven dollars per thousand feet, and further agreed not to manufacture any lumber during such period for sale within a specified territory, except under the contract, and to pay the plaintiff twenty dollars per thousand feet for any lumber manufactured and sold to parties other than the plaintiff. Similar contracts were made'by the plaintiff with other lumber dealers, and its sole object and consideration in entering into such contracts was to form a combination for the purpose of increasing the price of lumber, limiting the supply, and giving it the control of the lumber market within the territory specified. Held, that the contract was in restraint of trade, and being, indivisible, was invalid in its entirety.</p>

The action was brought to quiet the title of the plaintiff to the west half of block 229 in the city of Stockton. Judgment was rendered in favor of the plaintiff, from which the defendant appealed. The further facts are stated in the opinion of the court.

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

The action was commenced on the 1st of July, 1876, and a judgment in favor of the plaintiff was entered on the 25th of October, 1876. On the 27th of August, 1887, the defendant served and filed his notice of motion to vacate the judgment. The further facts are stated in the opinion of the court.

<p>Grant — Conveyance to Woman before Marriage — Subsequent Conveyance after Marriage — Separate and Community Property.— Land conveyed to a woman before her marriage becomes her separate property, and a subsequent quitclaim deed thereof, reciting a money consideration, executed to her after her marriage by the same grantor, does not affect the title previously conveyed, or change the character of the property from separate to community.</p>

The action was brought to condemn a right of way for a railroad. Judgment was entered in favor of the plaintiff, from which, and from an order refusing them a new trial, the defendants David L. Gardner and John R. Bleeker appealed. The further facts are stated in the opinion of the court.

<p>Insurance — Application Made out by Agent of Insurer—Misstatements — Warranties. — Insurance companies who do business through the medium of agents are responsible for their acts within the general scope of the business intrusted to their care, and no limitations of their authority will be binding on parties with whom they deal, which are not brought to their notice. Hence, when the agent undertakes to prepare the application for the insured, he will be regarded in doing so as the agent of the insurance company, and not of the insured, and any misstatements therein contained, of which the insured is ignorant, will not be fatal to the policy, although by the terms of the policy the statements contained in the application are made warranties.</p> <p>Id.—Statements as to Valuation — Fraudulent Intent—Question of Fact. — A provision in the policy that the application shall be considered a warranty, and if the property insured is over-valued in it the policy shall be void, applies only where the statements as to value are intentionally false; and the question of fraud is one of fact.</p> <p>Id.—Discrepancy between Actual and Stated Valuation.—The fact of a considerable discrepancy between the actual value of the property insured and the value as stated in the application, although unexplained by other evidence, is not conclusive that the application was intentionally fraudulent.</p> <p>Id. — Statements when not Warranties. — Even when the statements in the application are declared to be warranties, they will not be regarded as such, if qualified by other stipulations which afford a fair inference that the parties themselves did not so intend them.</p> <p>Id.—Valuation in Application — Willful Misrepresentations —Construction of Policy. — A statement made in the application as to the value of the property will not be construed as a warranty, although by a general provision all statements therein are declared to be warranties, when the other stipulations of the policy show that it was the intention of the parties that only willful misrepresentations should avoid the policy.</p> <p>Id. —Waiver of Conditions—Insurer may Waive Forfeiture—Instruction Abstractly Correct not Deemed Misleading.—The policy in question contained a provision to the effect that no condition thereof coujld be waived by an agent, except by a written indorsement on the policy. The court instructed the jury that under certain circumstances the insurance company might waive a forfeiture by parol, or by its acts or conduct. The record contained no specification of insufficiency of evidence to sustain the finding that a forfeiture was waived, nor did the defendant ask for any instruction indicating what facts should appear to make the instruction, appropriate. Held, that the instruction was correct as an abstract legal proposition, and. would not be deemed to have misled the jury.</p> <p>Id. — Stipulations to be Performed after Loss—Agent may Waive without Written Indorsement. — A provision in the policy that no waiver of a condition can be made by an agent except by indorsement does not refer to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proof.</p> <p>Id.—Waiver Question of Fact — Instruction — Inference of Fact.— The question whether or not the delay of the insured in making proof of loss had been waived is one of fact for the jury. But an instruction that the jury should infer a waiver, if certain acts of the agent were proved to their satisfaction, is without prejudice, when such acts conclusively establish a waiver, and the evidence thereof is uncontroverted.</p> <p>Id. —Estoppel to Claim Forfeiture — Knowledge of Over-valuation— Demand and Receipt of Proof of Loss. —The fact that the general agent of the insurer, with knowledge that the property insured had been over-valued, but without knowledge that such over-valuation was intentional, asked for and received proofs of loss from the insured, will not estop the insurer from claiming a forfeiture of the policy on account of the fraudulent representations of the insured as to the value of the property.</p> <p>Id.—Findings—Trouble and Expense of Making Proof—Abandonment of Claim. —The mere fact that the general agent of the insurance company asked the insured to furnish preliminary proofs of loss, which by the terms of the policy he was required to furnish, will not authorize a finding that by reason thereof the insured was put to the trouble and expense" of making such proof, or that had such request not been made, he would have abandoned all claim against the company.</p>

The action was brought by the plaintiff to recover the reasonable value of work, labor, and materials furnished in the construction of a building for the defendant.

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

The action was brought by a lessee to recover damages for the breach by the lessor of a covenant in a lease. The further facts are stated in the opinion of the court.

<p>Sale—Want of Continued Change of Possession.—Instance of a sale of personal property which was void as against creditors of the vendor, under section 3440 of the Civil Code, because not accompanied by a continued change of possession.</p>

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

<p>Extinguishment of Obligation by Payment. — Where A owes B and 0 jointly, and C accepts from A a certain sum in satisfaction of his share of what is due, his right is extinguished and cannot be kept alive by an assignment without consideration to a third person “ in trust ” for A.</p> <p>Id. — Bab of Judgment. — If afterwards B sues A on the whole claim, A must plead the payment to C in partial satisfaction of the claim; if not, the judgment against A is conclusive, and he cannot maintain a suit in the name of the third person for an interest in the judgment against himself.</p>

<p>Express Trust in Land cannot be Created by Parol—Tenants in Common — Constructive Trust. — If land be conveyed by one tenant in common to his co-tenant by an absolute deed, no express trust in favor of the grantor can be raised by proof of a parol agreement by the grantee to hold a portion of the land in trust for the grantor or reconvey it. And in the absence of any wrongful means in securing the conveyance, no constructive or implied trust is created in favor of the grantor, from the fact of such parol agreement to hold in trust, and its subsequent breach by the grantee.</p> <p>Id.—Action to Enforce Trust — Statute of Frauds—Demurrer.— If it appears upon the face of the complaint, in an action to enforce an express trust in land, that the alleged trust rests in parol, the defense of the statute of frauds may be taken advantage of by demurrer.</p>

<p>Easement—Obstruction oe Private Wat—Nuisance—Injunction. — An owner of a house situated upon a private alley which is not common to the general public, but is appurtenant to the lots adjoining the same, may maintain an action to compel the removal of an obstruction in the shape of a stairway placed in the alley by an adjoining owner, and is entitled to have it abated as a nuisance by an injunction ordering its discontinuance.</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>Deed—Mistake in Description. —The fact that a deed describes the land conveyed as being the southeast quarter instead of the southwest quarter of a quarter-section named is not controlling. If the land really intended to be conveyed can be identified by monuments actually fixed upon the ground, then the mistake as to the subdivision in which it is situated may be rejected as falsa demonstrado.</p> <p>Id. — Ejectment — Nonsuit.—When both parties to an ejectment suit are in possession, claiming a part of the land conveyed by a mistaken description of the quarter-quarter-section, and the only question between them is as to where were its exact eastern and western boundaries, a motion for nonsuit because of the mistaken description in the conveyance is properly overruled.</p> <p>Ejectment—Evidence—Conte act of Sale — Equitable Title — Division Line. — The defendant in an action of ejectment is entitled to prove a contract of sale under which he entered into possession and erected improvements, whereby he became the equitable owner of the land, and as such dealt and agreed with the plaintiff’s grantor as to a division line. He is entitled to show by bis contract his relations to the land and to the adjacent owner.</p> <p>Coterminous Owners—Agreement as to Division Line—Statute op Limitations. — Where coterminous owners agree as to a division line between them, in which they acquiesce, and under which they occupy for a period equal to that fixed by the statute of limitations, the line thus established is binding upon them, and^those holding under them or either of them, without reference to the existence of any dispute as to the true line.</p> <p>Id. — Implied Agreement—Improvements — Acquiescence — Estoppel IN Pais. — If two coterminous owners trace their dividing line without any agreement more than is implied from their acts, and, both recognizing it as such, one goes forward, with the knowledge and acquiesence of the other, and makes such valuable improvements as to work great injury to the party making them if the line be disturbed, the other will be estopped from afterward alleging such mistake as shall deprive the owner of his improvements, especially if the party seeking to disturb the line knew, or had the means of knowing, at the time the improvements were made, all that he subsequently learned.</p>

<p>Instructions — Application to Evidence — Appeal — Objection foe First Time. — If a case is tried upon the theory that certain evidence is admissible under the pleadings, and such evidence is offered and received without objection, it is the duty of the court to instruct the jury upon the law of the case as presented by the evidence, and the losing party cannot raise an objection to such evidence, or to the instructions applicable thereto, upon appeal for the first time.</p> <p>Id.—Peesumption as to Instructions. — When none of the evidence appears in the record, it will be presumed to have justified the instructions, and the judgment will not be disturbed on account of alleged error in the instructions, unless it appears that they would have been erroneous under every conceivable state of facts.</p>

The transcript contained a notice of motion for new trial, which appeared to have been served and filed fifty days after the judgment. No notice of decision appeared in the transcript, and nothing in regard to tho notice of motion for new trial was embodied in the statement. The action was originally brought in Mendocino County for the partition of certain lands situated in Sonoma and Mendocino counties, and was regularly transferred to the Superior Court of Sonoma County.

<p>Life Insurance—Mutual Benefit Association—Designation of Nominee for Benefits. — When the constitution of an association for mutual benefit provides that each member shall designate in writing some person as nominee for the benefits, and that upon the death of the member the nominee so designated shall receive a certain sum of money, the association is ’liable only to the nominee of a deceased member; and if there is no nominee, there is no legal liability to pay the money to any person.</p> <p>Id.—Void Nomination for Benefits—Will—Appeal—Party Aggrieved. — Where there is no legal liability of a mutual benefit association to pay life insurance money to any one, the heirs of a deceased former wife, who had been nominated for benefits, after her death, by the association, without designation in writing by the husband, are not legally aggrieved by a judgment of the court directing that insurance money, which the association is willing to pay without liability, shall be paid to the executor of the will of the deceased member. Appellants who have no interest or ownership in the money cannot complain if the court gave property not theirs to the wrong party. It should go, in good conscience, to the person designated by the will.</p>

This appeal was heard in connection with the appeal in the preceding case of Order of Mutual Companions v. Eliza Griest et al, ante, p. 494, and the facts respecting the fund in controversy are stated in the opinion rendered in that case. The further facts are stated in the opinion of the court.

<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.</p>

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

<p>Ordinance Establishing Fire Limits__The ordinance establishing fire limits in the city of San Francisco is valid.</p> <p>Right of Adjoining Proprietor in Absence of the Op.dinance.—In the absence of such an ordinance, the adjoining proprietor has no right of action for the maintenance of a frame building contiguous to his own.</p> <p>Right under the Ordinance—Special Damages — Depreciation in Value—Increase of Insurance. —If the ordinance gives a right of action, the injury must be special in character, and not merely greater in degree than that of the general public. Depreciation in the value of property and increase of insurance rates are not such a special injury.</p>

Application.for a writ of mandate to compel the settlement of a bill of exceptions in a criminal case. The facts are stated in the opinion of the court.

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

<p>Criminal Law—Instructions need not be Repeated.—The refusal to give instructions which have already been given in substance is not error.</p> <p>Id.—Reconciling Conflicting Testimony — Duty of Jury.—It is the duty of the jury in a criminal case to reconcile inharmonious and conflicting .evidence, if they can, regardless of the conclusions to which it may load. Therefore it is not error to refuse an instruction that it is their duty to endeavor to reconcile the evidence with the defendant’s innocence.</p> <p>Id, — Assault with Intent to Murder—Simple Assault—Firing Pistol.—In a prosecution for an assault with intent to commit murder, the refusal of an instruction that the defendant might be convicted of a simple assault is not error when the evidence shows that the assault, if any, consisted in firing a pistol at the prosecuting witness.</p> <p>Id.—Evidence—Conversation of Third Persons.—On the trial the court admitted in evidence a conversation had on the day before the assault, between a brother of the defendant and a third person. The other evidence showed that the matter talked about in this conversation was again mentioned by the defendant’s brother just before the fight in which the assault was committed, and that the third person with whom the conversation was had participated in the fight. Held, that the evidence of the conversation was properly admitted.</p>

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

<p>Homestead — Separate Property op Wipe—Acknowledgment op Declaration. —An acknowledgment of a declaration of homestead selected from the separate property of the wife must be made by the wife in strict accordance with section 1186 of the Civil Code. An acknowledgment stating that “she was by me first made acquainted with the contents thereof, and thereupon acknowledged to me, on examination separate and apart from and without the hearing of her husband,” etc., in the form provided by the statute prior to the code, is insufficient, because not showing that she was made acquainted with the contents of the instrument by the officer on an examination without the hearing of her husband.</p> <p>Id. —Descent and Distribution of Homestead Property. — When the homestead is carved out of the separate property of the wife, and the wife dies intestate, leaving more than one child, it descends, one third to the husband, and the remaining two thirds in equal shares to the children, as provided in section 1386 of the Civil Code.</p>

The action was brought by a married woman, her husband being joined as a plaintiff, to recover damages for an assault and battery. The action was tried before a jury, who returned a verdict for the plaintiff on the night of a Saturday, upon which judgment was entered on the following Monday. From this judgment, and from an order refusing a new trial, the defendant appealed. The further facts are stated in the opinion.

<p>Vendor and Purchaser—'Contract of Sale—Description. — Description of land by name in a contract of sale is, or may be, sufficient if the boundaries are known and well defined. The name of the county where the land is situated is not essential if the description is otherwise sufficient.</p> <p>Id. — Uncertainty of Terms—Specific Performance—Pleading.— When a contract of sale provides for payment of part of the purchase-money on mortgage, without specifying the terms of the mortgage, and the terms thereof are not made certain by reference in the contract, or by averment in the complaint, the agreement is too indefinite and uncertain to support a judgment for specific performance, and a demurrer to the complaint is properly sustained.</p>

<p>Corporation—Stock—Personal Property.—Shares of stock in a corporation are personal property.</p> <p>Chattel Mortgage — Common Law—Validity between Parties.— Mortgages of personal property were valid between the parties at common law, and in many cases were held valid without change of possession in the absence of fraud, even against subsequent bonajide purchasers and creditors. Under our statutes, mortgages of personal property not included in the chattel mortgage act are void as against creditors and subsequent purchasers, if not accompanied by immediate delivery and actual and continued change of possession, but are nevertheless valid' between the parties, as at common law.</p> <p>Mortgage of Real and Personal Property—Sale under Foreclosure. — A mortgage is valid between the parties, though it includes both real and personal property, and the possession of the personal property is not delivered; and both the real and personal property may he sold' under decree of foreclosure, and transferred by the sheriff’s deed if no redemption is made.</p> <p>Corporation—Transfer of Stock Sold under Mortgage—Sheriff as Agent—Parties — Pleading.—In an action to compel a corporation to transfer stock sold under foreclosure of a mortgage thereon, the mortgagor is not a necessary party. He is to be treated as the vendor of plaintiff, who sold his stock through the sheriff as agent. If the sale was not valid in fact, it is matter of defense; and if it appears from the defense that the mortgagor is a proper party, he may be ordered brought in under section 389 of the Code of Civil Procedure. The fail- - ure to join him in the complaint is not ground of demurrer.</p>

The petitioner, W. W. Foote, is an attorney at law who was held by the sheriff of Alameda County under commitment for contempt of the superior court of that county, by virtue of a judgment of said court entered May 31, 1888, for a contempt therein, alleged to have been committed on the eleventh day of April preceding, in interrupting the due course of a trial by disorderly, contemptuous, and insolent behavior toward the judge of said court.

<p>Mandamus—Act Involving Discretion or Exercise of Judicial Power. — The test for the issuance of a writ of mandamus to compel a board, tribunal, or officer to do an act which he has refused to do is not whether ' the refusal involves the exercise of discretion or an exercise of judicial power, but whether it was a determination which the law intended to be final; and if not, whether there is a plain, speedy, and adequate remedy in the ordinary course.</p> <p>Street Assessment — Countersigning of Warrant by Auditor. — The provision of the consolidation act of San Francisco requiring the auditor to examine the proceedings in relation to a street assessment before countersigning the warrant, and providing that he “ must be satisfied that the proceedings have been legal and fair,” was not intended to make the determination of the auditor a final disposition of the matter; and if the proceedings were in accordance with the requirements of the act, mandamus will issue to compel him to countersign the warrant.</p> <p>Id.—Second Assessment after First has been Adjudged Void—Reasonable Time. — If an assessment has been adjudged to be void for causes affecting the assessment itself, and not the proceedings upon which it rests, a new assessment may he made within a reasonable time. Instance of time which was not unreasonable under the circumstances.</p> <p>Id. —Payment of Part of the Void Assessment. —The fact that some of the owners have paid what was charged against their property by the void assessment is not of itself a reason why a valid assessment should not be made. Semble, that the contractor would not be allowed to collect twice from the owners who had paid, but that a court of equity would treat the payments made as payments in advance, and would compel the contractor to satisfy the second assessment of record.</p>

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

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

The action was brought for the conversion of 636 boxes of apples, which the sheriff had attached as the property of the firm of W. F. Burns and George. A. Burns. The further facts are stated in the opinion of the court.

<p>Insolvency—Confession of Judgment—Preference of Creditor.— The confession of judgment by an insolvent debtor will not alone sustain a suit by the assignee of the insolvent debtor to set aside a lien acquired under execution upon the judgment, if the creditor did not know of the insolvency, or of the existence of other claims against the debtor, and had no design to secure a preference over other creditors.</p> <p>Id.—Transfer out of Course of Business—Fraud. — A transfer by an insolvent debtor not made in the usual and ordinary course of business is only prima fade evidence of fraud, and may be overcome by proof that the creditor acted in good faith, without knowledge of the insolvency, and without intent to-secure a preference over other creditors.</p> <p>New Trial — Conflicting Evidence. —An order granting a new trial will be affirmed when the evidence is conflicting.</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 Tulare County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Estate of Decedent — Funeral Expenses — Cost of Monument. — The cost of the erection of a monument at the grave of a deceased person is a part of the funeral expenses, and is payable as such from the estate of the deceased.</p>

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

Petition for writ of mandate to the judge of the Superior Court of Napa County. The facts are stated in the opinion of the court.

The action was brought June 19, 1883, to enjoin the defendants from maintaining a dam in obstruction of the waters of Outside creek so as to divert them into a canal belonging to the Kaweah Canal and Irrigation Company, and to prevent their flow to lands of the plaintiff, aggregating 5,680 acres, for purposes of irrigation and the use of live-stock.

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

- The action was brought to enforce a trust in certain lands situated in San Luis Obispo County, which were alleged to have been transferred to the defendant Robinson in trust for the plaintiff, and transferred by him to the defendant McLean, at the request of the plaintiffs, as' security for advances made by McLean.

The action was brought by the plaintiff, a non-resident, to quiet his title to certain lands to which the defendant claimed title under a judgment in a condemnation proceeding. Judgment was rendered in favor of the defendant, from which, and from an order refusing him a new trial, the plaintiff appealed. The further facts are stated in the opinion.

<p>Authority of Beat, Estate Brokers Employed “to Sell” Land.— Where real estate brokers are employed “to sell ” land, they have not, from this alone, authority to execute a contract to convey.</p>

The fourth finding was as follows: “That by reason of the wrongful and unlawful entry and detention of said premises by defendants, the plaintiff was deprived to some extent of the use thereof, and of the value of the rents, issues, and profits thereof, and not otherwise. That by reason of the premises, plaintiff has been damaged and injured by the acts of the defendants as herein-before set forth.

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

<p>Consent Judgment — Presumption.—It will not be presumed in support of a judgment that it was given by consent. The consent must be shown affirmatively.</p> <p>Stipulation — Record on Appeal. — A stipulation is not part of the judgment roll, and cannot be considered on appeal unless incorporated in a bill of exceptions.</p> <p>Id.—What Amounts to Consent.—The words “agreed to” indorsed in pencil upon the back of the judgment and signed by counsel cannot be construed to mean anything more than that the draft properly expresses the judgment ordered by the court.</p> <p>Final Judgment, when to be Directed by Appellate Court. — The running of a high rate of interest is not a sufficient reason to induce the appellate court to direct final judgment rather than a new trial.</p>

<p>Forcible Entry and Detainer—Scrambling Possession—Instance in which the rule as to scrambling possession laid down in Bowers v. Cherokee Bob, 45 Cal. 498, held not to apply.</p> <p>Id.—Force. —Instance of a case of force.</p> <p>Id. — Good Faith. —The question of good or bad faith does not arise in an action of this character.</p>

<p>Deed—Cancellation fob Invalidity—Pleading. — In an action to set aside a deed for unsoundness of mind of the grantor, and undue influence alleged to have been exerted over him by the defendant, an objection that the complaint does not positively allege that he executed the deed to the defendant must be raised by demurrer, or it will be disregarded as a defect not affecting the substantial rights of the parties, if there is an attempt to allege it, and the court finds as a fact that the deed was executed by the grantor to the defendant.</p> <p>Id.—Unsoundness of Mind — Undue Influence — Want of Considebation. — A finding that the grantor at the time of executing the deed was of unsound mind, and that he made it without consideration, will sustain a judgment setting aside the deed, though it be found that no unfair advantage was taken or undue influence exercised over the grantor by the defendant.</p>

<p>Pilot Commissioners — Removal by Governor.—Office—Appointing Power. — The board of pdot commissioners for the ports of San Francisco, Mare Island, and Benicia was created by section 2240, article 5, chapter 1, title 6, part 3, of the Political Code, and acquires all its powers from articles 5 and 6 of that chapter, and section 2442 operates as an exception to the general rule established by section 369 of the Political Code. The board is appointed by the governor, with the advice and consent of the senate, and a commissioner can only be removed by the appointing power, and not by the governor alone.</p> <p>Code — Construction. — Section 5 of the Political Code furnishes the rule of construction of those provisions of the code which are continuations of existing statutes, rather than section 4481.</p> <p>Id. — Subject-matter of Title. —The subject-matter of a title of the code should be ascertained, not so much from the head-lines as from the contents.</p>

<p>Homestead—Community Property—Survivorship—Value. —A homestead under the codes is impressed with the two main qualities of exemption from execution and the right of survivorship. If it is properly selected from the community property, and is of less value than five thousand dollars at the time of selection, it vests on the death of the husband or wife absolutely in the survivor, although at the time of death its value may exceed five thousand dollars.</p>

<p>Summons — Affidavit fob Publication. — An affidavit for publication of summons which shows that the person on whom the service is to be made resides out of the state is sufficient under section 412 of the Code of Civil Procedure, and it is not necessary that it should show acts constituting due diligence. Any statement in regard to diligence in such affidavit is immaterial.</p>

<p>New Trial—Statement — Specifications of Error—Exceptions.— Specifications of error in a statement on motion for new trial will not be regarded where no objection or exception was entered or reserved.</p> <p>Id. — Evidence in Statement. — When the statement on motion for new trial does not purport to contain all the evidence, and does not show, except by inference, that anything related in the statement occurred at the trial, or that any witness was sworn, it cannot be regarded, and the order refusing a new trial will be affirmed.</p> <p>Id. — Judgment Roll—Bill of Particulars—Instructions. — Neither a bill of particulars nor instructions of the court are any part of the judgment roll, nor will they be considered on appeal from an order refusing a new trial, if not incorporated in the statement.</p>

<p>Appeal from a judgment of the Superior Court of Santa Barbara County, and from an order refusing a new trial.</p> <p>The action was for partition of the rancho Los Cruces, brought by the executors and trustees of William W. Hollister, deceased, who deraigned title to an undivided interest through Miguel Cordero, the original Mexican grantee of said rancho. The complaint alleged that George W. Corliss, deceased, owned one ninth of said rancho, which had been conveyed to him after marriage by one of the heirs of Miguel Cordero; that said George W. Corliss and Lucretia Corliss, his wife, were both killed at said rancho in January, 1864, and that Lucretia A. Corliss survived her husband, and inherited one half of the said interest as community property. Plaintiffs deraigned title to the interest of said Lucretia Corliss through the only heir at law of Lucretia Corliss. The defendant Ella A. Corliss French deraigned title to the whole of said ninth interest of George W. Corliss, deceased, through conveyance from his sole heir at law. The court found in favor of the claim of Ella A. Corliss French, and the appeal is by the plaintiffs from that part of the interlocutory decree which awarded to her an undivided ninth interest in said rancho, and from the order refusing a new trial in relation thereto. The statement on motion for new trial showed that the court struck out so much of the evidence of Miguel Burke as stated his opinion or conclusion from the facts which he observed and testified to concerning the appearance of the dead bodies when he arrived at the house of the Corliss family after the murder was discovered; that the man had been killed while he was sitting, and that the woman had been killed out of doors and dragged in. Also so much of the evidence of Thomas S. Martin as stated his conclusion that the woman had run around a rock in the creek, about a hundred yards .from the .house on the road to the sheep-camp, because there was a small track around the rock that looked like a woman’s track, and blood upon the rock, where she had run around it; and the marks showed that something had been dragged over this rock to the house. The verdict of the coroner’s jury, which was offered in evidence and excluded, found that Mrs. Corliss was murdered outside of the house and dragged within before the house was set on fire. The further facts are stated in the opinion of the court.</p>