Volume 78 — California Reports

<p>Criminal Law — Homicide — Previous Conviction op Felony. —In determining whether a defendant accused of murder is guilty thereof, the jury should disregard evidence introduced to establish a previous conviction of felony which is also charged in the indictment.</p> <p>Id. — Appeal prom Judgment — Review op Instructions. — When an appeal in a criminal case is taken only on the judgment roll, which contains the written instructions presented and indorsed as given or refused, but also shows that oral instructions were given, the nature or contents of which do not appear as part of the record, an instruction refused cannot be reviewed. Appellant must either show that such instruction was not given elsewhere, or give the respondent an opportunity to show that it was given. The respondent has no control over the contents of the judgment roll, and the appellant must make error affirmatively to appear.</p> <p>Id,—Transcript on Appeal—Unauthentioated Copy op Oral Instructions.— A manuscript purporting to be the oral charge of the court, which is not incorporated in a bill of exceptions, or authenticated in any way provided by law, cannot be considered for the purpose of determining whether a written instruction presented and refused was or was not embodied in the oral charge.</p>

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

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

<p>Appeal—Review op Conflicting Evidence.—The verdict will not he interfered with on appeal on the ground of insufficiency of the evidence to justify it, if the evidence is conflicting.</p> <p>Conditional Payment by Check—Dishonor op Check—Instruction. — When the trial of an issue involves a question of payment of a debt by a check which was dishonored, it is error to refuse to instruct the jury that when a check is given in payment of a debt it is only accepted on condition that the check be paid, but if dishonored, the creditor may resort to his original claim, on the ground that there has been a failure of the condition on which the check was taken. A check or note is only a conditional or provisional, and not an absolute, payment of the debt for which it was given, and does not extinguish the debt unless it is expressly agreed it is accepted as payment. (Paterson, J., dissenting.)</p> <p>Id.— Agreement por Payment by Check — Instruction.— The agreement for absolute payment by note or check must he mutual between the debtor and creditor, and it is error to instruct the jury that “if it be accepted by the creditor by his own voluntary act or choice as payment, and in satisfaction of the debt, such acceptance would establish payment of such debt.” (Paterson, J., dissenting.)</p> <p>Absolute Payment by Check. —When a check is taken by agreement as absolute payment of a debt, the creditor takes all the risk of its payment.</p> <p>Id.—Acceptance op Check by Manager op Bank—Construction op Evidence.—The language of a witness who is manager of a plaintiff bank, in stating that a check which was afterward dishonored was accepted in payment of the debt sued upon, should not be construed as signifying anything more than the provisional or conditional payment presumed by law, and is no evidence of absolute payment.</p> <p>Id. — Receipt op Payment in Full. — A written receipt of payment in full does not establish a positive agreement for absolute payment when the payment is by a bill or note.</p> <p>Abstract Instruction. —An abstract instruction, which there is no evidence to justify, and which is calculated to mislead the jury, is erroneous.</p> <p>Receipt — Agency — Evidence.— A receipt is always open to explanations, and the purpose for which it was given may be shown. Receipts shown to have been given by a book-keeper of the defendants as mere memoranda or vouchers, to he used as such by a third party who was dealing with the plaintiff, and to have been given in the name of the plaintiff instead of such third party, with the knowledge, authority, consent, or subsequent ratification of the defendants, cannot charge the defendants with liability for money received of plaintiff, on the admissions appearing upon the face of the receipts.</p> <p>Brokers — Principal and Agent—Assumpsit — Evidence. — In an action of assumpsit, when the defense is that certain brokers who dealt both with the plaintiff and with the defendant dealt with the plaintiff as principals on their own account, and not as agents of the defendant, if evidence is offered by the plaintiff to show that such brokers were doing a general brokerage business, and did not furnish money as principals to any persons, including certain third persons named, evidence is admissible for the defendants in rebuttal to show that such brokers did furnish money to such third parties as principals, and not as brokers.</p>

The action was brought to recover damages for personal injuries alleged to have been caused to the plaintiff through the negligence of an employee of the defendant in pushing him from one of its engines. A verdict was rendered in favor of the plaintiff. The defendant moved for a new trial, on the grounds, among others, of newly discovered evidence, and insufficiency of the evidence to justify the verdict, and that it is against law.

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

The defendant was charged with the crime of murder in killing Thomas Rosengrave at San Francisco, on the twenty-third day of October, 1887. The facts respecting the errors assigned upon this appeal are stated in the opinion of the court.

<p>Mutual Benefit Association — Forfeiture for Non-payment of Assessments—Waiver by Acceptance of Sums Due after Knowledge of Forfeiture.— The acceptance by a mutual benefit association of assessments after knowledge of a forfeiture by reason of non-payment thereof within the required time operates as a waiver of the forfeiture, in the absence of convention of the parties to the contrary.</p> <p>Id.—Convention of the Parties—Constitution and By-laws must Control.—The rights of the parties must be governed by the constitution and by-laws of the association. If these documents impose other conditions of reinstatement after forfeiture or suspension for nonpayment of sums due beside the payment thereof, such conditions must be complied with. But the rights of the members are not affected by the mere assertions of the officers, or by what they may choose to put upon assessment notices.</p> <p>Id.—Instance Construction of Constitution and By-laws — Suspension or Forfeiture — Adjudication by Council.—Under the constitution and by-laws shown by the record, the provisions for a reelection and a new medical certificate of a member whose assessments have remained unpaid for a certain time do not apply unless there has been an adjudication of the suspension by the council.</p>

In this case several different lots were sued for. The land was public land. But the wife was in possession of some of the lots under conveyances made to her by prior occupants before her marriage with the defendant. For these lots judgment was given in favor of the plaintiff. The other lots were conveyed by prior.occupants to the husband after the marriage. For these lots judgment was given in favor of the defendant.

<p>New Trial as to Part of the Issues. —Where the issues are separable, the losing party may move for a new trial as to a part, leaving the findings to stand as to the remainder.</p> <p>Eminent Domain—Market Value — Value in Use—Value for a Particular Purpose for Which the Property has not been Used. — The value of land in proceedings in eminent domain is not the value in use to the owner, but the market value, by which is meant, not what the owner could realize at a forced sale, but the price which he could obtain after a reasonable time, such as would ordinarily be taken to make • a private sale of like property. In ascertaining such value, the fact that the property has never been used for purposes for which it has a value is immaterial. The present value for prospective purposes is to be taken. It is proper, therefore, to take the value of the property for reservoir purposes, although it has never been used for such purposes.</p> <p>Id. — Value of Property Which is Valuable only in Connection with Other Property Which is not Owned by the Defendant.—The fact that the property can he used for reservoir purposes only in connection with the land of the plaintiff does not prevent the application of the foregoing rule, or enable the plaintiff to take it without regard to its value for such purposes. The question of value is distinct from the question of ownership.</p> <p>Id.—Remote and Speculative Value — Enhancement in Value by Reason of the Proposed Improvement. —When there is no current rate of price, and where in consequence the court must arrive at the value from a consideration of the uses to which the property may he put, the enhancement in value by reason of the proposed improvement cannot be considered. Such a value is too remote and speculative.</p> <p>Id.—Enhancement in Value of the Adjacent Lands.—For the same reason, the enhancement in value of the adjacent lands by reason of the proposed improvement cannot he considered.</p> <p>Id. — Mode of Ascertaining the Value — Opinions oe Witnesses Who are not Experts. —Upon the question of what is the market value, in the sense above stated, the opinions of those who have a knowledge of the circumstances and surroundings may he taken, although they are not experts.</p>

The facts are stated in the opinion, and in the opinion in the preceding case of San Diego Land and Town Company v. Neale, ante, p. 63.

<p>Criminal Law—Accessary before the Fact—Information. —By section 971 of the Penal Code, the distinction between an accessary before, the ( fact and a principal is abrogated, and an accessary must now be prose-1 cuted, tried, and punished as a principal. It is sufficient to charge the accessary directly with having himself committed the act, and the acts constituting him an accessary may he proved under such charge; hut if the information charges facts sufficient to constitute the defendant such accessary at common law, it sufficiently charges him as principal under the statute, and need not allege further matter which might he proven without pleading, if the defendant had been charged directly as principal.</p> <p>Id. — Throwing Vitriol upon the Person of Another—Aiding and Abetting — Sufjicency of Information. —An information charging a defendant with encouraging and advising, and also with aiding, assisting, and procuring, his wife to throw vitriol upon the person of another, is not demurrable, because it does not state whether, being present, he aided and abetted, or, not being present, he advised and encouraged, the commission of the crime.</p> <p>Id.—Pleading under Penal Code.—Under the provisions of the Penal Code, the particularity of averment necessary at common law is not required. It is only necessary that the substantial facts constituting the crime shall he alleged with sufficient certainty to enable the court to pronounce a proper judgment, and the party to defend against the charge. The offense is sufficiently charged in the language of the statute without further particularity as to acts, and any defect of form not tending to the prejudice of a substantial right of the defendant must be disregarded.</p> <p>Id. — Correction of Judgment — Presence of Defendant.—When a judgment in a criminal case is corrected, a recital in the corrected judgment that the defendant was present in person and by counsel is proof of such presence, when there is nothing to controvert its truth.</p> <p>Id.—Evidence — Scope of Cross-examination of Defendant.—Section 1323 of the Penal Code does not confine the cross-examination of a defendant in a criminal action or proceeding, as to matters about which he was examined in chief, within narrower limits than in the case of any other witness, except that the court may not have such discretion as to the extent and scope of the cross-examination as in the case of other witnesses. The questions put must be within the proper limits of cross-examination, but the truth or falsity of the testimony in chief may be tested by the cross-examination in any proper way.</p> <p>Id.— Cross-examination as to Letter of Defendant—Handwriting. —If the defendant, upon his examination in chief, denies the commission of the offense charged, he may he cross-examined as to whether a letter which tends to contradict the denial and to show the perpetration of the crime was in his handwriting. (McFarland, J., dissenting.)</p> <p>Id.—Throwing Vitriol — Evidence — Cross-examination as to Conversation of Defendant.—Upon the trial of a charge of aiding, encouraging, and advising the crime of throwing" vitriol upon the person of another, if the defendant denies the offense in his testimony in chief, he may he cross-examined as to a conversation in which he said he would fix up something that was new for the person injured, which would disfigure him so that he would not want to see another woman.</p>

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

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

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

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

The action was brought to recover six mules, which had been levied upon November 13, 1886, as the property of V. B. Dale, by his creditor, being at the time of levy upon his ranch.

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

<p>, Pleading — Verification by Attorney—Construction of Code. The verification of a pleading by an attorney, which shows no inability of the party to make the verification, must state directly that the facts verified are within the knowledge of the attorney. He cannot verify upon information and belief in such case, nor is it sufficient to state that the facts are more fully known to him than to the party he represents.</p> <p>Id. — Motion to Strike out Unverified Answer. — A motion should be granted to strike out an unverified answer, or one which is insufficiently verified by the attorney of the party making the answer.</p> <p>Action on Injunction Bond — Plea of Settlement — Motion to Strike out. — An answer in a suit on an injunction bond which pleads a settlement of the original suit, which by its terms was limited to such controversies as then existed, is no defense to an action on the injunction bond, the cause of action upon which subsequently arose; and though a demurrer would be more appropriate as a means of testing its sufficiency, it is so clearly bad that a motion to strike it out is proper.</p> <p>Trial by Jury — Peremptory Challenges — Passing Jurors. — The right to challenge a certain number of jurors peremptorily is absolute under the statute; and the fact that a party has once passed the jury, including the juror afterward sought to be challenged, does not cut off this right. The right may he exercised at any time before the juror is sworn.</p> <p>Id. — Impaneling of Jury.—Irregularity—Bill of Exceptions — Affidavits—Practice on Motion for New Trial. — The impaneling of a jury is a part of the trial within the meaning of the code, and any ruling of the court with respect thereto, or upon challenges interposed, if erroneous, is an error of law occurring at the trial to be presented by a bill of exceptions or statement, and not an irregularity to be presented by affidavits, on motion for new trial.</p> <p>Evidence—Admissions of Answer. — It is not error to exclude evidence to prove facts which are admitted by the answer.</p> <p>Id. —Insufficient Defense. —Evidence should not be received, if objected to, in support of facts set up in an affirmative count of the answer which ought to he stricken out as insufficient, nor will evidence in support of such defense sustain a verdict for the defendant.</p> <p>Id. —Insufficient Proof of Settlement. — Evidence which fails to show that a settlement pleaded in the answer included the matter here in litigation, or that plaintiffs all participated in or authorized the settlement, will not sustain a verdict for the defendants.</p> <p>Waiver of Demurrer —Trial without Ruling. — A demurrer to the answer will be deemed to be waived when the court proceeds to try the case without a ruling on the demurrer, and without plaintiffs calling for any ruling, or calling the attention of the court to it in any way.</p>

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

<p>Appeal from an order of the Superior Court of Placer County, determining the right to a legacy,, and refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>County Physician—Graduate in Medicine — Construction of County Government Act. — The county government act requiring the board of supervisors to appoint some suitable graduate in medicine to attend to the indigent sick and dependent poor does not require that the county physician shall have received a degree in a medical college or university, but authorizes the appointment of one who has passed a satisfactory examination before the board of examiners of the state medical society, and is legally licensed to practice medicine and surgery under the laws of the state.</p> <p>Id. — Statutory Construction. — The object of a statute is to be considered in its construction; and when the meaning of the words is not clear, the statute should he given such construction as will not deprive the person interested in its construction of a substantial right.</p>

The action was commenced August 21, 1884. The plaintiff claimed title under C. E. Gaxiola, by purchase from his heirs at law, after his decease, in 1879. On January 30,1885, plaintiff, pending the action, conveyed a half-interest in the land to George Hearst, who thereafter intervened. The defendants claimed title under the tax deed described in the opinion, which was executed March 2,1882, under an assessment made in 1880, after the decease of Gaxiola.

<p>Partnership—Patent Obtained by One Partner—Assets op Firm — Parol Agreement. — When a copartnership is formed for the manufacture of hay-presses, for which a patent is afterward obtained by one partner, and the hay-press was put in as part of the capital stock, the patent so obtained is partnership property, and it is of no consequence that there was no written assignment of a half interest in the patent to the other copartner. Such copartner became in equity the owner of one half of the patent, though the agreement was by parol.</p>

<p>Pleading—Demurrer for Ambiguity—Statute of Limitations.—The fact that a cause of action as set out in the complaint does not show on its face whether it is or is not barred by the statute of limitations, cannot defeat a recovery, nor sustain a demurrer for ambiguity. Unless the complaint shows affirmatively that the cause of action is barred by the statute, that objection cannot be raised by demurrer.</p> <p>Id.—Matter within Defendant’s Knowledge. — When the matter in respect to which a complaint is objected to as ambiguous is peculiarly within the knowledge of the defendant, such ambiguity is not a ground of demurrer of which the defendant can avail himself. (Per Beatty, O. J.)</p>

The action was brought to foreclose a mortgage executed by George Griffith and wife on the 1st of March, 1876. On August 17, 1877, Henry Heuston obtained a judgment against George Griffith. The foreclosure suit was begun on January 9,1878, Heuston not being joined as a party defendant. The mortgaged premises were sold under execution on November 26, 1878, and the sheriff’s deed was recorded on June 6, 1879.

<p>Official Bond—Wharfinger-—Recital of Appointment — Estoppel of Sureties. — The sureties on the official bond of a wharfinger, which recites his appointment by the state harbor commissioners, are estopped to deny the fact of such appointment.</p> <p>Id.—Approval of Bond — Evidence.—The testimony of the secretary of the harbor commissioners that the bond of a wharfinger was approved, and that the minutes showed that fact, establishes the approval of the bond.</p> <p>Id. — Failure to Approve Bond. — The failure of the proper officers to approve an official bond will not invalidate it, nor release the sureties from their liability upon it.</p> <p>Id. — Suggestion of Defect. — Under section 963 of the Political Code, if a copy of the bond be attached to and made part of the complaint, it is a sufficient suggestion of any defect in the bond, or in the approval or filing thereof.</p> <p>Id. — Filing of Bond. — When the pleadings admit delivery of an official bond, and there was at least an informal approval of it by the proper officers, it must be held that it was accepted by them, and became obligatory on its makers, without an indorsement of filing.</p> <p>Id. — Breach of Wharfinger’s Bond. •—■ The collection by a wharfinger of public money arising from dockage, wharfage, etc., and his neglect to pay them over to the board of harbor commissioners, is a clear violation of duty, and a breach of the obligation of his bond.</p> <p>Id. — Evidence—Receipts of Office.—Receipts signed by an officer showing his collection of public moneys are admissible as prima fade evidence to charge the sureties on his official bond.</p>

<p>Patent—Railroad Grant—Reservation — Mexican Grant.—A patent to the Southern Pacific Railroad Company of land which was included in the exterior limits of a Mexican grant, which was sub judice at the date of the grant by Congress to that railroad company, is void from the beginning, such land having been reserved from the grant.</p> <p>Id.—Survey — Exterior Boundaries of Mexican Grant — Sufficiency of Finding'—Evidence.—A finding that the land sued for is within the exterior limits of a Mexican grant as shown by a particular survey, and not within its limits as shown by a prior survey, which was finally approved, is not a finding upon an issue tendered as to whether the land was within the exterior limits of the original grant. That question is to be determined, not by any survey, but by the excediente' of the Mexican grant, including petition, diseño, and grant, the boundaries designated in which may be identified by parol evidence.</p> <p>Id. — Attacking Patent — Rights of Pre-emptor.—A settlement and possession by a pre-emptor in compliance with the laws of the United States, upon land subject to settlement and pre-emption, gives to the pre-emptor such privity with the government of the United States that he may attack a void patent for the land.</p> <p>Id. —Railroad Grant — Indemnity Limit—Rights of Trespasser__ A mere trespasser on land situated within the indemnity-limit grant to the Atlantic and Pacific Railroad Company, having no contract with or authority from said company, cannot avail himself of the rights of that company in attacking a void patent issued by the government of the United States for the same land to the Southern Pacific Railroad Company.</p>

<p>Corporation — How Dissolved—Right of its Officers to Control its Property—Such Right not to be Questioned by Defendant in Action by the Corporation to Protect its Property. — A corporation organized under the laws of the state of California can be dissolved only in the manner prescribed by those laws. And its property is to be managed and controlled by its duly elected officers. The order of an association to which the officers and members of the corporation belong, declaring that the corporation is “ suspended,” and directing the delivery up of its property, has no effect upon the existence of the corporation or upon the right of its officers to control its property. And the propriety of the conduct of the officers will not be inquired into in a suit by the corporation to protect its property.</p>

Upon the cross-examination of the defendant, he was asked if he had ever been arrested before, to which he gave a negative answer. Further facts are stated in the opinion of the court. The officer’s reports of his interviews with the defendant were admissible. (1 Greenl. Ev., sec. 382; Rex v. Despard, 12 Howell’s State Trials, 489; State v. McKean, 36 Iowa, 343; 14 Am. Rep. 530.) Defendant was not prejudiced by the evidence as to his reputation.

<p>Attachment — Sufficiency of Affidavit — Averments upon Knowledge. — An affidavit for attachment need not state whether its averments are based upon direct knowledge, or upon information and belief, and if the facts are stated positively, it will be implied that they were within affiant’s knowledge.</p> <p>Id. —Affidavit by Agent. —An affidavit for attachment made by a business agent of the plaintiff need not aver that he is an agent for the collection of the debt, nor that he makes it in behalf of the plaintiff, nor that the facts are peculiarly within his knowledge, nor that there is any reason why the plaintiff does not make it.</p> <p>Id.—Account Stated — Express or Implied Contract.—An affidavit fcr attachment, averring an indebtedness to the plaintiff “ upon an account stated, or contract for the direct payment of money,” is not fatally defective for not averring whether the contract was express or implied.</p>

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

<p>Mechanic’s Lien — Claim op Material-man — Completion op Structure — Acceptance—Pleading.—Under section 1187 of the Code of Civil Procedure as amended in 1887, the acceptance and occupation of a structure by the owner from the contractor is conclusive evidence of its completion; and the claim of a material-man may be filed for record within thirty days after such acceptance and occupation, whatever may be the actual condition of the structure when work thereon ceased.</p> <p>Id. — Failure to Record Original Contract—Rights op Material-man. — Though the failure to record a building contract before the work is commenced makes it wholly void, it is only void as between the parties thereto, and does not vitiate the employment of a material-man by the contractor, or affect the right of the material-man to pursue his lien upon the structure as if the contract were valid.</p> <p>Id.—Foreclosure op Lien — Parties — Joinder op Causes op Action — Liability op Contractor. — It is proper, in an action to foreclose a lion upon a structure in favor of a laborer or material-man, to make both the owner and the original contractor parties defendant, and to unite a personal action against the contractor with the forclosure suit against the owner, in order to prevent multiplicity of suits. A judgment may be docketed against the contractor for such deficiency as he may he personally liable for. All persons claiming liens should he made parties, and the contractor is a necessary party to a full and complete determination of the matters in controversy.</p> <p>Practice—Usage — Maxim.—A constant and uniform procedure continued by the courts for a long time is strongly persuasive that the practice is correct.</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>Official Bond — Assignee in Insolvency—Sheriff.—The liability of the sureties on the bond of an assignee in insolvency for converting to the use of the estate the property of another than the insolvent is not the same as that of the sureties on a sheriff’s bond, when the sheriff seizes, under process, the property of another than the debtor. The duties of the assignee are wholly private, and the creditors and debtor are alone interested in the amount and sufficiency of his bond. But neither the sureties of such assignee nor of a sheriff are liable for the wrongful seizure or detention of property or money of another not taken under process.</p>

The action was brought on a promissory note. The answer denied that there was anything due the plaintiff on the note, and in a separate count set up that the same was procured by the fraud of the plaintiff. The acts and representations of the plaintiff, constituting the fraud, were alleged in detail, and were substantially the same as those found by the court, which are recited in the opinion. The further facts are stated in the opinion of the court.

<p>Partnership — Dissolution — Statute op Limitations — Acknowledgment op Debt. — After the dissolution of a partnership, one partner cannot revive a debt barred by the statute of limitations, but during its existence each partner is an agent for all in making an acknowledgment under the statute.</p> <p>Id.—Action por Contribution—Evidence—Judgment Roll in Prior Action por Dissolution and Accounting.—In an action by one partner against another for a contribution of the debts of the partnership which had been paid by him, the judgment roll in a prior action brought by the defendant against the plaintiff for a dissolution and an accounting, and for the establishment of the respective interests of the partners in the firm assets, is admissible in evidence to show their respective interests.</p> <p>Id.—Accounting after Dissolution — Express Promise to Pay Balance. — Where a partnership has been dissolved and the partnership accounts fully settled, one partner who has individually paid the partnership debts may maintain an action against the other for contribution, although there has been no express promise on his part to pay the balance.</p> <p>Evidence — Offer for Particular Purpose.—In the absence of an express understanding between counsel and the court that evidence which counsel states is offered for a particular purpose is to be limited to such matter, the court is authorized to consider it for any purpose for which it is competent and relevant to the issues.</p> <p>Summons—Motion to Quash—Objection Waived by Answering.— Where a motion to quash the summons is denied, the defendant, by answering to the merits, waives his objection to all defects therein.</p>

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

<p>Public Lands — Patent—Jurisdiction of Land Department.—When a law of Congress provides for the disposal and patenting of certain public lands, upon the ascertainment o£ certain facts, the officers of the land department have jurisdiction to inquire into and determine those facts, and the patent issued thereupon is a conclusive declaration that the facts have been found in favor of the patentee. And this rule applies to the determination of the particular character of the land which is the subject of the patent.</p> <p>Id.—Agricultural Patent — Reservation of Mineral Land — Adjudication of Character of Land. —When a patent issues under a law which provides for the disposal of public land as agricultural, and there is no reservation in the law except a general reservation of mineral lands, and no reservation at all in the patent, the patent is a conclusive determination by the government that the land is agricultural, and it is not competent thereafter in an action in a court of law to reopen the question as to the character of the land.</p>

Application to the Supreme Court for the settlement of a bill of exceptions against Hon. P. W. Keyser, acting jud^e of the superior court of Santa Cruz County.

<p>Ejectment—Immaterial Error in Finding not Ground for Relief on Appeal.—Where judgment in an action of ejectment is properly rendered in favor of the defendant upon the findings taken as a whole, an erroneous conclusion of law made as to a particular matter is immaterial, and insufficient to entitle the defendant to relief upon appeal.</p>

The facts are stated in the opinion of the court, and in the opinion of Mr. Justice McKinstry rendered on the prior hearing.

<p>Partnership — Action by on Promissory Note Executed to Individual Partner — Pleading. —In an action by a copartner on a promissory note alleged to have been executed to the firm, one of the plaintiffs cannot recover a personal judgment upon proof that the note was executed to him individually.</p>

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

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

<p>Change of Place of Trial—Convenience of Witnesses—Discretion. — An application to change the placo of trial for the convenience of witnesses is addressed to the sound legal discretion of the court, and the order made thereon cannot be reversed unless there is an abuse of discretion. The mere preponderance in number of witnesses on the one side or the other is not necessarily decisive of the application.</p>

<p>County Government Act—Mileage of Supervisors.—Supervisors in counties of the thirty-third class are only entitled to one mileage for each session of the board, and cannot charge mileage for daily visits to and from their homes during a particular session.</p> <p>Id. — Official Residence of Supervisors. — While engaged in the performance of the duty of attending upon regular and special sessions of the board of supervisors, the official residence of each supervisor is at the county seat.</p>

<p>Deed — Notice to Subsequent Mortgagee.—The evidence in this case held sufficient to prove actual notice of an unrecorded deed to the holder of a subsequent deed executed as a mortgage by the Same grantor.</p> <p>Id. — Delivery. — Evidence that a deed executed by the grantor in the house , of the grantee, at his request was left lying upon the table of the grantee, who picked it up and put it away, is sufficient to prove a delivery of the ■ deed, aside from any presumptions arising from the possession of the deed. by the grantee.</p> <p>Id. — Construction of Deed — Grant of Right, Title, and Interest. —, When a deed conveys all the right, title, and interest of the grantor, , the words “ being a one-half undivided interest ” are not words limiting ■ the extent of the previous terms of conveyance, or excepting out any interest conveyed by the previous terms.</p> <p>Quieting Title — Cancellation of Mortgage—Effect of Judgment. —. In an action to quiet title against a mortgagee of the grantor of plaintiff, who took a deed intended as a mortgage with actual notice of a prior deed from the same grantor to the plaintiff, a judgment quieting the title of plaintiff, and also canceling the mortgage of defendant as against the plaintiff, will not be modified upon appeal by striking out the cancellation, as the judgment quieting title will be followed by the same result as if the court had not ordered the cancellation of the mortgage.</p>

<p>Mortgage—Marshaling Securities—Sale of Separate Tracts— Apportionment of Burden.—When the amount of a mortgage upon two separate tracts is apportioned between different purchasers of each tract, and the purchaser of one tract has paid his share of the common burden, it is proper upon foreclosure of the mortgage against the two tracts to order the sale of the other tract to be made first to pay the share of the burden which was apportioned to the purchaser of that tract, and which he agreed to pay by the terms of his deed, as against a subsequent vendee of the tract who took expressly subject to all mortgages existing on the land.</p> <p>Id. - Foreclosure- Sale—Mistake of Law—Chaíige of Bid—Redemption. — When the purchaser at a foreclosure sale of one of two tracts mortgaged, who is interested in having the tract sold to pay the full balance due upon the mortgage in order to prevent the sale of the other tract, which is owned by himself (he having previously paid the share of the mortgage debt apportioned thereto), bids at the sale, through a mistake of law, a sum less than the amount of the mortgage, and after-wards, with the consent of the receiver making the sale, in order to rectify the mistake, increases his bid to the full amount of the mortgage, and the sale is thereafter confirmed by the court at such increased bid, the owner of the property sold will not be allowed in equity to redeem it upon payment merely of the amount of the first bid and percentage thereon, but, regardless of whether he is or is not legally liable therefor, will be compelled as a condition of relief in equity to pay the full amount due under the decree of foreclosure.</p> <p>Equity—Mistake — Conditions of Relief.—A court of equity will not lend its aid to a plaintiff in order to assist him in profiting unjustly by a mistake of law on the part of the defendant. In imposing conditions of relief, equity is not confined to the strict legal rights of the parties, but will take into consideration all the circumstances in order to arrive at the justice of the case.</p>

<p>Appeal from a judgment of the Superior Court of Placer County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion, and in the former ease between the same parties therein referred to.</p>

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

The defendant pleaded an estoppel by a previous judgment rendered in a suit in equity brought by the defendant against the plaintiff and his assignor, which was alleged to have determined that the note here sued upon was made without any authority whatever, and was fraudulent and void.

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

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

<p>Executors and Administrators—Powers of Special Administrator—. Payment of Claims. — A special administrator has no statutory power conferred upon him to allow or pay claims against the estate. Under section 1412 of the Code of Civil Procedure, the appointment of a special administrator must be made by entry upon the minutes of the court specifying the powers to be exercised by the administrator. If such entry is not before the appellate court, a disallowance by the superior court of a claim paid by the special administrator in the settlement of his account will be affirmed.</p>

<p>County—Breaking of Bridge—Illegal County Warrant. —A county is not liable in damages for injury resulting to any person from the breaking of a bridge on a county road, and the allowance of a claim therefor, and an auditor’s warrant issued thereon, are illegal and invalid.</p> <p>Id.—County Government Act—Liability of Officers—Damages for Alleged Illegal Claim.—Under section 7 of the county government act, making the supervisors and any other officer authorizing, or aiding to authorize, or auditing or allowing, any claim in violation of the act, liable in person to the person damaged by such illegal authorization, to the extent of his loss by reason of the non-payment of the claim, does not make such officers personally liable to one who never had a legal claim against the county, nor to his assignee.</p> <p>Negotiable Paper—County Warrants—Assignment.—A county warrant has not the qualities of negotiable paper, and an assignee of such warrant stands in the shoes of the original holder.</p>

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

<p>Attorney at Law—Disbarment — Suspension from Practice for Indefinite Period — Jurisdiction. — The supreme court has jurisdiction under section 299 of the Code of Civil Procedure, in a proceeding for the disbarment of an attorney, to render a judgment suspending him from practice for a definite period, and until the performance by him of a particular condition.</p>

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

Upon the trial, a witness for the prosecution, Chow Hin, was asked on cross-examination by the defendant if he did not testify to certain things in the police court; and on re-examination the prosecuting attorney presented and read to the witness his written deposition given in the police court, and asked him if he did not so testify there, the evidence being substantially the same as that given by the witness upon the present trial.

<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 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>Execution—Sale of Seats in Stock and Produce Exchange—Supple mentary Proceedings — Reoeiver. — Seats in the San Francisco Stock and Exchange Board, and in the San Francisco Produce Exchange, though clogged with conditions and restrictions, constitute property within the reach of judgment creditors of the owner, and which should be applied as other property of a debtor to the payment of his debts. An order may be properly made, upon proceedings supplementary to execution against the owner of such seats, appointing a receiver, and directing the execution debtor to make an assignment thereof to him, and empowering the receiver to sell the same to satisfy the judgment.</p>

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

<p>Common Carrier — Railroad Company — Ejection oe Passenger—• Regulations —Notice —Nonsuit. —In an action hy a passenger for ejection from a chair-car for refusal to pay extra fare for riding therein, in accordance with the regulations of the company, where the evidence of the plaintiff shows that he was notified by the conductor of the regulation requiring such extra charge, and that the conductor called his attention to a card posted up in the chair-car stating the regulation, and that he was ejected therefrom for refusal to pay the extra charge, and left the train when he might have gone from the chair-car into a first-class passenger-car, into which he was requested to go, it is proper to grant a nonsuit, and the court is not bound upon such a showing from the plaintiff to submit to the jury the question whether such a regulation existed, or whether the regulations for the chair-car were public, uniform in their operations, or reasonable.</p> <p>Id.—Return oe Ticket.—A passenger who voluntarily leaves the train and terminates his trip cannot be aided in an action of damages for ejection from a chair-car, by the fact that his ticket was not returned. If entitled to “ stop over, ” his claim must be for return of the ticket money, and not for damages for being put off.</p> <p>Id.—Necessary Force — Wrong Contributing to Injury. — When a passenger is lawfully ejected from a car after a refusal to leave it upon demand, and only such force is used as is necessary to overcome his resistance, if he is injured by such force, his own wrong in resisting contributes proximately to the result, and he must bear the consequence.</p> <p>Id.—Place of Ejection—Nonsuit.—When plaintiff’s evidence shows that he was lawfully ejected from a car at a railroad station at a small town where the train stopped, it is sufficient to meet the requirements of section 487 of the Civil Code, requiring the ejection to be at any usual stopping-place, or near a dwelling-house, and to justify a nonsuit, without requiring further evidence from the defendant.</p>

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

The action was brought to recover the value of certain personal property.

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

<p>Appeal from a judgment of the Superior Court of Alameda County.</p> <p>The complaint averred the facts stated in the opinion of the court, and in the last syllabus above.</p>

<p>Appeal—Record—Notice of Motion for New Trial—Settlement of Statement. —Under the Code of Civil Procedure, the notice of intention to move for a new trial is not made a part of the record on appeal, and need not be embodied in the statement or presented on appeal in. any form, unless the respondent insists that it was insufficient. The court below in settling the statement should see that the statement does not go beyond the notice either in the body of it or in the specifications. The appellate court can only look at the specifications embodied in the statement or bill of exceptions, in the absence of a showing by the respondent that no notice or an insufficient one was given.</p> <p>Id. — Review of Conflicting Evidence. — Where there is a substantial conflict in the evidence, the appellate court will not disturb the decision of the court below.</p>

<p>Criminal Law—Homicide — Verdict. —The failure of a verdict of “ guilty as charged,” under an information for murder, to specify the degree of murder, vitiates the verdict.</p>

<p>Fraud—Rescission of Contract—Laches—Waiver—Partnership.— A party who seeks to avoid a contract for fraud must rescind the same promptly after the fraud is discovered, or he will be deemed to have waived it. A delay of four months after the discovery of fraud in a partnership contract, during which business is carried on as usual under the contract, is fatal to a claim of right to rescind the contract for the fraud.</p> <p>Id.—Tender as a Condition of Rescission — Damages.—There must be a tender back of the identical thing purchased as a condition of rescinding the contract' of sale upon the ground of fraud. If the party complaining has parted with the thing purchased so that he cannot make such tender, he cannot rescind, but must resort to an action for damages. It is not sufficient to tender the proceeds of the sale of the thing purchased.</p> <p>Id. —Placing in Statu Quo. —If it becomes impossible to place the parties in statu quo, there can be no rescission of a contract.</p> <p>Id. — Partnership Contract — Fraudulent Representations —Damages -—■ Pleading. — In order to entitle a party to rescind a contract for fraud, he must show that some damage has resulted to him therefrom. In an action to rescind a partnership contract for fraudulent representations as to previous profits of the business, it is necessary to allege that plaintiff'was induced thereby to pay more for the goods than he would otherwise have done, or that the business was not profitable after the purchase, or to show that plaintiff was in some way injured by the representations.</p>

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

D. J. Toohy, judge of the Superior Court of the city and county of San Francisco, to compel the settlement of a bill of exceptions. The facts are stated in the opinion of the court.

<p>Highways —Prescription—Modoc County. —Section 2619 of the Political Code, as it stood prior to the passage of the amendments of March 30, 1874, providing that a highway might be acquired by user for more than five years continuously, was not changed or affected by said amendments so far as concerned Modoc County; and in that county, in an action brought in the year 1886 against a road overseer to enjoin him for tearing down a fence of the'plaintiff the defendant should be allowed to show that it was erected across land which had been used continuously and uninterruptedly as a highway for twelve years last past.</p>

The facts are stated in the opinion of the court, and in the decision rendered upon the former appeal in the same case, reported in 67 Cal. 610.

<p>Prohibition—Insolvency—Receiver—Rights of Assignee for Benefit of Creditors. — A writ of prohibition will not lie in favor of an assignee of an insolvent debtor for the benefit of creditors to prevent a superior court in a subsequent proceeding in insolvency, instituted by the debtor, from ordering a receiver to take possession of all the property of the insolvent, and to sell the same. Such order could not in any way affect the rights of the assignee, and if the receiver should take property belonging to him under the order in the insolvency proceeding, he would be a mere trespasser, against whom the assignee would have Ms remedy; hut he cannot resort to the extraordinary remedy of prohibition.</p>

<p>Application for habeas corpus. 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.</p>

Proceeding for the disbarment of Hymes H. Lowenthal from his office of attorney and counselor at law*. The 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 refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sale—Delivery to Carrier — Construction oe Contract.—Under a contract for the sale of fruit, to be shipped to the buyer by a specified carrier at the expense of the buyer, a daily statement of weights of fruit shipped to be forwarded to the buyer, and the fruit to be weighed by the buyer at place of destination, and notice given to the seller of a substantial difference in weights, and thereupon the fruit to be held for twelve hours for adjustment of weights, the shipping weight to be conclusively taken as correct upon failure to give such notice, held, that the fruit was delivered to the buyer immediately upon its delivery to the carrier, and that loss from shrinkage in weight during transit, attributable to natural causes, must be borne by the buyer, notwithstanding the right given by the contract to the buyer to weigh the goods at the place of destination.</p>

<p>Principal and Surety—Demand—Eminent Domain—Bond for Possession. — It is not necessary to allege or prove a demand upon the principal, in order to maintain an action against the sureties on a bond given for the purpose of taking possession of property sought to be condemned for public use, under section 1254 of the Code of Civil Procedure, although the promise of the bond is that the plaintiff in the condemnation proceedings will pay all such damages or compensation as may be awarded to the defendants, or either of them.</p> <p>Id.—Liability of Guarantors. — Under sections 2806 and 2807 of the Civil Code, the liability of sureties who are guarantors for a principal is absolute, in the absence of anything in the contract calling for a demand.</p> <p>Decisions —Construction. ■—The language of a decision must be considered in the light of the circumstances involved in the case before the court.</p> <p>Id. —Case Qualified. —The decision in the case of Morgan v. Menúes, 60 Cal. 348, and 65 Cal. 243, qualified.</p>

order of the Superior Court of the city and county of San Francisco striking out a certain item from a cost-bill. The facts are stated in the opinion of the court.

<p>Taxation—Void Assessment—Payment under Duress—Assumpsit— Pleading. — In an action to recover taxes alleged to have been paid to the tax collector under duress, to prevent a sale of real estate, if the complaint alleges facts showing that the assessment was void for want of a description sufficient to identify the land, and was raised by the board of equalization without notice to the plaintiff, it follows from such allegations that all the proceedings of the tax collector in the premises were void; that his threat to sell constituted no duress, and that the complaint does not state a cause of action.</p>

The facts are stated in the opinions rendered in Bank and in Department Two, and on the first appeal reported in 67 Cal. 41.

<p>Appeal—Motion to Dismiss—Renewal without Leave. —When a motion to dismiss an appeal has been denied, a renewal of the motion upon the same grounds, upon the hearing of the appeal upon its merits, without leave granted in the former order, has nothing to commend it to the discretion of the court, and such renewed motion will be denied.</p> <p>Homestead — Survivorship.—The right of homestead and exemption is the creature of the legislature, and subject to legislative control. The law in force at the time of the death controls on the subject of homesteads and the rights of survivors. When the act under which a homestead was created is amended before the death of either husband or wife, the right of survivorship is governed by the amended, and not by the original, law.</p> <p>Id. — Continued Existence of Homestead — Findings.—When the findings as to a homestead are as broad as the issues, and there is no finding of abandonment of the homestead either before or after the death of the wife, a judgment declaring the homestead exempt from forced sale in the hands of the surviving husband will not he reversed for failure to find specifically whether the husband and wife resided on the land up to the time of the wife’s death.</p> <p>Id.—Exemption from Forced Sale. — Under sections 1265 and 1465 of the Code of Civil Procedure, a homestead selected from community property vests absolutely in the survivor on the death of either spouse, and is not subject to forced sale for the subsequent debts of tho survivor.</p>

<p>Ologbaphio Codicil—Attestation by Witness.—An attestation in the following form: “Witness, George Penlington, 123 0"Farrell Street,” — written in the handwriting of another, does not show an uncompleted intention to make an attested codicil, or prevent the codicil from being olographic.</p> <p>Id. — Ologbaphio Codicil to Attested Will. — There may be an olographic codicil to a will in the handwriting of a person other than the testator.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco setting apart a homestead out of the estate of a deceased person.</p> <p>The, facts are stated in the opinion.</p>

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

The action was brought to recover damages for fraudulent representations. The facts are stated in the opinion of the court.

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

<p>Vicious Animal — Knowledge of Owner—Negligence.—The-owner of an animal not naturally vicious is not liable for injury done thereby, unless it is affirmatively shown not only that it was vicious, but that the owner had knowledge of the fact, or that he was so negligently handled by the owner as to cause the injury. When no negligence appears, the mere fact that a horse became unmanageable, on the occasion of the injury does not prove that he was vicious or generally unsafe, or that the owner’s representation that he was gentle was untrue.</p> <p>Id.—Representation of Owner—Instruction.—An instruction that if the defendant “ represented the horse which he had harnessed to be gentle, and by such representations induced the plaintiff to approach and take hold of the horse, and if the horse was not gentle, and the plaintiff was, without negligence on his part, injured by said horse, then the defendant is responsible for the injury sustained by the vice of the horse,” is erroneous in making the defendant liable without reference to whether he had knowledge that the horse was vicious, and without reference to the intent with which the representation was made.</p> <p>Id. — Liability for Representation — Guaranty — Knowledge of Falsity—Negligence.—Such instruction is erroneous, as equivalent to holding that the defendant guaranteed that the horse was gentle. The defendant would he responsible for the injury if the representation was known to be untrue, or was carelessly made, and the plaintiff, acting in reliance thereon, received the injury. (Per Thornton, J., concurring.)</p> <p>Id.—Knowledge of Falsity—Purpose of Representation. —The defendant was not liable for the representation that the horse was gentle, unless he either knew the representation to be false, or had no reasonable ground for believing it to be true, nor unless it was made for the purpose of inducing the plaintiff to act as he did. (Per Beatty, C. J., concurring.)</p>

The following is the certificate of acknowledgment of the declaration of homestead referred to in the opinion of the court:— “.On this thirty-first day of January, A. D. 1876, before me, W. H. Hill, county clerk in and for the county of El Dorado, state of California, personally-appeared B. F. Davis, known to me to be the person who makes the foregoing declaration, and who acknowledges to me that he executed the same. “ In witness whereof I have hereunto set my hand and…

<p>Appeal—Costs—Insufficiency of Transcript — Dismissal. — When the transcript on appeal does not contain the judgment roll, but only a part of the findings relating to the matter of expenditures and costa, and a portion of the final judgment relating tc the allowance of costs, which portion is appealed from, and there is nothing to show who are all the parties to the record, or whether all entitled to service have been served with the notice of appeal, and the record is in such a condition that it would be useless to attempt an examination of the case upon its merits, and impossible to determine whether the error assigned exists or not, the appeal will be dismissed.</p>

<p>Patent—Constructive Trust—Pleading. —If a patent to state lands is void, no constructive trust can be enforced therein by a third person alleging himself to have been entitled thereto; and if the patent is valid, no constructive trust can be enforced for fraud in procuring the patent, unless the claimant affirmatively alleges and proves that he possessed the necessary qualifications entitling him to a patent. It is not enough to allege that an application was made containing such facts.</p> <p>Id.—Fraud—Contest for State Lands — Default—Collateral Attack on Patent — Ejectment — Cross-complaint.—A cross-complaint in ejectment, which seeks to enforce a constructive trust in a patent held by the plaintiff for fraud in its procurement, does not sufficiently allege fraud by averring that the patent was procured by a fraudulent arrangement of the plaintiff with another claimant of the land whose claim was purchased, and who withdrew from the contest and allowed the plaintiff to take judgment by default. If the claim purchased was valid, the defendant here could not have been injured, and if void, its purchase was unnecessary to the plaintiff’s success. Nor can the defendant collaterally assail a patent valid on its face, on the ground that judgment upon the contest was rendered by default.</p>

<p>Negligence—.Proximate Cause — Contributory Negligence.—Injury broh Gas Explosion. — A proximate cause of an injury must be one without which the injury would not have occurred. When the evidence in an action for negligence of the defendant causing a gas explosion, to the injury of the plaintiff, shows that an obstruction of the gas-pipe by a gunny-sack, complained of as constituting the negligence which caused the explosion, caused it only in the sense that it led the plaintiff, as superintendent in charge of the gas-works, to an experiment which directly and proximately caused the accident, and which no one but himself had authority to direct, and of the danger attending which he was fully aware, he alone is responsible for the injury sustained as the result of the accident. The fact that he adopted the experiment at the suggestion of the contractor who originally constructed the gas-works, and another person, neither of whom had authority to represent the owner in making such suggestions, is immaterial, as he acted therein at his peril.</p>

<p>Injunction Bond—Restraining Order—Dismissal.—When a temporary-restraining order is made upon an application for a temporary injunction, and the restraining order is limited to the pendency of the motion for a temporary injunction, upon condition that a bond be filed to pay all damage resulting from the restraining order, a bond given in consideration of a writ of injunction, pending the hearing of the action, is not such a bond as was contemplated by the restraining order, and imposes no liability, if the action be dismissed for want of jurisdiction, without the preliminary injunction prayed for in the bill.</p>

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

<p>Partnership—Dissolution—Accounting—Winding up Firm Attains — Action against Partner to Recover Balance. —Where a partnership is dissolved by mutual consent, and an accounting is had between the members, and an agreement is entered into that the firm debts shall be paid equally, one of the partners, who collects all the available partnership assets, and applies them to the payment of the firm indebtedness, and pays the balance of the indebtedness with his own funds, may maintain an action against the other to recover bis proportion of the indebtedness so paid, although no definite balance has been agreed upon between them.</p> <p>Evidence — Hearsay —Contradicting Witness. — Evidence of statements made by one person are inadmissible for the purpose of contradicting another.</p>

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

<p>Easement — Repair of. — Where an easement exists over the land of another, the duty of keeping it in repair rests upon its owner, and when repairs are necessary, he may enter upon the servient tenement to make them.</p> <p>Id. — Easement to Maintain Dtioh—Pasturing Stock on Servient Tenement — Obligation ofOwner to Keep in Repair. — The owner of a servient tenement, over which there is an easement to maintain a water ditch, has a right to use his land for the pasturage of stock in the ordinary manner, and is under no obligation to fence in the ditch or cover it over so that his stock cannot tread it down, nor to keep it clear and unobstructed, so that water will continuously flow through it.</p>

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

The petitioner was indicted in the superior court of the city and county of San Francisco for conspiring with others to extort money. A bench-warrant was issued for his arrest, and the superior court was about to proceed with the trial when the writ of prohibition was applied for. The further facts are stated in the opinion of the court.

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

The action was brought by the assignee in insolvency of an insolvent debtor, to recover certain personal property which the debtor had transferred to the defendants. The insolvent, A. F. Jones, had been engaged in business as a blacksmith, and the defendants, wholesale dealers in iron, had sold him goods for a period of about two years prior to his insolvency. At the time of the transfer in question, the insolvent owed the defendants about $360 for goods sold him by them.

<p>Negligence—Injury to Infant in Attempting to Cross a Street — Contributory Negligence of Mother. —The actio* was brought to recover dairiages for personal injuries caused to the plaintiff’s child, two years and five months old, by being run over by a team of horses and wagon belonging to the defendants. The evidence showed that the mother of the child was walking along a street, leading the child by the "hand, and carrying another infant in her arms, and had just arrived at the street crossing when she saw the defendants’ wagon coming upon the other side of the street. As she was preparing to cross the street, she felt her infant slipping from her arms, and to prevent it falling, she let go the hand of the other child, which ran ahead and was injured by the approaching team. The street where the injury happened was a much used thoroughfare in a city, and the team was being driven at an unlawful rate of speed under the city ordinance. Held, that the question whether the mother was guilty of contributory negligence was for the jury, and that their finding to the-contrary would not be disturbed.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco appointing an administrator with the will annexed of the estate of a deceased person.</p> <p>The facts are stated in the opinion.</p>

After the rendition of the original decree of distribution, the assignee of the surviving husband of the deceased moved the court, upon affidavits and notice, to reform the decree by striking out the names of the nephews and nieces, as distributees, and to distribute the entire residue of the estate to him.

<p>Municipal Corporation—Negligence of Corporate Oeficals — Corporation not Liable for.—In the absence of a statutory provision imposing the liability, a municipal corporation is not liable for personal injuries to individuals occasioned through the neglect of the officers of the corporation to properly perform their duties.</p>

<p>Appeal from a judgment of the Superior Court of Placer County, and from- an-order refusing a new trial.</p> <p>In this case the locator did not attempt to mark the boundaries of his attempted claim upon the ground. He simply posted his notice of location. The description in the notice was as follows: “All of the southwest quarter of the northwest quarter of section 22, township 11 north, range 7 east, Mount Diablo base and meridian, situated in Pine Grove Mining District, Placer County, California.” There was no reference in the notice to the marks of the public surveys, nothing which could be construed as an adoption of any marks placed by the public surveyors, further than the reference to the quarter-section as above stated. It did not appear how distinctly the section corners had been marked in the first instance, or whether such marks existed at the time of the location in question. The locator testified that “he did not then, and does not now, know where the boundaries of said southwest quarter of the northwest quarter are, except that he knows that it is bounded on the south by the Hoadly placer mine.” The further facts are stated in the opinion.</p>

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

<p>Subrogation Execution Purchaser during Time of Redemption has Lien — Right to Subrogation to Superior Lien under Trust Deed. — A purchaser of land at an execution sale, before the time of redemption has passed, and before the sheriff's deed has issued, has a lien, upon the land, and under section 2904 of the Civil Code, when necessary for the protection of his interest, is entitled to he subrogated to a superior lien held under a prior deed of trust in the nature of a mortgage, which had been executed by the judgment debtor on the same land,</p> <p>Id. —Necessity of Subrogation. —A subrogation, to the superior Hen held under the trust deed is necessary to the protection of the interests of the execution purchaser, when it appears that the judgment debtor is insolvent, and has other judgment creditors whose liens are inferior to the plaintiff’s.</p> <p>Id. — Action for Subrogation — Cestui que Trust only Necessary Party Defendant. —In an action by the execution purchaser to be subrogated to such superior lien, the cestui que trust under the trust deed is the only necessary party defendant.</p> <p>Id. —Judgment for Subrogation — Finding. —In such an action, a finding that the defendant was willing, to accept the payment of the money claimed by it as due under the deed of trust, and procure the trustees to reconvey the land to the mortgagors, but still refused to subrogate the plaintiff, is consistent with and supports a judgment for subrogation.</p>

<p>Measure of Damages—Breach of Warranty of Fitness of Harvesting Machine—Liquidated Damages.—The damage resulting from the breach of a warranty of the fitness of a harvesting machine to do certain work is not impracticable or extremely difficult to fix, and consequently, under section 1670 of the Civil Code, an agreement for liquidated damages in the event of such breach is void.</p> <p>Id.—Action for Breach —Expert Testimony as to Fitness.—In an action for the breach of a warranty of a harvesting machine to do certain work, a practical machinist, who is familiar with the requirements of similar machines, and the principles applied in their construction, is competent as an expert to testify as to the general design of the machine in question, and whether it was so made as to successfully do the work for which it was intended. ,</p>

<p>Nuisance—Trees Planted Near Boundary Line—Damage to Adjoining Land. — A row of trees planted near a boundary line is not a nuisance as to the adjoining proprietor merely because it renders his land unfit for a purpose for which he has never attempted or wished to use it.</p> <p>Id. —Slight Projection of Trunks of Trees on Adjoining Land.—The projection of the trunks of the trees a few inches on the land of the adjoining proprietor, but not enough to prevent him from plowing and cultivating his land as near the line as he could if the trees had not been there, does not render them a nuisance.</p> <p>Id.—Overhanging Branches—Adjoining Proprietor may Cut.—The trees and overhanging branches, in so far as they were on or over the land of the adjoining proprietor, belonged to him, and he could have cut them off or trimmed them at his pleasure.</p> <p>Id. — Use of Trees for Beneficial Purpose—Conversion of Overhanging Branches. — The fact that the owner of the land on which the trees were planted used them for a useful purpose, and converted the overhanging branches to his own use, has no effect in rendering them a nuisance.</p>

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

The action was brought on a promissory note alleged to have been executed by the defendant. Judgment was rendered in favor of the plaintiff, from which, and from an order refusing a new trial, the defendant appealed. The further facts are stated in the opinion.

• Appeal from an order of the Superior Court . Theodore P. Painter, the executor, of the last will of J. B. Painter, deceased, claiming to be a creditor uf the deceased, presented his claim to the judge of the superior court for allowance. The claim was rejected by the judge, and thereafter this action was brought by the claimant to establish it.

<p>Corporation — Authority to Execute Mortgage — Resolution of Board of Directors. —Neither the president nor the secretary of a corporation, nor any other person, has authority to execute a mortgage of the property of the corporation in the absence of a resolution of the hoard of directors passed when the board is duly assembled.</p> <p>Id. — Act of 1880 in Relation to Conveyances by Mining Corporations — Ratification by Stockholders.—The act of 1880 in' relation to conveyance by mining corporations does- <not dispense with a resolution of the board of directors. It merely superadds a requirement of ratification by the holders of two thirds of the capital stock.</p> <p>Levying of Assessment to Pay Debt — Effect of. —The levying of an assessment to pay a debt purported to be secured by a void mortgage does not validate such mortgage.</p> <p>Pleadings — Stipulation as to. —A stipulation by the parties may take the place of denials in an answer. Instance.</p>

<p>Accretion—Land Formed by Belongs to Owner of Bank of Stream. — Land formed by natural accretion upon the bank of a stream belongs to the owner of the bank on which it has formed, notwithstanding the process of accretion has materially reduced the size of the adjoining stream, and rendered it unnavigable.</p>

The action was brought to foreclose a street assessment for work done in the city and county of San Francisco. The further facts are stated in the opinion of the court.

<p>Contract for Hauling Freight—• Construction — Entirety. — A contract by a teamster to haul all the freight of a merchant for a term of three ■ years, at a fixed rate per hundred pounds for the first year, and at a different rate per hundred pounds for two years more, is separable as to the payments for freight to be hauled, and as to the price to be paid; but is entire as to the term of hauling, and as to the preference to be' given to the merchant in hauling his freight.</p> <p>Id, —Breach of Contract — Measure of Damages. — Upon breach of a contract upon the part of a merchant to furnish all his freight to a teamster for a fixed term at a fixed rate, if it appears that the teamster hauled an amount of freight for other parties equal to that which the merchant had to furnish, and was not idle during any part of the freighting season, his damages, if any, must he measured by the difference between the price he was to receive for hauling the merchant’s freight and that which he actually received from others for hauling the same amount.</p> <p>Id. — Rescission for Breach of Contract —■ Option. — When an entire contract is broken by one party, it is optional with the other party to refuse to go on with the contract thereafter.</p> <p>Id. — Condonation of Breach —Payment— Waiver. — When an entire , contract for hauling all the freight of a merchant for a fixed period has been broken by the teamster, a payment according to the terms of the contract for freight actually hauled is not such a waiver or condonation of the breach as will prevent the merchant from refusing to give the teamster further freight'.</p>

The action was brought at the relation of the controller of state, against D. M. Burns, a former secretary of state, and the sureties on his official bond, to recover for an alleged defalcation of Burns, as such official. Burns was not served with process, and the action was tried only as to his sureties, F. S. Freeman and FT. Schardin, against whom judgment was rendered. The further facts are stated in the opinion.