Volume 79 — California Reports

<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>

<p>Water Rights—Pleading—Prescriptive Right—Usuerttctuary Right to the Use. —An allegation that for ten years prior to the commencement of the action, the plaintiff “had the undisputed usufructuary right to the use of the waters ” of a certain stream, does not allege a right to the use of the waters acquired by prescription.</p>

The notary’s certificate of the acknowledgment by ■ Ellen Manning, the wife of Patrick Manning, of the mortgage in question, after certifying to her appearance before the notary, and that she was personally known to him to be the individual described therein, and who executed the same, proceeded as follows: “And I do hereby certify that she was by me first made acquainted with the contents of said instrument, and thereafter she duly acknowledged to me, upon examination,…

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

<p>Fraud — Misrepresentations of Law—Means of Knowledge. — Misrepresentations as to matters of law afford no ground of redress or relief, unless one of two parties having fiduciary or confidential relations, and possessing a knowledge of the law, thereby obtain an unconscionable advantage of the other, who is ignorant, and had no means of knowledge of the truth. But if the relations of the parties are not fiduciary, and there is no warranty, and means of knowledge of the truth are at hand and equally available to both parties, the injured party must show that he availed himself of such means before he will be heard to say that he was deceived by the misrepresentations of the other party.</p> <p>Id. —Divorce — Misrepresentations of Husband as to Community Property — Negligence of Wifb. — Misrepresentations by a husband to his wife, made prior to her suit for a divorce, to the effect that all the property he owned and had acquired since marriage was his sole and separate property, relying upon which she was induced to allege in her complaint for divorce that there was no community property, and to omit from her decree of divorce any relief respecting the same, are mere misrepresentations of law as to the rights of the parties, and afford no ground for relief in a subsequent action, commenced three years and a half later, to reach the community property after the husband’s death, — the wife’s failure to obtain independent advice and information as to her property rights in the hostile proceeding for a divorce being inexcusable carelessness.</p> <p>Judgment — Relief in Equity—Negligence. —Relief in equity against a judgment on the ground of fraud will not be granted, unless the party seeking the same has been free from negligence. If the party injured brought about the judgment through his own carelessness, he will not be relieved therefrom.</p>

<p>Appeal prom Judgment—Time por Taking—Dismissal.—An appeal from a judgment taken more than one year after its rendition cannot be considered, and will be dismissed.</p> <p>Partnership—Agreement to Deal in Real Estate—Statute op Frauds. — A partnership agreement, the object of which is to deal in real estate and share the profits, is not within the statute of frauds.</p> <p>Id. — Executed Parol Agreement—Partner Estopped to Dent Validity. —In an action by one of the partners for an accounting of the profits realized under such an agreement, after the same has been executed, a partner who has received the entire profits is estopped from claiming that the agreement was void under the statute of frauds.</p> <p>Id.—Construction op Agreement — Profits prom Sales.—Where a partnership agreement to deal in land provides that one of the partners shall furnish the money to buy the land, and the other shall contribute his skill in selling it, the profits to he equally divided, and in pursuance thereof a tract of land is purchased and a part of it is sold at a profit, hut for less than the purchase price paid for the entire tract, no profits are earned, within the meaning of the agreement, in which the partner contributing his skill is entitled to share.</p> <p>Evidence—Pleading Admissible as an Admission.—A pleading in a prior action between the same parties, although superseded by an amendment, is admissible in evidence in a subsequent action against the party filing it as an admission made by him.</p> <p>Id.—Attorney’s Authority to Sign Pleading is Presumed.—Where such pleading is signed by an attorney, and not by the party against whom it is offered, but no objection to its admission is made on that ground, it will not be presumed on appeal that the attorney in signing acted without authority.</p>

<p>Change ob Venue —Action bob. False Impkisonment—Residence ob Dependant. —In an action for false imprisonment, the defendant has a right to have the case transferred to the county of his residence.</p> <p>Id.—Complaint bob False Impbisonment—Bübden ob Allegation— Justification. — If the -complaint shows a physical and bodily restraint, it is not necessary that it should allege that such restraint was malicious, or without probable cause, or unlawful. Whoever imprisons another must (except in certain cases under special statutes) justify himself by showing that the imprisonment was lawful.</p> <p>Id. —Complaint with a Double Aspect. —If the plaintiff frames his complaint With a double aspect, in one of which the defendant has a right to a change of venue, but not in the other, the complaint will be construed against the pleader, and the case will be transferred.</p> <p>Id. —Complaint Stating Two Causes ob Action. — If a complaint states two causes of action, as to one of Which the defendant has a right to a change of venue, but not as to the other, the case will he transferred.</p>

<p>Mortgage—Deed and Defeasance — Tender. —When a third person advances money to mortgagors to redeem land from a foreclosure sale by a mortgagee, and in consideration thereof receives a deed absolute in form from the mortgagors, and enters into a simultaneous agreement, under which the latter agree to purchase the land for a sum equal to the amount paid for redemption, the expenses of preparing the instruments, the premiums on policies of insurance, and an additional sum as compensation to the party advancing the money, and it is stipulated that time shall be of the essence of the contract, and that upon failure to fulfill the agreement of purchase, the grantee of the deed “ shall be released from all «obligations te convey said property, and shall be entitled to immediate possession of the same, said parties of the second part shall forfeit all rights thereto, and said parties of the first part shall be entitled to a strict foreclosure of this contract,” hut there is no agreement that in any contingency the parties of the second part are to be released from their obligation to pay, held, that the transaction is a mortgage.</p> <p>Id. —Parol Evidence. —Parol evidence is admissible to show that a deed and agreement of repurchase were intended as a mortgage, although as matter of law they constitute a mortgage upon the face of the papers.</p> <p>Id.—Registry of Deed and Defeasance — Notice of Mortgage.— When a deed and defeasance thereof are recorded, and together constitute a mortgage by legal construction, any subsequent grantee of the property is conclusively presumed to have had notice of the real nature of the transaction, and is put upon inquiry as to whether the mortgage was or was not paid, in whole or in part.</p> <p>Id. — Tender by Mortgagor of Balance Due—Stipulation as to Time. — When a deed and defeasance together constitute a mortgage, a failure to tender enough money to pay the debt in time will not divest the mortgagor’s title to the land, though the defeasance provides that time shall be of the essence, and that all rights of the mortgagor shall be forfeited upon his failure to comply with its terms.</p> <p>Ed.—Action to Redeem—Cloud on Title—Conditions of Relief— Accounting. — An action to redeem from a deed absolute in form, which was intended as a mortgage, is in effect merely an action to remove a cloud from the title. Such action may he brought at any time while the mortgagor is in possession of the land, upon condition of payment of what is due upon the mortgage; and upon the question of what is due, the mortgagors are entitled to a credit of whatever sums were realized by the mortgagee from insurance or from crops, and to be charged with taxes paid by the mortgagee, and all sums due under the terms of the contract.</p> <p>Id. —Insurance by Mortgagee—Credit on Mortgage. —If it was agreed orally between a mortgagor and mortgagee, by deed absolute in form, accompanied by a written defeasance, that any insurance money received by the mortgagee should be credited upon the amount due, such money when received operates as a payment upon the mortgage debt pro tanto.</p> <p>Id. —Voluntary Payment of Insurance to Mortgagee — Representation of Ownership — Estoppel.—If a fire insurance company insures property in the name of a mortgagee, who represents himself to be the owner, and voluntarily pays the loss to him, with notice of the facts concerning the ownership, it is estopped from claiming the benefit of a forfeiture clause for untrue misrepresentation on that point, and it is immaterial whether the assured was owner or only a mortgagee.</p> <p>Id.—Evidence of Payment of Insurance Money—Transfer by Mortgagee to Insurance Company. — When a mortgagee, under a deed absolute in form, accompanied by a written defeasance, insures the buildings as owner, and the adjuster of the company refuses to make payment because the mortgagor is in possession, but the matter is arranged by a deed to the insurance company by the mortgagor of all his interest, upon payment by them of all that was to be paid by the mortgagor, the positive testimony of the adjuster and of the mortgagor that there was no payment of the losses under the policies of insurance will not preclude a finding that the policies were paid, and that the mortgagor was entitled to a credit of the amount thereof, upon redeeming from the insurance company or its grantee.</p> <p>Evidence— Credibility op Witnesses.—The positive testimony of witnesses may be overcome by circumstances showing that they are mistaken. A court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims of belief.</p> <p>Trial — Equity Case—Special Issues—'Impaneling Jury.—It is not error to impanel a jury in an equity case before framing the special issues to be submitted to them.</p>

Adam and Kibbe, the owners of a building in the city and county of San Francisco, employed the'defendant McGeary to take down a flag-pole on the top of the building. While engaged in the work of removal, through the negligence of McGeary and his servants, the flag-pole fell to the street and killed John Ahern, the plaintiff’s intestate. The action was brought against Adam and Kibbe and McGeary, to recover damages for the negligent killing.

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

<p>Place of Trial—Order for Change—Presumption of Regularity— Appeal — Failure to Identify Papers. —An order changing the place of trial will he presumed to have been properly made, when the record on appeal from the order fails to contain any papers identified as having been used in the lower court on the hearing of the motion to change.</p>

<p>Trover—Waste — Cutting of Timber —Judgment in Ejectment—Bes Adjudicata — Nonsuit.—A claim of damages for waste committed in the cutting of timber is only for injury to the real estate; and a recovery in an action of ejectment in which such claim was made is no bar to a subsequent action of trover brought by the plaintiff in ejectment against the defendant for the conversion of cord-wood into which the timber was cut by the defendant after it was severed from the realty and became personal property. The judgment in ejectment is not evidence for any purpose in the action of trover, and if no other proof is given of plaintiff’s ownership of the cord-wood than said judgment, the defendant is entitled to a nonsuit. (Per Works, J.; other justices concurring specially, but not agreeing as to the ground of decision.)</p>

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

<p>Mining Partnership'— Construction of Contract—Parol Evidence. — A contract in writing between hotel-keepers and á mining prospector to share equally in all mines bought or found by them after its date, the prospector agreeing to offset his time against his hoard with the hotel-keepers, does not oblige the hotel-keepers to contribute toward the purchase of any particular mine, and makes them' tenants in common only of such mines as were'discovered and located' pending the agreement and while it was being performed, or such mines as Were purchased at the common expense of all the parties. They could not, one or more of them, allow one of their number to make a purchase with his own funds at his own risk without being obliged to reimburse him in case of loss, and yet claim the advantage of his bargain in case of gain.- This being the proper construction of the written contract, parol evidence is inadmissible to vary, enlarge, or extend its’ terms so as to give an interest to all the parties in property purchased wholly by one of them; to the purchase of which the cithers did not and could not contribute, and were in no wise bound to contribute, any share of the purchase-money.</p>

<p>Appeal from a decree of the Superior Court of the city and county of San Francisco distributing the estate of a deceased person.</p> <p>The facts are stated in the opinion.</p>

The principal facts are stated in the opinion of the court. The questions asked of the witness Bennett related to the ownership, acquisition, and disposal of the'grain referred to in the note as securing the same.

<p>Measure op Damages — Expenses Incurred but not Paid. —In an action for personal injuries occasioned by the negligence of the defendant, the plaintiff is entitled to recover the amount incurred for nurse hire, medicines, and physician’s services, although the same has not been actually paid.</p> <p>Negligence — Repairing Lodging-house — Obstructing Pathway — Liability por Injury to Lodger. — A person engaged in making repairs in a lodging-house is guilty of negligence in leaving his working materials over night in a pathway connected with the house, in such a manner as to obstruct its use by the occupants of the house; and is liable to a lodger for personal injuries occasioned to him by reason of such negligence.</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 plaintiff, in paragraph 3 of his amended complaint, alleged-the assignment of the account in question, its non-payment, and his- ownership thereof. These allegations the defendant denied as follows: “Defendant alleges that he has no information or belief sufficient to enable him to answer the allegations .set forth in paragraph 3 of said amended complaint, and for that reason defendant denies each and every and all of said allegations in said paragraph contained.” The further facts are stated in the opinion of the court.</p>

The action was brought to establish a resulting trust in a certain city lot in San Francisco, alleged to have been purchased by plaintiff’s intestate, Thomas T. Bouldin, deceased, and conveyed to the defendant Rufus C. Hopkins, in trust.

<p>' Official Bond — Commissioner of Immigration — Evidence of Conversion, — When the commissioner of immigration, upon being required to . render immediately to the controller a detailed statement of receipts, and to pay the same into the state treasury, replies that he had received no moneys belonging to the state, such reply is evidence of a conversion of all moneys of the state, which had theretofore come to • his hands, as fast as received, and such conversion was a breach of his official bond, which was in force at the time of the receipt of the moneys.</p> <p>Id. — Statute of Limitations. •— The statute of limitations for breach of an official bond does not commence running until the expiration of the official term, and the period thereafter required to effect a bar is four years.</p> <p>Id.—Delivery of Official Bond—Approval. — An official bond, like every other deed, is not operative until a delivery, nor are the sureties liable thereon for any breach until after its delivery. There can be no delivery of an official bond until its approval by the proper authority.</p> <p>Id.—Fees Illegally Collected by Commissioner of Immigration-— Rights of State. — Fees collected by the commissioner of immigration for administering oaths to masters of vessels, when making the reports required by section 2949 of the Political Code, were collected without authority of law, and the money thus collected belonged to the ship-masters who paid it; but having been collected in the name and by the authority of the state, the state was the proper custodian of the moneys. The commissioner had no right to retain them, and having paid them to the state, cannot claim a credit therefor on a judgment for breach of his official bond.</p>

The action was brought to annul a certificate of sale issued by the tax collector of San Joaquin County to Amos Boyce, of lands of plaintiff in San Joaquin County, in collection of assessments levied against said lands for the protection of lands from overflow in Woodbridge Protection District No. 1; to enjoin said tax collector from executing any deed founded on said certificate of sale for the lands so sold; and for quieting the title of plaintiff to said lands, and for…

<p>Extradition of Fugitive from Justice—Recitals in Governor’s Warrant— Habeas Corpus.—The recitals in the warrant of arrest of a fugitive from justice, issued by the governor of this state upon the requisition of the governor of another state, stating that the requisition was made in pursuance of the constitution and laws of the United States, and was accompanied by a complaint and information, affidavits, and warrant of arrest, whereby the fugitive stands charged with a specified crime, and with having fled from said state and taken refuge in the state of California, which are certified by the governor of such other state to be authentic, show a sufficient foundation for the warrant of arrest, and the facta thus recited will be taken as true upon a writ of habeas corptts, if not disputed. It is not necessary to set out in the warrant a copy of the indictment or affidavit charging the petitioner with crime, nor a copy of the governor’s authentication thereof.</p>

<p>Negligence — Railroad — Laborer is Fellow-servant with Track-walker and Conductor. — A laborer employed by a railroad company to remove snow and other obstructions from its track is a fellow-servant, and employed in the same general business, with a track-walker and train conductor, and for personal injuries to him caused by the combined negligence of the latter two the company is not liable.</p> <p>Id.—Negligence when Question of Law.—Where the facts are undisputed, the question of negligence is one of law, to be passed on by the court.</p> <p>Id. —Renewal of Motion for Nonsuit— Evidence. —It is not error to permit a defendant to renew a motion for a nonsuit after introducing evidence in its own behalf, when the entire evidence is such that if the motion had been denied and a verdict found for the plaintiff, it would have been the duty of the court to set the verdict aside as not supported by the evidence.</p>

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

<p>Supreme Court—Appellate Jurisdiction — Quo Warranto.—An action instituted by the attorney-general, under the Code of Civil Procedure, to determine the respective claims of a relator appointed by the governor, and the defendant as incumbent of the office of member of the board of health of the city and county of San Francisco, is within the appellate jurisdiction of the supreme court, as being a case at law substantially in the nature of a quo warranto; and when a fine of five thousand dollars is prayed, and might be granted for usurpation of the office, the .case is also within the appellate jurisdiction as embracing a money demand amounting, exclusive of interest, to more than three hundred dollars.</p> <p>Board of Health — Filing Official Oath — Vacancy. — A member of the board of health of the city and county of San Francisco is included within the literal terms of both the first and second subdivisions of section 909 of the Political Code, and might properly file his oath of office with the secretary of state, and also with the county clerk; but having duly taken the oath, and filed it with the secretary of state, his failure also to file it with the county clerk is not such a refusal or neglect to file his official oath as will forfeit his office or create a vacancy under subdivision 9 of seotionS96 of the Political Code.</p> <p>Forfeiture—’Construction.—Provisions for forfeiture of vested rights, whether in statutes or contracts, are not favored, and are construed strictly against the forfeiture, or as liberally as possible to prevent it.</p> <p>Constitutional Law — Office — Board of Health—Duration of Term — Appointing Power of Governor. — The members of the board of health of the city and county of San Francisco are officers, within the meaning of article 11, section 7, of the old constitution, and of article 20, section 16, o£ the new constitution; and a statute fixing their term of office at five years is unconstitutional, and leaves the duration of the term unfixed,- and subject to the pleasure of the governor, who may appoint a new incumbent at any time.</p> <p>Id.—Effect of Unconstitutiokality of Pasts of Statute. — An entire legislative act will not be declared invalid merely because some single section or isolated provision is in conflict with the constitution; but a clause of a statute which, as enacted, is unconstitutional cannot be changed in meaning so as to give it some operation, when admittedly it cannot operate as the legislature intended.</p>

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

The action was commenced December 29, 1877, by W. B. Carr against John Quigley, to recover certain land in Alameda County, which the plaintiff claimed as grantee under a patent issued to the Central Pacific Railroad Company February 28, 1874.

<p>Tax Sale—Variance in Recitals — Sale for Excessive Sum—Presumption. — The fact that the amount of taxes and costs recited in the certificate of tax sale is fifty cents less than that recited in the tax deed will not vitiate the tax sale or tax deed, or show that the sale was for a sum in excess of the taxes and legal costs. If the property was in fact sold for an excessive sum, that fact may be shown to invalidate the sale; but the presumption is in favor of the regularity of official action.</p> <p>IiX-—Recital of Interest Sold.—It is not ground of objection to a certificate of tax sale and a tax deed thereunder that the certificate recites that the bidder “offered to take the least quantity of said property, or the smallest portion of interest therein,” when the certificate and deed both show by the description of the premises sold that quantity was offered and only quantity was sold.</p> <p>Id.—Recital of Costs of Publication.—A recital in the certificate of tax sale and tax deed of the non-payment of the costs of publication will not vitiate the sale or deed, if it does not appear that the amount for which the property was actually sold included anything for costs of publication.</p> <p>Id. —Tax Proceedings — Substantial Conformity to Law—Quieting Title — Evidence. - - When a certificate of tax sale and tax deed conform substantially to the requirements of the Political Code, it is error to refuse to admit the deed in evidence in an action to quiet title founded thereupon.</p>

The record did not contain the notice of motion for new trial, nor did the statement embody or refer to the notice, and a motion to dismiss the appeal was made upon this ground.

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

<p>Toll-road—Public Highway—Dedication.—A legalized toll-road or turnpike is a public highway, and the act of constructing and opening such a road for use, followed by public user on payment of tolls, constitutes a dedication of it as a public highway. No formal acceptance by the public is required; it is enough that the public used the road for the purpose of travel.</p> <p>Id. — Expiration of Toll-road Franchise—Free Highway.—Under section 2619 of the Political Code, upon the expiration of a toll-road franchise the toll-road becomes a free public highway, and no- compensation is required te he paid to the toll-road owner. The owner, by construction of the road, with knowledge of the law, turned'it over to the use, of the public, and can claim no compensation other than such as was given by tolls during the existence of the franchise.</p> <p>Id.—Repeal ofFranohisb—Complaint by County—Injunction.—When a. toll-road franchise, granted by the El Dorado County board of auditors in 1878, is subsequently repealed by the hoard of supervisors of the county in 1886, the franchise expires by limitation; and the county may commence an action as complainant in the name of the people of the state, upon relation of the attorney-general, to have the road adjudged a public highway, and to enjoin the one claiming to be the owner of the road from demanding or taking toll from travelers thereon, or from interfering with or obstructing travel over the same by the public.</p>

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

<p>Constitutional Law—Municipal Corporations—Los Angeles Charter — Joint Resolution op Legislature.—Under section 8 of article 11 of the constitution, a city charter may be approved by a majority vote of the members elected to each house of the legislature, without the concurrence of the governor. The approval of the charter of Los Angeles by a joint resolution of both houses of the legislature was sufficient to give it validity, without the enactment of a bill to be approved by the governor. •</p> <p>Id. —Legislature. —The legislature is not synonymous with the law-making power, and does not include the governor, except as applied to the enactment of laws. The legislature, as a distinct body, consists of the senate and assembly, and is empowered by the constitution to act as a distinct body, with reference to the approval of city charters.</p> <p>Id.—Municipal Charter — Conflict with General Laws.—Under the constitution, the charter to be framed for a city government must be consistent with the constitution and with the general laws of the state. But the whole charter cannot be held invalid because a few of its provisions may be inconsistent with general statutes in force at the time of its adoption.</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 of the court.</p>

Appeal for an order of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The action was brought to recover the possession, or its value in case a delivery could not be had, of certain personal property.

<p>Constitutionality of Insolvency Act of 1880—Impairing Obligation of Debts Previously Contracted. —Under the insolvency act of 1880, a discharge can be granted of a debt contracted in 1878.</p> <p>Id.—Debts to Residents of Other States — Burden of Proof.—The certificate of discharge is prima facie valid, and a discharge of all previous debts, with certain specified exceptions. If the creditor was a resident of another state, the burden is on him to show such fact.</p>

<p>Appeal—Depecttve Trahbcript—Dismissal. —When there is no certificate of the clerk identifying the papers contained in the transcript as having constituted a part of the record of the court below, and nothing to indicate that a notice of appeal was filed or served, the attempted appeal cannot be heard, and will be dismissed.</p> <p>Id.—Statement on Appeal—Motion por New Trial.—The settlement of what is called a statement on appeal to the supreme court, made after a motion for a new trial has been heard and determined, is not provided for in the code; and if such statement is not certified, settled, or signed by the judge of the trial court, it cannot be considered either as a statement on motion for new trial or as a bill of exceptions.</p>

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

The action was brought on a judgment against the City Cab and Transfer Company and Leander Sawyer, Oliver Hinckley, James Cobblestick, C. G. Jones, Russell J. Wilson, and S. D. Woods, upon a judgment rendered against them jointly in the district court on October 4, 1878, for one thousand dollars, with interest and costs.

<p>Pledge—Possession by Pledgor — Attachment.—When pledged property is allowed to go into the possession of the pledgor, it is subject to attachment by his creditors.</p> <p>Id. — Collateral Security—Warehouse Receipt—Loss of Lien.— When a mill company agrees with a hank to cash its drafts for grain purchased, and transfers warehouse receipts for the grain to the bank as collateral security for the repayment of its advances, the bank has a lien dependent on possession, and while the grain remains in the warehouses of third parties and the hank holds the receipts, it has sufficient possession to keep its lien valid; but when the receipts are indorsed and delivered, together with the grain, to the mill company, in order that it may crush the grain, the lien of the bank as against creditors of the mill company is extinguished.</p> <p>Id.—Assignment of Non-negotiable Debt—Notice—Attachment of Pledged Property —Estoppel. —After notice of the assignment of a debt given to the debtor and to his pledgee, the assignee cannot be estopped or compromised by any subsequent act of the assignor in consenting to the possession of the pledged property by the pledgor, so as to bar an attachment of the property in the hands of the debtor, by the assignee of the debt. The fact that the indebtedness assigned was not evidenced by a negotiable instrument is immaterial to the rights of the assignee as against the pledgor under such attachment.</p>

<p>Nonsuit—Grounds of Motion — Appeal. —When it does not appear from the record on appeal that any grounds for a nonsuit were stated in the motion therefor, no error appears in overruling the motion.</p> <p>Husband and Wife — Earnings of Wife — Separate Property. — When the husband leaves the wife, and lives in another county, on account of domestic infelicity, without expressing any intention to return, property acquired by her earnings while continuing to reside at their former place of residence is acquired while she is living separate from her husband, within the meaning of section 169 of the Civil Code, and is the separate property of the wife.</p> <p>Id.—Mortgage by Wife of Separate Property—Tenancy in Common — Estoppel. — The wife may mortgage her separate property. If she owns an undivided interest in property purchased by her partly with her separate funds, and partly with community property, being a tenant in common in proportion to the separate funds paid by her, and mortgages the whole of the property thus acquired, her interest may be sold under the decree of foreclosure, and it does not lie in her mouth to object that the decree directs the sale of the whole property, and is therefore too broad.</p>

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

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

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

<p>Vendor. and Purchaser—Recovery Back oe Deposit—Principal and Agent*—Pleading-—Parties.—When a vendor assumes to convey land of which he represents himself the owner, but of which he has no title, and receives a deposit of the purchase-money for the joint benefit of himself and another person for whom he acted as agent, and who received a share of the deposit, both are jointly liable as principals in an action to recover back the deposit, and it is immaterial that plaintiff did not know of the connection of the other person with the transaction at the time the contract was made. A complaint against such persons jointly to recover the money is not demurrable for misjoinder of causes of action, or of parties defendant.</p> <p>In, — Assumpsit—Money had and Received—Pleading—-Common Count. — A common-law count for money had and received is proper in an action to recover a deposit of money wrongfully obtained from the plaintiff by the defendants, and whiek theywrongfnlly refused to pay to the plaintiff upon demand.</p>

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

<p>Attorney and Client — Compensation—Entire Contract—Discharge op Attorney — Measure op Damages.—An attorney who receives a salary under a general employment by a corporation which may he changed at any time may properly make a special contract with the corporation for services in a particular case; and if discharged from such case without cause, may recover the amount of money to which he would have been entitled had the defendant allowed him to complete the entire service which he had contracted to perform, with interest from the time it became due.</p> <p>Id. — Statute op Limitations. — When the compensation which an attorney is to receive is to depend for its time of payment upon the time when the corporation should obtain by judgment or compromise the payment of the claim sued upon and its amount is to be controlled by the amount so received, the cause of action for services does not accrue until the receipt of the money collected from the defendant; and no suit could he brought before that time for breach of contract in discharging the attorney from his employment.</p> <p>Id—Breach op Contract — Pleading — Allegation op Damages.—A complaint showing a breach of contract by the defendant in refusing to pay an agreed compensation to the plaintiff as attorney, who was prevented by the defendant from fully performing the contract on bis part, and alleging that a certain sum of money and interest is due under the contract, is not insufficient in not containing a specific allegation of damages, the facts being stated which in law constitute his damages and their measure.</p>

The averment in the second amended complaint in regard to the presentation of the claim to the administratrix was as follows: “That on the second day of April, 1885, at said city and county of San Francisco, plaintiff duly presented to said defendant, as such administratrix of said estate aforesaid, for allowance his written claim against the said estate of Louis G. Partridge, deceased, for the sum of two thousand dollars in United States gold coin, which claim was supported…

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

<p>Appeal—Review of Evidence. —The evidence in this case held sufficient to sustain the findings.</p> <p>New Trial — Excessive Damages.—There is no reason for holding the amount of damages excessive as ground for new trial, when the sum allowed is less than that claimed in the complaint, and the uncontradicted evidence of plaintiff shows that he suffered twice as much damage as that claimed.</p> <p>Findings — Request by Parties — Duty of Court. — It is not allowable for parties to dictate what findings shall be adopted by the judge. Under the present system of findings, requests for findings are unnecessary and immaterial, and it is not error to disregard them, provided the court finds on all the issues, as it is bound to do, without request.</p>

The action was brought for false representations alleged to have been made by defendant in the sale to plaintiff of the printing-office and business of the Modesto Herald. The witness Wagstaff testified that when he sold the Modesto Herald to the defendant it had 380 subscribers; to which evidence the defendant objected as irrelevant and immaterial. The further facts are stated in the opinion.

<p>Appeal from an order of the Superior Court of Yuba County refusing to dissolve an injunction.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Official Negligence—Sheriff — Filing Return of Sale.—In an action on a sheriff’s official bond for damages for negligence in failing to return an order of sale of mortgaged property, whereby plaintiff was prevented from collecting the debt for the deficiency, it is not enough for the defendants to show that the return was found in the clerk’s office without a file-mark, among a bundle of bulky papers, where loose papers were not kept, there being no evidence either in the sheriff’s office or clerk’s office tending to show that a return had been made to or filed in the clerk’s office. If the filing can be proved by parol, the proof must show an actual delivery of the paper to the clerk or one of his deputies for the purpose of filing, and the proof should be clear and positive.</p> <p>Id.—Presumption as to Official Duty.—In such action, the sheriff being charged with a specific act of negligence, there can be no presumption in favor of the sheriff and his sureties that the sheriff had performed his official duty, where such presumption in his favor would necessarily result in a counter-presumption that the clerk had failed to perform his duty as a public officer.</p> <p>Id. —Evidence of Sheriff’s Return. — It is competent, in such action, for the sheriff to prove the order of sale, and the indorsement of a return thereon, as one of the acts necessary to he done in making the return, without first proving' that they had been filed in the clerk’s office, although such order and indorsement are not sufficient to prove the whole ease in favor of the sheriff.</p> <p>Id. — Evidence as to Qualifications of Deputy. — In such action, the fact that the sheriff is charged with official negligence, and that he made the sale and indorsement of return through his deputy, does not raise the question as to the deputy’s general fitness for the office, and it is not competent to prove that he was a competent, prudent, and careful man, especially where it appears that the failure to deliver the return to the clerk for filing was owing to the neglect of the sheriff’s book-keeper.</p> <p>Id. — Measure of Damages — Penalty — Pleading.—The measure of damages in such action is the actual loss incurred by the plaintiff, if there is no prayer for recovery of the penalty imposed by statute upon the sheriff for failure to make a return.</p> <p>Id. — Proof of Damage — Appeal — Prejudicial Error. — When there is evidence in such action tending to show that the mortgagor had property out of which a judgment for deficiency could have been made prior to his death, and that only part thereof could now be collected out of his estate, without fault or laches of the plaintiff in not obtaining a judgment which was entitled to priority of payment, owing to the failure of the sheriff to return the order of sale, there is sufficient proof of actual damage to prevent affirmance of an erroneous order refusing a new trial, upon the ground that the plaintiff could not have been damaged by the failure of the sheriff to prove a return of the writ.</p> <p>Id.—Laches of Plaintiff—Foreclosure of Mortgage—Personal Judgment — Order of Sale—Judgment for Deficiency—Election. — In such action against the sheriff and his sureties, for failure to make return of an order of sale of mortgaged property, no laches can he imputed to the plaintiff for failure to enforce a personal judgment taken in the foreclosure suit by execution; for though he had his election to treat it as a personal judgment and issue execution upon it, or to issue his order of sale, he could not do both, nor could the personal judgment he enforced as such, after issuance of an order of sale, until the return thereof by the sheriff, and then only for the deficiency.</p> <p>New Trial—Newly Discovered Evidence—Appeal — Authentication of Affidavit. — An affidavit showing newly discovered evidence, in no way authenticated as having been used on the hearing of the motion for a new trial, cannot he considered on appeal.</p>

<p>Law or-the Case — Order Granting New Trial—Appeal—Review of Oonelioting Evidence. — Where the facts found on a second appeal are the same as on a former appeal, the principles and rules announced by the appellate court on the first appeal will be recognized as the law of the case; Rut where the court below has set aside its findings, and granted a new trial upon conflicting evidence, the appellate court cannot say what the facts are without usurping the functions of the trial court, of whose judgment upon the evidence as to the facts the parties are entitled to the benefit; and in such case the rule will be applied that where the evidence is conflicting, an order granting a new trial will be affirmed.</p>

<p>Prevention of Performance — Instance. —Defendant promised to pay to plaintiff a certain sum if he should point out property out of which a judgment against a third person could be made. Plaintiff pointed out the required property, but the defendant chose to compromise his claim, and accepted less than was due on the judgment. Held, that plaintiff could recover the sum promised.</p>

<p>Pleading—Want of Consideration fob Promissory Note—Equitable Defense. — In an action upon a promissory note, want of consideration ia a legal defense; and the plaintiff does not make a case for equitable relief by averring said legal defense affirmatively, and praying that tha note he delivered up and canceled. If there- he any circumstances which show a right to equitable relief, they should he averred.</p> <p>Id,—Cross-gomtlaint—Ambiguity Resolved against Pleader.—If a defendant has a cause of cross-complaint, and wishes affirmative relief, his pleading should show distinctly that it was intended as. a cross-complaint. If it commences as follows: “And for a further and separate answer and defense to said action, defendant avers by way -of cross"complaint,”—the pleading will be construed against the pleader, and as against him it will be treated as an answer merely.</p>

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

<p>APPEAT, — JÜDSMENT ROLL APPOINTMENT OF GUARDIAN AD LlTEM — Presumption. — When an appeal is taken upon the judgment roll, the appellate court cannot look outside of it to determine whether a guardian ad litem, answering for a minor was appointed by the court or not. Proceedings relating to the appointment of a guardian ad litem, form no part of the judgment roll. The presumption in such case is in favor of the action of the court below, where the record shows appearance and answer by a guardian ad litem.</p> <p>Quieting Title — Possession — Ownership—Pleading—Judgment. — When the complaint in an action to quiet title avers possession of the plaintiff for a sufficient length of time to show title in the plaintiff, it is equivalent to a direct allegation of ownership, and a judgment that the plaintiff is the owner of the property is supported by the complaint.</p> <p>Id. — Finding as to Ownership. — When the answer in an action to quiet title claims no interest in the property, it is not necessary to find that the defendant had no interest. A finding of facts showing the plaintiff to be the owner of the property is sufficient as to the matter of ownership.</p>

<p>Replevin — Pleading—Averment op Ownership.—A complaint in an action to recover the possession of personal property which only avers ownership and right of possession in the plaintiff at a time more than four years before the commencement of the suit is clearly bad. A complaint to be good must show a cause of action in favor of the plaintiff and against the defendant existing at the time the action is commenced.</p> <p>Id. — Estates of Deceased Persons — Right of Action of Administrator— Cessation of Authority.—An administrator cannot maintain an action to recover personal property belonging to the estate after he has ceased to be administrator of the estate.</p> <p>Id.—Sale to Administrator—Payment of Judgment Due Estate — Descriptio Personjb. —A bill of sale of personal property to an administrator by a judgment debtor of the estate, in consideration of the payment and satisfaction of the judgment by the administrator, passes title to him individually, and not as administrator, if all other things necessary to pass title to personal property were performed. The reference to the administrator should be regarded as descriptive of the person.</p> <p>Id. —Agency — Attorney and Client. —A hill of sale made to an administrator by the procurement of his attorney, who received the purchase-money from the defendant to buy the interest of the partner of defendant in certain personal property previously sold by the defendant to the administrator, said purchase being made to prevent a judicial sale thereof at the suit of such partner, passes no title to the administrator which he can assert against the defendant, if such bill of sale to the administrator was not authorized by the defendant.</p> <p>Notice of Motion for New Trial — Statement — Appeal.—It is not necessary to bring the notice of intention to move for a new trial to the appellate court, or to make it part of the statement.</p>

<p>Appeal — Review op Errors — Set-off.—Upon appeal by a defendant from a judgment for costs in his favor, upon the allowance of a set-off against plaintiff’s claim, no question as to the correctness of the judgment against the plaintiff can be considered. If the appeal is upon the judgment roll, and the findings support the set-off, defendant can have no further judgment. dse — Set-off of Debt Secured.—In an action for the value of articles pledged, which were not returned upon demand and tender of the amount due, the indebtedness secured by the pledge is properly set off against the value of the articles.</p> <p>Id.—Action for Return or Value—Estates of Deceased Persons— Amended Complaint — Statute of Limitations. — When an action is brought against an administrator for the return of articles pledged to the decedent or for their value, and the complaint is amended by striking out the prayer for their return, but alleging the same facts as alleged in the original complaint as the foundation of the action, there is no change in the identity of the cause of action, and the statute of limitations as to actions against the estates of deceased persons runs only to the filing of the original complaint.</p> <p>Id.—Identification of Articles Pledged—Finding.—A finding that articles were pledged which correspond in description to the articles described in the complaint, and alleged to have been pledged, is a sufficient identification of the articles, without averring in the finding that they were the same articles described in the complaint, there being nothing in the record to show that the finding could have related to any other articles.</p> <p>Id.—Loss of Pledged Articles — Pleading — Finding in Absence of Testimony. — When the answer in an action for the value of pledged property not returned upon demand and tender of the amount due pleads as new matter that the articles pledged were lost or stolen from the pledgee without fault or negligence, and there is no testimony upon the subject of such loss or stealing, it is proper for the court to find against the defendant upon the issue thus made.</p>

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

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

<p>Appeal from, a judgment of the Superior Oourt 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 of the court.</p>

<p>Appeal—Stay of Execution — Foreclosure of Mortgage. — When-there is a contest in a foreclosure suit as to the priority of mortgage liens, and an appeal is taken hy aay of the mortgagees from the decision without a stay of execution, and title passes by sheriff’s deed under the foreclosure sale, the mortgagors having made default, and not appealing from the judgment, a reversal of the judgment on the question of priority will not affect the title, and the sale under foreclosure is final.</p> <p>Quieting Title — Mortgage — Adverse Claim.—The owner of the legal title to land may maintain an action to quiet title against the claimant of an invalid mortgage lien. The plaintiff has a right to be quieted in his title when any adverse claim is made, the effect of which might he litigation, or loss or depreciation of the value of his property.</p> <p>Findings. — The findings are sufficient when they cover all the material issues in the case.</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 of the court.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The facts are stated in the opinion.</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>Negligence — Barb-wire Fence — Injury to Animals. — Though the owner of land is not liable, from the mere act of constructing a barb-wire fence upon his own land along the line of a public highway, for damages sustained by the animals of others, yet he is bound to exercise reasonable care to see that the fence does not become a trap for passing animals, of the natural propensities of which he is bound to take notice; and if he constructs or maintains the fence in a negligent manner, to the injury of the domestic animals of others, he is liable therefor, and cannot defend against liability for such negligence on the ground that the fence was constructed entirely upon his own land, nor on the ground that it was used for a lawful purpose.</p> <p>Id, — Recovery of Damages by One Joint Owner. •—One joint owner of animals injured by means of a barb-wire fence negligently constructed by the defendant along the public highway can only recover for his share of the damages sustained.</p> <p>Province of Jury — Instructions.—The jury are bound by the instructions of the court, whether correct or not.</p> <p>Appeal — Waiver of Damages as Condition of Refusing New Trial— Costs of Appeal. — When the damages awarded to a plaintiff are more than he is entitled to recover, but it appears from the record on appeal that he is entitled to recover a less sum, the appellate court will direct that the court below shall enter an order requiring respondent to waive the difference as a condition of allowing the judgment to stand and refusing a new trial, otherwise it shall grant a new trial; and that in case the waiver is filed, the parties shall share the costs of appeal.</p>

<p>Equitable Lien of Bank on Shares of its Stock for Advances to Stockholder—Condition in Certificate and Subsequent Dealing with Knowledge thereof — Implied Contract.—The insertion in a certificate of stock of a bank of a provision that no transfer of the stock will be made upon the books until after the payment of all indebtedness due to the bank from the person in whose name the stock stands upon the books, and the subsequent borrowing of money by the stockholder, withont anything to exclude the idea of security on the stock, creates an implied contract from which an equitable lien arises.</p> <p>Id.—By-law—Usage.—This does not depend upon the existence of a by-law or usage, but rests in contract. And the fact that there was no by-law, or that the bank had no power to make such a by-law, and that there was no usage in regard to the matter, is immaterial.</p> <p>Id. — Resolution of Directors—Authority of Officers of Bank. — The officers who transact the ordinary business of a bank have authority to do all acts which are usual or incidental thereto. The officers who make loans have authority to arrange for security for the same. It is therefore immaterial that the condition was inserted in the certificate by the president, secretary, and cashier without a resolution of the board of directors.</p> <p>Id. — Waiver. — There is nothing in" the record to show that the advances were made on personal security alone, or on some other security without reference to the stock, and consequently there was no waiver.</p> <p>Id, — Rights of Assignee of Certificate. —The person to whom the certificate was indorsed and delivered stands in no better position than his assignor.</p>

<p>Assignment of Part of Cause of Action—Rights of Assignee—Setting Aside Satisfaction of Judgment—Remedy by Motion.—■ When an assignment is made of an undivided one half of all the property which is the subject of the action, and a subsequent assignment is made of the whole cause of action to another person who has full knowledge of the rights of the first assignee, and satisfaction of the judgment in favor of the plaintiff in the action is entered by the second assignee and also by the plaintiff, the direct remedy for the first assignee is by motion to set aside the satisfaction of the judgment and substitute himself as a party plaintiff therein; and an action is unnecessary unless damages are claimed, or equitable relief, which cannot be had on motion.</p> <p>Iix>—Action by Assignee — Parties—Relief against Subsequent Assignee. — In a separate action brought by an assignee of an undivided half of real and personal property which was the subject of a previous action by his assignor, in which separate action the assignee seeks to recover the property assigned from the defendant in the prior action, and from a subsequent assignee of the whole cause of action who took with notice of his rights, and who, together with the assignor, entered satisfaction of the whole judgment recovered in the prior action, the assignor, having parted with his whole interest in the former action, is not a necessary party defendant to the new action. The subsequent assignee is a necessary party thereto; but the fact that he failed to obtain title to plaintiff’s interest in the judgment, by reason of notice of the prior assignment to plaintiff, does not render him liable to plaintiff for the plaintiff’s interest in the judgment, if it does not appear that by reason of a fraudulent and collusive assignment and satisfaction of the judgment plaintiff has been deprived of the possibility of obtaining its fruits from the defendant, or that the real property has heen transferred otherwise than by the assignment and satisfaction of judgment.</p> <p>Id.—Judgment — Relief by Piecemeal.—It is not necessary or proper for the court in rendering judgment for plaintiff in such action to render a mere money judgment for part of the relief sought, and to reserve for future litigation the interest of plaintiff in a reversionary fund and in real property sued for. The whole subject-matter of the action should be disposed of at once, and defendants should be required to execute and deliver a good and sufficient conveyance to plaintiff of such interest.</p> <p>Costs of Appeal,. — When it is necessary to reverse a judgment as to both defendants who have appealed, but the judgment is more favorable to one of the defendants than it should have been, such defendant is not entitled to recover the costs of appeal.</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>

<p>Appeal—Review oe Order Granting New Trial—Discretion. —. When a motion for new trial for alleged insufficiency of the evidence and for errors of law occurring at the trial is granted, without it appearing upon what ground, the rule will be applied upon appeal, that an order granting a new trial for insufficiency of the evidence will not be reversed unless it clearly appears that there was an abuse of discretion.</p>

The action was brought to foreclose both the mortgages described in the opinion of the court. The facts in controversy are stated in the opinion of the court.

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

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

The defendants were sued as trustees of the German Lutheran Zion Society, a corporation, and the complaint, in addition to the facts stated in the opinion, set out that the plaintiffs, and those with whom they are associated, and for whose benefit the action is prosecuted, “are a body of Christians who receive the Heidelberg Catechism as its doctrinal standard,” and particularly described the constitution, government, and general tenets of the Reformed Church in the United…

<p>County Hospital—Dedication of Land to Public Use—Right of Revocation—Adverse Possession—Statute of Limitations—Public Policy. — Land purchased by the board of supervisors of a county, and applied for the erection of a county hospital thereon, is dedicated to a public use, and there can he no adverse possession of any part thereof which can subject it to the operation of the statute of limitations. The fact that the county has a right to revoke or discontinue the use, or apply the land to another public use, or sell it in a statutory and limited way, cannot affect the dedication, or cause the statute of limitations to apply.</p>

The facts are stated in the opinion of the court. The newly discovered evidence referred to in the opinion consisted of affidavits that the deceased had been ill treated and abused by his father, and did not care for any of his relatives except his mother and sister; that his brothers were sullen and quarrelsome in disposition; and that there was bad feeling between them and the deceased.

Petition for a writ of mandate to the board of supervisors of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Vendor and Purchaser—Deed—Delivery—Passing Title — Recovery Back oe Purchase-money—Tender of Reconveyance.— When a deed of property given by a vendor describes town lots in a different block from those purchased by the vendee, and upon discovery of that fact, the vendee declines to go on with the trade, and does not take the deed, the fact that it had been actually placed in his hands does not constitute delivery of a deed for the property purchased, and the deed vested no title in the purchaser. He is not therefore bound to tender a reconveyance of the lots described in the deed before suing to recover the purchase-money paid for the property purchased to which no title was received from the vendor.</p>

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

<p>Mortgage—Estates op Deceased Persons—Presentation op Mortgage Claim — Distribution — Bes Adjudicata.—It is not necessary for a mortgagee to present the mortgage as a claim against the estate, when all claim is waived against any property of the estate except that described in the mortgage; and the settlement and distribution of the estate is no bar to the right to f orclose the mortgage against the distributee of the mortgaged land, or the grantee of such distributee.</p> <p>Appeal—Damages.—When an appeal is evidently taken for delay, damages will be imposed by this court.</p>

The survey of 1878, referred to in the opinion, was made by the county surveyor at the joint request and joint expense of plaintiff and defendant, and several witnesses testified that before and at the time of said survey plaintiff declared that he wanted tó determine the correct line, and wanted none of Blankenship’s land, but only what was his own, and that if the fence was not on the line when they surveyed it, they would put it on the line.

■ The principal facts are stated in the opinion of the court.

<p>Criminal Law—Instructions — Reading Opinion to Jury — Review on Appeal. —The practice of reading opinions in other cases to the jury-as- part of the charge of the court in a criminal case is a dangerous one, and is advised against. But where the evidence does not appear in the record, and there is nothing to show whether the defendant was benefited or prejudiced by such practice, the judgment will not be reversed therefor.</p>

<p>Trust—Weu>—Bequest on Undisclosed Parol Trust—Constructive Trust in Favor of Beneficiary.—Where a testator by his will bequeaths property in trust to a legatee without specifying in the will the purposes of the trust, and at the time of the execution of the will, or subsequently, verbally communicates to the legatee the purposes of the trust, and the legatee, either expressly or impliedly, promises to perform the trust, or silently acquiesces therein, equity will raise a constructive trust in favor of the beneficiaries intended by the testator, and will charge the legatee as a constructive trustee for them.</p>

The principal facts are stated in the opinion of the court. The evidence offered in support of the pleas of once in jeopardy and former acquittal consisted of the record of a previous prosecution, trial, and verdict of acquittal of the defendant in the same court upon a charge of having published in another paragraph of the same newspaper article which contained the libelous charge, specified in the information in this case, a distinct charge of and concerning Horace Bell,…

<p>Ejectment — Equitable Defense.—When the plaintiff in an action of ejectment is the owner of the legal title to the property, and the defendants rely upon an equitable defense, they must, in order to prevent a re- - covery, make out a complete equitable title, and the right of possession thereunder.</p> <p>Id.—Vendor and Purchaser—Breach'of Contract of Purchase—. Offset to Water Assessments — Failure to Cultivate Land — Tender of Purchase-money. ■—When a contract of purchase of land is conditioned upon the proper cultivation by the purchaser of land held under a farming lease, and upon the payment by him of all water assessments against the vendor, a breach of the contract in failing to pay some of the water assessments against the vendor is not excused by reason of the fact that he has an offset against the water company for indebtedness due him; and a failure on his part to cultivate the land as required will render his equitable rights of purchase under the contract unavailing as a defense to an action of ejectment by the vendor, and cannot be remedied by a mere tender and payment into court of the purchase-money.</p> <p>Id.—Improvements by Purchaser.—The fact that the purchaser had sowed alfalfa and planted fruit-trees on the land purchased cannot defeat a recovery in ejectment by the vendor, if the purchaser fails to make good his equitable title by a performance of his part of the contract.</p> <p>Id. — Evidence — Cultivation of Land — Instructions of Purchaser. — When condition of a contract of purchase as to the cultivation of land is broken by the purchaser, and evidence is given on his part tending to show that part of it was not broken because of the extreme dry weather, evidence as to his instructions to his men as to planting the land, provided the rains should come, is immaterial, and may properly he excluded.</p> <p>Id.—Evidence—Legal Conclusion —Province of Court. — A general question to a defendant in ejectment who relies upon a contract of purchase as his defense, as to whether or not he had performed all the conditions and covenants contained in the contract, is improper, as calling for a conclusion and asking the witness to decide a question that is for the court alone to determine from the facts proved.</p> <p>Id. — Evidence — Promise without Consideration. — Evidence of an independent promise by a vendor, made without consideration, to advance money to a purchaser to enable him to comply with the conditions of his contract of purchase, may properly be excluded as immaterial and irrelevant.</p> <p>Id. — Jury Trial—Equitable Defense—Special Issues — Disregarding Verdict.—When the legal title of the plaintiff in ejectment is admitted, the findings of a jury upon special issues submitted to it by the court, where the matter to be tried is one of purely equitable defense, are not binding upon the court; and where there is evidence sufficient to sustain the action of the court in disregarding a verdict in favor of the defendant and rendering findings in favor of the plaintiff, its action will not be disturbed on appeal.</p> <p>Appeal — Transcript — Review of Rulings.—An objection to a ruling of the court below upon evidence will not be' considered, if the transcript upon appeal does not disclose that the ruling objected to was made.</p>

The conclusion of law drawn by the superior court from its findings of facts was as follows: “ That the eleven successive daily publications of the resolution of intention herein, of which eight were made in regular issues of the said Transcript newspaper, two in special issues as heretofore found, and one on a Sunday, were less than the ten secular publications in regular issues of the paper, required by the statute, which enables the city council of Oakland to acquire…

<p>Lease in Praesenti—Right of Lessee against Tenant from Month to Month in Possession—Attornment—Raising Rent — Action os Unlawful Detainer. — Where, while real property is occupied by a tenant from month to month, the owner makes a lease in preesenti to a third person for five years, such third party may, without entering into possession, and without an attornment to him, change the terms of the tenancy from month to month, and upon non-payment of the increased rent, may maintain an action of unlawful detainer.</p>

<p>Quieting Title—Action to Determine Adverse Claim—Complaint. — A complaint which alleges that the plaintiff is the owner of the property, that the defendant claims an interest therein adversely to the plaintiff, that such claim is without right, and that defendant has no right, title, or interest in the property, is sufficient in an action to determine an adverse claim. And such a complaint is not vitiated by unnecessary allegations as to the nature of the defendant’s claim.</p> <p>Id. —Nature of Defendant’s Claim. — It is not necessary that the defendant’s claim should be of any particular nature or character. Even if he makes no claim, he must file a disclaimer, and judgment may be entered against him, though in case of a disclaimer the judgment must not be for costs.</p> <p>Ib.—Allegations as to Nature or Dependant’s Claim, or as to its Apparent Validity. — It not being necessary that the defendant’s claim should be of any particular nature or character, it is not necessary that the complaint should set forth its nature or character, or state facts showing its apparent validity. Distinction in this regard between actions under the statute to determine adverse claims and suits to remove a cloud upon title.</p> <p>Who may Maintain the Action — Holder op Equitable Right. — It seems that if the legal title had passed from the plaintiff to the defendant by reason of a mistake in the description of a deed between the parties, the mistake could not have been corrected in an action to determine an adverse claim, because the action cannot be maintained against the holder of the legal title by one who has a mere equitable right.</p> <p>Description in Deed—Courses and Distances — Visible Boundaries. — Courses and distances are controlled by visible boundaries. Hence where there is such a boundary, a mistake in the course is a harmless error.</p>

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

<p>Homestead—Proceedings fob Appraisement under Execution — Pleading. — Under the provisions of the Civil Code for the appraisement of a homestead, no demurrer or answer to the petition is authorized. If the petition is sufficient under section 1246, and a copy thereof, with notice of the time and place of hearing, has been served upon the homestead claimant at least two days before the hearing, it is the duty of the judge, upon proof thereof, and of the facts stated in the petition, to appoint appraisers. The court should not allow an answer to the petition to be filed. The code does not contemplate any formal trial of issues, nor any findings, or new trials, but the homestead claimant is entitled to a hearing upon the application without any pleadings on his part. After the report of the appraisers, a time should be fixed for final hearing upon the evidence as to whether the homestead exceeds five thousand dollars in value, and whether it can be divided without injury.</p> <p>Id.—Hearing of Application for Appraisement — Continuance — Discretion — Mandamus. — The superior court, before appointing appraisers to appraise the homestead, though not authorized to allow time to the homestead claimant to file an answer to the petition for appraisement, yet has discretion to continue the hearing of the application for a reasonable time, to allow the homestead claimant to prepare for the hearing. A continuance of the hearing for five days at the request of the homestead claimant is not unreasonable, nor an abuse of discretion, and •mandamus will not issue to compel an immediate hearing, especially if the time granted has expired before the writ can issue. The order allowing an answer to be filed will be regarded as of no consequence, upon application for a writ of mandate.</p>

<p>Banking Corporation—Publication and Record of Sworn Statement— Defense to Action by Bank. —It is a sufficient defense to an action by a banking corporation that it has not complied with the requirement of the act of April 1, 1876, in regard to the publication and record in the recorder’s office of a sworn statement as to its capital, assets, and liabilities. Those requirements were not repealed by the subsequent act creating a board of bank commissioners, not being inconsistent with the provisions of that act, and no substitute being contained therein for the local publication and record required by the act of 1876.</p> <p>Statutes—-Repeal by Implication. — A second act will operate as a repeal of a former act only to the extent of repugnancy between them, and not merely because it may repeat some provisions of the first act and omit others or add new provisions, unless it plainly appears that it was intended as a substitute for the first act. When an act expresses a repeal of former acts only so far as they are inconsistent with its provisions, such provision expresses and limits the extent of the repeal.</p>

<p>Husband and Wife — Community Property—Deed from Husband to Wife — Presumption. —When a husband makes a deed of community property to his wife, to have and to hold to her separate use, the prima facie presumption arising from the deed is, that it was intended to change the character of the property from community property to the separate property of the wife, and a subsequent sale by the husband to a third person cannot rebut this presumption. The deed to the wife is effectual as against a subsequent purchaser from the husband.</p> <p>Id. — Quitclaim Deed. — Quitclaim deeds are as effectual to pass whatever title the grantor has as any other deeds; and a quitclaim deed of community property from the husband to the wife is effective to pass to her his interest in the community property.</p>

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

<p>Application to the Supreme Court for a writ of review. The facts are stated in the opinion of the court.</p>

The principal facts of the case are stated in the opinion of the court. The statement of contest was filed December 17, 1888, and, among other things, charged malconduct on the part of the board of election of Boston Ravine precinct in counting for G. W. Dunster votes that were cast for contestant, Lord, in sufficient number to have insured the election of contestant. Issue was taken upon this averment by the answer of Dunster.

The principal facts are stated in the opinion of the court. The defendants Leach and Capron claimed title under foreclosure of a mortgage executed by the widow and heirs after the patent was obtained. (See statement of facts in the opinion of the court in McDonald v. Burton, 68 Cal. 445.)

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

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

<p>Divorce—Alimony—Counsel Fees—Form of Decree — Charge on Beal Estate.—A decree in a divorce suit adjudging that defendant pay to plaintiff’s attorney one hundred dollars as counsel fees of plaintiff, and providing that all alimony, fees, and costs allowed may be paid in the aggregate to the clerk, and that all shall be a lien on certain described real property of defendant, and if not paid, that execution or order of sale may issue for the whole on demand of plaintiff, and so much of defendant’s property sold thereunder as will satisfy the total amount, must be regarded as a decree in favor of plaintiff for the counsel fees, and is neither irregular nor void. .</p> <p>Id-— Allowance of Alimony in Gross — Discretion. — The superior court has power, under section 139 of the Civil Code, to make an allowance of alimony to the wife in a divorce suit in a gross sum. The allowance may be for the wife’s support during her life, and is not limited to periodical payments. An allowance having regard to the circumstances of the parties respectively of a sum less than a third in value of the husband’s estate, to an abused and injured wife in feeble health, with children to care for, is a proper exercise of discretion.</p>

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

<p>Statute of Frauds — Deed — Parol Agreement.—A deed cannot be avoided by evidence of a parol agreement to hold in trust unless the case falls within some recognized exception to operation of the statute of frauds.</p> <p>Id. — Actual Fraud — Pleading. — A fraudulent intent is one of the facts constituting actual fraud, and must be alleged. The mere failure to perform an agreement made in good faith is not of itself fraud.</p> <p>Constructive Fraud — Fiduciary Relation — Pleading.—In order to make a case of constructive fraud, arising out of the violation of a fiduciary relation, the plaintiff must allege the existence of such relation.</p> <p>Resulting Trust — Recital of Consideration.—If the old rule that a trust results to the grantor where no consideration is expressed in a deed or proved aliunde still prevails in this state, it does not apply where the deed recites a consideration. Such a recital cannot be contradicted for the purpose of defeating the operation of the deed or raising a resulting trust.</p> <p>Part Performance. — Acts which the deed gives the grantee a right to do, and which are done under the deed, do not make a case of part performance of an oral agreement for a trust.</p> <p>Statute of Frauds — Pleading by Defendant.—If the plaintiff relies upon a contract within the statute of frauds, a denial of the contract is sufficient to raise the question of its validity under the statute.</p>

<p>Tax Sale — Redemption — Effect of Act of 1885 Requiring Notice to the Owner of the Purchaser’s Application for a Deed — Extension of Time for Redemption. — The act of 1885, requiring the purchaser at a tax sale to give to the owner thirty days’ notice of the application for a deed, and extending the time for redemption until such notice is given, is constitutional, and applies to all applications for deeds made after the act took effect.</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 of the court.</p>

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

<p>Criminal Law—Assault with Intent to Murder—Stabbing—Evidence— Res Gestie.—When a defendant is accused of assault with a pistol with intent to commit murder, evidence is admissible to prove a stabbing by another party by direction of the defendant given at the time of the assault with the pistol, to show the intent with which the assault was made, and as part of the res gestae; and it is not error to allow the knife with which the stabbing was done to be produced and exhibited in court.</p>

The defendants were accused of burglary committed' at Vallejo, Solano County, on April 22, 1888, in entering the store of Joseph Swalbe, with intent to commit larceny. They had undergone two preliminary examinations, and after the first examination, were discharged by the superior court of Solano County, on a writ of habeas corpus, for insufficiency of the evidence adduced at that examination.

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

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

<p>Promissory Note—Non-payment — Possession of Note—Presumption —Burden of Proof. —Possession of a promissory note by the payee raises a presumption of non-payment. And possession by the maker raises a presumption of payment. Hence if the allegation of non-payment be denied, it is incumbent upon the plaintiff to prove non-payment, at least by producing the note or accounting for its non-production.</p>

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

<p>Water Rights—Appropriations-—Diversion by Riparian Proprietor — Damages — Injunction. — A prior appropriator of water cannot enjoin a riparian proprietor from causing the water of a natural stream to flow over his lands for beneficial purposes, where it appears that the prior appropriator is only nominally damaged by the acts done and threatened by the riparian owner, and it does not appear that the prior appropriator has used the water for a beneficial purpose, or raised or attempted to raise any crops oh his land.</p> <p>ID. — Acts of Appropriation. —• Whether an actual appropriation of water by means of a dam and ditcb, not initiated by compliance with the provisions of the. Civil Code as to posting and recording of notices, is valid, qucere.</p>

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

Application to Supreme Court for release of petitioners upon writ of habeas corpus. The facts are stated in the opinion of the court.

<p>Water Right — Appropriation by Ditch—Adverse Possession — Statute op Limitations — Payment op Taxes.—When the water of a natural stream has been diverted by means of a dam and ditch, and has been used adversely to a lower riparian proprietor for more than five years as an appurtenance to the land of the appropriator, and no separate taxes have ever been levied or assessed upon the ditch and water plight, the defense of the statute of limitations is made out. It must be presumed that the appropriator paid whatever taxes were due from him upon the ditch and water right by reason of the enhanced value of the land to which it was appurtenant, and that the situation of the ditch and water right, and the disadvantages and benefits resulting to the riparian owner were considered by the assessor in assessing his land.</p> <p>Id. —Code Requirements as to Appropriation — Statute of Limitations —Estoppel— Evidence. —So far as defenses to an action for diversion of water are founded upon the statute of limitations and equitable estoppel, it is immaterial whether the defendant or his grantor made an appropriation of the water in compliance with the code requirements as to posting notices, etc., or not. To sustain those defenses, the actual construction of the ditch which diverted the water may be shown without preliminary proof of the posting or recording of notices. Evidence as to the convenience and necessity of the ditch to the land of the appropriator is relevant to the defense of estoppel, and to show that the water right became appurtenant to the land and passed with it to defendant.</p> <p>Id.—Water Right as an Appurtenance — Deed — Evidence. — When a ditch and water right clearly passed by a deed of land as an appurtenance thereto, the admission of evidence that the actual intention and understanding of the parties were to include them in the sale cannot be prejudicial error.</p>

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

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

It appears from the findings of the court below that the prior action referred to in the opinion as having been compromised and dismissed was an action for partition of the same real estate brought by the grantor of the appellant against the grantors of the respondent; and that the compromise involved a release and discharge of all claims between the parties, and the settlement and dismissal of another action. The further facts are stated in the opinion of the court.

<p>Place of Trial — Real Action—Reformation of Contract of Sale.— An action for the reformation of a contract of sale of land must be tried in the county where the land is situated, and cannot be changed therefrom to the place of the defendant’s residence. Under section 392 of the Code of Civil Procedure, an action for the determination in any form of a right or interest in real estate must be tried in the county where the land is situated.</p>

<p>Pleading—Consideration—Written Contract Set Forth in Full. — In California every written contract imports a consideration. And if the contract is set fortli in full in the pleading, it is not necessary to allege-.a consideration. ...</p> <p>Findings by Reference to Pleading. — A general finding that all the. allegations of the complaint are true, and that all the averments of the answer are untrue, is sufficient, if the pleadings are sufficient.</p>

<p>Appeal from orders of the Superior Court of Los Angeles County relating to the homestead claim of appellant.</p> <p>The facts are stated in the opinion of the court.</p>

The transcript was much smaller in size than is required by the rules of the supreme court. The case had been submitted upon its merits without objection raised by counsel to the transcript. 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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Rape—Evidence—Corroboration of Prosecuting - Witness — Cruel Treatment. — When a step-father is accused of rape, committed upon his step-daughter between ten and eleven years of age, if the step-daughter testifies that defendant was in the habit of cruelly beating her, and thus keeping her in constant fear and terror, under which she submitted to him, the testimony of a neighbor that she heard the step-father whipping and beating the prosecuting witness is admissible in corroboration of her statement as to cruel treatment and fear. The fact that the beating testified to by the neighbor occurred a year before the alleged rape goes only to the weight and not to the admissibility of the testimony.</p> <p>Id. —Proof of Prior Offense—Explanatory Evidence. —Though as a general rule the prosecution cannot prove the commission of another offense to raise an inference of guilt of the crime charged, yet where, upon a charge of rape, the prosecuting witness voluntarily, and without objection on the part of the defendant, testifies incidentally to prior intercourse with her by the defendant without her consent, it is not error to allow the witness to testify, in answer to questions from the prosecution, that on the former occasions she was overcome by fear and terror, and did not tell her mother because she was scared, and afraid that defendant would kill her mother.</p> <p>Id.—Instructions —Reasonable Doubt.—When the court gives sufficient instructions to the jury upon the subject of reasonable doubt, it is not error to refuse further instructions upon the same subject at the request of the defendant. An instruction that “it would not be sufficient to justify a conviction, if the jury should be satisfied of the guilt of the defendant to such a moral certainty as would influence their minds in the important affairs of life,” should be refused as lacking in precision, and as being so unguarded as to produce a bewildering impression.</p>

<p>Criminal Law—Entry of Judgment Nunc pro Tuno—Presence of Prisoner. — If the prisoner is present in court when judgment is pronounced and rendered by the court, it is all that is required by the Penal Code; and if the clerk neglects to enter the judgment at the time, the court may afterwards order it entered nunc pro tunc, without the presence of the prisoner.</p>