Volume 80 — California Reports

<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>San Francisco — Street Assessment — Completion op Work—Improper Acceptance — Remedy by Appeal.—Under section 12 of the act of April 1, 1872, if the contractor for a street improvement in San Francisco fails properly to complete the work according to contract, and the work is improperly approved or accepted by the superintendent of streets before completion, the only remedy for lot-owners assessed for. the improvement, is to appeal to the board of supervisors.</p> <p>Id.—Proop op Acceptance by Superintendent.—The assessment and warrant attached are prima facie evidence that work on a street improvement was done to the satisfaction of the superintendent. The superintendent may approve the work upon the certificates of the city surveyor and deputy superintendent without personal inspection, and proof of lack of personal inspection by him does not overcome the proof of acceptance from those certificates showing that the work was completed according to contract, taken in connection with the personal making and signing of the assessment, diagram, and warrant hy the superintendent.</p> <p>Id. —Validity of Assessment — Apportionment in Proportion to Frontage. — A street assessment, may be apportioned in proportion to frontage of the land assessed on the improvement, without other reference to benefits.</p> <p>Estates of Deceased Persons—Resignation of Administrator—Revocation of Letters—Appointment of New Administrator—-Presumption. — When the record of the probate court shows the resignation of a former administrator, and the settlement of his final account, and the appointment of a new administrator after the date of such settlement, it must he presumed in favor of the action of the court that the former administrator delivered the assets into the custody of the court, or to a. person appointed to receive it, in the absence of evidence to the contrary, and that all conditions existed which were necessary to authorize the new appointment. The action of the court was equivalent to an acceptance of the resignation of the former administrator, and the revocation of his letters.</p>

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

The homicide of which the defendant was accused grew out of a-controversy between deceased and defend- ant in regard to a' mining claim on the bank of Klamath River, in Siskiyou Oouinty. Defendant was in possession working the claim immediately befdre the difficulty. On October 19, 1887, the deceased, with two other persons, came down Klamath River with a raft of - lumber, intending to land it on the mining claim and erect a cabin thereon.

The action was ejectment, in which the plaintiff’s prior title was admitted. The defendants claimed under a constable’s sale and deed of the plaintiff’s title under an execution against the plaintiff. The prior action referred to in the opinion was an action by the plaintiff to quiet title against the defendants’ grantor, and to set aside the judgment and execution sale on the ground of want of jurisdiction because the complaint was filed upon a legal holiday.

<p>Prohibition .—Dobs not Issue where Court has Jurisdiction.—The writ of prohibition cannot issue to prevent a court from trying an action which it has jurisdiction to try.</p> <p>Justice’s Court — Jurisdiction—Penalty Given by Statute.—'The justice’s court has jurisdiction of an action to recover a penalty under - three hundred dollars, given by statute. And a penalty of two hundred dollars claimed for the issuing of a certificate of relief without authority from the insurance commissioner is such a penalty.</p>

<p>Appeal from a judgment of the, Superior Court of Sonoma 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 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>Criminal Law — Embezzlement—Assignment for Benefit of Creditors. — If an assignee for the benefit of creditors fraudulently misappropriates the trust property to the payment of his own claim, when he knows that the terms of the assignment require him first to pay a judgment against the insolvent debtor, or if he fraudulently appropriates the proceeds of sales and collections to his own use, accounting only for a smaller sum, he is guilty of embezzlement. But the question of guilt or innocence does not depend upon the construction of the contract as to the order of payment of creditors. It is the fraudulent misappropriation of the property that constitutes the gist of the offense.</p> <p>Id. — Offer to Return Embezzled Monets.—The fact that a person charged with embezzlement offers to return or pay over the moneys embezzled is no defense to the accusation.</p> <p>Id.—Contract of Indemnity—Embezzlement of Trust Funds.'—The fact that an assignee for the benefit of creditors gives a written indemnity to judgment creditors of the assignor, whom he is by the terms of the assignment first to pay out of the proceeds of the trust funds, in no way affects his guilt or innocence when charged with embezzling the funds intrusted to him for certain purposes by the assignor.</p> <p>Id. —Failure of Assignor to Deliver Property. —The fact that the assignor did not turn over to the assignee for the benefit of creditors all the property assigned is no defense to a charge of embezzling property received and retained.by him.' His only remedy for such failure on the part of the assignor would be to decline to proceed with the trust until the whole of the property was turned over to him; and so long as he retained any property under the contract, he was bound to use it as required by the provisions of the assignment.</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—Failure to File Undertaking in Time—Dismissal. —The failure to file an undertaking on appeal within the time limited therefor renders the attempted appeal ineffectual. In such a case, the respondent cannot have the attempted appeal dismissed.</p>

<p>Estates of Deceased Persons — Distribution—Appeal by Executor of Deceased Heir—Appeal Bond.—An appeal from an order of distribution by an executor of a deceased heir does not entitle such executor to claim the benefit of section 965 of the Code of Civil Procedure as to bonds on appeal, the appeal not being from an order made in the settlement of the estate of which he is executor. To entitle such executor to the benefit of section 946 of the same code, an order must be made dispensing with the bond within the time allowed for filing the hond.</p> <p>Id. — Order Nunc pro Tunc— Dismissal of Appeal. — An order nunc pro tunc may be made to correct a mistake in failing to enter an order which was actually made, or which should have been made as a matter of course; but an omission to make an order dispensing with an appeal bond cannot be supplied by an order nunc pro tunc after the time for making it has elapsed. If such order was actually made, but not entered in time, the record should show that fact, and it cannot be shown by affidavits, on motion to dismiss an appeal for want of a bond, upon appeal.</p>

<p>Married Women—Acknowledgment of Deed—Statutory Requirements Apply to All Married Women. —The provisions of the Civil Code requiring conveyances of land by married women to be acknowledged in a particular manner apply to all married women without exception, whether living with or apart from their husbands, and to all land, whether it is owned by her as her separate property, or otherwise. Unless so acknowledged, a deed by a married woman is invalid, and passes no title to the grantee.</p> <p>Id.—Certificate of Acknowledgment—Presumed to Accord with Facts. — If the acknowledgment is in due form, the certificate of the officer is not necessary to the validity of the deed, but may be supplied at a later day; but where a certificate is attached, it is prima fade evidence of the fact that the deed was acknowledged as therein indicated, and if it fails to show the examination and acknowledgment separate and apart from the husband, or any other essential to a due and sufficient acknowledgment, it will be presumed, until the certificate is corrected, that such necessary acts were not done.</p> <p>Id. — Fraud on Creditors—Inoperative Deed will not be Set Aside. — A deed purporting to convey land to which the grantor had no title will not be set aside at the instance of his creditors, on the ground that it was fraudulent as to them.</p>

The findings found that the plaintiff’s original articles of incorporation were filed in the office of the. county clerk of San Bernardino County. The further facts are stated in the opinion.

<p>Appeal from an order of the Superior Court of Tulare County setting apart a homestead.</p> <p>The facts are stated in the opinion.</p>

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

<p>Deed—Description by Reference to Map and Survey—Survey Controls in Case of Discrepancy.—Where the description of land in a deed is made by reference to a map and also to the survey upon which the map is based, it will be presumed, in the absence of evidence to the contrary, that the map correctly represents the survey, and the latter need not be looked to; but if it be shown that a discrepancy exists between the map and the survey, the latter must prevail.</p>

<p>Practice — Verdict — Unsigned Special Findings cannot Control Special Verdict. — The findings of the jury on special issues submitted to them are ineffective for any purpose, and cannot control the general verdict, unless they are signed either by the jury as a whole, or by their foreman; and the failure of the party against whom the special issues are found to object to the findings being received is not a waiver of the defect.</p>

<p>Evidence—Objection to Question—Otter of Proof when Necessary — Review of Ruling. — Where a question to which an objection is sustained on the trial does not itself indicate whether the answer to it will be material evidence or not, the party seeking to introduce the evidence must, in order to have the ruling reviewed on appeal, make an offer of what he proposes to prove, so that the trial and the appellate court can determine whether the proposed evidence is material or not.</p> <p>Id.:—Comparison of Handwritings — Signature of Official — Proof of Public Record. — Where the genuineness of the signature of a person who was a justice of the peace is in controversy, his signatures to his official docket as justice, after being proved to the satisfaction of the trial judge, are admissible in evidence for the purpose of comparison with the handwriting in controversy, without formal proof that the docket is a public record,</p> <p>Id. — Admissibility of Testimony of Deceased Person. — The testimony of a witness in a prior action is not admissible, after his decease, in a subsequent action between different parties and involving a controversy as to a different matter.</p> <p>Id. — Immaterial Error. — Error in the admission of evidence which could not have prejudiced the opposite party is not ground for a reversal.</p>

<p>Taxation — Action to Recover Taxes Paid under Protest—Description of Personal Property—Statement—Presumption. —’Where the complaint in an action to recover back personal property taxes, which are claimed to have been void by reason of ah insufficient description of the property in the assessment, and to have been paid under protest, alleges that tne plaintiff furnished the assessor with a statement of his assessable property, it will be presumed in support of the assessment, unless the contrary is alleged, that the description in the assessment was identical with that in the statement; and whether the description contained in the statement was correct or not, if the assessor adopted it, the plaintiff will not be heard to complain of its indefiniteness.</p> <p>Id, —Insufficient Allegation of Defective Description — Conjunctive Allegation — Negative Pregnant.—An allegation in the complaint which, without describing the assessment, merely alleges conjunctively that the assessment did not show “the number, kind, amount, and quality ” of the personal property, admits that the assessment did contain at least three of these requirements, and is insufficient as an averment of an inadequate description.</p> <p>Id. — Sufficient Description. — Under section 3650 of the Political Code, the failure to enumerate personal property in detail does not invalidate the assessment. It is only necessary to show generally the kind or quality of personal property, so that the tax-payer may know for what property he is taxed.</p> <p>Id.—Payment under Protest— Voluntary Payment. —In the absence of acts amounting to duress or coercion, the payment of a tax is voluntary, although made under protest.</p> <p>Id. —Insufficient Allegation of Duress and Coercion. —In an action to recover back personal property taxes, a complaint which merely alleges that at the time the taxes were paid the delinquent list was being published, and which does not aver that any real property was assessed to or owned by the plaintiff, upon which the assessment of the personal property was a lien, or that there was any seizure of, or any threat or attempt to seize, the plaintiff’s property, fails to show that the taxes were paid, under duress or coercion.</p>

<p>Principal and Agent — Contract por Sale op Land—Statute op Frauds — Part Performance — Estoppel. —When a contract for sale of land is made by an agent in the presence of the principals by a memorandum in writing, and at the request of one of them the money is im- ■ mediately handed to the other, the sale is in legal effect made by the principals, and if possession is taken and valuable improvements are made by the vendee under the contract with the knowledge of the vendors after such payment of purchase-money, a written appointment of the agent is not essential, and the owners are estopped from denying his Want of authority, and from disputing the validity of the sale. Nor can they be heard to aver their want of knowledge of the location of the lot, attributable to their want of care.</p> <p>Id. —Use of Corporate Name in Contract op Sale. —When the owners of land use a corporate name in making a contract for its sale, and instruct their agent to prepare and sign the contract in that form, they cannot impeach the contract because made in such name.</p> <p>Id. —Certainty op Terms — Specific Performance. —A memorandum of a contract for the sale of land accurately describing it, and the amount and time of payments therefor, is sufficiently certain to be specifically enforced, notwithstanding it is declared to be “subject to the conditions in a formal contract as to clearing streets, improvements, etc.,” and provides that it shall be surrendered “on delivery of formal contract or deed.”</p> <p>Id. —Specific Performance —Laches—Statute op Limitations—There is no absolute bar to an action for specific performance of a contract for sale of land short of the statute of limitations. Shorter delays may sometimes be fatal, but each case depends upon its own circumstances. The circumstances of this case held to show no ground of objection to the action by reason of plaintiff’s delay in bringing the action.</p> <p>Ip. —Constructive Notice — Registry op Deeds. — The doctrine of constructive notice by registry of deeds has application only to subsequent purchasers or encumbrancers.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County dissolving an attachment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Findings—Evidence.—The evidence reviewed and held to support the findings.</p>

On the twentieth day of February, 1878, one Wendell Easton, being then the owner of a tract of land in Ffesno County, entered into an agreement with the corporation plaintiff, by the terms of which the plaintiff, the party of the first part therein, agreed to furnish Easton, the party of the second part, with a certain amount of water for the purpose of irrigating his land, until the sixteenth day of February, 1921, and during the existence of the corporation.

<p>Arbitration — Consultation of Arbitrators with Stranger. — An award of arbitration will not be set aside upon the ground that they consulted with a person not an arbitrator, if it appears that they acted on their own judgment in making their determination.</p> <p>Id.—Power of Arbitrators—Award as to Partnership Transactions — Collection of Partnership Assets. •—A reference to arbitrators to settle all matters of difference growing out of partnership transactions gives them power to determine what amounts are due to one of the partners as trustee of the partnership, from uncollected assets in the form of bills receivable, and to determine the share of each partner therein after expenses of collection are paid; and if the articles of partnership provide for the collection of such assets by such partner, the award is not objectionable for recognizing and reciting his authority to make the collection</p>

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

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

<p>Quieting Title—Mortgage—Deed Absolute in Form—Condition to Granting Relief — Statute of Limitations. — A mortgagor of land under a deed absolute in form, after the statute of limitations has run against the mortgage debt, cannot have his title quieted against the interest claimed by the mortgagee under the deed, except upon the condition of payment of the debt.</p> <p>Id. — Mortgagee in Possession must Account for Rents and Profits. — The mortgagee, if he has been in possession of the mortgaged premises, or has received the rents and profits, must account for them, or the value of the use and occupation, and credit the same upon the amount of the mortgage debt.</p>

<p>Practice—Order Granting Amendment to Statement not Appealable. — An order granting an amendment to a proposed statement of the case on a motion for a new trial is not appealable.</p> <p>Negligence — Gross Carelessness — Exemplary Damages — Instruction. — In an ac’tion to recover damages for personal injuries caused by the negligence of the defendant in recklessly driving in the street of a city, it is error to instruct the jury that exemplary damages could be given if the defendant was grossly careless. In order to warrant such damages, under section 3294 of the Civil Code, the defendant, in doing the grossly careless act, must have been guilty of oppression! or fraud, or malice, actual or presumed.</p>

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

<p>Divorce—Alimony—Counsel Fees — Discretion.—In an action for a divorce, the court has discretion to require the husband to pay alimony and counsel fees to the wife pending the suit; but such discretion is not an arbitrary power, and must be exercised in view of the circumstances and necessities of the several parties, and the pecuniary ability of the husband. Held, that, under the circumstances of this case, the allowance of fifty dollars a month alimony, and five hundred dollars counsel fees was excessive, and an abuse of discretion, the defendant’s burdens and necessities being greater, and his means and ability to sustain them being less, than are the plaintiff’s.</p>

<p>Estate of Decedent — Decree of Distribution mat be Vacated on a Proper Showinq. — A decree distributing the estate of a deceased person may be set aside by the lower court, at any time within six months after its entry, upon a proper showing of mistake, inadvertence, surprise, or fraud.</p> <p>Id.—Review of Order Vacating Decree—Recitad of Jurisdiction ad Facts Conclusive on Certiorari. —A recital in the order vacating the decree that all persons interested “were duly served with due notice ” of the motion to vacate is conclusive of that fact, in a proceeding to review the order on certiorari.</p>

<p>Pleading—Answer—Cross-complaint—Judgment on Pleadings.—A portion of an answer introduced in the following language: “And for a further and separate answer the defendant files her cross-complaint, and alleges,” etc., —does not constitute a cross-complaint, or entitle the defendant to a judgment on the pleadings for failure of the plaintiff to answer thereto.</p> <p>Bill of Exceptions — Instruction.—The embodying of an instruction in the specifications of error at the end of the body of the statement or bill of exceptions, reciting that the court erred in instructing the jury as follows, etc., cannot be considered as evidence that the court granted such instruction.</p> <p>Assumpsit — Contract to Deliver Wood—Evidence—Unsigned Letter. —In an action of assumpsit for goods sold and money paid out and advanced for defendant, where the defendant pleads a special contract to deliver a quantity of wood to plaintiffs, which plaintiffs refused to receive, and the proof shows that the refusal only applied to wood for which an order was given upon a third party, an unsigned letter forbidding plaintiffs to take that wood, which there was evidence tending to show had been sent to plaintiffs by the attorney of such third person, is admissible for plaintiffs as tending to show that they were not at fault for not taking such wood as part of defendant’s delivery.</p> <p>Exclusion of Repeated Evidence.—The court may properly refuse to allow a party to again testify to what he has already testified to.</p>

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

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

<p>Appeal from an order of the Superior Court of Tulare County settling the account of an administrator.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Principal and Agent—Sale of Land—Agent, not Liable to Vendee fob Deposit. — A vendee under a contract for the sale of land who has paid a deposit on the purchase price to the disclosed .agents of the vendor, which they have turned over to their principal, cannot maintain an action against the agents for its recovery on account of the failure of the vendor to perform the contract in time, although the vendor has, prior to the commencement of the action, redelivered the money to the agents.</p> <p>Id. —Remedies of Vendee and Agent abe against Vendor. —The questions whether the vendee is entitled to the return of the deposit, or whether the agents were entitled to commissions for making the sale, are to be determined in actions brought by them against the vendor. As between themselves, there is no liability either way.</p> <p>Id. —Verbal Authority of Agent to Sell—Vendor when Estopped to Deny Agency. — The fact that the authority of the agents to sell the land was not in writing does not render them individually liable to the vendee for the deposit. The vendor, having received the deposit, is es-topped, as against the vendee, to dispute or deny the agency.</p>

The original action was brought to foreclose the interest of the defendants in a certificate of purchase of certain state lands, and a decree of foreclosure was rendered therein October 30,1865. The motion to set aside the decree of foreclosure was made by the Pioneer Land Company as the successor in interest of one of the defendants, on the 31st of December, 1888, upon the grounds stated in the opinion of the court, and that company appeals from the order denying the motion.

<p>Contempt—Imprisonment—Hard Labor—Power of Supervisors— Police Regulation — Habeas Corpus.—A judgment of, imprisonment for contempt of court cannot authorize or justify imprisonment at hard labor; nor have the board of supervisors any power to make a police regulation ordering persons imprisoned for contempt, or as a means adopted to enforce collection of a fine, to be worked on the streets or other public places. A person committed for contempt will be discharged from hard labor on the streets upon writ of habeas corpus, but will not be discharged from imprisonment by reason of being put at such hard labor.</p> <p>Id.—Criminal Nature of Contempt—Misdemeanor.—A contempt is a quasi criminal offense against the court, for which a party may be fined and imprisoned, as for a specific criminal offense, but it is not a misdemeanor in the strict sense of the term.</p>

<p>Criminal Law—Robbery—Variance as to Ownership of Property— Conflict of Evidence. — Where there is a conflict of evidence as to the ownership of the property which is the subject of an alleged robbery, and there is some evidence to prove the ownership as alleged, a finding of guilty as charged is within the province of the jury, and it is proper for the court to refuse to instruct them to acquit the defendant upon the ground of variance. It is sufficient to sustain the charge of robbery if the property feloniously and forcibly taken from the person of another belonged to any person other than the defendants; and an erroneous allegation as to the ownership of the property is immaterial, under section 956 of the Penal Code, if the offense is otherwise described with sufficient certainty to identify the act of robbery.</p> <p>Id.—Immateriality of Ownership—Identity of Robbery.—The felonious taking of personal property by the defendants from the person of another, or from his immediate presence and against his will, by means of force or fear, is robbery, if the property belonged to any person other than the defendants; and an erroneous allegation as to the ownership of the property is immaterial, under section 656 of the Penal Code, where the conviction is for the robbery, the identity of the act of robbery being the same, no matter upon whom the injury involved in the larceny which was included in the robbery might fall.</p>

<p>Appeal from, an order of the Superior Court of the-city and county of San Francisco refusing to set apart a homestead.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Constitutional Law—Enactment oe Laws—Journals oe Legislative Houses — Presumption. — It is not essential to the validity of a statute that it should affirmatively appear from the journals of the senate and the assembly that every act required by the constitution to be done in the enactment of a law has been done; nor will it be presumed, in the absence of such a showing, that such acts were not done.</p> <p>Id. — Selecting Site for Building—Delegation of Legislative Functions. —A provision in an act of the legislature giving to certain persons the authority to select a site for a public building proposed to be constructed is not a delegation of legislative functions or powers.</p> <p>Id.—Act for Single Purpose — One Appropriation.—The act of 1889, entitled “ An act to provide a permanent site for the California Home for the Care and Training of Feeble-minded Children, and to erect suitable buildings thereon,” has but one purpose, within the meaning of section 34 of article 4 of the constitution, and properly makes but one appropriation to carry out its object.</p>

Application to the Supreme Court for the transfer of the custody of an orphan child, upon writ of habeas corpus. The facts are stated in the opinion of the court.

Application to the Supreme Court for a writ of mandate to the controller of state. The facts are stated in the opinion of the court.

<p>Criminal Law — Larceny — Indictment — Description of Property Stolen—Presumption.—An indictment for larceny describing the property stolen as the property of “Townsend and Carey,” without specific designation of them as being partners in business, is not fatally defective, and is sufficient, under the provisions of section 959 of the Penal Code, to enable a person of common understanding to know that it was intended to designate the owners of the property as constituting a partnership. The sufficiency of indictments or informations are to be tested by statutory enactments; and it must be presumed that the defendant is , a person, of common understanding.</p>

<p>Public Omicers— Power oe Appointment — Constitutional Law — Executive Function. —The power of appointment to office is not essentially an eKecutive function, within the meaning of section 1 of article 3 of the constitution of 1879, and so far as it is not regulated by express provisions of the constitution, may be regulated by law, and if the law so prescribes, may be exercised by the members of the legislature.</p> <p>Id. — State Library—Legislature may Elect Trustees__The provision of section 2292 of the Political Code, placing the state library under the control of a board of trustees elected by the legislature in joint convention assembled, is constitutional.</p>

<p>Divorce—Disposition oe Community Property—Homestead—Trust— Jurisdiction. —When, upon a decree of divorce in favor of the wife, for extreme cruelty and habitual drunkenness of the husband, the homestead property is awarded to the wife, and the decree declares that the property so awarded to her is to “be held by her in trust for her support, and for that of the children of the parties,” no definite or certain trust is created, but an absolute and unlimited estate in the homestead property is transferred to the wife. The court has no statutory power to create a trust in the homestead or community property by a divorce decree, but only to assign it to the innocent party absolutely or for a limited period.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco settling the accounts of a receiver, and directing him to pay a fund into court,</p> <p>The facts are stated in the opinion.</p>

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

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

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

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

<p>Partition — Pleading — Answer — Cross-complaint. — A so-called cross-plaint in an action for partition which is only a repetition of the answer which alleges exclusive ownership and exclusive possession by the defendant requires no answer from the plaintiff.</p> <p>Deed — Acknowledgment op Married Woman — Conclusiveness of Certificate— Use of Telephone by Notary — When the certificate of acknowledgment of a deed from a married woman is in due form, and is not impeached for fraud, duress, or mistake, it is conclusive of the facts therein stated by the notary, and cannot be impeached by evidence or findings that the acknowledgment was taken by the notary through a telephone, the married woman being three miles distant from the notary at the time of acknowledgment.</p>

<p>Mechanic’s Lien — Claim of Lien—Name of Owner. — Section 1187 of the Code of Civil Procedure requires the claimant of a mechanic’s lien to state the name of the owner or reputed owner, if known, of the property to be charged with the lien; but if the names are not known, the claim filed is sufficient under the statute if it is silent upon the subject. If a claim filed against the owner of a house and of a leasehold interest by name states that the owner of the fee is unknown, the claim is not bad because not specifically stating that the name of the reputed owner of the fee was not known.</p> <p>Id. — Foreclosure of Lien — Pleading — Notice — Defense. — A complaint foreclosing a mechanic’s lien sufficiently avers notice to the owner of the land of the construction of the building if it alleges that the building was constructed upon said land with the knowledge of each of said defendants, the owner of the land being one of the defendants. It is not necessary that the complaint should aver that the owner did not give notice that he would not be responsible for the construction of the building, such notice, if given under section 1192 of the Code of Civil Procedure, being matter of defense to be set up by defendant. -</p> <p>Id.—Liability of Owner — Construction of Code. — Sections 1185 and 1192 of the Code of Civil Procedure must be construed together harmoniously if possible, and while the first charges the holder of a leasehold interest with a lien only to the extent of his interest, the latter adds a provision that if the building is constructed with the knowledge of • the owner of the fee, it must be held to have been constructed at his instance, so as to charge his estate with the lien, unless he gives notice as therein provided that he will not be responsible therefor.</p> <p>Id. —Value of Materials — Cartage. — Cartage, which is a portion of the cost of materials furnished for the construction of a building, may be properly allowed as part of the value of the materials furnished, upon foreclosure of a mechanic’s lien therefor.</p> <p>Id. —Counsel Fees. —Under section 1195 of the Code of Civil Procedure, a reasonable counsel fee may be allowed for services of the plaintiff’s attorney, rendered upon appeal to the supreme court, in a case of foreclosure of a mechanic’s lien.</p> <p>Evidence — Books of Account.—The testimony of a competent witness to show the mode in which the books of account of the plaintiff were kept, and that they were correct, is admissible, and such books are properly admitted in evidence as books of original entry to show the items of plaintiff’s account.</p> <p>Admission of Pleading — Evidence—Harmless Error.—It is harmless error to allow the plaintiff to prove a fact not in issue which is admitted by the failure of the answer to deny an allegation of the complaint.</p> <p>Finding. — A fact not disclosed by the findings, or made to appear inrthe record, must be taken not to have existed.</p>

<p>Boundary — Township Line — United States Survey — Monuments — Field-notes. — Monuments fixed by a United States surveyor upon the boundary line between two townships at the time of the original survey will control the field-notes of the survey taken at the time the monuments were erected, and will control the field-notes or courses and distances of any subsequent survey. Such monuments, if identified by the proof, are the best evidence of where the line should be. As between different lines of monuments, those best identified by the evidence should prevail; but in the absence of monuments, the field-notes of the survey would govern and determine the true line; and if two lines of monuments or supposed monuments are so located as to render it doubtful which is the true line, then, other things being equal, the line of monuments most nearly conforming to the field-notes should prevail.</p>

<p>Criminal Law—Counterfeiting—Foreign Bank Notes. — The counterfeiting of notes of the Bank of England is punishable under section 480 of the Penal Code of this state. The words “bank notes and bills ” in that section include all bank notes and bills, both foreign and domestic, whether current in this state or otherwise.</p> <p>Id.—Information — Incorporation of Foreign Bank. — In an information for counterfeiting notes of the Bank of England, it is not necessary to allege the incorporation of the Bank of England, the fact of its incorporation being not an element of the crime. The description is satisfied as matter of identity by proof that the company is known as a corporate company and is acting as such, and as such issues bank notes or bills which come within the statute.</p> <p>Id.—Jurisdiction of State and Federal Courts—Police Power of State. — The fact that the counterfeiting of notes of a foreign government is made an offense by act of Congress, of which the federal courts have jurisdiction, does not prevent a state from punishing the same offense when committed within its limits, or oust the state courts of jurisdiction of the offense against the authority of the state. The police power of the states belongs to them by virtue of their general sovereignty, and has never been ceded to the United States.</p> <p>Id. — Instruction — Possession of Counterfeiting Implements. — An instruction as to what constitutes guilty possession of counterfeiting implements, given in the language of this court in the case of People v. Ah Sam, 41 Cal. 645, held correct, and properly applicable to the facts of this case.</p>

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

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

<p>Place of Trial—Restraining Threatened Injury to Land. —-An action to restrain a threatened injury to real estate is an action for “ an injury to real property,” within the meaning of subdivision 1 of section 392 of the Code of Civil Procedure, and must be tried in the county where the real estate is situated.</p>

<p>Mining Ground—Effects of Conveyance by Directors without Ratification by Stockholders. —Under the act of 1880, the directors of a mining corporation have no power or authority to convey the mining ground of the company without the consent of the holders of two thirds of the capital stock. A conveyance without such consent does not pass the title.</p> <p>Id.—Mining Ground — Ditch — Appurtenance. — The term “mining ground,” as used in the statute, includes all appurtenances. And a ditch by means of which the mine was operated is an appurtenance.</p>

<p>Town-site Acts—Interest os Occupant—Separate Property.—The occupant of lands for whose benefit the town-site acts were passed has an equitable interest in the lands. And if such occupant is an unmarried woman and marries, such interest is her separate property. And this is so, although the patent from the government to the municipal authorities has not issued. The property does not become community property from the fact that the husband advanced the funds necessary to get a conveyance from the municipal authorities.</p>

<p>Pleading — Inconsistent Allegations in the Same Count of the Complaint. — If the plaintiff places inconsistent allegations in the same count of his complaint, and the defendant does not choose to demur for uncertainty, it is sufficient for him to deny the allegation which he wishes to controvert, leaving the other unnoticed.</p> <p>Id.—Traverse in Affirmative Words.—It is not necessary that a traverse should be in negative words. An averment in the answer of the contrary of what is alleged in the complaint is equivalent to a denial. Even where the averment is not of the direct contrary of the allegation, but is inconsistent with its truth, it may, under certain circumstance, be held to raise an issue. So held where plaintiff took no proceeding in the court below to test the sufficiency of the answer.</p>

<p>Ejectment — Consolidation oe Actions. — Two actions of ejectment for separate pieces of property brought in the same court by the plaintiff against the same defendant may be consolidated.</p> <p>Mortgage—Effect of Deed Absolute in Fobm Made Merely to Secure the Payment of Money to the Grantee — Possession.—It is the settled rule in California that if a deed absolute in form was made merely to secure the payment of money to the grantee, it is a mortgage, and does not pass the title. Such a deed gives a mere lien upon the property just as if the parties had put their agreement in the form of a mortgage, and consequently does not give the right of possession to the grantee.</p> <p>Agreement Made through Agent—Repudiation of Part.—If a party makes an agreement through an agent, and claims under it, he cannot repudiate it in part on the ground that the agent exceeded his authority.</p> <p>Deed to Members of a Firm — Ejectment by One Partner against Intruder. — A deed conveying title to the members of a firm enables one partner to maintain ejectment against an intruder.</p> <p>Pleading—Affirmative Defense in Ejectment—Whether to be Tried First. — An affirmative defense that the deed relied on by plaintiff was a mortgage is covered by a denial of the plaintiff’s allegation of ownership. It is not an equitable defense, and therefore the plaintiff is not entitled to have it first disposed of.</p>

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

<p>Corporation — Filing op Copy op Articles—Pleading — Demurrer — Nonsuit—Plea in Abatement. —The failure of a corporation to comply with the requirements of section 299 of the Civil Code as to the filing of a copy of the copy of its articles of incorporation in the office of the clerk of the county where its property is situated, is not ground of general demurrer when the complaint is silent upon the subject, nor is it ground of motion for a nonsuit that the plaintiff has failed to prove such filing; but such failure can only be made available by specially pleading it in the answer as matter of abatement to the action.</p> <p>Id. —Foreign Corporation. — Section 299 of the Civil Code does not by its terms apply to or include foreign corporations, but applies only to domestic corporations who have filed a copy of their articles of incorporation with the secretary of state of the state of California. There is no provision or authority in the statute by which foreign corporations are to file a copy of their articles of incorporation, with the secretary of state of this state.</p> <p>Water Rights — Appropriation — Riparian Rights — United States Homestead Claim—Injunction. —The riparian rights of a homestead claimant under the laws of the United States, whose settlement upon the land is subsequent to an appropriation of the water flowing across the same in its natural channel, by the owner of a water-ditch which taps the stream below the homestead claim, are subject and subordinate to the prior appropriation of the stream by the owner of the ditch, and the homestead claimant may be enjoined from diverting the water of the stream from the ditch.</p>

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

<p>Ejectment—Enforcement of Trust—Alternative Judgment—Tax Title — Reimbursement of Trustee — Renewal of Motion. — When in an action of ejectment an alternative judgment haa been entered adjudging that the plaintiff holds the legal title in trust to secure the payment of a debt, and that if the debt be paid by the defendant within twenty days, the plaintiff should convey to him the title, and if not, that the plaintiff shall be entitled to judgment for restitution of the premises as prayed for, and pending the suit a tax title to the land is acquired by the plaintiff, such title is also held in trust for the defendant, and the plaintiff is not entitled to judgment for restitution without including such title in an offer of conveyance of his interest. But as the taxes were properly assessed to the defendant in possession claiming ownership, the plaintiff is entitled to reimbursement of the taxes and costs, with legal interest, in addition to the amount of the original debt, before conveyance of the legal title by him to the defendant, and should be allowed to renew a motion for judgment of restitution, if after tender by him of a sufficient deed conveying all his interest in the property, the defendant should fail to pay the full amount of the debt, taxes, costs, and interest within a reasonable time.</p> <p>Id. — Enforcement of Trust—Finality of Judgment—Effect of Appeal. — A party has the right to question the correctness of a judgment enforcing a trust against him by motion for new trial and appeal, and the judgment is not final until the appeal is decided.</p>

<p>Mortgage—Deed Intended as Security—Title—Right of Possession- — Cloud on Title — Redemption—Extinction of Lien. — A deed intended as a mortgage for a debt from the grantor to the grantee does not pass the legal title as between the parties, nor confer a right of possession upon the grantee; hut merely operates as a mortgage between them; yet, being absolute in form, it constitutes a cloud on the title of the grantor which he may remove upon doing equity by redemption and payment of the mortgage debt, regardless of possession by the grantee; and he must do equity by payment of the balance of the debt, as a condition of removing the cloud, though the lien of the mortgage be extinguished by failure of the grantee to foreclose it.</p> <p>Id. — Mortgages upon Distinct Properties for Same Debt—Foreclosure — Waiver — Demurrer for Misjoinder. — There can he hut one action to enforce the same debt secured by distinct mortgages upon real property, and if the plaintiff forecloses hut one of them, he waives and nullifies the lien of the other mortgage. The fact that an attempt was made to foreclose both mortgages in the same suit, and that a demurrer for misjoinder of causes of action was sustained, will not preserve the lien, if it does not appear that the complaint contained appropriate allegations to make evident the necessary connection between the two mortgages.</p> <p>Id. — Limitation of Action to Redeem. —Under section 2903 of the Civil Code, an action to redeem a mortgage may he brought by the mortgagor at any time after the obligation becomes due, and before foreclosure, regardless of the running of the statute of limitations against the principal obligation, unless the mortgagee has previously acquired a title to the premises by adverse possession for the period of five years.</p> <p>Id. — Redemption as Related to Title—After-acquired Title.—The mortgagor may sue to redeem from the mortgage regardless of whether he has a valid title to the mortgaged premises or not. But when he redeems from a deed absolute on its face which was intended as a, mortgage, he is entitled to a reconveyance only of the interest conveyed by him, and cannot claim a conveyance of any adverse or superior title which may have been thereafter acquired by the mortgagee.</p> <p>Mining Claim — Relocation — Pleading — Inconsistent Averments — Surplusage. —A complaint alleging a relocation of a mining claim by defendants for the purpose of securing a patent, when the ground was owned by plaintiff, and was not subject to relocation, makes a contradictory and superfluous allegation as to the relocation, which should be disregarded as surplusage, since a valid location or relocation can be made only when the ground is open to exploration and appropriation.</p> <p>Id. — Ownership of Mining Claim — Pleading.—A pleading not containing a general avernment of ownership of a mining claim must aver all the facts necessary to constitute such ownership. An avernment that the land was vacant public land, and that a notice of location was posted thereon, is not sufficient.</p> <p>Findings. — Findings upon issues not properly presented by the pleadings must be disregarded.</p>

<p>Election Contest—Ballots — Evidence—Power of Court to Order Ballots Produced. —In a contest over the result of an election, the ballots are competent and material evidence of a very high order. The court may order the clerk to produce the ballots in any contest about an election which may be contested in the court, whether such election be for officers or for any other purpose.</p> <p>Id. — Ballots for Bridge Bonds. —Ballots printed for or against the issue of bonds of a county for the construction of bridges need not have the words “Yes” or “No ” printed upon them. It is sufficient if the ballots are printed “Por the issue of bonds,” or “ Against the issue of bonds.”</p> <p>Id.—Contest of Election for County Bonds — Equity Jurisdiction — Constitutional Law__Since section 18, article 11, of the state constitution regulates elections to determine the policy of creating a bonded indebtedness for a county, and no machinery is provided by law for enforcing the provisions of that section, the constitution by necessary implication confers upon the court of chancery jurisdiction to protect and enforce the will of the people by suitable and proper procedure.</p> <p>Id. —Parties — Suit by Tax-fayer. —A tax-payer is a proper party plaintiff in an equity suit, either to restrain any illegal action which would increase the burden of taxation, or to prevent an untrue official declaration of the result of an election on a proposition to issue bonds, and to have the true declaration made, whether the result of the election be for or against the issuance of the bonds.</p>

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

<p>Ejectment — Recovery by Tenant in Common—Effect as to Possession of Co-tenants — Relation — Adverse Possession.—If one of several tenants in common recover judgment in ejectment against an adverse claimant of the premises, the judgment determines the right of possession of the whole premises, and the recovery of possession under the judgment relates to the commencement of the action, so that in contemplation of law the plaintiff must be considered as in possession of the whole premises as of that date; and the effect of the recovery inures to the benefit of other co-tenants not suing, so as to prevent the acquisition of title by adverse possession as against them pending the action.</p>

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

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

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

<p>Estoppel — Former Adjudication — Appropriation of Water. — A former adjudication in favor of the plaintiff, restraining the defendant from interfering with plaintiff’s dam, flume, or ditch, or from turning out any of the "water of a ravine after it shall have reached plaintiff’s dam, so long as the quantity shall not exceed twenty-five inches, though inconsistent with any prior appropriation of the water by the defendant below the dam of the .plaintiff, is not inconsistent with a prior appropriation of the stream'by the defendant above plaintiff’s dam, and does not preclude the proof of such prior appropriation in a subsequent action, nor estop the defendant from proving that such prior appropriation had not in fact been litigated in the former action.</p> <p>Id. — Impmed> Bindings; — In the absence of express findings, no findings can be implied from.a judgment except such as are logically necessary to sustain it.</p> <p>Id. — Appeal.—Law op the Case — Obiter Dictum. —The doctrine that this court having;erroneously decided some matter of law upon a former appeal will always stand by the-error in that case, though it will not allow it to be a precedent in.anothér case, has nothing to commend it to the favor of the-court, and' its application will not be extended beyond the cases in which it has been held to apply. It does not apply to erroneous expressions of opinion in a former decision which are merely obiter, and which go. beyond, the point raised, for-adjudication upon the former appeal.</p>

<p>Malicious Attachment—Final'Judgment—Pleading—Dissolution of Attachment — Date of Cause of Action. — When the complaint in an action for damages for a malicious attachment upon a debt that had been paid before the attachment suit was commenced alleges that judgment was rendered and entered in favor of the defendant in the attachment suit, such allegation is sufficient, and it is unnecessary to allege further that the judgment was in full force and effect, and not vacated, set aside, reversed, or appealed from. If the judgment is for any reason no longer in force, that fact should be alleged by the defendant in his answer. An allegation in the complaint that the judgment was not appealed from within five days, intended to show the final dissolution of the attachment, may be treated as surplusage, with reference to the finality of the judgment, and is not an admission that the judgment was appealed from after five days. It seems that in such case the cause of action dates from the final judgment, and not from the dissolution of the attachment; but this question is not decided.</p> <p>Appeal — Judgment Boll — Order Allowing Amendment to Complaint — Irregularity —■ Judgment by Default. — On an appeal from a judgment by default, taken upon the judgment roll alone, the fact that an amended complaint was not filed within the time allowed by an order permitting the amendment cannot be considered, as the order allowing the amendment is no part of the judgment roll. That fact, if existing, constitutes a mere irregularity, which can only be reviewed upon a record made upon a motion to set aside the judgment, and on appeal from an. order denying the motion.</p>

<p>Tax Deed—Recital — Charge for Certificate of Sale.—A tax deed is not subject to objection because it recites that fifty cents was charged for the certificate of sale, instead of for the duplicate certificate, as allowed by statute. The recital showing but one charge of fifty cents, the error in the recital is wholly immaterial.</p> <p>Id. —Mode of Tax Sale—Sale of Whole Property Taxed. —If property sold for taxes is offered for sale to the party who would take the least quantity of the land and pay the tax, it cannot be objected that the entire lot was sold for the taxes, if no smaller part was bid for.</p> <p>Id. — Recital as to Time for a Deed. — Under the provision of the code which requires the deed to contain the recitals contained in the certificate of sale, it is sufficient that the deed recites the fact that the time when, the purchaser will be entitled to a deed was contained in the certificate of sale without-an independent recital thereof as a fact.</p> <p>Id —Recital of Name of Person Assessed—Presumption.—The tax certificate and deed are not required to recite the name of the owner of the property, but only that of the person assessed; and it must be presumed, in the absence of proof to the contrary, that the person assessed was known to the assessor to be the owner.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion of the court and in the opinion of Chief Commissioner Belcher.</p>

<p>Appeal — Fbom What Taken. — Where a judgment or order is itself appealable, the appeal must be taken from such judgment or order, and not from a subsequent order refusing to set it aside.</p>

<p>Bindings — Waiver — Presumption. — If the record on appeal does not show that findings were not waived, a waiver will be presumed in support of the judgment.</p> <p>Bill of Exceptions on Another Appeal. — A bill of exceptions made on a non-appealable order, and not in the transcript on appeal from the judgment, cannot be considered on the latter appeal.</p>

<p>Equity Case—Special Verdict—New Trial—Time for Service of Notice — Equitable Defense. — In an equity case, the verdict of a jury upon special issues is merely advisory to the court, and the time within which notice of intention to move for a new trial must be served does not begin to run until the court has adopted or rejected the findings of the jury. This rule applies to the trial by jury of an equitable defense to an action at law, upon which special issues are submitted to the jury, • if the case is treated by the court and by the parties in all respects as an action in equity, whether properly or improperly.</p> <p>Id.—Completion of Trial —New Trial — Construction of Code.— Section 659 of the Code of Civil Procedure must be construed together with section 656 of the Code of Civil Procedure; and no proceedings for a new trial can be had until after the trial is completed, and a final decision is reached by the court or jury. The action is not tried until all the issues have been disposed of; and a special verdict of a jury in an equity case does not render the action “tried by a jury” within the purview of section 659 of the-Code of Civil Procedure.</p>

<p>Practice — Vacating Default Judgment—Discretion as to Imposing Terms. — It is not an abuse of discretion for the trial court to vacate a judgment by default, when the circumstances warrant it, without imposing terms as a condition to granting such relief.</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.</p>

<p>Insolvency—Transfer not in Usual Course of Business — Fraud.— A transfer of property made by a debtor to bis creditor, not in the usual and ordinary course of business, is prima Jacte fraudulent within the meaning of the insolvency act, and is sufficient to charge the transferee with notice of the insolvency of the transferrer.</p> <p>Id.—Transferee when Charged with Notice of Transferrer’s Insolvency. —• A transfer of a horse and buggy, made by a debtor to his creditor on a Sunday, and accepted by the latter without trying the horse, and with knowledge that the debtor’s other property had been attached on the preceding day, and that another attachment was expected to be made on the following day, is not in the usual and ordinary course of business; and the transferee, under such circumstances, will be charged with notice of the transferrer’s insolvency, and with an intent to hinder, delay, and defraud other creditors of the transferrer.</p> <p>Id. — Payment of Indebtedness Arising from Fiduciary Relation. — The transfer is not relieved of its fraudulent character by the mere fact that it was made in part payment of an indebtedness due to the transferee fy moneys held by the transferrer in a fiduciary capacity.</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>Amendment oe Answer—Discretion. —It is a proper exercise of discretion to allow an answer to be amended so as to permit the introduction of written evidence by the defendant which was well known to plaintiffs long before the trial, and the production of which is eminently just, in order to settle the rights of the parties upon the merits.</p> <p>Marine Insurance — Concealment of Material Fact by Person Assured— Rescission of Policy.—When an applicant for marine insurance upon a barge which is overdue has information as to material facts concerning the probable loss of the barge, which he fails to communicate to the insurance company, such failure is a concealment of a material fact which the assured ought to. communicate, and entitles the insurance company to rescind the contract of insurance.</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>Evidenoe—Genuineness of Lost Deed—Comparison of Handwriting — Opinion Evidence__A witness cannot testify that the signature to a lost deed was the same as one signed to a purported deed of the alleged grantor, without preliminary proof of the genuineness of the signature to the deed used by way of comparison, and also that the witness is qualified as an expert to give an opinion upon the matter.</p> <p>Id, —Description of Signature of Lost Deed.'—It is harmless to exclude testimony as to the description and form of the letters of the signature to a lost deed, the genuineness of which is disputed, in the absence of any evidence tending to show the forms of the letters in any signature of the grantor which is admitted or proved to he genuine.</p> <p>Id.—Insufficient Foundation for Opinion Evidence.—It is not error to exclude opinion evidence upon the genuineness of the signature to a lost deed when no sufficient foundation is laid therefor, and the witness does not testify that he knew the signature, or that he had ever seen the grantor write, or had ever seen any writing that he knew to have been his.</p> <p>Id.—Exclusion of Evidenoe — Review on Appeal.—If the exclusion of evidence is proper on any ground, the judgment will not be reversed, no matter what was the actual objection made, unless the objection not urged might have been obviated.</p> <p>Hew Trial—Newly Discovered Evidence—Discretion.—A new trial may be properly refused upon the ground of newly discovered evidenoe, if it would not change the result. The refusal to grant a new trial upon, that ground will only he reviewed when there is-an abuse of discretion; and newly discovered evidence as a ground of new trial is not regarded with favor.</p> <p>In. — Counter-affidavits — Piling after Time Limited by Code — Mistake.—The court may allow counter-affidavits to be filed on a motion for new trial after the time limited by the code, under a showing that they had been prepared and served, and that the filing was omitted through oversight or mistake.</p>

The facts are stated in the opinion of the court, except that the order staying proceedings, which was sought to be modified upon motion of Mrs. Zimmer, was made by the appellate court upon motion of the guardian ad litem of minor defendants, grandchildren of the testatrix, to prevent the payment of any part of the corpus of the estate, or proceeds of the sale of the .property under the decree, pending the appeal, to the daughters of the testatrix.

<p>Conversion of Stock — Allegation of Value — Judgment. — In an action to recover certain mining stock and the dividends thereon, or their value, the complaint alleged that on a specified time the defendant bought for account of the plaintiff “six hundred dollars’ worth” of stock, and that at two subsequent times she bought “fifteen hundred dollars’ worth ” of other stock. The complaint alleged and the court found other facts showing a conversion of the stock and dividends by the defendant. Held, that the allegations of the value of the stock were sufficient to support a judgment in favor of the plaintiff for the value, and that such a judgment was proper.</p>

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

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

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

<p>Contract — Action on Life Insurance Policy— Pleading — Allegation of Non-payment Essential. — A complaint in an action to recover a sum of money due under a life insurance policy, which contains no allegation that the policy is unpaid, is fatally defective, and is not cured by a verdict in favor of the plaintiff.</p> <p>Pleading — Demurrer — Submission without Argument — Waiver. — The submission of a demurrer without argument is not a waiver of any objection raised thereby.</p> <p>Id. — Verdict does not Cure Entire Absence of Material Allegations. — The doctrine that a defective pleading may be cured by verdict has no application where there is an entire absence of a material allegation.</p>

<p>Chattel Mortgage — Conversion of Mortgaged Property—Liability of Convertor for Mortgage Debt. — One who converts personal property subject to a chattel mortgage is liable to the mortgagee for thet full amount due under the mortgage, including interest and attorney’» fees provided for therein.</p> <p>Id.—Purchaser of Mortgaged Property—Promise to Pay Mortgages Debt. — A purchaser of the mortgaged property from the mortgagor, under an agreement whereby he promises to pay the mortgage debt from the proceeds of its sale, is liable therefor to the mortgagee on his express promise.</p>

<p>Mechanics’ Lien—Material-man — Lien on Mining Claim. — Under section 1183 of tlxe Code of Civil Procedure, a material-man who furnishes materials to be used, and which are used, in repairing the improvements on a mining claim, is entitled to a lien upon the claim as a whole, and is not limited to the separate structures on which the repairs were made.</p> <p>Id. — Entire Contract Embracing Several Items — Time for Filing Notice of Lien. —Where the contract for making several items of repair is entire, the notice of lien of a material-man given within thirty days after the completion of the whole work is in time.</p> <p>Id. —Filing, Recording, and Verification of Notice of Lien. —The sufficiency of the evidence to show the filing, recording, and verification of the notice of lien will not he questioned oh appeal, when the statement of the case, after setting out the notice, recites that it was duly sworn to, and shows an indorsement by the recorder of its recordation.</p> <p>Id. — Materials must Actually be Used in Building. — In order to entitle a material-man to a lien, as against the owner, for materials furnished a contractor, the materials must not only have been furnished to be used in the structure to be erected, but must also have been used therein.</p> <p>Id. — Notice Repudiating Liability — Posting in Inconspicuous Place. — Conceding that a mine-owner might relieve himself from liability for materials furnished a contractor by properly posting a notice repudiating his liability, a notice not posted in a conspicuous place, as required by the statute, will not have that effect as against a material-man without actual knowledge of the posting of the notice.</p>

<p>Trust — Conveyance to Defraud - Creditors—Verbal Agreement to Reconvey—Statute of Frauds. —When a conveyance reciting a consideration is made by a debtor-to another for the purpose of hindering and defrauding his creditors,, there is the strongest reason for a strict application of the statute of frauds, and a verbal agreement to reconvey the property will not create an express or resulting trust.</p> <p>Id.—Written Declaration of Trust—Undelivered Reconveyance — Destruction by Consent: — An- undelivered deed of reconveyance of property conveyed to hinder and defraud creditors is not effective for any purpose; and if its contents are. not proved, and the uncontradicted testimony of the grantee of the original conveyance shows that he finally paid for the property, and the undelivered deed of reconveyance was destroyed by consent of the parties upon a full settlement between them, such deed of reconveyance cannot he-held.to constitute a written declaration of trust.</p> <p>Id, — Written Evidence of Grantee. — The evidence of the grantee taken down in writing long after the conveyance, and in settlement of the estate of the grantor, admitting a verbal, agreement to reconvey upon condition of payment, of indebtedness, does not constitute a written declaration of trust.</p> <p>Id. — Written Statement of Account. —A. written statement of account given by the grantee to the widow of the grantor, showing the amounts received by the grantee as rent, and expenditures out of rent, and some payments to the grantor, does not constitute ar written declaration of a trust.</p> <p>Id. — Enforcement of Trust — Nonsuit—Finding against Evidence.—• When in an action to enforce a trust there is an entire absence of any evidence to show an express or resulting trust, and only evidence of circumstances tending to show a verbal agreement to hold the property in trust, a nonsuit should be granted, and although the evidence of the defendant to explain those circumstances is not satisfactory, a finding of, a. trust from such evidence cannot be sustained.</p>

<p>Appeal—Conditional Order Granting a New Trial—Record upon Appeal — Presumption — Damages upon Affirmance. — When a conditional order is made granting a new trial on motion of the defendant, unless plaintiff forthwith files a waiver of part of the judgment, in which case a new trial is to be denied, and an appeal is taken by the defendant from the order granting a new trial, and particularly from the conditional part thereof, and also from the judgment, and the record on appeal does not show that the waiver was filed by plaintiff, it will be presumed that it was not filed, and that the appeal is from an order granting a new trial; and if no error appears in the record to the prejudice of appellant, the judgment and order appealed from will be affirmed, with damages.</p>

<p>CONTRIBUTORY NEGLIGENCE—PLACE OF DANGER—WANT OF ATTENTION. —If a person, for purposes of his own, voluntarily places himself in a position of danger, and, while in such position, gives no heed to the danger, —pays no attention to it, —but allows his ‘attention to be absorbed by what he happens to be doing, he is guilty of negligence, and cannot recover for an injury received in consequence of his being in such position, although the defendant also was guilty of negligence.</p> <p>Id.—The above rule applies to one who stands beside a wharf thirteen inches from the outer rail of a railway upon the wharf (which rail he has just crossed, and which is in his plain view), and who neither looks nor listens for the approach of trains, and in consequence is injured by the running of a train in the ordinary way.</p>

<p>Divorce — Habitual Intemperance how Pleaded. —In pleading habitual intemperance as a ground for a divorce, it is not necessary that the complaint should allege the particular acts and conduct of the defendant, showing that he was intoxicated to the extent required by section 108 of the Civil Code. An allegation that the defendant had been habitually intemperate to such a degree as to reasonably inflict a course of great mental anguish upon the plaintiff is sufficient.</p>

<p>Water Rights — Sale of Water for Irrigation — Covenant Running with Land — Lien for Price of Water —Purchaser with Notice. — At common law, and under the Civil Code, sections 1460, 1466, a covenant cannot be made to run with the land unless made in connection with and as part of the conveyance or transfer of the land itself; and upon the sale of a water right for the purpose of irrigating land, a covenant that the price thereof shall be paid in annual installments, and that the agreement and covenant to pay the same shall run with and bind the land, does not constitute a covenant running with the land which can impose a personal liability upon a purchaser of the land; but it binds the land so as to create a lien thereupon for the price of the water right, which can be enforced by foreclosure thereof against a purchaser with record notice of the agreement, though no personal judgment can be properly rendered against such purchaser.</p> <p>Id.—Evidence — Proof of Notice — Secondary Evidence —Record of Lien — Amendment of Code. — A lien for the price of a water right cannot be enforced against the land in the hands of a subsequent purchaser without proof of notice of the existence of the lien. The admission in evidence of the record of a contract creating such lien without proof of the loss of the original, or otherwise accounting for it, was not allowable, prior to the amendment of section 1951 of the Code of Civil Procedure in 1889, and such evidence could not constitute proper proof of notice.</p> <p>Id. — Construction of Contract — Sale of Water to be Taken bt Vendee.—When a water company agrees to furnish water from its ditch to irrigate the lands of one to whom a water right is sold, and agrees to construct a box or gate at the most convenient point thereon through which to pass the water into a ditch to be constructed by the vendee as provided in the contract, the grantee of the vendee cannot escape the enforcement of a lien upon the land for the price of the water by failing to construct the ditch, and the water company is entitled to recover for the water from the time it was prepared to furnish it at the box or gate constructed by it.</p> <p>Id.—Evidence — Negligent Construction of Ditch—Pleading.—In an action for the price of water furnished, if it appears that the water sold was supplied at the place agreed upon, an offer of defendant to show that the plaintiff’s ditch was so negligently and unskillfully constructed as to be an injury to plaintiff’s land, and as to amount to a failure to perform its part of the contract, may be properly rejected as immaterial, the only material inquiry being whether the amount of water sold was supplied at the place agreed upon. Such evidence would also be irrelevant in the absence of a pleading under which it was proper.</p>

<p>Criminal Law—Receiving Stolen Property—View by Jury—Insuejtcient Objections. — Upon the trial of a defendant accused of receiving stolen property, knowing it to have been stolen, it is an improper and unauthorized proceeding to conduct the jury to view a steer alleged to have been one of the cattle stolen; the only authorized view of a jury being of the place in which the offense is charged to have been committed; but if the proceeding is not objected to as being irregular and unauthorized, and an exception is taken only upon grounds which are_ not tenable, it cannot be objected on appeal for the first time that the proceeding was irregular and unauthorized.</p> <p>Id. — Proof of Offense. — Upon the trial of an accusation of receiving stolen property, knowing it to have been stolen, it is not necessary to prove either that the defendant had received all the property stated in the indictment, or that the part which he did receive was of a particular value. The character or grade of the offense does not depend upon the value of the property received.</p> <p>Td.—Evidence — Conduct of Defendant when Arrested.—Evidence of the prosecution as to the boisterous conduct of the defendant when arrested, and his objection to being disgraced by arrest, cannot be prejudicially erroneous to the defendant.</p> <p>Id.—Expert Evidence — Brands and Cattle-marks.—A witness who shows sufficient knowledge about brands and cattle-marks to testify upon the subject may be examined as an expert, although not familiar with particular brands used in certain counties.</p>

<p>Assignment fob Benefit of Cbeditobs — Failure of Assignees to Give Bond — Remedy of Assignor. •—The failure of assignees for the benefit of creditors to give the bond required by section 3467 of the Civil Code does not affect the validity of the deed of assignment, or authorize an action by the assignor to set it aside. The title passes as between the assignor and assignees, and the assignment is irrevocable; though until the required inventory and affidavit have been filed, and the required bond given, the assignees have no authority to dispose of the estate or convert it to the purposes of the trust. The proper remedy of the assignor is to have the assignees removed.</p>

The legislation affecting the jurisdiction of the superior court of the city and county of San Francisco in cases of misdemeanor is stated and reviewed in the opinion in the case of Green v. Superior Court, 78 Cal. 556. The further facts are stated in the opinion.

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

<p>Landlord and Tenant—Lease — Employment upon Shares. —An agreement by a mining company, in the form of a lease for one year, giving to the lessee one half of the gross proceeds of the mine as a return for working the same in an energetic manner, and bearing all expenses, except necessary improvements, which are to be furnished by the lessor, does not create the relation of landlord and tenant, but is an agreement for working the mine on shares, and the parties become tenants in common of the products of the mine when taken out.</p> <p>Id.—Corporation—Act of 1880 — Ratification of Lease by Stockholders— Note of Corporation. — Such an agreement is not within the prohibition of the act of 1880 forbidding the directors of a corporation to make a lease of the corporate property, unless ratified by two thirds of the stockholders; and a note given by the corporation to the party working the mine for his share of the proceeds is valid, and may be enforced against the corporation.</p> <p>Note of Corporation — Vote of Director—Surrender of Private Note to Director — Rinding. —A finding outside of any issue made in the pleadings, that a note from a director of the corporation defendant to the plaintiff was subsequently surrendered to him without consideration by the plaintiff, after the director had voted for the note in suit, does not establish that the transaction was connected with his action as such director.</p>

On the 20th of April, 1889, an opinion was rendered by Department Two affirming the order appealed from. A hearing in Bank was subsequently granted, on which the following opinion was rendered. The facts are stated in the opinion of the court.

<p>Review of Non-appealable Order — Bill of Exceptions. — Por the review, upon, appeal from the judgment, of an intermediate, non-appeal- ■ able order affecting the merits there must be a bill of exceptions.</p>

<p>Negligence — Obligation of Defendant — Pleading—Nonsuit. — A complaint charging an injury to the plaintiff, occurring on the premises of the defendant, and through his negligence, which alleges that the plaintiff was at the place where the injury occurred, on business with and at the invitation of the defendant, is sufficient to show the duty on. the part of the defendant, as between the parties, of keeping the premises in safe condition; but if the evidence of the plaintiff fails to establish this allegation, his case is not made out, and the defendant is entitled to a non-suit.</p> <p>Id,—Unauthorized Entry upon Private Premises—Mistake of Visitor of Saloon — Liability of Saloon-keeper. •— A saloon-keeper is not liable for an accident caused by a mistake of a visitor of the saloon in entering the private residence of the saloon-keeper, whereby the visitor was precipitated into a cellar and injured, the floor of the residence having been taken up for repairs, if the party injured was not induced by the invitation or allurement of the owner, express or implied, to enter therein.</p> <p>"d. —Duty of Keeper of Place of Business.—The keeper of a public place of business is bound to keep his premises and the passage-ways to and from it in safe condition, and to use ordinary care to avoid accidents or injury to those properly entering the premises on business; but this rule only applies to such parts of the building as are used in connection with the business portion thereof, and not to such parts as are used for private purposes of the owner, to which the party injured was .not invited or allured to enter.</p> <p>Id. — Duty Essential to Liability for Negligence. — In order to main/tain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty toward the plaintiff which the defendant has left undischarged or , unfulfilled.</p> <p>. IK — Contributory Negligence. — The facts of this case held to show no 1/ negligence on the part of the defendant; but to establish such negligence upon the part of the plaintiff as to preclude him from recovering for his injuries.</p> <p>Id. —Entry by Mere License. — One who enters upon the premises of another by mere license enters subject to all the risks attending his going, and the owner of the premises owes him no duty.</p>

<p>Contract with Purchaser at Partition Sale—Invalidity—Concealment on Material Fact — Public Policy.—A contract between the purchaser at a partition sale and one of the parties to the partition suit, who was about to contest the confirmation of the sale for inadequacy of the price bid, to the effect that said party, in consideration of a specified sum to be paid in addition for her interest in the property, would refrain from contesting said'confirmation, is a contract for the concealment of a material fact from the court and the other parties to the partition suit, which it was the duty of the contracting party to make known, and is void as against public policy, and neither party should receive the aid of the courts to enforce it.</p>

The action was upon the guaranty of defendant in the sum of one thousand dollars, contained in the following agreement:— “This agreement, made and entered into this twenty-ninth day of January, A. D. 1885, witnesseth, that in consideration of an undivided one-sixteentli interest to me guaranteed and secured by D. L. Munson and Mary Munson, his wife, in the George Simpson Metallurgical Works, now being erected in West Point, Calaveras County, California, for working base and…

<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>Ejectment—Statute of Limitations — Adverse Possession—Payment of Taxes—Presumption — Burden of Proof — Findings.—When the plaintiff in an action of ejectment proves a paper title, his case is made out; and if the defendant relies upon adverse possession under the statute of limitations, he must prove either that no taxes were levied and assessed upon the land, or that he paid all taxes which were levied and assessed thereon. In the absence of such proof by defendant, it must be presumed that the assessor did his duty, and that the property in controversy had been assessed for taxes, and the court should find that the taxes thereon had been levied and assessed, and that defendant had not paid the same. (Thornton, J., and McFarland, J., dissenting.)</p> <p>Id, — Payment of Taxes Prior to 1878 — Instruction — Harmless Error. — A defendant is not bound to prove payment of taxes, to constitute adverse possession prior to 1878; but if the proof shows no such possession as was protected by the statute of limitations, an instruction that the defendant must have paid all taxes assessed on the land is a harmless error.</p> <p>Id.—Actual Payment of Taxes — Belief of Defendant.—The defendant is bound to prove under the statute that he actually paid the taxes on the land in controversy. It is not sufficient for him to show that he paid taxes on other lands, supposing them to include the lands in dispute.</p>

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

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

<p>Estate of Deoedent—Executor not Interested in Contest between Heirs — Attorney’s Pees for Resisting Claim of Heir not Allowable. — An executor cannot represent either side in a contest respecting the rights of different claimants to the distribution of the estate, and consequently is not entitled to an allowance for fees paid to an attorney for his services in resisting the claim of a pretermitted heir.</p>

<p>Appeal—Dismissal—Modification after Remutitdr.—The supreme court has power to modify an order dismissing an appeal, by making it read “without prejudice,” so as to permit the prosecution of a second appeal, notwithstanding the remittitur has issued before the modification is made.</p> <p>Id.—NON-APPBALABLE ORDER — MOTION TO REHEAR—NEW TRIAL MOTION. — When a motion for a new trial has been heard and denied, and no appeal is taken from the order within sixty days, an order denying a motion to call it up again for hearing thereafter is not an appealable order, and an appeal therefrom will be dismissed.</p> <p>Id. — Review oh Appeal — Validity of Order Denying New Trial — Authority of Attorney. — An order denying a new trial cannot be regarded as void because the motion was heard in the absence of one of the attorneys of record, if another attorney of record, who signed the answer of the moving party, appeared in behalf of the motion. The appellate court cannot go behind the record to consider the authority of an attorney who acted as such in the court below.</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.</p>

The action was brought to recover the possession of certain personal property. The defendant, as sheriff, attempted to justify the taking under a writ of attachment issued in an action against one Serefino Albertini. Judgment was rendered in favor of the defendant. The further facts are stated in the opinion of the court.

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

Cross-appeals from a judgment of the Superior Court of Marin County, including an appeal of defendants from an order denying their motion for a new trial. The facts are stated in the opinion of the court.