Volume 81 — California Reports

<p>Fraudulent Representations — Statement op Matters or Opinion. — Statements of mere matters of opinion, although false or erroneous, are not sufficient grounds for an action for damages.</p> <p>Id.—Contract to Excavate and Construct Levee—Representations as to Nature of Soil and Amount of Materials. — Upon a construction of the contract in question, held, that the representations made by the defendant to the plaintiffs as to the nature of the soil to be excavated, and the number of cubic yards in the levee which they contracted to construct, were mere expressions of opinion with reference to matters equally within the power of both of the parties to ascertain and determine, and were not regarded as material or relied on by the plaintiffs.</p> <p>Id.—Continuance of Work after Discovering Fraud — Waiver of Damages. —■ One who contracts to do certain work at a specified price, by continuing to perform the contract at the contract price after discovering the falsity of certain representations made to him as to the amount and kind of the work, thereby waives the fraud, and cannot afterwards hold his employer liable in damages for the fraudulent representations.</p>

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

<p>Board of State Harbor Commissioners —■ Authority to Remove Wharfingers and Collectors — Creation of Office — Constitutional Law. — Section 2521 of the Political Code, as amended in 1883, provides that the board of state harbor commissioners must appoint certain designated officers “and such number of wharfingers and collectors as they deem necessary. Such officers shall hold for a term of four years from the dates of their respective appointments, but may be removed by the board at any time, after due investigation, for causes affecting their official character or competency. The order for such removal, stating distinctly the causes therefor, must he entered on their minutes. In case of a vacancy in such offices by the expiration of a term, or for any other cause, the board must fill the same by an appointment for four years.” Held, by Fox, J., McFarland, J., and Sharpstein, J., that the board had authority under the statute to create the office of wharfinger or collector, and consequently had power to abolish it at its pleasure, and thus indirectly to effect the discharge of the incumbent, and that from the date of the abolition of the office the incumbent so discharged had no further claim upon the board, either to accept his services or to render him compensation. Held, by Beatty, O. J., and Works, J., that the authority attempted to be conferred on the board to create the offices of wharfinger and collector was the delegation of a legislative power, and that the section to that extent was unconstitutional.</p>

, The action was brought by the plaintiffs, as heirs at law of one Michael Hyde, for the cancellation of a deed purporting to have been executed by him to the defendant. Judgment was rendered in favor of the plaintiffs. The further facts 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 of the court.</p>

<p>Vendor and Vendee — Withdrawal of Offer to Sell—Evidence — Finding. — A finding that an offer by the defendant to sell certain land to the plaintiff had been withdrawn before its acceptance by the latter, held, supported by the evidence.</p>

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

<p>Estate of Decedent—Presentation of Claim—Sufficiency of Form___ A claim against the estate of a deceased person for services rendered which is presented in the form of an account showing the total number of days of service, the rate of payment per day, the amount paid on account, and the balance due, is sufficient in form.</p> <p>¡Payment—Application of, where there are Several Obligations__In a case of several obligations, where neither the debtor nor creditor has made any express application of a fund paid to any particular obligation, the law applies the payment to the extinguishment of the obligation earliest in date of maturity.</p>

city and county of San Francisco, and from an orderi refusing a new trial. The facts are stated in the opinion of the court,

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

Application to the Supreme Court for a writ of review to vacate and set aside an order of the Superior Coúrt of Merced County punishing petitioner for contempt. ..... The facts are stated in the opinion of the court.

<p>Street — Dedication — Finding—Argumentative' Conclusions. —When a general finding in favor of a dedication of a street is expressly made as an argumentative conclusion from the acts, facts, and matters before specifically found and recited, and is by its terms based entirely upon such specific findings, which do not support the conclusions as to the dedication, a judgment based upon the finding of dedication should be reversed.</p> <p>Id. — Marking of Street upon Unrecorded Map—Non-user.—The mere marking of a street upon an unrecorded map of a town or city plat does not constitute a dedication by the owner, if the street was not actually opened and accepted by public user, and no sale of lots was made thereon, but the same remained inclosed and occupied by substantial and permanent, buildings for more than twenty years prior to any attempt by the municipal authorities to declare the street dedicated to public use.</p> <p>Id. — Offer of Dedication—Sales with Reference to Map. — Estoppel. — There is no offer of dedication to the public by the mere making of a map which is not filed for record, and the rights of private individuals who may purchase with reference to such map must rest wholly upon the ground of estoppel. Such individuals as purchased upon faith of the representation of the street upon the map may compel the opening of the street; but if they do not, the public has no ground of complaint. An offer of dedication to the public may be withdrawn before the public accepts the offer, and the mere making of sales of lots with reference to such map does not constitute an irrevocable dedication to the public, if the street remains unopened.</p> <p>Id. — Acceptance of Dedication — Reasonable Time. — An acceptance of an offer of dedication of a street must be made either by user or some formal act of acceptance within a reasonable time. An acceptance more than twenty years after the offer of dedication, the owner having meanwhile resumed and held possession of his property, is too late.</p>

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

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

<p>Gift by Husband to Wife—Want of Change of Possession—Use by Husband. —When a husband in solvent circumstances gives his wife personal property, which is at once delivered to her, and is thereafter publicly declared to he and used as hers, and the possession whereof ia not resumed or continued by the husband as the owner of the property, the mere fact that the husband afterwards uses the property will not render the transfer invalid as to his subsequent creditors, on the ground that it was not accompanied by an immediate delivery, and followed by an actual and continued change of possession,</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>

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

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

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

<p>Pleading — Correcting Mistake in Deed — Quieting Title. — A complaint, although insufficient for the purpose of correcting a mistake in a deed, may, if it states facts sufficient to constitute such a cause of action, be considered as a complaint to quiet title to the portion of the land erroneously included in the deed.</p> <p>Statute of Limitations—Plaintiff in Possession Claiming Ownership. — The right of a grantor to have his title quieted as to land included in a deed by mistake, as against the claim asserted by the defendant under the deed, cannot become barred while the grantor remains in the actual possession of the land, claiming to be the owner thereof, and the actual owner, as against the defendant, of all interest therein except the mere naked title.</p>

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

<p>Quieting Title — Action by Administrator. — An administrator may bring an action to quiet title to real estate which belonged to his decedent. Such action may he brought by any one who has the right of possession against any one who claims an estate or -interest adverse to such right.</p> <p>Id. —Reference in One Count of Complaint to Another. —It is a slovenly mode of pleading, which should not he tolerated, to aver in subsequent counts that certain paragraphs of the first count are true. Each count of a complaint must state a cause of action, and be complete in it- ' self, without reference to any other count. But if separate counts are not necessary, a cause will not be reversed on this ground.</p> <p>Id. — Pleading — Joinder of Causes of Action — Quieting Title to Several Tracts — Separate Counts — Costs.—The rights of the parties in several tracts of land may be properly adjudicated in the same action ' to quiet title where the adverse claimants are the same to each tract, and ought to be so adjudicated; hut they should all be included in one count, and the additional cost caused by pleading them in separate counts so as to make the complaint unnecessarily long should he paid by the plaintiff. Id. — General Denial — Demurrer to Answer. —A general denial in an answer to an unverified complaint by an administrator in an action to quiet title puts in issue the plaintiff’s title and position as administrator, and a demurrer to such answer cannot properly be sustained.</p> <p>Id, — Special Answer — Equitable Title of Defendant—Decree — Mortgage — Deed of Trust. — The defendant in an action to quiet title may specially plead that the plaintiff has only a lien, or any interest less than he claims, and that the defendant has an equitable title or any interest in the land, either paramount or subordinate to that of the plaintiff; and the decree of the court should declare the rights of the parties in the property accordingly. It is immaterial whether plaintiff’s title is a mortgage or a deed of trust held as security, as the defendant Would in either case have the right to a judgment declaring just what interests in the property were held by each of the parties.</p> <p>•Id.—Insufficient Answer—Contract to Convey — Demurrer.—An ( answer setting up that the defendant has a contract from the grantee qf plaintiff’s decedent for the purchase of the land in controversy, upon payment of certain sums of money, which does not allege that the de- . fendant has paid any part of the purchase-money, nor show any excuse for non-payment, nor that upon a settlement of accounts with such grantee he would be entitled to any application of payment upon the land, does not show any equitable title, and a demurrer to such answer is properly. sustained,</p> <p>Id. — Another Action Pending — Dissolution of Partnership. — An allegation in the answer that another action is pending between the parties for dissolution of a copartnership and settlement of accounts is immaterial, and cannot bar the right of plaintiff to have his title or interest in the property in controversy determined in an action to quiet title.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new ' trial.</p> <p>On the trial, the court, inter alia, instructed the jury as follows: "Up to the moment when the killing is proved, the prosecution must make out its case beyond any reasonable doubt. When the killing is proved it devolves upon the defendant to show any circumstances in miti-</p>

a judgment of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>In junction — Acts Already Performed — Obstruction of Road by Building. — There is no ground for a merely preventive injunction when the acts complained of have been already performed, and defendant has not threatened to do any other or further act tending to injure the plaintiff; and such injunction will not lie to prevent the erection of a building across a public road to the special detriment of plaintiff, if the building had been erected before the commencement of the action.</p> <p>Id. — Mandatory Injunction — Construction of Code. — Mandatory preliminary injunctions are seldom granted. A very strong and urgent case is required to justify such injunction; and it is indispensable that there be a clear case of prospective injury for which plaintiff will have no adequate remedy at law. The code definition of an injunction omits the mandatory ingredient; and there is nothing in the code more favorable to such injunctions than is to be found in the general current of English and American authority.</p>

<p>Action upon Foreign Judgment — Evidence of Authentication. — The clerk’s certificate attached to the copy of the record of a judgment rendered in the supreme court of the state of New York is sufficient, under section 1905 of the Code of Civil Procedure, if the seal of the court is annexed, and the “ presiding justice ” of the court attaches his certificate that the attestation is in due form. Such certificate is not objectionable for not showing who was the legal keeper of the records, nor because the certificate of attestation is not signed as “ chief judge ” or “ presiding magistrate.”</p> <p>Id, —Discharge in Insolvency — Non-resident Creditor. —A discharge in insolvency granted in this state is no bar to an action in this state upon a judgment rendered in another state in favor of a resident thereof who was not a party to the insolvency proceedings.</p> <p>Id.—Extraterritorial Effect of Discharge — Judgment a Contract • or Debt — Jurisdiction. — A suit upon a judgment is an action upon a contract or debt within the meaning of the decisions denying extraterritorial effect to a discharge in insolvency. Being a debt, the rights accruing to plaintiff under it could not be taken away by a court which did not have jurisdiction over him.</p>

<p>Charter-party—Provision por Payment op Commission—Usage and A Custom — Evidence. -t- Parol evidence of the usage and custom of trade is inadmissible to contradict or vary an unambiguous clause of a charter- ' party providing that a commission at a specified rate shall be paid by the ‘ ' vessel after loading to the charterer.</p> <p>Id.—Admission op Evidence without Objection.—Where evidence of such usage is admitted without objection on the trial, the court may proxierly instruct the jury not to consider it for the purpose of varying the terms of the written instrument.</p>

<p>Criminal Law—False Pretenses — Defrauding of Property—Information— Motion in Arrest of Judgment. — An information charging that the defendant did unlawfully, knowingly, and designedly, by false and fraudulent representations and pretenses, defraud another person of certain personal property, without setting forth the facts constituting the fraud or stating what the representations or pretenses were, does not state facts sufficient to support a conviction, and should he dismissed upon a motion in arrest of judgment.</p> <p>In. — Fraud — Question of Law — Pleading. — The question whether a thing has been done fraudulently is a question of law, and an allegation of fraud in general terms presents no issuable fact. Facts constituting fraud must he pleaded with particularity both in civil and in criminal . eases.</p> <p>Id. — Criminal Pleading—-Words of Statute. — The general rule that an information or indictment is sufficient if it describes the offense in the words of the statute is subject to the qualification, fundamental in the law of criminal procedure, that the accused must he apprised with reasonable certainty of the nature of the accusation, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense.</p>

The facts are stated in the opinion of the court, and in the case of Dougherty v. Coffin, 69 Cal. 454, referred to in the opinion.

' Application to the Supreme Court for a certificate of probable cause for an appeal from a judgment of the. Superior Court of Los Angeles County, upon a conviction for manslaughter. The facts are stated in the opinion of the court.

<p>Mechanic's Lien — Failure to Record Original Contract—Rights of Subcontractors and Material-men.—Under sections 1183 and 1184 of the Code of Civil Procedure, as they now stand, if the original contract for the construction of a building, the price of which exceeds one thousand dollars, is not filed for record, it is wholly void for all purposes, and subcontractors, laborers, and material-men, though having actual knowledge of the void contract, may enforce a lien for the value of their work or material, without any reference to the amount remaining unpaid to the original contractor by the owner, and without giving personal notice to the owner to withhold payments due the contractor.</p> <p>Id. — Construction of Code — Applicability of Prior Decisions — Measure of Owner’s Liability.—The former decisions of this court under prior statutes, so far as they hold that the lien of a subcontractor only extends to the money unpaid on the original contract, and that the original contract is the measure of the owner’s liability, are applicable under the present provisions of the code, so far as relates to cases in which there is a valid contract between the owner and original contractor, and no further. If the original contract is not recorded as provided by the code, the statute, and not the contract, measures the extent of the owner’s liability to lien-holders, because in such case there is no contract.</p> <p>Id.—Constitutional Law — Power of Legislature — Record of Contract. — The legislature, though it cannot compel the owner to pay more than he has contracted to pay, where the contract is valid, unless notified of the claims of subcontractors before payment to the contractor, yet has power to require a record of the contract as a condition of its validity, and to forbid any payments to the contractor as against material-men and laborers, unless the contract is recorded.</p> <p>Id. •—. Notice to Owner — Effect of Code. — No notice to the owner to stop payments to the contractor is required, unless there is a valid contract. If there is no valid contract, or the contract is void because unrecorded, no notice to the owner is necessary, the statute itself being notice to him not to pay the contractor.</p> <p>Id. — Validity of Contract. — A contract wholly void is void as to everybody whose rights would he affected by it if valid.</p> <p>Id.—Actual Notice of Unrecorded Contract. — Actual notice by a subcontractor, laborer, or material-man of an unrecorded original contract which is required to be recorded cannot affect his rights, the question, not being one of notice, but of validity of the contract.</p> <p>Id.—Privity of Contract — Effect of Code.—By the provisions of the code, where the original contract is invalid, subcontractors, laborers, and material-men are, for the purposes of a lien, deemed to have contracted directly with the owner, and may enforce their lien for the value of the work or material, as original contractors, with the owner, though they cannot recover against him personally.</p>

<p>Default — Divorce — Annulment of Marriage.—In an action for divorce or annulment of marriage, the fullest opportunity to be heard should be accorded to the parties, and the court should be more liberal in relieving against defaults than in other cases.</p> <p>Id. — Cross-complaint.—There maybe a cross-complaint in an action for divorce or annulment of marriage.</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>Application to the Supreme Court for a writ of habeas corpus. 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>Execution — Order of Sale — Decree Enforcing Lien — Limitation of Five Years—Construction of Code. — Section 681 of the Code of Civil Procedure, limiting execution to the period of five years after the entry of judgment, applies as well to a decree enforcing a lien by order of sale for an amount due as to personal judgments for the recovery of money. Section 685, allowing execution after five years by leave of the court upon motion, or by judgment for that purpose founded upon sufficient pleadings, applies only to judgments requiring some specific act.</p> <p>Id. — Suspension op Limitation — Powers op Administrator. — The suspension for a time of the powers of an administrator, whose power and duty it is to have an order of sale issued, cannot have the effect of suspending the limitation of five years after the entry of judgment for the issuance of the order of sale.</p> <p>Id. — Vacating Void Execution — Departments op Superior Court— Appealable Order. — An order may he properly made by one department of a superior court vacating an execution wrongfully allowed by another department of the same court after the lapse of five years. It is the same court acting in each instance. Nor can the fact that the order allowing the execution is an appealable order affect the authority ' ■ of the court to set aside the execution, as it is void if the court had no authority to issue it, and might be attacked by motion to set it aside or to set aside a sale made thereunder.</p>

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

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

<p>Criminal Law—Malicious Mischief—Use of Poisonous Substance— Information. — An information charging malicious mischief in the use of a poisonous substance hi the language of the statute is sufficient, and need not specifically name the poisonous substance, or aver that it was a substance that would kill, or that the act was feloniously done.</p> <p>Id. — Judgment — Punishment of Offense. — A conviction -upon a charge of malicious mischief in putting a poisonous substance into a watering-trough, with intent that the same should be taken and swallowed by horses, etc., sustains a judgment of imprisonment in the state’s prison, under section 596 of the Penal Code.</p> <p>Appeal — Instructions — Authentication. — Instructions not authenticated by the judge, nor embodied in a bill of exceptions, cannot be considered by this court as part of the record upon appeal.</p> <p>Id.—Review of Evidence — Circumstantial Evidence—Province of Jury. —The jury are the sole judges of the credibility and weight to be given to each part of the evidence, and a verdict of conviction of a criminal offense will not be set aside upon appeal because circumstantial evidence was introduced tending to show that it was possible that the offense might have been committed by some other person, if circumstantial evidence, taken in connection with the direct evidence, made out a very strong case against the defendant.</p> <p>Id. — Objection to Evidence — Review upon Appeal. — An objection to the admission of evidence which was not taken in the court below cannot be taken in this court for the first time.</p>

<p>Appeal — Review oe Sufficiency of Evidence. — On an appeal from a' judgment taken more than sixty days after its rendition, there can he no review of the sufficiency of the evidence to justify the decision or verdict.</p> <p>Id.—Time for Appeal — New Trial Order — Dismissal.—An appeal from a new trial order taken more than sixty days after the entry of the order will he dismissed.</p> <p>Contract of Sale — Recovery of Deposit — Insufficient Abstract of Title — Dedication of Street — Measure of Damages—Interest. — Under a written agreement for the sale of a lot, providing that twelve days should he allowed for an examination of the title, and that if the title should not prove to he valid the deposit made under the agreement should be returned, the deposit may he recovered if it appears that a portion of the lot contracted to he conveyed had been dedicated and used as a public street, and the plaintiff may also recover as damages the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon, and interest on the deposit from the time of the demand and refusal to return the same.</p> <p>Id.—-Dedication of Street — Pleading — Findings.—An issue tendered in an action for the recovery of a deposit made under a contract of sale, as to the fact that a portion of the lot was dedicated by deed as a public street, is immaterial, so far as the question of dedication by deed is concerned, and only the ultimate fact that there was a valid dedication of a portion of the lot to the use of the public as a street needed to be alleged or found.</p>

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

<p>Appeal from an order of the Superior Court of 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>Contract—Construction — Repayment of Loan. — Under a contract by the terms of which a sum of money is advanced by a person to certain stockholders in a mining corporation, in consideration of which he is to become owner of part of the stock which is to be pooled and sold for the mutual benefit of all parties, the pool to continue sixty days and the money advanced to be drawn out of the pool when that amount should be received, and paid to the party advancing the money on account of his interest in the pool, he to be repaid the money advanced in any event, he may, at the expiration of sixty days, recover all the money advanced, whether the pooling arrangement should prove successful or not.</p> <p>Parol Evidence—■ Written Contract.—Inadmissible parol evidence tending to contradict the terms of a written contract should not, when received by the court in opposition to oral testimony corresponding with the unambiguous language of the contract, be allowed to render nugatory the words of the written instrument.</p>

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

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

<p>Negligence—Liability of Railroad Company over Connecting Lines. —A railway company may so issue tickets to places beyond its own line, and so control the transportation of its passengers over connecting lines, as to be answerable as a principal contractor for negligence occurring on any one of the connecting lines; but to establish such liability, it must appear that the railway company contracted as principal for the entire distance, or had some interest in or control over the transportation of passengers by the line in default.</p> <p>Id.—Coupon Ticket—Agency — Express Limitation op Liability. — If a coupon ticket is sold by a railway company, containing a coupon over a connecting line, which it issues merely as agent for such line, and the main ticket expressly limits the responsibility of the railway company-issuing it to its own line, in the absence of any showing that the railway company undertook differently from what appears from the face of the ticket, it is not liable for the negligence of any person in charge of the connecting line.</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>Adverse Possession — Admission of Tenancy. — The possession of one who admitted that he held under another cannot be adverse to such other. Instance.</p> <p>Tenancy at Will — Denial of Landlord’s Title—Termination of Tenancy. —Where a tenant at will denies his landlord’s title, and sets up title in himself, he cannot avail himself of the fact that his tenancy was not terminated by notice.</p> <p>Separate Property — Purchase with Money Earned by the Wife.— Where a husband tells his wife that she can have everything that she can earn, and she thereupon goes into business for herself and earns money, and invests it in real property, and it does not appear that the husband makes any claim to it, it must be held in an action of ejectment by the wife against an intruder that the property is her separate property.</p> <p>Motion for New Ttial — Newly Discovered Evidence—Showing.— The evidence claimed to be newly discovered must not be cumulative merely, or such as does not render a different result probable; and there must be a sufficient showing of diligence.</p> <p>Id. — Record on Appeal. — A marking of the affidavits by the clerk of the court as having been read on the hearing is not a sufficient record on 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 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>Indemnity — Agreement to Furnish Bond op. — An agreement to furnish a bond of indemnity is in effect an agreement to indemnify, and may be sued upon as such, if the bond be not furnished as agreed.</p> <p>Indemnity against Liability, when Broken. — A cause of action upon an agreement to indemnify against liability arises when the liability is incurred.</p> <p>Duty op Indemnifier to Depend Suits against the Indemnified upon Request op the Latter — Conclusiveness op the Judgment in Such Suits. —It is the duty of the indemnifier, upon request of the indemnified, to defend all suits brought against the latter to establish the liability provided against by the contract; and judgment in such suits is conclusive against the indemnifier, whether he complies with the request to defend or not.</p> <p>Id.—Suit to Prevent a Multiplicity op Actions against the Indemnified. —• A suit brought under the direction of the indemnifier to prevent a multiplicity of actions against the indemnified in relation to the liability provided against by the contract is but a substitute for such actions, and stands upon the same footing.</p> <p>Duty of Indemnifier to do All Things Necessary in Such Litigation — Appeal — Bond to Stay Execution. •— The indemnifier is bound to do all things which are necessary to make the litigation effectual; and if he desires to take an appeal, he must give a bond to stay execution. If he refuses to do so, the indemnified may resume control of the litigation without affecting the conclusiveness of the judgment.</p>

<p>Criminal Law — Attempt to Extort Money by Threatening Letter. — An information charging the crime of extortion, committed by sending a threatening letter, set forth in the information, with intent feloniously to extort money from the person addressed, which letter expresses and implies, and is well adapted to imply, a threat to impute disgrace to such person, and to expose facts alleged to have been ascertained to prove damaging charges published against the character of such person, if money is not paid to conceal the proof, states an. offense within, the provision of section 523 of the Penal Code, which is punishable as a felony.</p> <p>Id.—Evidence — Proof of Venue — Record on Appeal.—When the record on appeal shows that the trial took place in the city and county of San Francisco, and that the threatening letter was post-marked San Francisco, and was received in San Francisco, the venue is sufficiently proved. Moreover, the objection could not be considered upon appeal, if the record does not state that it contains all the evidence, or that the venue was not proved, as error must be shown affirmatively.</p> <p>Id. —Immaterial Variance. —A variance between the information and the proof as to the contents of the threatening letter, which does not in any way alter the sense of the letter as expressing or implying a threat to impute disgrace, and to expose it if money is not paid to the writer, is immaterial, and should be disregarded.</p> <p>Id. — Evidence — Admissibility of Newspaper Article.—A newspaper article published against the character of the person addressed, and which is referred to in the threatening letter, is admissible as tending to explain the reason, motive, and object of the writer of the letter.</p>

city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court.

The complaint set forth a forcible trespass of the defendants upon the close of the plaintiff, bounded by West Lake, East Eake, and Mount Vernon avenues, and Lake Geneva, in the west end of San Francisco, alleged to have been committed on December 20, 1883.

<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 trie court.</p>

The complaint alleged that the slander for which the action was brought consisted in saying of and concerning the plaintiff that “he is a state’s prison convict, and he has been in the state’s prison.” At the time of the publication of the slander, the plaintiff was a candidate at an election for a public office. The further facts are stated in the opinion.

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

<p>Trust—Consideration — Information as to Location of Depot—Public Policy. — A Written agreement that one party shall purchase a tract of land, and that another party shall share in the profits of the land, and allow the purchaser ten per cent upon his advances, which agreement is based upon the consideration of information to be given as to the location of a railroad depot making the investment profitable, creates a trust in the land in favor of the, party furnishing the information, is founded upon a sufficient consideration, and is not void as against public policy, if it does not appear that any rights of the railroad company were affected by the giving of such information, or that it was obtained through a relation to them of trust or confidence, or given in violation of such trust or confidence.</p> <p>Id.—Right to Accounting — Fraud — Amount of Profits — Pleading. — The right of the beneficiary of a trust to enforce an accounting from the trustee does not rest upon fraud, and no such allegation is necessary in the complaint; nor is it necessary to .allege that such an amount has been realized by the trustee as to entitle the beneficiary to a share of the profits, as he has a right to know how much has been realized and expended, so as to determine whether he is entitled to any payment. The fact that no amount is due cannot affect the right to an accounting, when the trustee has denied the trust.</p>

<p>Contract of Sale—Independent Covenant for Purchase-money— Statute of Limitations. —An action upon, an independent covenant to pay the purchase-money for land is barred in four years from the expiration of the time fixed for payment, without regard to the time of execution or tender of a conveyance. The covenant for purchase-money is independent of the conveyance, when the day of payment is to happen or may happen before the conveyance is to be executed, or where a time is fixed for payment, and no time is fixed for the conveyance.</p> <p>Id. — Construction of Covenants — Intention of Parties. — The intention of the parties to make their covenants dependent or independent is to be ascertained, if possible, from the written agreement entered into between them.</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 court.</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>

<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>Appeal— Insolvency — Joint Appeal by Creditors. —Separate creditors of an insolvent who have a common interest in the reversal or modification of a decree as to the mode of payment of their claims, and who are all aggrieved in the same way and by the same portion of the decree, may prosecute a joint appeal from the decree.</p> <p>Life Insurance — Mutual Company —• Guaranty Fund — Claim os Stookhoj debs — Liability of Stockholders — Constuction op Statute. — The guaranty fund of a mutual life insurance company, organized under the act of 1866, is liable only for the payment of debts due from the company to third persons dealing with it, and not for the payment to the stockholders of moneys paid or contributed by them for the extinguishment of the obligations of the company, for which, as stockholders, they were liable.</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, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Notice of Intention to Move for a New Trial—Record on Appeal. — The notice of intention to move for a new trial is not a part of the record on appeal, and need not appear therein.</p> <p>Burden of Proof —Preponderance of Evidence — Prima Facie Case.— The burden of producing a preponderance of evidence is upon the party who has the affirmative of the issue, and remains upon him throughout the trial. It is a different thing from the burden of making or meeting a prima facie case, which latter burden may shift back and forth in the course of the trial.</p> <p>Affirmative of the Issue—-Matters of Substance —Traverse in Affirmative Form. ■— In ascertaining who has the affirmative of the issue, matters of substance, and not matters of form, should control. The fact that the traverse is in an affirmative instead of a negative form is immaterial.</p> <p>Presumption of Continuance of Fact. — It is error to instruct the jury that a fact once shown to exist is presumed to continue until the contrary is shown. The true rule is, that a fact once shown to exist is presumed to continue as long as is usual with things of that nature.</p> <p>Id. — Question for Jury — Charge as to Inference of Fact. — The court cannot say, as a matter of law, that the salary of a salesman continues during several years at the rate at which it began. The jury might infer that it did, if they chose to do so, under all the circumstances; but it is error for the court to instruct them that they must do so, unless the contrary is shown.</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 Mr. Justice Fox.</p>

<p>Constitutional Law — Delegation of Legislative Power — Submission to Vote of People — Special Act — Creation of County of Orange. — The act of March 11, 1889, which provides for forming the county of Orange out of part of the county of Los Angeles, upon the assent of two thirds of the qualified electors of the proposed new county voting at an election to be held for that purpose at a time fixed in the act, is constitutional, and is not a delegation of legislative authority, nor in conflict with the provisions of the constitution upon the subject of special legislation, in any matter which affects its general scope and purpose.</p> <p>Id.—Conditional Statute — Limitation of Time.—The legislature may pass a conditional statute, and make the taking effect of its provisions to depend upon some subsequent event, and may provide a time within which an act must be done to carry the provisions of the statute into effect, if done at all. Making certain provisions of the act to depend upon the vote of the people of a county does not delegate to the people the power to pass or repeal the act, the act being a valid statute from the time of its passage and approval, and the legislature itself providing that if the provisions of the act were not accepted within the period named they should not thereafter be carried into effect.</p> <p>Id.—Special Legislation—Municipal Corporations—Political Corporations — Counties. — Counties are not municipal corporations within the meaning of section 6, article 11, of the constitution, which provides that corporations for municipal purposes shall not be created by special act; but are political corporations, so far as they are to be regarded as corporations at all.</p> <p>Id.—Applicability of General Law—Questions of Pact — Legislative Policy — Creation of New County. — Whether a general law can be made applicable depends upon questions of fact, of which the legislature is the exclusive judge. The policy of creating a new county, and fixing its boundaries, is to be determined by the legislature alone.</p> <p>Id.—Incidents to Organization of New County—Classification — Independent Special Provisions. — The legislature, having constitutional power to organize a new county by special act, may make all special provisions which are incident to its complete organization, and which do not extend in their operation beyond the time when the organization shall become complete and subject to the operation of general laws, and may classify the county until the next census, according to the best information it can command as to its population. Whether special provisions which do not affect the validity of the whole.act are constitutional will not be considered when the question under discussion relates only to the validity of the act as a whole.</p>

<p>Corporations—Liability of Directors — Creating Debts beyond Capital Stock. —In order to make the directors of a corporation personally liable, under section 309 of the Civil Code, for a debt created beyond the subscribed capital stock, it must appear that the corporation must have been indebted at the same time in an aggregate amount exceeding the amount of the capital stock. The prohibited debts are ordinary subsisting debts in excess of the capital stock, and not the aggregate of the debts of the company created during its entire corporate existence. The prohibition applies to debts in excess of all the subscribed capital stock, whether it has all been paid in, or only part of it, and regardless of the disposition which may have been made of it. A purchase of mines for the full amount of the capital stock, to be paid for in the stock of the corporation, a portion of which only is paid in, does not make all debts thereafter created in excess of the subscribed capital stock.</p> <p>Id.—Nature of Capital Stock — Indebtedness of Corporation. — The subscribed capital stock of a corporation is the fund upon which the transactions of the corporation are to be made, and is a guaranty to creditors that all obligations to that amount will be met; but it cannot be considered as a debt of the corporation, whether paid in or not, in estimating the amount of indebtedness beyond which the directors of the corporation may make themselves personally liable. Debts to be thus considered are only those created by voluntary act of the directors.</p> <p>Id.—Construction of Statutes — Penal Liability.—A statute which provides for making one person individually liable for the debts of another, and prescribes how and under what circumstances he shall be held thus liable, is penal in its nature, and like other statutes which create a forfeiture or impose a penalty, is to be strictly construed against the liability.</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, and in the dissenting opinion of Mr. Justice Thornton.</p>

<p>Dedication of Street—Evidence of Intention—Revocation of Offer before Public Acceptance or User. —To constitute a valid dedication of a street, the animus dedicandi must be clearly indicated by unequivocal acts, and there must be an acceptance by the public before revocation of the offer of dedication, which may be revoked at any time prior to a public user. The subsequent conveyance of the land claimed as a street to another, after a first deed describing it as a street, operates as a revocation of the offer of dedication contained in the first deed, and also affords evidence of the non-existence of the intention to dedicate.</p> <p>Id. — Casual User by Public—Acceptance of Dedication.—A casual user by the public in crossing uninclosed land by temporary license of the owner, which user is the same after as before an alleged dedication of a portion of the land as a street, will not constitute an acceptance of such dedication. In the absence of a formal acceptance of the street by the city, and the working or improvement of the same by the city authorities, it should appear that the user by the public was under a claim of right, and not by a temporary license of the owner.</p> <p>Id. — Evidence — Town Map. — A map of a town made by one who does not own the land represented thereon, and who is not shown to have made it with the consent or by the authority of the owners of such land, and which is not referred to or recognized in a conveyance of the land by an owner thereof, can have no effect as evidence on the question of thé dedication of a street by such owner.</p> <p>Id.—Insufficiency of Evidence of Dedication.—The evidence in this case held insufficient to justify the finding of the court below that the land in controversy was dedicated to public use as a street. (Thornton, J., dissenting.)</p>

<p>Nonsuit. — A nonsuit is properly denied when there is any evidence tending to sustain the plaintiff’s case.</p> <p>Landlord and Tenant — Notice to Quit — Signature by Attorney.— A notice to a tenant to quit which purports to come from the landlord, and is signed in his name by an]attorney who had authority to sign it, is valid. No written authorization of the attorney is necessary; and if the tenant questions the attorney’s authority, he does so at his own risk, if the authority is proven in an action for unlawful detainer.</p> <p>Unlawful Detainer — Evidence or Title — Deed Intended as Mortgage. —Title is not in issue in the statutory action of unlawful detainer, and evidence of title in the defendant is not admissible for any purpose. He cannot show that he is the owner of the land, and that plaintiff is a mortgagee under a deed from the defendant, absolute on its face, but intended as a mortgage, though such evidence of title is merely offered for the purpose of showing that there was no lease.</p>

<p>Appeal from, a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The main facts are stated in the prevailing opinion; further facts are stated in the dissenting opinion of Mr. Justice Thornton.</p>

<p>Attachment—Bailment—Property in Custody of Foreign Receiver. —Property in this state cannot be secured from attachment at the suit of the creditor of the owner by being placed in the possession of a bailee; and the sole question between the bailee and the attaching creditor is one of superiority of right. Property of a railway company in the lawful custody of a foreign receiver, if brought into this state by him in the course of business, is subject to attachment under its laws by a creditor of the company, resident in this state, and the rights of the receiver must depend upon the comity of this state. (Thornton, J., and McFarland, J., dissenting.)</p> <p>Id.—Comity — Replevin by Foreign Receiver. — A receiver appointed by the court of another state, for the benefit of creditors therein residing, can only sue in this state as such receiver on the ground of comity; and such comity will not be so extended as to sustain a suit by him to replevy property of the debtor which was attached in this state by a creditor residing therein, though the property when attached was in the actual possession of the receiver, and brought by him from the state where he was appointed in the course of business. (Thornton, J., and McFarland, J., dissenting, hold that the lawful possession of the property acquired by the receiver in the state of his appointment gave him a special property, which precluded an attachment by a creditor of the original owner in any state, while the property remained in the receiver’s custody, and conferred a title upon which he could sue and recover the property, in his individual capacity, as a matter of right, in any state into which he might take the property in the course of lawful business.)</p>

<p>■Criminal Law — Homicide — Murder in First Degree — Province oe Jury—Review oe Evidence ueon Appeal.—Though, in order to convict of murder in the first degree, the defendant must be proved beyond a reasonable doubt to have killed the deceased with deliberate, premeditated, and malicious intent, it is the province of the jury to determine, from all the facts and circumstances, whether the killing was accompanied by all the ingredients which go to make up the crime charged, and their verdict will not be interfered with by the appellate court, if their conclusions were not manifestly wrong, in view of the evidence.</p> <p>Id.—Plea oe not Guilty — Action oe Prisoner through Counsel.— When an opportunity is given to the defendant to plead upon his arraignment, he cannot be prejudiced by the fact that he acted only through his counsel in pleading not guilty, for the effect is the same as if he had stood mute, and the court had ordered the plea of not guilty to be entered for him.</p> <p>Id. —Instruction as to Good Character oe Deeendant.—An instruction to the effect that evidence of the defendant’s good character must be considered in connection with all the evidence in the case, and if then the jury have a reasonable doubt of the defendant’s guilt, they must acquit, is correct, and the defendant is not prejudiced by the refusal of the court further to instruct the jury that such evidence “may be sufficient to create a reasonable doubt of his guilt, although no such doubt would have existed hut for such good character. ”</p> <p>Id.—Evidence — Declarations oe Dependant — Identity.—When the evidence in the case tends to show partnership and companionship between the defendant and the deceased, evidence of his declarations as to the whereabouts of “his partner,” made after the alleged killing, are admissible, though the deceased was not named in such declaration.</p>

<p>Contest oe Bight oe Inheritance—Time eor Appear.—Under section 1664 of the Code of Civil Procedure, an appeal must be taken fromu, judgment or order made upon a petition to establish the right of inheritance within sixty days from the date of the entry of the judgment or order, and an appeal from a judgment rendered upon a contest of such right taken more than sixty, days after the date of the entry of judgment is too late.</p> <p>Will — Omission to Provide eor Children — Bight oe Inheritance — Tenancy in Common. —A will providing only for the widow of the deceased, and omitting to provide for his children, and failing to show affirmatively that the omission to provide for them was intentional, does not deprive them of their legal right to inherit the same as if the father had died intestate; and they become tenants in common with the widow in all the real property of the deceased subject to administration, their proportion depending upon whether the property was community property or the separate property of the decedent.</p> <p>Id.—Decree oe Partial Distribution—Bes Adjudicata—Jurisdiction. —A decree of partial distribution of the estate of a decedent adjudging that all the interest of the widow in certain specified real estate has passed to her vendee, and setting apart to him her estate in the land, does not confer upon him any greater title than she possessed in law, and makes him only a tenant in common with children of the decedent omitted from the will, though the whole land was devised to the widow. The court had no power to adjudicate any other or greater title in him under his petition for distribution claiming that he had succeeded to all the interest of the devisee in the land described; and the decree, if construed to set apart to him the whole of the land, is a nullity as respects the interests of the omitted children. (Beatty, C. J., and Works, J., dissenting, hold that the decree should be construed to distribute the whole of the land described, and though erroneous, is conclusive of the whole title as against a collateral attack, the recitals in the decree of due notice, etc., being conclusive as to the jurisdiction of the court in the absence of evidence to impeach them, and the judgment having never been reversed upon appeal.)</p> <p>Estates oe Decedents — Limitations — Adverse Possession Pending Administration — Tenancy in Common.— So long as the administration of an estate remains unclosed, the successor in interest of one of the distributees who enters into possession of land under a decree of partial distribution cannot acquire title by limitation or adverse possession as against those who are legally entitled to claim an interest in the land as tenants in common, though he claims title to the whole of the land, and pays all taxes thereon.</p> <p>Tenancy in Common — Adverse Possession. — A tenant in common cannot show title by adverse possession against his co-tenant, in a case where such title is possible, without bringing himself by proof within the rule that notice of his adverse claim must be brought home actually or constructively to the co-tenant.</p>

<p>Pbobate Homestead—Value—Presumption—Discretion. — A probate homestead set apart by the court under sections 1465 and 1468 of the Code of Civil Procedure is not limited to five thousand dollars in value; and the presumption is, that the court will give the family such a one as is just and proper, considering the amount and condition of the estate. The matter of value of such a homestead is within the discretion of the-superior court, which will not be interfered with by the appellate court, unless it appears that such discretion has been abused.</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.</p>

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

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco, made after judgment, awarding counsel fees.</p> <p>The facts are stated in the opinion of Mr. Justice Works.</p>

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

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

order of the Superior Court of Santa Clara County denying a motion to disregard a statement on motion for a new trial. The facts are stated in the opinion of the court.

<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>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>Bill in Equity fob New Trial—Setting Aside Judgment—Negligence, Fraud, and Mistake of Attorney—Pleading. —A complaint in an equitable action to set aside a judgment and to obtain a new trial, on the ground that by the negligence, fraud, and mistake of plaintiff’s attorney, plaintiff had lost the right to appeal from such judgment, which makes no charge of fraud against the defendant, nor of collusion, between defendant and plaintiff’s attorney, nor that the plaintiff did not have a fair and impartial trial, does not state facts sufficient to consti- ■ tute a cause of action.</p> <p>Id. — Allegation of Fraud. — The allegation that the judgment and order denying a new trial were unjust, inequitable, and against law, do not indicate or. imply, with sufficient certainty, any fraud on the part of the defendant, since a judgment may be unjust, inequitable, and erroneous without being fraudulent or subject to be set aside by a court of equity.</p> <p>Id. —Immaterial Error in Rejecting Evidence. —In cases of this class, it should be made to appear with reasonable certainty that a new trial would result in a judgment more favorable to the party asking it than the judgment sought to be set aside; and therefore an error of the court, in refusing to permit a witness to be cross-examined as to a fact, is immaterial for any purpose of this suit, without showing what would have been the testimony on such cross-examination, had it been permitted.</p>

<p>Promissory Note — Statute of Limitations—Demand.—A promissory note payable on demand is due immediately without an actual demand, and the statute of limitations commences to run at once from the time of its execution.</p> <p>Id.—Note Payable “on Demand after Date.”—A promissory note made payable “ on demand after date ” is an ordinary demand note payable at once, on which an action can be brought immediately after it is given.</p>

The contract of sale referred to in the opinion described by metes and bounds a tract of land situated in Pasadena, bordering on the Arroyo River and running to its center, and provided that the vendor should complete, at her own expense, “a sixty-foot private roadway for perpetual use of the parties hereto, their heirs, etc., from Orange Grove Avenue to the frontage of the lot conveyed, also running .thence northerly, each party to give twenty-five feet for a like private…

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

<p>Criminal Law — Assault with a Deadly Weapon — Information — Probative Pacts. —An information which charges the ultimate facts constituting the offense of an assault with a deadly weapon, in the language of section 245 of the Penal Code, defining the offense, is sufficient; while probative facts, such as the intent with which the assault is made, the present ability to do great bodily injury, and the kind of weapon used, need not be alleged, but are matters of proof only.</p>

<p>Insolvency — Discharge without Notice — Stipulation — Postponement oe Hearing — Objection by Creditors — Order Vacating Discharge. — When between the time of filing a petition for discharge in insolvency and the time fixed for hearing, a stipulation is entered into that the matter go off the calendar, to be reinstated and set for hearing upon stipulation or notice, and it is so ordered by the court, if the petitioner thereafter procures his discharge without notice, the court may, upon a showing by the creditors that they have grounds of opposition to the discharge, properly make an order vacating the discharge, provided the time for contesting the discharge had not expired when the stipulation was entered into, though it may have subsequently expired; and may make such order without regard to the binding character of the stipulation, as a mere matter of procedure in court. The petitioner could not act upon such stipulation by delaying his application after the time fixed for hearing and named in the notice to creditors, and come in afterwards, and procure an order for his discharge on a day for which no notice had been given.</p>