Volume 77 — California Reports

<p>Criminal Law — Homicide—Evidence — Dying Declarations. — The condition of the declarant’s mind as to his apprehension of death, at the time of making a dying declaration, must be determined from all that was said and done, and not from a critical consideration of a word once employed in the conversation. If it sufficiently appears from the evidence that when the statement was made the deceased believed that he was about to die, the words appended to the statement by the scribe who reduced it to writing, “In view of the probability of my dying, I make the above statement as my dying declaration,” will not render the statement inadmissible.</p> <p>ID.—Declaration as to Reason for Homicide—Objection to Evidence. — A dying declaration that the defendant had no reason whatever for the homicide may be fairly referred solely to the time of the homicide, and may he construed to mean that deceased had attempted no violence towards the defendant; but if construed as relating to past transactions, or as a mere expression of opinion, a specific objection to such portion of the declaration must he called to the attention of the court below by a motion to strike out, or by some other appropriate method, or the objection will not be considered on appeal.</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, and in the report of People v. Bentley, 75 Cal. 407.</p>

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

<p>Appeal from a judgment of the Superior Court of Tulare County, and from an order refusing to set aside the judgment.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Agency — Liability of Agent — Special Damages. — An agent is not liable as principal on a contract for the sale of land signed by him without authority, if the contract does not contain apt words to charge him personally. He is liable to an action to recover money paid, or for labor performed under the contract, or for special damages sustained by reason of the wrong in assuming to act without authority. But he is not liable for special damages by reason of false representations of authority, on account of which plaintiff failed to negotiate with the owner, or his authorized agent, to his loss in respect of the value of the contract.</p>

<p>Fraudulent Representation—Written Contract—Equitable Relief. — Fraudulent representations as to a material matter, by which a party was induced to enter into a contract to his damage, is ground for an action at law or relief in equity, notwithstanding that the contract was in writing and the representations were verbal.</p> <p>Spiritualism Held not Superstitious or Contrary to Public Policy. — Courts will not hold the belief in spiritualism to be superstitious or contrary to public policy when not followed by acts which are recognized as hurtful to society.</p> <p>Fraud — Promise without Intent to Perform. — A promise made without any intention, of performing it is a fraud; and if by means of it a party has been induced to alter his position to his injury, it is ground for relief in equity. Instance of application of rule.</p> <p>Id. — Setting Aside Contract — Offer to Return Consideration — Special Demurrer. —In an action by a vendor of land to set aside a contract for its sale, an objection to the complaint that the precise time is not alleged at which the plaintiff offered to return the portion of the purchase price paid must he taken by special demurrer.</p> <p>Id.—Improper Damages — Allegations of are Surplusage.—In an action by a vendor to set aside a contract for the sale of land on the ground of fraud, damages for anxiety, worry, and harassment arising from the fraudulent conduct of the defendant, and for expenses in taking care of the property contracted to be sold, are not recoverable; and allegations in the complaint setting out such damages should be disregarded as surplusage.</p>

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

<p>Appeal from a judgment of the Superior Court of Yolo County.</p> <p>The information was filed March 8, 1887, and accused the defendant of a misdemeanor, “committed as follows, to wit:' The said Arthur O’Leary, on or about the twenty-seventh day of November, 1886, in the county of Yolo, state of California, then and there being, did willfully and unlawfully practice medicine; that prior to said time said defendant had not procured a certificate to so practice from one of the boards of medical examiners appointed by the Medical Society of- the State of California, the Eclectic Medical Society of the State of California, or the California State Homeopathic Medical Society, and prior to said time said defendant had not procured a certificate to practice medicine granted by the board of examiners appointed by the California State Medical Society of Homeopathic Practitioners; and said defendant was not at said time a lawfully commissioned surgeon of the United States army or navy practicing his profession within the limits of the state of California, contrary to the form, force, and effect of the statute,” etc.</p> <p>The defendant demurred to the information, assigning, among other grounds, “that it cannot be ascertained from said information whether defendant is charged with having practiced medicine without obtaining a certificate from one of the corporations or boards or societies mentioned in the information, or from all of them”; “that the act or pretended act under which defendant is charged is a'private statute, and is not pleaded by its title or name”; and “that it is not alleged in said information that there are any such societies, corporations, or organizations in existence, or that they ever existed, as it is alleged that defendant failed to procure a certificate from, and unless defendant knows whether they existed or not he cannot make a complete defense.” Further facts are stated in the opinion.</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 of the court.</p>

The complaint contained the following averments respecting the contract in question: — “That on the nineteenth day of December, 1883, the defendant, the Crescent City Mill and Transportation Company, was, ever since has been, and now is, a corporation, duly incorporated under the laws of the state of California, and doing business in Del Norte County in said state. “ That on said nineteenth day of December, said defendant C. F. Murray was indebted to this plaintiff in the…

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

The action was brought upon the official bond of Wil- • liam H. Otto, as tax collector of the county of Del Norte. The defendant Otto made default. The sureties filed a' verified answer, which the district attorney moved to strike out as sham and irrelevant, and interposed only for purposes of delay.

<p>Appeal from an order of the Superior Court of Alameda County, restraining the sheriff from enforcing a writ of possession.</p> <p>The facts are stated in the opinion.</p>

<p>Acknowledgment by Married Woman of Instrument Referring to An other Document — Duty of Notary. — Where an instrument signed by a married woman refers to another document, not before the notary, he does his whole duty if he makes her acquainted with the contents of the instrument before him. He need not explain the contents of the document referred to.</p> <p>I Id. —Delivery of the Instrument to the Husband to Enable Him to i Raise Money—Authority of the Htccband in Such Case.—Where a wife signs and acknowledges a deed of her property, and delivers it to her husband for the purpose of enabling him to borrow money from the grantee, and does not limit the amount to be raised, he is authorized to deliver the deed to the grantee for such amount as he thinks best, and to agree upon the terms of the loan.</p> <p>Loan by One Partner to Another not a Partnership Transaction — Suit between Partners before Settlement of Accounts.—Where one partner borrows money from another for the purpose of putting it into the firm, and does put it into the firm, the loan is not a partnership transaction, and the lender can sue for the money without a settlement of the partnership accounts.</p> <p>Loan Secured by Mortgage on Different Pieces of Real Property — Foreclosure as to One of the Securities without Personal Demand— Waiver of Omitted Security.—Where a loan is secured by mortgage upon different pieces of real property, the lender may foreclose as to one of the securities only, if he does not seek a personal judgment against the defendant. While the effect of this would be to waive the omitted security, the lender is at liberty to make such waiver if he chooses.</p> <p>Surety—Presentation of Claim against Estate of Principal Debtor. — The liability of a surety is not affected by the failure to present a claim against the estate of the principal debtor. The debt of the principal, although barred, is not extinguished.</p> <p>Id. —■ Homestead. — Where a mortgage covers a homestead upon the separate property of the wife, and the creditor waives all claims against the husband’s estate, he need not present a claim against such estate.</p> <p>Surety —Property of Wife Mortgaged to Secure the Husband’s Contract—Discharge of Surety by Release of Principal Debtor by Act of Creditor — Pleading.—A wife who mortgages her property to secure her husband’s contract is a surety merely. The release of the husband’s obligation by the act of the creditor is new matter, and must be set up in the answer. Defects in the answer are not cured by the course of the parties at the trial, unless such course appears clearly and beyond controversy.</p>

The motion was made to dismiss the appeal, on the ground that the transcript had not been filed in time. The time to file the transcript expired April 14, 1888. The affidavits filed on behalf of appellant showed that the printing of the transcript was completed at Stockton April 12, 1888, and delivered to P. W. Bennett, Esq., of that place, who had promised to procure the certificate of respondent’s attorney, who resided in Stockton.

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

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

In 1856, Charles H. Poole prepared a map of the pueblo lands of the city of San Diego, lying between what is known as New San Diego in said city and the Mission Valley, comprising a strip of several miles, running from the bay of San Diego back to the eastern limits of the city.

<p>Statute of Frauds—Executed Verbal Guaranty — Evidence.—If a verbal promise to answer for the debt or default of another be executed by the promisor, he cannot afterward raise the question of its validity; and such executed verbal promise may be proven in an action upon an accommodation note given by the promisee for the benefit of the guarantor, and negotiated in satisfaction of the debt.</p> <p>Id.—Accommodation Paper—Payment.—In an action by the indorser against the maker of a note which has been paid by the indorser, it is proper to show the circumstances under which the note was made; and if it appears from the evidence that the note was made by the defendant as an accommodation for the benefit of the indorser, and that the amount for which it was originally negotiated was applied in payment of an indebtedness due from the indorser to the maker upon a verbal guaranty, then the verbal promise was executed, and the note was paid and satisfied when the indorser took it up.</p>

The motion was to dismiss the appeal from the order denying the new trial, for the want of a sufficient undertaking. A motion for leave to file a new bond was made after submission of the motion to dismiss the appeal. The further facts are stated in the opinion of the court,

<p>Appeal from an order of the Superior Court of Alameda County vacating an order setting aside a previous order for alimony.</p> <p>The facts are stated in the opinion.</p>

<p>' Ejectment—Possession—Ouster When the evidence does not show that the defendant was in possession of any definite portion of the tract, or that the plaintiff was ousted from any definite portion, judgment for the defendant will be affirmed.</p>

Appeal for 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'.

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

<p>Mabbied Woman — Acknowledgment—Lease.—A lease from a married woman must be acknowledged.</p> <p>Id. — Acceptance of Rent. — The acceptance of rent by the married woman creates, at most, a tenancy which is determinable by notice.</p>

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

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

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

<p>State Lands — Contest — Order of Reference — Recital of Demand— Jurisdiction. —A clerical error in the order of reference of a contest of the right to purchase state lands, by an evident omission in the recital of the demand for reference, should be disregarded, and will not affect the jurisdiction of the superior court to determine the contest.</p> <p>Id. —Demand for Reference: — The demand for reference of a contest of the right to purchase state lands need not be made in writing.</p> <p>Id. — Order of Reference by-Deputy. —Whether the contest is initiated by the protest and demand in the office of the register or surveyor-general, under section 3414 of the Political Code, does not affect the validity of an order of reference made by a deputy who acted in that capacity, and signed and sealed the order for both register and surveyor-general, the surveyor-general being ex officio register.</p>

<p>Appeal—Review of Order for Amendment of Answer—Divorce — Division of Community Property. — When a decree of divorce reserves the question as to the division of community property for further consideration and adjudication, an order allowing the answer to be amended so as more particularly and specifically to deny that there was any community property in no way involves the merits, or necessarily affects the judgment of divorce, and is not, therefore, subject to review on appeal of the plaintiff taken from the judgment as entered.</p> <p>Id.—Amendment of Pleadings—Discretion.—Applications to amend pleadings are addressed to the sound legal discretion of the trial court, and this court will not interfere with the exercise of that discretion, unless it has. -.beenrmanifestly abused. The fact that new matter set up by way of amendment was known to the defendant at the time of filing his original answer,;,is no reason, why the amendment should not be permitted.</p>

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

Appeal for a judgment of the Superior Court of Tulare County, and from an order refusing a new trial. On the trial, evidence was admitted that Ridgeway, an accomplice of the defendant, was -found wounded on the morning after the assault, with pistols in his possession which were covered with blood. The further facts are stated in the- opinion.

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

<p>■ Appeal from an order of the Superior Court of Tehama County sustaining a demurrer to an indictment.</p> <p>The facts are stated in the opinion.</p>

<p>Justice’s Judgment — Collateral Attack — Merger. — Upon a collateral attack, it is not permissible to show that the debt upon which a justice’s judgment was based was merged in a former judgment rendered in the justice’s court of another township.</p> <p>Id. — Jurisdiction — Residence of Defendant. — It is not competent, upon collateral attack, to prove that the defendant, who was served in the township where a justice’s judgment was rendered, did not reside in such township. The objection should have been taken upon the trial.</p> <p>Quieting Title — Execution—Sale en Masse. —It is not available, in a collateral action to quiet title, to attack the defendant’s title, acquired under an execution sale, on the ground that the lots of land were sold en masse, the period for redemption having passed.</p> <p>Pleading — Ckoss-complaint. — It is not what a pleading is called which determines its character, hut the facts which it sets up. When the latter part of an answer is in its nature a cross-complaint, affirmative relief may he granted to the defendant therein, which is proper under the facts stated and the prayer of the pleadings.</p>

The defendant was convicted of the crime of burglary, in entering a house with intent to commit larceny. There was a conflict in the evidence as to the identity of the defendant with one of the parties who entered the house. The further facts are stated in the opinion of the court.

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

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

<p>Appeal from, a judgment of the Superior Court of Sacramento County.</p>

Cebtiobabi to the hoard of supervisors of the city and county of San Francisco. The facts are stated in the opinion of the court.

The action was brought for breach of the following written contract of sale, the claim for which was assigned by Hughes & Co. to the plaintiff:— “San Francisco, 316 California Street, “June 22, 1881. “We have this day bought from Messrs.

The information charged the defendant with “the crime of murder, committed as follows: The said Henry Fine, on the thirteenth day of May, A. D. 1887, at and in the county of Stanislaus, and state of California, and prior to the filing of this information, unlawfully, willfully, premeditatedly, and of his malice aforethought, did make an assault with a deadly weapon, in and upon one Charles M. Wilson, a human being, with intent then and there, him, the said Charles M. Wilson,…

<p>Default—Time to Answer—Notice of Order Overruling Demurrer. — When a demurrer is overruled, and time to answer is given, if the notice of the decision required by section 476 of the Code of Civil Procedure is not given or waived, the time to answer does not run, and judgment by default cannot properly be entered.</p> <p>Id.—Order Setting Aside Default —Notice of Decision — Record on Appeal. — If notice of a decision on demurrer was given or waived, that fact, if relied on upon appeal from an order setting aside a judgment by default, must be made to appear in the record.</p> <p>Id. — Discretion. — Applications to set aside defaults are addressed to the sound legal discretion of the trial court, and if granted, the orders are never disturbed by the appellate court, except in cases of gross abuse.</p>

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

<p>Habeas Corpus—Functions of Writ.—The functions of the writ of habeas corpus do not extend beyond an inquiry into the jurisdiction of the court in which the judgment was rendered against the prisoner, and the validity on its face of the process under which he is held. An attack upon the judgment is subject to the rules applicable to collateral assault upon judgments in other cases.</p> <p>Judgment — Conclusiveness of Record — Collateral Attack — Evidence. — When a court has acquired jurisdiction, its subsequent proceedings, however irregular, are not void. The record of the court is conclusive as to all matters decided by it, and no evidence can be received to contradict it upon a collateral attack.</p> <p>Id. — Jurisdiction — Adjudication of Facts — Irregularity of. Process. — When jurisdiction depends upon litigated facts, an adjudication of the court that the requisite facts exist is conclusive evidence of jurisdiction until vacated or set aside in a direct proceeding, and cannot be contradicted upon a collateral attack. If the process, or the manner in which it was served, is irregular, the jurisdictional infirmity can be cured only by some proceeding in the court where the action is pending, or by appeal; and the finding of the court that the process was duly served is conclusive in a collateral proceeding.</p> <p>Contempt — Rufusal to Produce Prisoner upon Habeas Corpus — Adjudication as TO Custody and Ability. — When the superior court, upon the return of a writ of habeas corpus, finds upon the testimony taken that the prisoner was in the custody of the officer in the county in .which the court is held at the time of the service of the writ, and that he had the power to produce his body in answer to the writ, such adjudication is conclusive; and the action of the superior court in punishing the officer for contempt in refusing to produce the prisoner will not be reviewed in the supreme court upon habeas corpus, brought to relieve the officer from such punishment, upon evidence that the prisoner was out of the county when the writ was served, and that it was out of the power of the officer to produce him, because he was in the custody of the sheriff of another county.</p> <p>Id. — Contempt in Face of Court — Affidavit — Order to Show Cause—Return of Officer upon Writ of Habeas Corpus. — The failure of the officer to produce the body of the prisoner in answer to a writ of habeas corpus, when he has the power to do so, is a contempt committed in the face of the court, and no affidavit of the facts or order to the officer to show cause is necessary in such case. The court is not bound to accept the return of the officer as true.</p>

The petitioner was held under conviction of a misdemeanor in the superior court of the city and county of San Francisco. The further facts are stated in the opinion of the court.

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

<p>Criminal Law—Obtaining Monet under False Pretenses—Information. — An information charging the offense of obtaining money under false pretenses in the language of the statute, and particularly setting forth the false pretense, is sufficient To come within the statute, there must be a representation of some fact, past or present; but it is sufficient if the defendant is accused of obtaining money in exchange for a draft on a New York firm, by a statement that he had credit with the firm named for the amount of the draft, and that the firm would honor the draft, when he knew that he had no credit with the firm, and" that the draft would not be honored or paid.</p> <p>Id. —Definition of Credit. — Credit is the capacity of being trusted or the ability to borrow on the opinion conceived by the lender that he will be repaid; and the claim that the term only implies futurity, and not a present fact, cannot be supported. It includes “ funds.”</p> <p>Id. — Definition of False Pretense. — A false pretense is a representation of some fact or circumstance calculated to mislead, which is not true; or rather, such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value. The pretense need not be in words, but may be gathered from the acts and conduct of the party.</p> <p>Id. — Offense how Constituted. — To constitute the offense of obtaining money under false pretenses, four things must appear by averment and proof; viz., there must be an intent to defraud, actual fraud, false pretenses used for perpetrating the fraud, and the fraud must be accomplished by means of the false pretenses as a cause which induced the owner to part with the property. The evidence in this case held to establish all of these four requisites.</p> <p>Ed. —• Evidence. —Testimony is admissible to show that a defendant accused of obtaining money under a false pretense of credit with a particular firm had drawn other drafts on the same firm which had not been paid, as tending to show that he had no credit with the firm, and must have known that the draft in question would not be honored.</p>

<p>Appeal from a judgment of the Superior Court of the city .and county of San Francisco, and from an order denying a new trial.</p>

• Appeal from a judgment of the Superior Court of Sacramento County, from an order denying a motion in arrest of judgment, and from an order denying a new trial. The facts are stated in the opinion of the ■•court.

The peti1'ornv bad once been arrested on a charge of grand larceny. Upon an examination before the committing magistrate, he was discharged. Afterwards he was again arrested on the same charge, examined before a different magistrate, and committed for trial. He thereupon applied to be discharged on habeas corpus, on the ground that he had been once in jeopardy. The further facts are stated in the opinion of the court.

<p>Estates of Deceased Persons—Administrator—Assumpsit—Pleading —Bill of Particulars. —An administrator defendant is bound by the -rule of practice that a plaintiff suing upon an account need not set forth specifically in the complaint the items of the indebtedness, and that if. tho defendant is dissatisfied with the general allegation of indebtedness, his only remedy is to demand a copy of the plaintiff’s account; and a demurrer for ambiguity and uncertainty in not specifying the items of the account sued upon should be overruled.</p> <p>Id. —Claim against Estate—Statute of Limitations—Demurrer__</p> <p>An administrator is forbidden to allow a claim that is barred by the statute of limitations, and when the claim does not appear upon its face to be barred, he may refuse to allow it, if barred in fact; hut this is a matter to he determined at the trial, and it cannot he objected in such case that it does not appear whether the claim was or was not barred, and that the complaint is insufficient upon the ground that it does not show such a claim as the administrator could have allowed. When it does not affirmatively appear upon the face of the complaint that the claim is barred by the statute, a demurrer based upon the statute of limitations is not allowable.</p> <p>Id.—Presentation of Claim—General Demurrer.—When the presentation of a claim against an estate which is sued upon is alleged to have been made within ten months after the first publication of notice to creditors, without alleging the value of the estate, such allegation, though defective, cannot be objected to by general demurrer.</p> <p>Id. —Pleading — Averment of Non-payment. —In a complaint upon a claim against the administrator of a deceased person, it is sufficient to aver non-payment by the deceased, and that the claim has been properly presented to and rejected by the administrator.</p> <p>Id. —Averment of Representative Capacity. —An allegation that on a certain date a decree was duly given and made in a specified court, upon which letters of administration upon the estate of a deceased person named were issued to the party plaintiff or defendant, and that he duly qualified and entered upon the discharge of his duties as such administrator, and has ever since been and now is the duly qualified and acting administrator, etc., is sufficient.</p>

<p>Lien of Material-man—Pump for Water-works—Fixture.—A pump sold to be used in water-works, if affixed to the other works by being planted down on the ground and connected to pipes so as to admit the steam and water, is affixed to land within the meaning of section 660 of the Civil Code, and comes within the lien law.</p> <p>Id. —Sale to Managing Agent. —When a pump is sold and delivered to one in charge of water-works for use at the works, without anything being said as to his acting for others, he must be held to have acted for the owners of the property, so as to 'charge them with a lien therefor.</p> <p>Id,—Ownership—Admission of Answer—Finding.—An admission of ownership in the separate answer of certain defendants in an action to foreclose a mechanic’s lien must be taken as true upon appeal, notwithstanding a finding that other defendants were owners, made upon issue joined as to their ownership.</p>

<p>Pleading — Ultimate Fact — Ownership. — The allegation that the plaintiff is “the owner ” of the property is of an ultimate fact, unless the context shows that it was intended as a mere conclusion from the facts stated.</p> <p>Contradictory Averments — Special Demurrer. — The objection that the averments of a complaint are contradictory must be taken by special demurrer.</p> <p>Complaint to Quiet Title — Averment that Dependant’s Claim is Invalid. — When the complaint, in an action to quiet title, shows, by necessary implication, that the defendant’s claim is invalid as against the plaintiff, it need not so aver in terms.</p>

The action was brought to recover the possession of two colts, claimed by the plaintiff as exempt from execution: The defendant justified as sheriff under an execu- tion issued out of the superior court of Napa County against the plaintiff. Judgment was rendered in favor of the defendant, from which, and from an order refusing a new trial, the plaintiff appealed. The further facts are stated in the opinion.

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

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

<p>Purchase of State School Lands — Payment in School-land Warrants •— Setting Aside State Patent. — When a purchase of part of the unsold portion of the five hundred thousand acres granted to the state for school purposes is initiated by a gold coin payment under section 3494 of the Political Code, before the certificate of purchase is issued, the purchase cannot be completed by the surrender of school-land warrants under section 3502 of said code, and a patent issued upon such final payment is without lawful authority. But such payment being made and accepted in good faith without fraud, the state cannot set aside the patent without restoring the warrants paid under an erroneous view of the law, and the holder of the certificate of purchase is entitled to conclude the purchase by a gold coin payment under section 3494, in the absence of a preventing statute.</p> <p>Contest of Right to Purchase State Land—Res Adjudicata. — It is not permissible in a proceeding to set aside a state patent to call in question the evidence upon which a judgment was based, in a contest over the right to purchase the land, or the rulings of the court on matters of law.</p>

<p>Malicious Attachment — Statute op Limitations. — A cause of action for a malicious attachment of the property of the plaintiff without probable cause is barred in two years from the date of the levy of the attachment, and the accruing of the cause of action is not postponed until a dissolution of the attachment, nor is a motion to dissolve it necessary before commencing the action.</p> <p>Attachment — Ministerial Duty op Clerk. — The issuance of a writ of attachment is not a judicial proceeding, but a ministerial act on the part of the clerk, which he is bound to perform On the filing of the statutory affidavit and undertaking.</p>

The defendant was convicted of manslaughter on the first trial, and the judgment was reversed upon an appeal by him. The further facts are stated in the opinion.

<p>Appeal—Review of Evidence—Bill of Exceptions. —When the bill of exceptions only specifies that the decision is against law, and does not specify any particulars in which the evidence is insufficient to justify the decision, the evidence cannot be reviewed upon appeal, but the facts set out in the findings must be taken as true.</p> <p>Findings. —When the facts found sustain the judgment, it is not necessary to go further and find upon other issues.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County, and from an order denying a new trial.</p> <p>The evidence for the defendants showed that the land in question was conveyed by D. M. Tyrrell to Robert N. Graves, in consideration of indebtedness to him in the sum of $1,511, and for the further sum of $200 cash; and that Graves sold the land subsequently on his own account to Wynn' and Anspacher for $2,000. Further facts are stated in the opinion.</p>

<p>Judgment—Rendition of—Need not be in Writing.—A judgment becomes “rendered” at the time the court pronounces its decision, and it is not necessary to its validity that it should, be in writing or signed by the judge.</p> <p>Id.—Entry—Divorce.—A judgment of divorce becomes operative between the parties at the time of its rendition, notwithstanding it be not entered by the clerk until a subsequent date.</p> <p>Id.—Absence of Findings — Default.—The mere absence of findings does not render a judgment void in any case, and in a case of default, findings are not necessary, and form no part of the judgment roll.</p> <p>Id.—Duty of Clerk to Enter Judgment.—After the rendition of a judgment, it is the duty of the clerk to enter it; and the fact that the entry was made at the request of a person not a party is immaterial.</p> <p>Id.—Notice of Entry.—The party against whom the judgment was rendered is not entitled to notice of its entry.</p> <p>Id. — Entry of Judgment of Divorce after Death of Party. — A judgment of divorce rendered in favor of a party during her lifetime may he entered after her death.</p> <p>Estate of Deceased Person—Petition for Final Distribution.—A petition by an administrator for the final distribution of the estate of the decedent should not contain averments for the purpose of charging a distributee with, and compelling him to account for, property of the deceased which came into his possession in a foreign state.</p>

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

<p>Contract to Buy—Warranty of Quantity. —Where a party contracts to buy the crop of fruit “that may grow or be produced ” in a certain year, there is no warranty by the seller that the crop shall be of any particular quantity.</p> <p>Id. — Meaning of Word “Year.”—The word “year,” when used in a contract, does not necessarily mean a calendar year. Its meaning is to be determined from the connection in which it is used, and from the subject-matter of the contract. Instance.</p> <p>Id.—Judicial Notice—-Seasons—Gathering of Crops. — The court will take judicial notice that the end of the calendar year is not the season for the gathering of fruit crops.</p>

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

<p>Chattel Mortgage on Crop— Sale and Delivery of Harvested Crop— Statute of Frauds. — When a crop of hay is hauled to a warehouse by the mortgagor at the request of and as the agent of a mortgagee, who had taken a chattel mortgage of the growing crop, it seems that the lien of the mortgagee on the crop is not lost. ‘ However this may be, if the warehouseman treats the mortgagee as the owner, a sale of the hay by the mortgagor to the mortgagee at an agreed price does not require any further delivery or change of possession; and a second transfer of the hay for value by the first purchaser to a third party, accompanied by a con- • structive delivery, which is good between the parties, can only be assailed by the creditors of the first purchaser, and not by the creditors of the original owner of the crop.</p> <p>Appeal—Review of Conflicting Evidence—Value.—If the evidence conflicts as to the value of the property in controversy, and there is enough to sustain the finding, an objection that the finding is against the preponderance of the evidence will not be sustained upon appeal.</p> <p>Replevin — Evidence op Title—Consideration op Sale of Crop — Chattel Mortgare. — When the plaintiff in replevin claims title to a harvested crop by purchase, and a part of the consideration of the sale consisted of certain notes and a chattel mortgage upon the growing crop, such notes and mortgage are admissible in evidence in his favor in fieraigning his title to the crop.</p>

<p>Insurance— Accident. —A provision in an accident insurance policy, that the company shall not be responsible if the death or injury may have been caused by intentional injuries inflicted by the insured or by any other person, refers to intention on the part of a third person inflicting the injury, without regard to whether the insured drew a brawl upon himself, or intentionally engaged therein. If the complaint upon such a policy charges an intentional killing of the insured person without provocation, a demurrer thereto is properly sustained.</p>

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

<p>Appeal—Presumption.—The burden is cast upon an appellant to show, error affirmatively and clearly by the record, and in the absence of such showing the presumption is, that the rulings of.the court below were correct, and its action proper.</p> <p>Id.—Ejectment—Location of Premises.—In an action of ejectment, when the plaintiff appeals from a judgment against him, and there is nothing in the transcript to show the location of a lot upon which the controversy depends, or of the calls of a deed under which the defendant claims title, it will be presumed that the evidence warranted the decision in favor of the defendant, and a statement in appellant’s brief that the deed to the defendant did not include the lot in controversy cannot be considered. Appellant must bear the loss, if any, from the omission of evidence from the transcript.</p>

<p>Forcible Detainer — Actual Possession.—To maintain an action of forcible detainer, the plaintiff must show that, within five days before the unlawful entry by defendant, he was in the peaceable and actual possession of the demanded premises. To constitute such possession of agricultural land, it is not absolutely necessary that the land be inclosed; but if not inclosed, it must appear that plaintiff had exercised exclusive dominion and control over that portion of the land of which the defendant took possession. If the defendant has not interfered with any portion of the land which was within the exclusive dominion of the plaintiff, the action cannot be maintained.</p>

<p>Ejectment — Pleading by Administrator — Demurrer for Ambiguity. •—When a complaint in ejectment by an administrator contains no allegations as to his representative capacity, the use of words in the title of the cause showing his official capacity without the word “as” will be regarded as mere descriptio persones, and will create no uncertainty or ambiguity. The allegations of the complaint show whether the action is brought by or against a person en autre droit.</p> <p>Patent for Lieu Lands — Homestead Claim — Cross-complaint.—Only one in privity with the paramount title of the United States can attack collaterally a patent issued for lands listed to the state as in lieu of school lands; and a cross-complaint in an ejectment suit brought by a plaintiff claiming under such patent states no ground of relief when it shows merely that defendant once offered to enter the land under the homestead laws, and was prevented from prosecuting his homestead claim at that time by a statement of the register that the land was not subject to entry under the homestead laws, without showing any excuse for a failure to appeal from the decision of the register, or for a delay of fifteen years thereafter in the prosecution of his homestead claim.</p> <p>Id. — Pre-emption Right. — Under section 2 of the act of Congress of March 1, 1877, an innocent purchaser for a valuable consideration from the state of lieu lands, selected by the state, where there is no corresponding sixteenth or thirty-sixth section, has a preferred right to purchase the same from the United States; and when a patent has been issued by the United States to such land, the patentee is not required to support it by proof of the circumstances justifying it, but it devolves upon the party assailing it to allege-and prove that under no circumstances were the officers of thejand department authorized in issuing the patent to the plaintiff.</p> <p>Id. — Patent to Administrator — Trust — Ejectment—Parties. — A patent issued to an administrator vests the legal title in him, and entitles him to recover the premises in his own name in an action of ejectment. Whether this legal title is held in trust for others is not a proper subject of inquiry in such action.</p>

On March 11, 1878, an action was begun by John Hughes against M. Heverin, in which an attachment was issued, and a bond was given by the defendant as security for the satisfaction of any judgment that might be recovered therein, in consideration of the release of the property attached.

<p>Pledge—Voidable Purchase by Pledgee—Election of Pledgor—Unreasonable Delay — Ratification.—When a pledgee purchases the pledge at a sale of which the pledgor has notice, the pledgor has a right of election to treat the sale as invalid, but loses that right by failing to exercise it within a reasonable time after knowledge of the fact. The right is lost by such unreasonable delay, as a rule of law, and not as an inference of fact as to ratification of the sale by the pledgor.</p> <p>Id. —Instruction as to Unreasonable Delay — Question of Law and Fact. —If the facts are undisputed, the judge may instruct the jury as to what delay of the pledgor, in avoiding a purchase of a pledge of stocks by the pledgee at his own sale, is unreasonable; but if the facts are disputed, it is proper to submit the question to the jury. An undisputed delay of two months after being informed of the facts, and until the stocks sold had risen to a very high price, would warrant an instruction to the jury as matter of law that the delay was unreasonable.</p> <p>Id. — Instruction—Charging as to Matters of Fact—Ratification of Sale of Pledge—Election. —Instructions that the jury may find a ratification by the pledgor of the pledgee’s purchase of the pledge at his own sale, from an unreasonable delay to object, after being informed of the purchase, or when the pledgor, with knowledge of his rights, has treated with the pledgee for a repurchase of part of the property, are correct, and do not charge the jury as to matters of fact. Ratification is here used as the equivalent of an election to treat the sale as valid; and the sufficiency and binding force of the election is matter of law.</p> <p>Id. — Questions of Law and Fact. — In one connection a word or phrase may stand for a fact, while in another the same word or phrase may designate a conclusion of law.</p> <p>Id. — Ratification how Constituted—Consideration—Knowledge of Rights — Presumption. — Ratification by a pledgor of a purchase of the pledge by the pledgee at his own sale does not require a consideration or a new contract. If the pledgor, after the sale, treats with the pledgee for a repurchase, without objection to the sale and with full knowledge of his rights, it is a sufficient manifestation of his election to treat the sale as valid; and if a knowledge of the law by the pledgor is essential to a ratification, it will be presumed that he knew the law, when the contrary does not appear. An unrebutted presumption as to knowledge of the law has the same force as an admission of such knowledge.</p> <p>Id. — Retraction of Election.—A sufficient election by the pledgor to treat a purchase of the pledge by the pledgee at his own sale as valid cannot afterwards be retracted; nor can an election to disaffirm the sale be retracted or renewed at a later date for the purpose of increasing damages.</p> <p>Instructions — Inaccuracy.—Inaccuracy of an instruction in stating the grounds of a rule of law is harmless, if it state the rule correctly in its substance.</p> <p>Id, —Instructions Assuming Facts—Harmless Error. — An instruction erroneously assuming a fact in favor of the appellant cannot be complained of by him, and the assumption of an undisputed fact in an instruction cannot injure the appellant.</p> <p>Id. — Abstract Instruction. — A purely abstract instruction which could not have misled the jury, in view of all circumstances of the case, will not be reviewed upon appeal.</p>

<p>Appeal from a judgment of the Superior Court of Humboldt County, and from an order denying a new trial.</p> <p>In 1882, John Huff being indebted to John E. McDonald, who held a mortgage upon the land in controversy, and also a judgment against said Huff, it was agreed between them that Huff should convey the mortgaged land to John E. McDonald, in consideration of a release of all of said indebtedness, and that a conveyance of the land should be held in escrow by E. H. McDonald till November 21, 1882; and in case Huff paid to John E. McDonald $3,080 before said date, the conveyance should be returned to Huff, and if he failed to pay it before said date, the deed in escrow should be delivered to John E. McDonald and become absolute. The escrow remained with E. H. McDonald till March 16, 1883, when it was delivered to John E. McDonald. February 13 and 28, 1883, Huff made two separate demands for the delivery back of the escrow, and on February 26, 1883, executed a deed of the land to the defendant E. F. Herrick, who knew all the. facts.</p>

<p>Appeal — Review op Order Granting! New Trial — Reasons for Decision —■ Discretion. — An order granting a new trial will be affirmed, if it can be justified on any of the grounds upon which the motion for a new trial was based, without regard to the reasons for the order expressed in the opinion of the judge; and such order will not be disturbed, unless there has been a clear abuse of discretion, where the motion was made on the ground of the insufficiency of the evidence to support the verdict.</p>

<p>Injunction—Damages—Removal of Moorings — Admiralty Jurisdiction. — When the action is in personam, to obtain an injunction to prevent the removal of moorings from navigable waters, and to recover damages for such moorings as have been removed, the state courts have concurrent jurisdiction with the federal courts. The jurisdiction is concurrent over causes of admiralty and maritime jurisdiction in all cases where a common-law remedy is sought which the common law is competent to give.</p> <p>Id.—Wharf—Appurtenances — Complaint—Demurrer for Ambiguity and Uncertainty. — A complaint averring in substance that certain moorings, anchors, and buoys were in the possession and under the control of the plaintiff, and were necessary and appurtenant to a wharf leased by the plaintiffs from the proper authorities of a city; that one of them had been removed by the defendants, to the damage of plaintiff in the sum of fifteen thousand dollars, and that defendants threaten to remove the rest of them; and that the injury threatened could not be estimated, and was irreparable, — is not demurrable for ambiguity and uncertainty, as to the title to the moorings, nor as to the estimate of damages and irreparable injury.</p> <p>Injunction — Waste—Insolvency—Pleading. — When an injunction is sought to restrain irreparable injury to the inheritance, from a trespass threatened in the nature of waste, the complaint need not allege the insolvency of the defendant.</p> <p>Corporation — Corporate Seal — Evidence. — Where a corporate seal is affixed to an instrument by the proper officer of the corporation, it is. sufficient prima fade to show the authority for its execution, and the instrument is admissible in evidence.</p> <p>Lease — Acceptance by Lessee.—It is not necessary to the validity of a lease that the lessee should affix his seal thereto. His acceptance is shown by claiming and occupying under it and paying rent.</p>

Writ of review to the Superior Court of San Joaquin County. The writ was sued out to annul an order setting aside the verdict of the jury and the judgment rendered thereupon revoking the probate of the will of Charles W. Carpenter, deceased, which order was made upon the ground that no guardian ad litem had been appointed to appear and defend for the minor heirs in the matter of the contest.

<p>Criminal Law—Assault—Assault with Deadly Weapon—Intent, Ability, and Attempt to Strike. — To warrant a conviction for an assault, the defendant must have had the intent to strike, the ability to do so, and must have made the attempt to strike. And where the assault is charged to have been committed with a deadly weapon, there must have been an attempt to strike with or use the deadly weapon.</p> <p>Id. —Instructions. —In a prosecution for an assault with a deadly weapon, the refusal of the court to instruct the jury in accordance with the above stated rule is error; and such error is not cured by an instruction that “included in this charge, i. e., assault with a deadly weapon, is also that of assault, which is an unlawful attempt to commit a violent injury on the person of another. In an assault, which is commonly called a simple assault, if there is no present purpose and no present ability to do an injury, there would be no assault.”</p>

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

The action was brought for the claim and delivery of certain personal property. Judgment was rendered in favor of the defendant, from which, and from an order refusing it a new trial, the plaintiff appeals. The further facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Mendocino County, and from an order denying a new trial.</p>

The writ was sought to compel the court to proceed with the consideration of an appeal of the petitioners from the justice’s court of Redwood township, in the case of Ferdinando Lotti v. Antonio Fabretti and Wife. Further facts are stated in the opinion of the court.

<p>Criminal Law—Judgment—Appeal—Record. — An attempted appeal from a judgment of conviction is ineffectual, and will be dismissed when the judgment is not embodied in the record on appeal.</p> <p>Id.—Entry in Minutes oe Court not Judgment. — An entry in the minutes of the court that the motion of the defendant for a new trial was overruled, and that he was sentenced to imprisonment, is not the judgment from which the appeal must be taken.</p> <p>Id — Order Refusing New Trial—Record must Show Motion and. Grounds therefor. — An appeal from an order refusing a new trial will not he considered when the record fails to show the grounds on which the motion was made, or that such a motion was made at all.</p>

<p>Contest of Bight to Purchase School Land-—Statute of Limitations— Filing Complaint—Judgment Boll—Appeal. — When the complaint in a contest involving the right to purchase school lands from the state is verified as of a date within sixty days from the order of reference, and there is nothing on the face of the complaint to show that it was filed too late, and no evidence appears in the judgment roll as to the time of filing, it will be held upon appeal that a demurrer sustained upon the ground that the complaint was not filed in time was improperly sustained. The statute of limitations can be reached by demurrer only when the complaint clearly shows on its face that the action is barred.</p> <p>Order Denying Motion to Vacate Judgment—Review on Appeal-Bill of Exceptions—Ruling on Demurrer. — An order denying a motion to vacate a judgment cannot he reviewed on appeal from the judgment; nor can a bill of exceptions to the proceedings of the court upon the hearing of such motion, which is incorporated in the transcript, he considered in order to sustain the ruling of the court upon a demurrer.</p> <p>Undertaking on Appeal—Time of Filing — Sunday.—When the last day for filing an undertaking on appeal falls on Sunday, an undertaking filed on the day following is in time.</p>

<p>Appeal from an order of the Superior Court of Santa Barbara County, distributing the estate of a deceased person.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Contract eor Sidewalk—Entirety.—A contract to build a sidewalk is not entire, when the quantity of sidewalk to be built is left blank in the written contract, and there is no attempt to reform the instrument.</p> <p>Id.—Breach oe Contract—Assumpsit—Pleading. — In an action of assumpsit for work done and materials furnished in building a sidewalk, when it is not alleged by the defendant in his pleading that the contract for the sidewalk was not completed, but the defense is that the sidewalk was not constructed in a workmanlike manner, the defendant cannot object to a recovery upon a quantum meruit and quantum valebat, for the reason that the contract was entire, and the work was not completed. ' The plaintiff may recover in such case what the work done and materials furnished were worth, where the parties cannot rescind and stand in statu quo, but one of them must derive benefit from the labor of the other.</p> <p>Id.—Part Payment—Acceptance — Estoppel. — Though part payment does not amount of itself to an acceptance of work not fully completed under a contract, yet, if such payment is made after a sidewalk has been completed on one side of the street with full knowledge of its condition, and the contractor is thereafter allowed to finish the contract for a sidewalk on the other side of the street, without objection, and the sidewalk is swept off and used in part before its completion, the contracting party thus conducting himself is estopped from defending against the whole " contract price, and is entitled to be allowed a deduction of only the amount necessary to make the work such as the contract called for.</p> <p>Id.—Parol Evidence oe Subsequent Agreement.—When a written contract is uncertain in its terms, parol evidence of a subsequent agreement between the parties making such terms definite is admissible.</p> <p>Id. — Evidence oe Payment with Knowledge. — Evidence that one of the defendants was present and saw the work done under the contract as it progressed is material, as tending to show that payment of money on the work, without objection, was with knowledge of the manner and v quality of the work.</p>

The issues raised by the pleadings are stated in the opinion on the former appeal, reported in 71 Cal. 481. The further facts are stated in the opinion of the court.

<p>Practice—Appeal—Affidavits Used on Hearing must be Identified—. Want of Prosecution. — Affidavits embodied in the transcript which are in no way identified as having been used on the hearing of an application for the dismissal of an action for want of prosecution cannot be considered on an appeal from the. judgment of dismissal.</p> <p>Id. — Superior Court mat Dismiss for Want of Prosecution—Presump- ' tion. — The superior court has power, under section 581. of the Code oi Civil Procedure, to dismiss an action for want of prosecution; and in the absence of a showing to the contrary, a dismissal on such ground will be presumed to have been proper.</p>

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

<p>Statute of Frauds—Pleading Defense of. — It seems that a defendant relying upon the defense of the statute of frauds must plead it.</p> <p>Id. — Complaint need not Allege that Agreement was in Writing — Demurrer.—A complaint on an agreement required by the statute of frauds to be in writing need not allege that it was in writing; and where the complaint is silent as to the form of the agreement, it will be presumed, on demurrer, to have been in writing.</p> <p>Id.—Attorney and Client — Insolvency — Purchase by Attorney under Agreement with Client — Constructive Trust. — An attorney at law who represents all the parties in an insolvency proceeding occupies a confidential relation as to them; and if he buys in the property of the insolvent at the assignee’s sale, in pursuance of a parol agreement between himself and his clients that he should do so for the benefit of and in trust for the creditors, and should hold the same as their trustee until such time as the property could be sold more advantageously at private sale, he becomes a constructive trustee for them of the property so bought, whether the same be realty or personalty. Such an agreement is not within the statute of frauds, and the fact that it was not in writing is no defense to an action to enforce the trust.</p> <p>Id.—Payment of Consideration — Resulting Trust.—If the consideration for the purchase was paid by the creditors, a resulting trust is created in their favor, under section 853 of the Civil Code.</p> <p>Id. —Attorney Estopped to Deny Trust. —The fact that there was a defect in the insolvency proceedings, occurring under the direction of the attorney and invalidating the deed of the assignee, cannot be taken advantage of by him to defeat the trust.</p> <p>Id. — Statute of Limitations. —Repudiation of Trust. —The statute of limitations does not commence to run against the right of the creditors to enforce the trust, while the attorney remains in possession of the property, and before he repudiates the trust.</p> <p>Id. — Proper Parties to Action. — In an action to enforce the trust, the insolvent, his creditors and their successors in interest, are proper parties plaintiff; and the trustee, and subsequent purchasers and encumbrancers under him, are proper parties defendant.</p>

The action was brought to recover damages for a slander. The complaint alleged that the slanderous words spoken by the defendant of the plaintiff were, “He is a thief,” and “He is doing business on my money.” The original answer of the defendant contained a plea of justification, which was omitted from the amended answer. Judgment was rendered in favor of the plaintiff, from which, and from an order refusing a new trial, the defendant appeals.

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

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

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

<p>Criminal Law—Bill op Exceptions must be Full and Fair. — Under sections 1171 and 1174 of the Penal Code, it is the duty of the party in a criminal case desiring to have a bill o£ exceptions settled to prepare a full and fair draught of the bill. If the bill as presented to the judge is not full and fair, but is a mere skeleton of the evidence and proceedings had at the trial, the judge is justified in refusing to settle it.</p>

<p>Application for the disbarment of an attorney. The facts are stated in the opinion of the court.</p>

<p>Quo Warranto—Forfeiture of Corporate Franchise—Allegation of Corporate Existence. —In an action to enforce the forfeiture of a corporate franchise on account of non-user and misuser, the complaint must specifically allege that the defendant has a legal existence as a corporation.</p> <p>Id.—Usurpation of Corporate Franchise—Proper Parties Defendant— Admission of Corporate Existence. —In an action under the code to have it determined that certain persons are unlawfully claiming to be and are exercising the functions of a private corporation which never had an existence, the persons usurping the franchise are the only proper defendants. If the corporation be made a defendant as such, its corporate existence is admitted.</p> <p>Id. —Denial of Usurpation of Franchise. —In such an action, an answer which denies that the individual defendants are claiming or exercising the corporate franchise states a complete defense as to them.</p> <p>Id. —Cessation of Corporate Existence—Ineffectual Organization of Corporation — Pleading. — Where the alleged usurpation of the franchise is claimed to result from the fact that the corporation, having once existed, has ceased to exist, it is not sufficient to allege in the complaint that it has ceased to exist, but the facts showing the termination of its existence must be set forth. And so if the claim be that the corporation is acting as such, but the proceedings under which it is acting are defective, the facts showing that it is so claiming to act, and the defects claimed to exist, must be specifically alleged.</p> <p>Id. — Corporation mat Acquire Franchise Granted to Individuals. — The constitutional provision that “'corporations may be formed under general laws, but shall not he created by special act,” does not prohibit the assignment of a franchise to a legally-organized corporation, by persons having the lawful right to exercise and transfer the same,</p> <p>Id.—Judgment Decreeing Usurpation of Franchise—Non-existence of Corporation must be Determined. —In an action to have it determined that certain persons are unlawfully claiming to be and are exercising the functions of a private corporation which never had an existence, a judgment decreeing that the plaintiff recover the powers and franchise exercised and claimed by the defendants, and enjoining them from exercising the same, Will be reversed, where the question of the non-existence of the corporation is left wholly undetermined.</p> <p>Id. — State when not Estopped to Maintain Action for Forfeiture. — The state is not estopped from maintaining an action to enforce the forfeiture of the franchise of a street-railroad corporation on account of non-user, from the mere fact that in a prior action it had obtained a judgment against the company enjoining it from continuing to operate a portion of its road as it was built, on the ground that such portion of the road as constructed was a nuisance.</p> <p>Id. — State when not Estopped to Deny Corporate Existence or Franchise. — The state is not estopped from maintaining' an action to have it determined that a corporation never acquired the franchise to build and operate a street-railroad within the limits of a municipal corporation, from the mere fact that in a prior action brought against the corporation as such, in which the existence of the corporation was not put in issue, it obtained a judgment requiring the corporation to abate a portion of its road on the ground that it was a public nuisance.</p>

<p>Mortgage to Secure Future Advances—Priority of Lien—Notice of Subsequent Lien. — A mortgage made in good faith to cover future advances of money or materials, or future indorsements, is a valid lien from the date of its execution, if properly recorded, as against subsequent purchasers or encumbrancers, except as to advances made after actual as distinguished from record notice of a subsequent encumbrance, though the mortgage does not disclose upon its face that it is given in part for future advances, if the amount of liability is expressly limited, and though the agreement for advances be not in "writing. If the mortgage discloses upon its face that it is to secure future advances, the amount need not be set out, and subsequent encumbrancers must ascertain the extent of the lien, or suffer the consequences.</p> <p>Id. — Mechanics’ Liens—Priority of Mortgage in Trust.—The same rules as to priority of lien of a mortgage to secure future advances, and the necessity of actual notice as distinguished from record notice of a subsequent lien, apply to holders of subsequent mechanics’ liens, and in favor of a beneficiary not named in the mortgage, who seeks to enforce a lien for advances under a trust created for his benefit in such a mortgage for a sum certain given to another person.</p> <p>Nature of Mortgage — Personalty — Parol Trust — Statute of Frauds. — In this state, a mortgage conveys no estate in the land, but is a simple lien upon the property; and being but a personal chattel, a parol trust may attach to the mortgage, that the mortgagee shall hold it in trust, in part for his own benefit, and in part for the benefit of another; and parol proof of such trust does not vary the terms of the written instrument, or violate the statute of frauds as to the time of performance of the contract. The beneficiary can enforce the mortgage as against subsequent lien-holders in all respects as if made to him.</p>

<p>Mabbied Woman—Injuries to Person—When mat Sue Alone.—A married woman living separate and apart from her husband, by reason of his desertion of her, may sue alone to recover for personal injuries.</p> <p>Id,—Objection to Non-joinder op Husband how Raised.—An objection to the non-joinder of the husband, as a party plaintiff, in an action by a wife to recover for injuries to her person, is waived, unless raised by demurrer or answer. It cannot be taken advantage of on motion for nonsuit.</p> <p>Id. —Wipe is Neoessabt Partt Plaintief. —In such an action, the wife is a necessary party plaintiff, and no recovery can be had unless she is joined.</p>

<p>Practice—Pleadings—Admission on Trial of Falsity of Essential Allegation — Immaterial Error.—Where on the trial the plaintiff admits the falsity of certain allegations of his complaint, which were essential to his cause of action under every possible construction of the pleading, any error in the admission or rejection of evidence is harmless, and will not entitle him to a reversal of the judgment.</p>

<p>Appeal from a judgment of the Superior Court of Nevada County, and from an order refusing a new trial.</p> <p>The action was brought to foreclose a mechanic’s lien. The further facts are stated in the opinion of the court.</p>

<p>School Lands — Agricultural Land—Fruit Lands. — Lands suitable for the cultivation of the ordinary fruit crops grown in this state are agricultural lands, within the meaning of section 3495 of the Political Code.</p>

<p>Quieting Title—Water-pipe and Water Right Appurtenant to Mill •— Artificial Watercourse. — An action lies to quiet title to a sheet-iron water-pipe, and to the water flowing through the same from a reservoir to a quartz-mill owned by the plaintiff, to which the pipe and water right are appurtenant. Such water-pipe constitutes an artificial watercourse appurtenant to the real estate.</p> <p>Id. —Concurrent Remedies. —The existence of concurrent remedies at'law for trespass or for an injunction in equity is not exclusive of the right to sue to quiet title, where the parties are claiming conflicting and adverse interests in real estate.</p> <p>Id. —Pleading — General Demurrer. —When the facts alleged in a complaint to quiet title to water flowing through a pipe to the plaintiff’s mill show that the use of the water is necessary to the use of the mill, the absence of a direct allegation to that effect will not vitiate the complaint as against a general demurrer.</p>

<p>Appeal from an order of the Superior Court of Santa Clara County denying an application to set apart certain property as exempt from execution.</p> <p>The facts are stated in the opinion.</p>

<p>Corporation por Irrigating Purposes — Organization por Profit— Action to Compel Directors to Account—Pleading — General Demurrer. — In an action by the stockholders to compel the directors of a ditch and canal company to account for losses sustained by the stockholders through the fraudulent failure of the directors to sell the water which flowed through an irrigating canal belonging to the corporation, by distributing the same gratuitously, the complaint must allege that the corporation was organized to sell water for profit, in order to show the violation of an obligation by the defendants; and the mere allegation that it is incorporated under and by virtue of the laws of the state of California to construct a water ditch for irrigating purposes, is insufficient as against a general demurrer.</p> <p>Id. — Presumption. —It is not a presumption of law that a corporation organized for irrigating purposes was organized for profit.</p> <p>Fraud — Pleading. — An allegation of fraud is not sufficient, unless the facts alleged are sufficient to constitute a fraudulent breach of duty.</p>

<p>Attorney at Law—Retainer — Assumpsit for Services—Evidence.— In an action of assumpsit, brought by an attorney at law for professional services rendered in certain actions, the value of the retainer is included in the cause of action, though not specified in the compleint, and may be proved under an issue tendered as to the value of the services.</p> <p>Id. —Evidence as to Value of Services. — For the purpose of aiding in determining the value of the services of an attorney at law, it is proper to receive evidence as to prices usually charged and received for similar services by other persons of the same profession, in the same vicinity, and praeticing in the same court.</p> <p>Id. — Executors and Administrators — Claim against Decedent — Witness — Evidence of Party — Reading of Verified Claim to Jury. — In an action by an attorney at law against an executor or administrator, for professional services rendered to the deceased person, the plaintiff may testify as to incidental matters respecting his practice and income, which cannot be said to have occurred before the death of the deceased. The purpose of section 1880 of the Code of Civil Procedure is to prevent parties from testifying to matters tending to establish the claim or demand, and not to prevent their testifying to other matters which may arise incidentally. Nor is such a plaintiff precluded by his incompetency as a witness from reading to the jury in his argument the claim and verification thereof attached to the complaint, and made part thereof.</p> <p>Practice — Trial — Argument of Counsel—Reading Pleadings to Jury — Exhibits. — Counsel have a right, in arguing the case to the jury, to read the whole pleadings, including exhibits attached thereto, and cannot be restrained by the court from discussing the case in all its bearings, so long as they do not go outside of it and attempt to bring in other matters.</p>

<p>Criminal Law—Larceny—Prior Conviction of Burglary—Plea—■ Instructions. — When a defendant is charged with petit larceny and a prior conviction of burglary, and pleads guilty of the prior conviction after the information has been read to the jury, the case thereafter stands for trial on the charge of petit larceny alone, and an instruction to the jury that if they find the defendant guilty they should find him guilty as charged in the information is not ground of reversal, as misleading, since the jury must understand it as referring only to the charge of petit larceny, especially if the court, at the instance of the defendant, instructs them that they have nothing whatever to do with the charge of prior conviction of burglary.</p>

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

The complaint alleges “that heretofore, to wit, on the tenth day of August, 1883, the said defendant was indebted to plaintiff in the sum of $948.60 for work and labor done and materials furnished before that' time by plaintiff for and to defendant in the construction of the foundation of the Garfield Monument in the Golden Gate Park of the city and county of San Francisco, and at his request.” ' The answer “denies that on the tenth day of August, or at any time, the said…

<p>Contract fob Conveyance—Defense in Ejectment—Cross-complaint—. • Specific Performance.—A contract o£ the plaintiff in ejectment to convey the land in suit to the defendant, made before suit brought, is a defense to the suit, and may be specifically enforced by way of cross-complaint.</p> <p>Id.—Contingent Contract—Specific Performance.—A contract between the defendant in a foreclosure suit and a proposed purchaser under the decree, that if such defendant would bear the necessary expenses of a conveyance and of erecting a division line, and would consent to the foreclosure of the mortgage in suit upon land of the defendant which had been released from the mortgage lien, he would convey the same to the defendant, and would not disturb his possession, does not depend upon an uncertain or indefinite contingency, and will be specifically enforced when the contingency disappears by the completion of the purchase at the foreclosure sale.</p> <p>Id.—Statute of Frauds — Pleading — Cross-complaint. — It is not necessary, in the pleading of a contract within the statute of frauds, to aver that the contract was in writing, and this rule applies as well to a cross-complaint as to a complaint upon such contract.</p> <p>Id. —Waiver of Statute of Frauds —Failure to Object to Evidence. — When, a contract within the statute of frauds is proved by parol evidence without objection or exception, the right to invoke the statute is waived, and it cannot afterwards be insisted upon.</p> <p>Id. — Finding as to Written Contract. — It is not necessary to find that a contract for the conveyance of land was in writing, especially if the right to invoke the statute of frauds has been waived by the defendant.</p>

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

Defendant’s instruction No. 3, referred to in the opinion, declared that “the mere signing of Dr. De Derky’s name by the defendant was not a personation of him. The defendant must have assumed to be the person known as Dr. De Derky.” The further facts are stated in the opinion of the court.

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

In opposition to the motion made by the defendant for a dismissal, on the ground that he had not been brought to trial within sixty days after the filing of the information, the district attorney filed an affidavit, from which it appeared that during the interval between the time when the defendant was arraigned and the time of his trial, the court had been continuously engaged in the trial of other cases. The further facts are stated in the opinion of the court.

The action was brought to recover damages for a malicious prosecution. The further facts are stated in the opinion of the court.

The principal facts are stated in the opinion. As a foundation for the admission of the deposition of Valentine H. Harding, the evidence showed such inquiries and answers as are stated in the last syllabus above.

<p>Ejectment—Execution Sale under Deficiency Judgment—Evidence of Title. —The plaintiff in an action, of ejectment, claiming title under an execution sale upon a judgment for a deficiency after a sale under a decree of foreclosure, must introduce in evidence the deficiency judgment as docketed, and also the return of the sheriff on the foreclosure sale showing what the deficiency was.</p> <p>Foreclosure—Sale under Deficiency Judgment when Passes Title. — An execution sale under the foreclosure of a mortgage passes only the interest which the mortgagor has in the mortgaged premises. If he has no interest, and the title is in a defendant against whom a deficiency judgment is rendered, a purchaser claiming under a sale under the deficiency judgment acquires the title as against a purchaser claiming under the judgment of foreclosure.</p>

<p>Criminal Law—Forgery of Will—Indictment—Matters Aliunde. — When a forged will appears to be valid and of legal efficacy upon its face, it is not necessary in an indictment for the forgery, framed in conformity to section 470 of the Penal Code, to allege matters aliunde to show in what manner the person alleged to have been injured could be affected by the forgery, nor the fact that the testator had property to bequeath. Such matters are mere matters of evidence. It is only necessary to allege matters aliunde, when such matters are essential to constitute the crime of forging an instrument which is invalid upon its face.</p>

<p>Stipulated Damages—Breach of Contract for Possession of Land.— When actual damages can be readily fixed for breach of a contract, a provision therein for stipulated damages is void. There is no difficulty in fixing the actual damage sustained by breach of a contract to deliver the possession of land; and if no actual damage is sustained from such breach, no damages can be recovered, though stipulated for in the contract.</p> <p>Use and Occupation of Land—Damages. —Ordinarily, the actual damage which one sustains by being deprived of the use and occupation of land is the value of the use and occupation of the land during the time he is deprived of possession.</p> <p>Deed—Agreement fob Possession—Description of Land—Reformation — Mistake. — When a deed contains an erroneous description of the land sold and conveyed by metes and bounds so as to include land which was known not to belong to the grantor, and which was inserted with the distinct understanding that such description was not correct, but was used for the mere convenience of the grantee, for the want of a precise description of the true boundary line of the grantor’s property; and an agreement is made that the grantor may remain in possession of the granted premises until a certain date, and shall then surrender possession thereof to the grantee, or pay certain liquidated damages for failure so to do, it being verbally understood between the parties that the possession to be delivered only applied to such lands as the grantor had title to in fee, and had sold and conveyed to the grantee, the grantor is entitled to have such deed and agreement reformed so as to contain a true description of the land actually sold, and it is no reason against such reformation that the deed or agreement were not signed under any mistake as to their terms or meaning.</p> <p>Reformation of Contract — Defense. — In order to constitute a defense to an action upon a contract upon which no recovery can be had, if it was properly reformed, it is not necessary that the reformation be in fact made. It is enough for the defendants to set up and establish facts entitling them to the relief demanded. (Works, J., dissenting.)</p>

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

The action was brought upon a joint note for the sum of four thousand dollars, payable three months after date, executed by A. G. Rich and Michael Dubs, to Martin Chafoin, June 16, 1883.

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

<p>Application for an order restraining the prosecution of an action.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Void Tax Deed—Color of Title—Adverse Possession — Statute of Limitations. — A tax deed, though void on its face, if containing a proper description of the land, is sufficient to give color of title, under which a claimant of title in good faith may found an adverse possession, so as to set the statute of limitations in motion. It is a written instrument, upon which a claim of title may be founded as being a conveyance of the property in question, within the meaning of section 322 of the Civil Code, and is effective as notice of the extent of the possession and claim under it.</p> <p>Id. — Claim of Title in Good Faith. — In order to begin an adverse possession under a claim of title, within the meaning of section 322 of the Civil Code, the adverse occupant must enter and hold the land in good faith, believing his conveyance to be valid. Knowledge that the instrument is absolutely void will vitiate the claim of title; but such knowledge must be actual, and not such as would arise from the legal construction of the instrument.</p> <p>Id. — Evidence of Adverse Possession. —When the evidence shows that the holder of a void deed entered and held possession of the land under it, claiming to be the owner of the property by reason of the conveyance, and that the plaintiff had actual notice of the adverse claim and its foundation, such deed is admissible in evidence for the purpose of defining the character and limiting the extent of the defendant’s possession.</p>

The defendant and J. T. Prewett were jointly accused by information of the murder of A. W. Powers, committed in the county of San Benito on the seventeenth day of September, 1885. Held: and resolutions were adopted pledging all present to secrecy. They afterwards hung the body of Powers to a tree, and placarded it with a card printed in pencil on one side “Vigilantes 150.” Irwin was present at all the meetings except the last.

<p>Divorce — Setting Aside Judgment by Default—Affidavit of Merits. —No affidavit of merits is required in order to set aside a judgment by default in an action of divorce. The public has an interest in the result of the suit, and the court should aim to afford the fullest possible hearing.</p> <p>Id. — Service of Summons—Notice to Non-resident Defendant. —The court should be very liberal in granting an application to set aside defaults in divorce actions, where it appears at all probable that there was no service, either personal or by publication. When the affidavit of defendant upon such application shows that she was not a resident of the state within six months before suit, and that her first notice of the suit was a copy of the decree of divorce sent her by mail in the handwriting of the plaintiff, and the counter-affidavits for plaintiff contain improbable statements as to personal service of the summons upon the defendant out of the state, the judgment should be set aside, with leave to answer within a reasonable time. Service oe Summons out of State. — Service of summons out of the state can he made, if at all, only when a publication of the summons has been ordered; and a prior service out of the state is of no avail.</p>

<p>San Diego—City Limits—Taxation.—The peninsula of San Diego is within the limits of the city of San Diego, and land situated on said peninsula is subject to assessment and taxation for city purposes, though not included within the limits of lands patented to the city of San Diego.</p> <p>Municipal Corporation — Jurisdiction—Taxation.— A grant of municipal jurisdiction over certain limits includes all the powers which the municipal corporation is given by its charter, including the power of taxation.</p> <p>Id. — Elective Franchise.—It cannot be assumed that the legislature intended to give the right to vote at city elections to people who are non-residents of the city, and who are not subject to its taxation.</p> <p>Statute — Principles op Construction.—All parts of a statute are to be considered together, keeping in view the subject-matter of legislation, in order to ascertain the legislative intent. Effect should be given to such clause when it can be done; but one clause may be enlarged or limited by other provisions upon the same subject. No construction of words is admissible which gives to them an absurb signification, if any other reasonable construction is possible.</p>

The action was brought to recover a license tax imposed upon the defendant under an ordinance passed by the board of supervisors of San Benito County, providing that all persons, firms, or corporations engaged in the business of carrying persons or freight for hire on or by means of railroad cars shall pay quarterly a license therefor in the sum of one hundred dollars.

<p>Appeal from Judgment—Dismissal. —An appeal from a judgment, taken more than one year after the entry of the judgment, will be dismissed.</p> <p>New Trial — Order — Review on Appeal. — An order denying a new trial will be affirmed, if any sufficient ground appears for the denial of the motion.</p> <p>Time of Motion for New Trial—Notice of Decision — Waiver — Infancy. —It seems that the object of the law is to give ten days after actual knowledge of the decision in which to give notice of intention to move for a new trial. That object is fully attained when the record shows that the party entitled to notice has acted in court upon actual knowledge of the decision. Such action constitutes a waiver of formal notice; and a notice of motion for new trial, given fourteen years after such waiver, is too late, though no formal written notice of the decision was ever given, and though some of the parties moving for a new trial were minors at the time of the waiver.</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 Mendocino 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 amount of a business license imposed under an ordinance of the board of supervisors of Monterey County. Further facts are stated in opinion of Department One.

The action was brought by the assignee in insolvency of. William Reed to recover damages for the conversion of certain wine. Judgment was rendered in favor of the plaintiff, from which, and from an order refusing a new, trial, the Bank of Napa appeals. The further facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Marin County, and from an order denying 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 Cruz County, and from an order denying a new trial.</p> <p>The action was brought by Thomas Kerns as the grantee of W. H. Patterson, to recover the possession of land which had been sold to A. P. Sanford, deceased, in his lifetime, by said Patterson, under a contract which is fully described in the opinion. Further facts are stated in the opinion of the court, and in the cases therein referred to.</p>

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

<p>Criminal Law—False Imprisonment—Borden of Proof.—In a prosecution for a false imprisonment, under section 236 of the Penal Code, the prosecution must prove the imprisonment; but this being done, the law presumes it unlawful, and the burden is cast upon the defendant of justifying it, by proving that it was lawful.</p>

<p>Pleading — Averment oe Time.—The complaint in an action for services need not show the time when the services were rendered. Contradictory Findings.—The findings in such an action are not contradictory because they are to the effect that the defendant promised to pay a fixed sum, and promised to pay what the services were reasonably worth.</p>

<p>State Lands—Action to Determine Contest—Allegation of Order of Reference—Pleading.—The complaint in an action to determine a contest as to the right to purchase state lands sufficiently avers, as against a general demurrer, that an order of reference had been made, when it alleges that on a particular day the surveyor-general referred the contest to the superior court for adjudication, and that the order of reference was on the same day filed with the clerk.</p> <p>Id.—Amendment of Complaint to Show Demand fob Reference — Abuse of Discretion. —It is an abuse of discretion, in such an action, for the court not to allow the complaint to be amended by alleging that a demand for an order of reference had been made by the plaintiff, and the time when such demand was made, so as to show that he had complied with the provisions of section 3498-of the Political Code, as amended on March 14, 1885.</p>

<p>Statute of Limitations— Adverse Possession—Color of Title.— When one claiming as grantee of an invalid tax title remains in the actual and exclusive possession of a tract of land occupied under an inclosure as one farm, and takes a contract of purchase and conveyance from the owner of a part thereof, which is not separated from the remaining part by any fence, and continues to occupy the whole tract under a claim of title in himself, exclusive of any other right, and thereafter conveys each part of said farm by separate deeds to another, who takes possession and occupies the whole as one farm, adversely to all other claimants of title, the deeds under which the latter and his grantors claim are sufficient color of title to make his possession adverse to all other claimants of part of the farm.</p> <p>Id. —Ignorance of Adverse Rights. —The fact that a person in exclusive possession of a tract of land claiming title thereto does not suppose that he is interfering with the rights of any one else, does not defeat his adverse possession, but tends to establish more strongly the good faith and exclusiveness of his own claim.</p> <p>Id.—Exúdenos. —The testimony of witnesses who have had personal observation of the sufficiency of a fence to keep out stock is admissible to prove that it so operated. Such testimony is not matter of opinion.</p> <p>Agreed Boundary—Partition Pence. —When the boundary between adjoining owners is conflicting, uncertain, and indefinite, and a boundary is agreed upon between them, and a partition fence is erected and maintained thereon, such agreement is valid, and a purchaser from one of the adjoining owners, with notice of such agreed boundary, is bound thereby.</p> <p>Evidence of Adjoining Oxvner’s Claim. — Presumptive Ownership. — A contract of purchase and conveyance to a possessor of land, from one who is the presumptive owner thereof, under a decree of partition determining title in his favor, is, together with such decree, admissible to show the extent and nature of his claim, and to constitute him an adjoining owner, within the meaning of the authorities upon agreed boundary lines.</p> <p>Id.—Boundary Agreed without Dispute. — When the lines of two adjoining owners overlap, and the conflict is one which cannot be determined without judicial investigation, the parties may adjust the boundaries between themselves, and it is not necessary in such case that there shall be an actual dispute as a basis for an agreed boundary line.</p> <p>Appeal — Error without Prejudice.—The admission of erroneous evidence is harmless, when there is abundance of other evidence, without substantial conflict, to sustain the finding of fact which such evidence tends to prove.</p> <p>Id. —Presumption. —The presumption is in favor of the correctness of the finding of the court below; it is for the appellant to show error. Pleading — Motion to Strike out — Waiver. — When a case is tried without any motion to strike out certain denials in the answer, and after judgment upon such trial is reversed upon appeal, no motion to strike out is made for a series of years after the remittitur is filed, until just before the commencement of the second trial, the delay operates as a waiver, and a motion to strike out comes too late to be regarded. Evidence—Cross-examination—Discretion. — The cross-examination of witnesses is largely in the discretion of the trial court, and will not be reviewed, if there is no abuse of discretion.</p>

The affidavit of H. S. Baer was offered in support of plaintiff’s motion for a new trial, and stated “that he was one of the jurymen impaneled upon the trial of the above-entitled cause; that after the jury retired for the purpose of considering their verdict, they found they could not agree thereon, and that the jurors all agreed that each one should mark down the sum he thought proper to find in favor of the plaintiff, and against the defendant, and then to divide the…

<p>Public Officers—Sheriff — Per Diem for Transporting Prisoners and Insane Persons must be Paid into Treasury.— Under the provisions of the county government act of 1883, as amended on March 14, 1885, the money paid to a sheriff by the state, in pursuance of the act of March 14, 1885, for the time necessarily consumed by him in transporting prisoners to the state prisons, and insane persons to the insane asylums, must he paid by him into the county treasury. ■ The sheriff has no right to retain it for his own use.</p>

The demurrer for ambiguity and uncertainty specified, the particulars mentioned in the first syllabus above. The further facts are stated in the opinion.

<p>Contract nor Printing Book — Construction.—The plaintiff and the defendant McKenney entered into a contract whereby the former agreed to print a book for the latter. The defendants Hicks and Judd, who attended to the sale and distribution of the book, guaranteed to pay for the printing'out of the first moneys collected from the sales. The proceeds of the sales realized more than enough to pay for the printing, but Hicks and Judd failed to pay the plaintiff a balance of §1,510 due him therefor. Thereafter the plaintiff and McKenney entered into a second contract, whereby the former agreed to print another book for the latter, the expenses of which were to be paid from the proceeds of the sale, and the balance was to be divided, one third to McKenney, and two thirds to the plaintiff, to be credited on its balance of §1,510. By reason of the fault of an employee of McKenney, the book contained certain pirated copyrighted articles. The owner of the copyright obtained a judgment against the plaintiff and McKenney for the infringement, which McKenney paid. Held, that neither of the defendants could credit the amount paid in satisfaction of the judgment on the balance due the plaintiff.</p>

<p>Correction or Mistake in Deed. —Where two deeds are executed by the same grantor to the same grantee, and the second shows that the first conveyed more than was intended, and the grantee accepts the second deed, and claims under it, a court of equity will direct a reconveyance of what was conveyed by mistake by the first deed. Instance construction of such deeds.</p>

<p>Time fop. Appeal—Interlocutory Decree in Partition—Dismissal.— An appeal from an interlocutory decree in partition will be dismissed if not taken within sixty days.</p> <p>Id. —Review of Interlocutory Decree in Other Oases. —An interlocutory decree in cases other than partition is not appealable, but is to be reviewed on appeal from the final decree.</p> <p>Appeal from Order Denying Motion for New Trial—Service ofNotice of Appeal—Service of Notice of Intention. —A notice of appeal from an order denying a motion for new trial need only be served upon the parties to the motion in the court below. If the notice of intention to move for new trial was not served on all the proper parties, the matter is one for consideration on the hearing of the appeal, and is not ground for its dismissal.</p>

<p>Appeal from a judgment of the Superior Court of Napa County, and from an order overruling a demurrer.</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>Criminal Law—Assault with Intent to Murder—Present Ability— Instruction — Immaterial Error. — In a prosecution for an assault with intent to murder, the omission to instruct the jury that “a present ability ” to commit the assault is a necessary element of the crime, is an unprejudicial error, when the uncontradicted evidence shows that the assault was committed by a shot from a pistol, and the only question disputed is as to the identity of the person who fired it.</p> <p>Id.—New Trial—Newly Discovered Evidence as Ground for.—In order to entitle a defendant convicted of a criminal offense to a new trial, on the ground of newly discovered evidence, the affidavits used on the motion must show that he could not, with the exercise of reasonable diligence, have discovered and produced the evidence on the trial, and that it is such as to render a different result probable if a retrial were had.</p>

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

<p>Estate of Decedent—Family Allowance— Power of Court to Grant. The superior court sitting in probate may in its discretion, in all cases where the necessity therefor exists, make a reasonable allowance out of the estate of a decedent for the support of the family during such, reasonable period as, in view of all the facts, may be necessary.</p> <p>Id.— Provision Made in Will for Widow.—The fact that ample provision is made for the widow by the will does not prevent the court from setting apart to her the household furniture exempt from execution, or from making her a family allowance until such time as the dispositions contained in the will become available for her use.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco ordering an execution to issue.</p> <p>The facts are stated in the opinion of Department One.</p>