Volume 82 — California Reports

<p>Bower, of Attorney — Special Agency — Exchange of Stock — Conversion by Corporation — Trover.—A power of attorney authorizing many things specially mentioned, and among other things the exchange of old certificates of stock for new ones in lieu thereof, and concluding with general words giving power to manage and control all property, real or personal, belonging to the principal, to transact all business, and to make all contracts and instruments requisite or proper to effectuate all or any of the premises, is * special and not a general power, and creates only a special agency wmun tiie meaning of section 2297 of the Civil Code. It does not confer express or implied power to sell, hypothecate, or transfer the stock of the principal. The corporation is bound to know the authority of such special agent, and if it cancels the stock and transfers the same to another upon its books, without any other indorsement upon the certificate than that of the holder of the power of attorney, it is liable in trover for a conversion of the stock.</p> <p>Id. — Ostensible Agency — Presumption. —Section 2317 of the Civil Code, in regard to ostensible agency, does not apply to the case of a special agent whose powers are carefully defined by a written instrument, which the party dealing with the agent must be presumed to have seen and examined.</p> <p>Id. —Ratification. — When an agent under one power of attorney delivers a certificate of stock to an agent under another power from the same principal, and the latter agent exceeds his power in transferring the stock, in which the corporation wrongfully assist, a declaration of the principal to the first agant that he will not hold him responsible, and that he would have loaned the stock to the other agent if requested, does not prove a ratification of the unauthorized transfer of the stock or of the wrongful action of the corporation.</p>

<p>Quieting Title — Pleading — Specific Allegation of Title. — In an action to quiet title, where the pleader sets forth specifically the links in his chain of title, a general allegation of ownership will be treated as a mere conclusion from the facts stated, and will not cure any defect in the chain relied upon. It will be presumed that every fact has been alleged which can be proved.</p> <p>Homestead — Declaration of,Wife — Separate Property of Husband— Title of Heirs.—Under sections 1465, 1468, and 1474 of the Code of Civil Procedure, and section 1265 of the Civil Code, the homestead declaration of the wife alone on the separate property of the husband does not affect the title of the heirs to the property, but it vests in them on the death of the husband, subject only to the right of the court to set aside a homestead for a limited period to the surviving wife and children. Id. — Rights of Survivors — Conflict of Laws. — The law in force at the time of the death, and not that which was in force at the time of the . declaration, controls on the subject of homesteads and rights of survivors. Id. — Order Setting Apart Homestead — Failure to Appeal — Setting Aside Decree — Fraud — Pleading. — An order setting apart a homestead is appealable, and the right to have it reviewed for error is lost by failure to appeal therefrom. Where the heirs had notice of the application for a homestead, and the estate has been fully administered, their' complaint in an action to set aside the decree, which fails to show any fraud or device which would prevent proof of the character of the property from which the homestead was selected, does not show a cause of action, though it shows that the homestead was falsely set aside as community property, and as the sole and separate estate of the widow, when the property was in fact the separate projieríy of the husband. .</p>

<p>Street Assessment — San Francisco — Montgomery Avenue — Construction of Sewer.—Under the statutes of 1871-72, providing for street work in the city and county of San Francisco, an assessment for the construction of a sewer for one block, exclusive of Crossings, on Montgomery Avenue, a street dedicated to public use and laid down on the city map, and which was an open public street, with width and grade established, is valid, if made against all the lots fronting on said block and the proposed work. The limitation of the right to assess for improvements at street crossings to such streets as are named and particularly described in said act does not apply to an assessment upon lots fronting upon any recognized and open public street for the construction of a sewer in front of such lots.</p>

<p>Appeal — Record — Opinion of Court Below.— Review of Reasons for Decision. —The opinion of the court below upon any question before it, or upon the final determination of the cause, constitutes no part of the record on appeal. It may be cited by counsel in argument, but it is not an act upon which error may be assigned, nor are its reasons binding on appeal; but if the appellate court finds that upon any ground or for any reason the action of the court below was correct, its action will be affirmed, regardless of the reason which the court may have given for it.</p> <p>Id. — Review of Order Granting New Trial — Conflicting Evidence.— When a motion for new trial is based both upon errors of law assigned and upon the insufficiency of the evidence to justify the verdict, an order granting a new trial will be affirmed, regardless of the fact that errors of law only were assigned as the reasons for the order in the opinion of the court below, where the record shows a conflict in the evidence, in view of which the court below might properly have granted a new trial.</p> <p>Effect of Evidence — Pleading — Instructions — New Trial — Error of Law. — Evidence admitted without limitation as to purpose, though entitled to be considered for all purposes within the issues, is not entitled to be considered in connection with any question not involved in the issues; and an instruction authorizing the jury to consider such a question is an error of law for which a new trial may be granted.</p> <p>Action for Breach of Contract — Ratification of Breach —• Pleading — Evidence.—In an action for damages for a breach of contract, where the only issues presented are, whether there is such a contract as alleged, whether all indebtedness under the contract was paid, and whether the action was barred by the statute of limitations, evidence tending to show that the plaintiff had ratified certain acts relied upon as constituting a breach of the contract can only be considered upon the issue as to whether there was such a contract as alleged, and cannot be considered upon the question of ratification of the breach of contract, that question not being within the issues.</p> <p>Evidence — Admission op Party — Result op Former Trial. — It is competent to prove that after a former trial of the cause, resulting in a verdict for a large sum against several defendants, and in plaintiff’s favor, one of the defendants admitted that the verdict was a just and righteous one, the evidence being at least pertinent and competent as against him, and the exclusion of such evidence is error warranting a new trial.</p>

of Contra Costa County, and from an order denying a new trial. The action was ejectment for the lands described in the complaint.

<p>Dedication — Platting or Streets on Map—Acck'ttasce B>r Public. — The platting of land which lies outside oí. town limits, upon an unified map designating lots and streets, does not constitute a .dedication of the streets to the public, if the land remains fenced, and no part of it is used by the public as a highway, and there has been no acceptance thereof by the public authorities.</p> <p>Id. — Question or Intention. — The question of dedication is purely</p> <p>of intention, and the intention of the owner must be gathered from his acts and conduct with reference to the property.</p> <p>Id.—Revocation or Offer to Dedicate—Deed — Piling of Map.—An offer to dedicate streets to the public by platting the same upon an unified map of lots and streets is withdrawn by a subsequent sale of the whole property in a body under a deed thereof omitting the designation of streets, before any acceptance or user of the streets by the public; and a subsequent filing of the map will not affect the rights of the grantee.</p> <p>Vendor and Purchaser — Contract of Sale — Specific Performance— Defective Title — Burden of Proof.—To avoid a specific performance of a contract to purchase land on the ground of defective title, where the vendor has a clear paper title to the property, the burden of proving a defect in the title because of an alleged dedication of part of the land as public streets is on the purchaser.</p> <p>Id. — Prescriptive Title of Vendor — Statute of Limitations — Rights of Purchasers Bounding on Streets—-Burden of Proof.—In an action involving the specific performance of a contract for the sale of land which is resisted by the purchaser on account of the alleged dedication of streets upon the land, where it appears that the alleged streets never vested in the public, and that the property had been conveyed in a body, including such alleged streets, and fenced and occupied for more than five years before the agreement to convey the property, the right of prior purchasers bounding on the streets to use the same, if it ever existed, is barred by the statute of limitations, and it is incumbent upon the purchaser to prove the existence of any circumstances which would have prevented the running of the statute of limitations, as against these purchasers, in order to avoid a specific performance of Ms contract to purchase the land; and in the absence of such proof, the facts show such title in the vendor that the purchaser is bound to accept a conveyance and pay the purchase-money.</p> <p>Id. — Reasonable Doubt as to Title. — A purchaser of land cannot justify Ms refusal to perform his contract by a mere captious objection to the title tendered him, nor is it sufficient for him to raise a doubt as the vendor’s title. There must be at least such reasonable doubt as affects its value, and would interfere with its sale to a reasonable purchaser.</p>

<p>Negotiable Paper — Demand Note Bearing Interest—Demand — Statute of Limitations. — Suit may be brought against the maker of a promissory note which is payable on demand with interest, at any time, without previous demand, the suit itself being all the demand necessary, as against the principal debtor; and the statute of limitations begins to run when the right of action accrues. Sections 3131 and 3135 of the Civil Code apply only to the presentment for payment of a negotiable instrument which is necessary to charge an indorser, and do not affect the liability of the principal debtor as defined by section 3130 of the Civil Code.</p>

Upon foreclosure of a mortgage given by John Donner to David Davis and David E. Griffith, Simon Blum, a second mortgagee, became the purchaser under the decree, and after the time for redemption had expired, and he had received his deed, an order granting a writ of assistance was made upon his ex parte motion. The defendant John Donner moved to set aside the writ upon affidavits of himself and wife that a portion of the property was her separate estate.

<p>Criminal Law — Homicide — Self-defense—Forcible Invasion of Possession — Right to Harvest Crop. — The evidence does not warrant a conviction of murder in the second degree, or of any other offense, where it appears that the person accused of murder was, and had been for a number of years, in the actual and peaceable possession of land which he claimed to own, and was about to harvest a crop which he had sown upon the land, when his possession was invaded by deceased, who attempted by force to prevent the harvesting of the crop, claiming that his wife had title to the land, and was shot after placing the lives of the defendant and his son in imminent peril, though it further appears that defendant and deceased had each made threats against the life of the other if he attempted to enter upon the land and cut the grain, and that each went upon the land armed to effectuate his purpose, ancl though it is uncertain whether defendant or deceased fired the first shot. The deceased was the aggressor from the beginning, conceding that his wife had a valid title to the land, since he had no right by force to invade defendant’s possession, or to attempt by force to prevent the harvesting of his crop; and the killing of the deceased by the defendant under the circumstances was justifiable as matter of law. (Beatty, C. J., dissenting, holds that the jury may properly have found the ease to be one of mutual combat, voluntarily entered into under circumstances insufficient to justify either party in a homicide.)</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 Alameda County.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Attorney and Client — Money had and Received — Contract — Pleading— Special Demurrer — Finding. —In an action to recover money received by the defendant while acting as attorney for plaintiffs under a certain contract between himself and plaintiffs, a complaint which shows that the defendant wasrthe attorney for plaintiffs in certain litigation, and that he received as fruit thereof certain money which he failed to deliver or account for to the plaintiffs, states the contract sufficiently, in the absence of a special demurrer, and a finding as to the terms of the contract is within the issues tendered by the pleadings.</p> <p>Id. — Compensation op Attorney — Sharing in Land — Compromise por Money — Accounting.—An attorney who undertakes to and does prosecute actions for the recovery of land at his own expense in consideration of one half of whatever interest in the land he may recover, and who fails to recover the land, and dismisses the action upon a compromise for money, is accountable to his client for money received as the result of the stipulations made by him in the litigation, and cannot deduct expenses from the client’s share of money received.</p>

<p>' Fraud — Deceit witbout Injury—Agency—Liability of Real Estate Broker — Vendor and Purchaser. —A widow purchasing land, who is not deceived to her injury, or as to the actual quality or quantity of the land purchased, but who has received full value for the money, cannot complain of misrepresentations or concealments by a real estate broker in relation to a former sale of the property, though such broker had been the agent of her deceased husband, and her general agent in purchases and sales of real estate, if he sold the land in question as a broker or middleman between the vendor and purchaser for a commission from the vendor; and a decree in an action by her against such broker, declaring the sale fraudulent and void, and ordering the defendant to pay to plaintiff the sum paid for the land, with interest, upon conveyance thereof to the defendant, cannot be supported.</p> <p>Id.—Agency—■ Fiduciary Relation — Compensation of Real Estate Broker. — In such case, the general agency of the real estate broker for tile widow, and his prior agency for her deceased husband, does not show the existence of an agency or relation of trust and confidence as to the particular property purchased by the widow, if the broker received no compensation from her, and she knew he was acting as agent of the vendor; and it is not important that the defendant’s compensation from the vendor was larger than was usually paid for such services, if plaintiff was not deceived to her injury.</p>

<p>Estates of Deceased Persons — Distribution to Heir—Deed by Heir before Distribution — Conclusivbness oe Decree. — Under section 1666 of the Code of Civil Procedure, a decree of distribution is conclusive as to the rights of heirs, legatees, or devisees only so far as they claim in such capacities, and does not create any new title. An heir may contract about or convey the title which the law has cast upon him on the death of his ancestor; and the validity or force of such contract is not affected by the fact that the probate court afterward by its decree of distribution declares his asserted heirship and title to be valid, and assumes to distribute the land to him.</p> <p>Id. — Partition to Grantee oe Heir — Jurisdiction — Parties.—Section 1678 of the Code of Civil Procedure applies particularly to cases of partition between heirs or devisees, where commissioners are appointed to make division; and merely gives the right to a grantee of an heir to have the share of his grantor set off to him. Whether the probate court would have jurisdiction to hear and determine a contest between an heir and his alleged grantee, in cases arising under that section, is not decided; hut the rights of a prior grantee of an heir are not affected by a subsequent ordinary decree of distribution to the heir to which the grantee was no party. On rendering ordinary decrees of distribution, the probate court deals only with issues and parties legitimately before it.</p>

<p>Adverse Possession—Title'—Suit to Quiet Title. — Adverse possession for the requisite time and character confers a title, upon which the owner may maintain a suit to quiet title.</p> <p>Tenants in Common—Ouster — Statute oe Limitations — Mistake as to Bights of the Parties. — If one tenant in common notifies the other that he claims the whole property as his own, and orders the other to leave, and the latter acquiesces in the pretension and leaves the premises to the possession of the first, there is an ouster, and the statute of limitations begins to run, notwithstanding the fact that neither party was aware of the true state of the title, and each was under a mistake with reference to his rights.</p> <p>Adverse Possession — Homestead. — Adverse possession for the requisite time and character will extinguish a homestead.</p>

<p>Notary Public — Negligence in Certifying Acknowledgment — False Personation — Introduction by Plaintiff’s Agent — Contributory Negligence — Estoppel. — A notary public and the sureties on his official bond cannot be charged with liability for negligence of the notary in certifying that the party who acknowledged before him the execution of a mortgage was known to be the person whose name was subscribed thereto, although he falsely and fraudulently personated the owner of the land mortgaged, if such person was introduced to the notary by the plaintiff’s agent, who negotiated the loan for plaintiff, as bearing the name of such owner, and as having subscribed the mortgage.</p> <p>Id.—Duty of Notary—Truth of Certificate of Acknowledgment—. Forgery—Finding as to False Personation. — A notary is not required to certify that the person executing the instrument is the same person who owns the realty in the instrument described, and a finding that the person acknowledging the instrument falsely personated such owner does not sustain the conclusion that the certificate of acknowledgment is untrue, or that the signature is a forgery.</p> <p>Agency — Negligence or Deceit of Agent — Liability of Principal__ A principal is responsible to third persons for injury occasioned by the negligent acts of his agents, or by their wrongful acts done as part of , their business as such agents. If loss results to the principal from an act of deceit by the agent in the course of his agency, the principal must hear it as between him and third persons.</p> <p>Negligence — Question of Law. — When the facts are established or clearly settled, the question of negligence is a question of law to be decided by the court.</p> <p>Findings — Conclusions of Law—Reversal of Judgment —Appeal.— When the conclusions of law are erroneously drawn from the findings, and the findings show that the judgment should have been for the other party, it will he reversed upon appeal, with directions to the court below to enter the correct judgment on the findings.</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>Bailment—Deposit of Money—Pleading — Non-payment.—In an action to recover money deposited with the defendant, an averment that the defendant has neglected and refused to pay the money, though requested to do so 'by the plaintiff, is a sufficient averment of non-payment, and is equivalent to a statement that the defendant had failed and refused to pay.</p> <p>Appeal—Review of Conflicting Evidence — Inadmissible Evidence— Objection to Evidence. — When there is a substantial conflict in the evidence, the conclusion of the jury will not bé disturbed by the appellate court; and conflict may be raised by facts and circumstances tending to contradict the direct evidence of a witness, though some of the conflicting evidence might not have been admissible, if admitted without objection, or upon insufficient objection. Objections to evidence cannot be raised for the first time upon appeal.</p> <p>Mental Weakness — Undue Influence — Avoidance of Contract — Pleading — Evidence — Instruction. — A plaintiff who seeks to avoid a contract pleaded by the defendant, on account of Undue influence and unfair advantage taken of weakness of mind, is not required to plead such matter of avoidance, in order to prove the same; and an instruction, upon that subject, if based upon evidence sufficient to warrant it, is not outside of the issues. Under our system of pleading, the plaintiff "is not required to reply to any new matter or affirmative defense set up is the answer, but may meet it by any competent proof.</p>

<p>Estates oe Deceased Persons — Allowance of Claim Secured by Mortgage — Foreclosure •— Costs and Counsel Fees. — A claim against a decedent secured by mortgage may be presented and allowed so as to prevent the debt from being barred and the mortgage extinguished by limitation, and such presentation and allowance does not; preclude a subsequent action for the foreclosure of the mortgage, in which the estate may be subjected to costs and counsel fees. When the mortgage provides for counsel fees in case of foreclosure, it is in the discretion of the court to make such allowance of counsel fees as is, in its judgment, reasonable and just, without regard to the amount or percentage specified in the mortgage.</p> <p>Id. —Allowance of Claim as Unsecured — Mortgage Securing Future Advances — Purchase of Note Indorsed by Mortgagor. — A claim against the mortgagor as indorser of the note of a third party, which was purchased by the mortgagee from the mortgagor, and which has been regularly presented and allowed as an unsecured claim against the estate of the deceased mortgagor, cannot be foreclosed, in whole or in part, as a claim under the terms of the mortgage for “further advances to the mortgagor by the mortgagee, and other indebtedness to the mortgagor by the mortgagee that may exist, arise, or be contracted before the satisfaction hereof, ” not exceeding a certain sum. Such terms do not, by fair construction, authorize the mortgagee to buy up notes of third parties upon which the mortgagor was a simple indorser, and hold the same as secured by the mortgage.</p>

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

<p>-ImSchool Lands — Certificate of Purchase—Evidence of TitleFEACHMENT OF CERTIFICATE IN EJECTMENT — PLEADING.— A certificate of purchase of state school lands is only prima fade evidence of title, and may be impeached in an action of ejectment, by a defendant who is in the actual occupation'of the premises, by proving that the land is fit for cultivation, and that the plaintiff was never an actual settler upon it, or that he is not a citizen of the United States, or that his affidavit of intention to purchase was defective in not stating whether the land was or was not suitable for cultivation, as required by the code, or by proving in any manner that plaintiff could not legally purchase the land. The occupant may show under the denials of his answer that his assailant has no title or rights of possession in and to the premises.</p> <p>Id.—Fitness fob Cultivation — Actual Settlement — Finding as to Ownership—Sufficiency of Evidence — Conflict — Review upon Appeal.— The evidence of the plaintiff that the school land in controversy was grazing land, that some of it could be plowed but not more than the smallest legal subdivision at any one place, that the land is hilly and in his judgment not fit for agriculture, does not materially conflict with the testimony of witnesses who testify that they are well acquainted with the land in controversy, and that it is suitable for cultivation; and if the evidence is free from conflict that the plaintiff was never an actual settler upon the premises, the finding of the court that the plaintiff is the owner of "and entitled to the possession of the premises will be held upon appeal to be not justified by the evidence.</p> <p>Citizenship — Naturalization —Evidence.—The unsupported evidence of plaintiff that he was born in France and naturalized in the city of New York, but had lost his naturalization papers, is not sufficient to' establish the fact of citizenship.</p>

<p>Criminad Law — Conspiracy — Husband and Wife — Common Law, — At common law, a husband and wife, being one person, could not be prosecuted for a criminal conspiracy between them alone, and nothing in the codes or statutes of this state has changed this rule.</p>

<p>Criminal Law—Procedure — Dismissal tor Non-trial—Mistrial— Continuance — Habeas Corpus.-—When there has been a mistrial of a criminal case, and the case has been necessarily continued owing to the illness of a juror after the evidence was all in, such mistrial and continuance are not within the terms of section 1382 of the Penal Code, providing for a dismissal of the cause if not postponed upon the prisoner’s application, and not brought to trial within sixty days after the finding of the indictment or filing of the information. Conceding that the court had no power to continue the case for more than sixty days without petitioner’s consent, he could not be released upon habeas corpus before the expiration of that period, notwithstanding an order of continuance for a longer period.</p>

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

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

The instruction in regard to the lease by White to Woodman, referred to in the opinion, was as follows: “ Now, there was a lease by White to Woodman, made June 19, 1884. The lease was to run two years. There is no question but what that lease might have been surrendered by the consent of White, and if Woodman surrendered the lease, White had a right to the possession of the property.

<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 an order of the Superior Court of Santa Cruz County refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Preference of One Creditor over Others. — A debtor in failing circumstances has a right to give a preference to one creditor over another, and for this purpose may transfer real property to him, provided the transfer he an absolute, and not a colorable, one, and be for a valuable consideration.</p> <p>Id. — Valuable Consideration — Pre-existing Indebtedness. — A preexisting indebtedness constitutes a valuable consideration for such a transfer.</p> <p>Id.—■ Promise to Pat the Debt of the Grantor.—A promise to pay a debt due from, the grantor to a third person is valuable consideration for such a transfer, and especially so when such promise is performed.</p> <p>Id. — Promise to Pat Debt of Grantor does not Create a Trust for the Benefit of Creditors. —■ The fact that the transfer was in consider-' ation of a promise to pay the debt of another creditor does not create a trust for the benefit of creditors; and consequently the transfer is not void because the promise does not extend to all the creditors.</p>

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

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

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

<p>Appeal — H on - appealable Order — Order por Suit in Name op Administratrix — Fraudulent Conveyance. — An order compelling an administratrix to allow her name to be used by a creditor of the estate, in a suit to set aside a conveyance of the decedent as having been made to defraud his creditors, is not appealable.</p> <p>Id.—Final Orders in Special Probate Proceedings—Constitutional Construction—Maxim. —Final orders in special probate proceedings are not appealable as final judgments entered in a special proceeding commenced in a superior court, when not included in the enumeration of appeals allowed in probate matters contained in the third subdivision of section 963 of the Code of Civil Procedure. Under the settled construction of the constitution, which provides for appeals in all such probate matters as may be provided by law, appeals in probate matters not provided for by law are excluded, in view of the maxim, Expresólo unius est exclasio alterius.</p>

<p>Appeal — Review of Conflicting Evidence — Special Verdict — Findings. — When the evidence is conflicting, and there is sufficient evidence to sustain the special verdict of a jury, which was adopted by the court in its findings of fact, the verdict and findings will not be disturbed upon appeal.</p> <p>Evidence — Account — Tradesman’s Book of Original Entries.—A tradesman’s shop-book of original entries is receivable in evidence as prima facie proof of an account in his favor, if supported by the tradesman’s oath to its correctness, and if no objection appears to the manner in which the book was kept.</p>

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

<p>Findings — Judgment against Law — Admissions of Pleadings. — Findings contrary to the admissions of the pleadings will not support the judgment; and the judgment is against law in so far as it is against such admissions.</p> <p>Id. — Omission to Find upon Material Issues. — If the court omits to find upon material issues, the judgment cannot be supported.</p> <p>Injunction — Deed to Defraud a Particular Creditor — Pleading — Findings — Trust.—In an action to enjoin an execution sale of land under a judgment in favor of a particular creditor of plaintiff’s grantor, an answer which admits title in plaintiff, but alleges that the deed to him was made to defraud the defendant, and that plaintiff’s grantor is still the owner of an undivided interest in the land, does not present any issue as to whether or not the deed was made to hinder, delay, or defraud the creditors of such grantor generally; and in order to support a judgment for the defendant, the court must find facts from which the legal conclusion could be drawn that the legal title to an undivided interest in the land is held by plaintiff in trust for the benefit of his grantor.</p> <p>Id.—Evidence — Bona Fides of Deed — Payment of Taxes — Tenancy in Common. — Evidence as to the assessment and payment of taxes upon the whole of certain land in the name of one person, who was originally a tenant in common with another person, is not admissible in favor of the person paying the taxes to prove the bonaJides of a deed to him from the co-tenant.</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 refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Admission to Bail — Discretion oe Lower Court over Amount oe Bail.—The supreme court will not interfere with the discretion exercised by the court in which the indictment is found in the matter of fixing the amount of bail, unless it appears per se that the amount fixed is unreasonably great, and clearly disproportionate to the offense involved.</p> <p>Id. — Considerations Determining Amount of Bail.—The determination of what is disproportionate to the offense involved does not depend alone upon the amount of money which may have be.en lost to one party, or secured to another, by reason of the offense, but rather upon the moral turpitude of the crime, the danger resulting to the public from the commission of such offenses, and the punishment imposed or authorized by law therefor.</p>

<p>Entry of Judgment— Interest on Verdict. — The clerk must include in the judgment interest on the amount of the verdict from the time it was rendered.</p> <p>Verdict Confined to Defendants Who Answer..— If two defendants answer, and a third makes default, the verdict is properly confined to those who answer, and should not include the one as to whom there is no issue.</p> <p>Id. —Action of Tort—Judgment against Portion of the Defendants. —In an action of tort, two of the defendants, who have answered, and against whom a verdict is rendered, cannot complain that no judgment by default was entered against the third defendant.</p> <p>Action of Trespass—-Possession—-Wrong-doer.—Possession of personal property is sufficient to maintain an action of trespass against a mere wrong-doer.</p> <p>Effect of Evidence Which is Stricken out. —Evidence which is stricken out cannot be considered upon a question whether there is evidence sufficient to justify the verdict.</p> <p>Deposition-—Answer not Responsive — Striking out. •—If in a deposition an answer he not responsive to the interrogatory, it may he stricken ' out.</p> <p>Corporation de Facto — When Defendant cannot Question Existence or Right to Hold Property. — In an action by a corporation de facto, claiming in good faith to exist, the defendant, who is a mere trespasser, cannot question the corporate existence of the plaintiff, or its capacity to take and hold property.</p>

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

<p>Pleading—Fraub—Rescission of Contract — Partial Restitution — Damages — Value — Presumbtion. •— A complaint alleging the sale by plaintiff to defendant of an interest in a business, and of certain notes, in consideration of two thousand five hundred dollars cash, and of the transfer by defendant to plaintiff of ten shares of mining stock at fourteen hundred dollars a share, which were falsely represented by defendant to be of the value of fifteen hundred dollars per share, when they were in fact valueless; that plaintiff had offered, and still offers, a return of the stock; and which prays judgment for fourteen thousand dollars, — does not state a cause of action for a rescission of the contract, because not showing an offer to return the cash payment, nor any demand for a retransfer of the business and notes; nor a cause of action to recover damages for deceit, because it does not allege any damage, nor state any facts as to the value of the business and notes irom which damage to plaintiff could be inferred. In the absence of an averment of their value, it cannot be. presumed that they were of any value whatever, and the plaintiff must be presumed to have been benefited by the cash payment.</p>

<p>Pledge — Chattel Mortgage — Sale under Power—Auction—Notice of Sale. — The sale by a pledgee of property pledged must be made by public auction, in the manner and upon notice to the public usual at the place of sale in respect to auction sales of similar property, and must be for the highest obtainable price. A sale of personal property secured by chattel mortgage under a power to sell under “proceedings had and taken as in case of pledges, without any previous demand for performance or notice of time and place of sale, the said mortgagor having waived demand and notice,” and consented that “at any such sale the mortgagee may become a purchaser,” must comply with the statutory requirements as to notice to the public of an auction sale, and as to securing the highest obtainable price. Where it appears that notices of auction sales of similar property were never for less than five days, and were usually from ten to twenty days, and that the property sold was of such a kind that but few persons would be likely to purchase it, and was purchased by the mortgagee for about one fifth of its actual value at an auction sale upon notice given for two days only, the notice not specifying that the property to be sold was covered by a mortgage, or was to be sold to satisfy any mortgage, the sale is invalid as against a junior mortgagee of the same property.</p>

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

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

<p>Insolvency — Opposition to Discharge —Debt Fraudulently Contracted— Evidence — Judgment against Partner for Misappropriated Funds.— The creation of a debt by fraud of an insolvent debtor is not a good ground upon which to oppose his discharge in insolvency, as no such debt can be discharged under the insolvent act. Where a creditor opposes the discharge in insolvency of his debt or upon the ground that the debt consists of a judgment recovered against the debtor for funds fraudulently misappropriated by him as a partner of the creditor, in an action brought by the creditor for dissolution of partnership, it is not error to exclude the judgment roll in such action from evidence to sustain the opposition, whether the judgment constitutes a debt excepted from the operation of the discharge in insolvency or not.</p> <p>Id. ■—Evidence — Deed of Gift from Husband to Wife — Declaration of Homestead. — A deed of land by the insolvent to his wife, in consideration of love and affection, made more that two years before the commencement of insolvency proceedings, and a subsequent declaration of homestead by the wife upon the property conveyed to her, are not fraudulent per se; and in the absence of proof tending to show that the husband had any fraudulent purpose in making the deed, or that the wife had any such purpose in filing the homestead, the deed and certificate of homestead are inadmissible in evidence to sustain an ojiposition by a creditor to the discharge in insolvency.</p> <p>Order Granting Application for Discharge — Exception of Debts Fraudulently Contracted. — An order that the application for a discharge in insolvency be granted does not purport to discharge the insolvent from any debts; and if the final order granting the discharge excepts “ such debts, if any, as are by said insolvent laws excepted from the operation of a discharge in insolvency,” it cannot be objected that the order that the application be granted does not except from its operation debts contracted by fraud.</p> <p>Discharge of Insolvent—Objection to Oath — Appeal.—It cannot he objected for the first time on appeal by an opposing creditor that the oath of an insolvent, required to be taken and subscribed before any discharge is granted, was made eleven months before the discharge, if, when the oath was offered m evidence, no objection was made to it.</p>

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

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

<p>Habeas Corpus—Inquiry as to Probable Cause for Commitment — Effect of Filing Information—Functions of District Attorney. —It is the duty of the court granting a writ of habeas corpus to one committed on a criminal charge to inquire into the question of reasonable or probable cause, notwithstanding the filing of an information against him. Such a case is materially different from one in which an indictment has been found by a grand jury, which acts as a judicial body. The district attorney, in filing an information, acts as a mere ministerial officer, and has no judicial power to inquire into the question of probable cause. It is his duty to file an information for the offense indicated by the committing magistrate within the time limited after the commitment; and the issuance of a writ of habeas corpus neither stays nor extends the time for performance of that duty, nor does its performance interfere with the jurisdiction or powers of the court under the writ.</p> <p>Id. — Criminal Law—Kidnaping—Arrest by Officer under Warrant. —The arrest of a prisoner id another county by a deputy sheriff of the county in which the warrant of arrest is issued, who is also a deputy United States marshal for the district including both counties, ' the warrant being directed generally to any sheriff, constable, marshal, or policeman in the state, and the producing of the prisoner by such officer before the court issuing the warrant, in obedience to its terms, is a lawful act, and does not constitute a public offense. The commitment of such officer upon a charge of kidnaping the person arrested is without reasonable or probable cause, and he is entitled to a discharge therefrom upon habeas corpus.</p>

The instructions requested by defendant, and refused by the court, upon which error is assigned, were the following: — “1.

<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>

Application to supreme court for the release of petitioner upon writ of habeas corpus. The facts are stated in the opinion of the court.

<p>Appeal — Service of Notice — Dismissal. —An appeal by one defendant will not be dismissed for want of service of the notice of appeal upon co-defendants not appealing, against whom the judgment will stand though it should be reversed as to the defendant appealing, and whose interests cannot be affected in any way by the appeal.</p> <p>Id.—Review of Conflicting Evidence — Authority of Attorney — Compromise — Motion to Vacate Consent Judgment.—When the evidence on the point of authority from a defendant .to his co-defendants to employ counsel to defend, compromise, and settle an action, is conflicting, the order of the court below refusing to vacate a consent judgment entered in compromise of the action, and to grant leave to answer, upon motion of such defendant, upon the ground that he did not consent to or authorize the judgment, will not he disturbed by the appellate court.</p> <p>Id.—Consent Judgment not Reviewable—Maxim. — A consent to a judgment is a waiver of errors by a party consenting thereto, and on appeal from such a judgment, it must be affirmed.</p>

It is alleged in the complaint that defendant Allen is constable of Napa township; that on February 28, 1885, one T. L. Grigsby was the owner in fee and in the possession of the premises described in the complaint; that on the last-named day T. L. Grigsby transferred the title to said premises to A. F. Grigsby and William A. Trubody, and that such transfer was so made to secure the last-named persons against loss by reason of their executing a note with said T. L. Grigsby to…

<p>Prohibition — Excess of Jurisdiction — Trial of Cause, Prohibited by Statute. — A court that proceeds in the trial of a cause against the express prohibition of a statute is exceeding its jurisdiction, and may be prevented from doing so by prohibition from this court.</p> <p>Id.—Insolvency — Stay of Proceedings.—Under section 45 of the Insolvency Act, all proceedings against the insolvent debtor must be stayed upon his application, pending the examination of the court in insolvency on the question of discharge, except in certain cases enumerated, and if a justice’s court refuses to stay proceedings upon his motion in a case not within the exceptions of the statute, a writ of prohibition will issue to restrain it from further proceedings, notwithstanding an order of the superior court in which the insolvency proceedings are pending, assuming to permit the justice’s court to proceed with the cause.</p>

<p>Water Rates—Power of Supervisors—Constitutional Limits— Jurisdiction of Superior Court. —Under article 14 of the constitution, the use of water for sale is a public use, and the price at which it shall be sold is a matter within the power of the board of supervisors to determine; and if they have fairly investigated and exercised their discretion in fixing the rates, the courts have no right to interfere on the sole ground that, in the judgment of the court, the rates fixed are not reasonable. To justify an interference by the courts, there must be. actual fraud in fixing the rates, or they must be so palpably and grossly unreasonable and.unjust as to amount to the same thing. But the power of regulating rates is not a power of confiscation, or to take the property of the water company without just compensation; and whether the power of the supervisors to fix rates be judicial, legislative, or administrative, it is not above the control of the courts, if it is arbitrarily exercised, without a fair investigation, and the rates are so fixed as to render it impossible to furnish the water without loss, so that their pretended action amounts to a palpable fraud, which must certainly work injustice.</p> <p>Id. .— Construction of Constitution — Reasonable and Just Rates. — When the constitution provides for the fixing of rates, or compensation for the use of water, it means reasonable rates and just compensation; and to fix rates not reasonable, or compensation not just, is a plain violation of the duty of the board of supervisors. They have no right to fix the rates arbitrarily without investigation, or without the exercise of judgment and discretion in determining what is a fair and reasonable compensation.</p> <p>Id.—Setting Aside Void Ordinance — Directing New Ordinance.— The complaint in tills action held sufficient to sustain a judgment of the superior court setting aside and declaring void an ordinance of the board of supervisors of the city and county of San Francisco fixing water rates to be charged for water to be furnished to said city and its inhabitants for the year commencing July 1, 1889, and enjoining its enforcement, and directing the board of supervisors to proceed forthwith to fix said rates and compensation as provided by the constitution. (Thornton, J., dissenting.)</p> <p>Id. — Parties — Mayor. — The mayor need not be joined as a party in an action against the city and county of San Francisco and its board of supervisors to procure a judgment setting aside a void ordinance, and to compel the board to proceed to pass a new ordinance as required by the constitution.</p> <p>Id.—Municipal Corporation—Legislative Power—Injunction—Judicial Control. — The principle that the legislative power of a state is beyond the reach of interference from a court of equity, so that it cannot suppress or control its exercise by injunction, does not apply to a municipal corporation, which, although clothed to some extent with legislative and even political powers, is yet, in the exercise of all its powers, just as subject to the authority and control of courts of justice, to legal process, legal restraint, and legal correction, as any other body or person, natural or artificial.</p> <p>Id. —Notice of Fixing Rates — Procuring of Information. —The supervisors are not bound to give notice to a water company of its intention to fix water rates; but they are nevertheless in duty bound to make a proper effort to procure all necessary information to enable the board to act intelligently and fairly in fixing the rates, and a failure to do so may defeat its action.</p> <p>Id.—Provision for Water-meters—Variation in Rates.—An ordinance fixing water rates which gives every householder the option to require a meter upon his premises to be placed there by the water company, at its expense, and to pay for the water furnished at rates different from the house rate, is not for that reason invalid. It does not leave the rates indefinite or uncertain, and it is not unreasonable to require the water company to pay for the meter. The expense thereof cannot be imposed upon the consumer.</p>

<p>Police Court of Oakland — Constitutional Law — Municipal Corporations — Subjection to General Laws. —■ The police court established by the freeholder’s charter ol Oakland has no legal existence. The police court established, by the act of 1866 was abolished by the general act of March 18, 1885, to provide police courts in cities haying thirty thousand and under one hundred thousand inhabitants, by virtue of section 6 of article 11 of the constitution of 1889, making municipal corporations subject to general laws, and by virtue of the same section of the constitution, the freeholders’ charter since adopted is also subject to the same general act. Fox, J. dissenting.</p>

<p>Vendor and Purchaser ■—Contract of Sale — Insufficient Deed — Recovery Back of Purchase-money — Evidence — Appeal. — In an action to recover back money paid as an installment upon the purchase price of land, sold under a contract for “a good and sufficient deed of bargain and sale to said property, free and clear of all encumbrances, ” on the ground that the defendant did not have title to a large portion of the land, it is inadmissible for defendant to introduce in evidence, to show compliance with such contract, a deed which merely purports to grant to plaintiff all the right, title, and interest of the defendant in and to certain tracts and parcels of land therein described; and if such deed is wrongly admitted in evidence, it is ground for the reversal of a judgment in favor of the defendant, upon the plaintiff’s appeal.</p> <p>Evidence — Admissibility of Deed — Construction — Province of Court. — It is not necessary that a deed should be admitted in evidence in order that the court should construe it. It is the duty of the court to examine it sufficiently to determine upon its admissibility, and if inadmissible, to sustain an objection to its introduction in evidence, whether the action is tried with or without a jury.</p>

<p>Trust — Business Associates — Control of Corporations — Fiduciary Relation.—A business relation between several persons associated together for the purpose of organizing, controlling, and operating railroad and other corporations, and who repose great confidence in each other in respect to the business, if it does not constitute a partnership, is nevertheless a fiduciary relation between the associates, subject to the ordinary rules governing trust relations.</p> <p>Id. — Contract of Trustee with Beneficiary—-Presumption — Burden of Proof — Reliance upon Professional Advice — Rescission — Proof of Fraud. •—■ In all trust relations, confidence is presumed; and if advantage has come to the trustee in dealing with the beneficiary, the burden is on the trustee to show that confidence has not been abused. But this presumption may he overcome by proof that no confidence was placed in the trustee, and that the beneficiary acted exclusively upon the advice of disinterested and competent professional advisers; and in such case, the transaction is not voidable at the election of the beneficiary, but it will devolve upon the latter, if he would set it aside, to show either actual or constructive fraud. Such fraud may be shown in some instances by presumptions.</p> <p>Id. — Set tlement with Representative of Deceased Associate — Waiver of Trust Relation — Compromise—Rescission for Fraud — Concealment and Misrepresentation — Investigation—Means of Knowledge. ■— Conceding, without deciding, that the trust relation between business associates continues after the death of one of them, so as to impose an active obligation upon the survivors as trustees of his estate to disclose fully and correctly the condition of the business, upon a settlement thereof with his personal representative, yet, if it appears that absolutely no confidence was reposed in them by the personal representative, but that the latter acted exclusively upon the advice of several disinterested experts and professional friends specially selected to investigate and advise in the premises, and who had full access to all sources of information, there is a complete waiver of the trust relation, and of the obligation of the trustees, as such, to make an absolutely correct disclosure of all the facts, provided they acted in good faith, without intentional fraud. If it further appears that the trustees in good faith disclosed to the representative of their deceased associate every fact within their knowledge, a compromise effected by mutual concession of claims betweeif the parties will not be rescinded upon the ground that the trustees did not disclose all facts of which they might have acquired knowledge by a more diligent and skillful search; nor upon the ground of inaccuracies and misrepresentations in the accounts rendered by them, if the existence of inaccuracies in their statement was known to plaintiff before the compromise, and the representations were discarded as unworthy of belief, and an independent investigation made into the som’ces of information, which were fully open, and it appears that every fact which has since been discovered could have been discovered before the execution of the agreement.</p> <p>Id. — Presumption from Independent Investigation. — The presumption follows from an independent investigation by the professional advisers of the beneficiary into the sources of information, that everything material was discovered, and this presumption is fortified by proof of memoranda kept by such advisers, showing unmistakable care, and a painstaking and minute consideration of the subject.</p> <p>Contract — Effect of Misrepresentation — Independent Action of Opposite Party. — As a general rule, a party to a contract who makes a false representation without belief or without information is chargeable with a knowledge of its falsity, and is held as responsible as if he had such knowledge, where the other party has acted upon the representation, relying ujion it as correct; but this rule is not applicable if the representation is not acted upon as correct, but the plaintiff has discarded it as unworthy of belief, and made an independent investigation with the aid of professional advisers.</p> <p>Id. —Rescission of Contract'—Mistaken Representation not Determining Consent — Code Rule — Finding. — There is a conflict of decisions upon the question as to whether a contract can be rescinded for an unintentionally false representation by a party to the contract which was the result of an innocent mistake, and made without due circumspection, if it appears that it was not the sole or controlling inducement to the contract, but was one of the inducements only, and a motive of action. But the rule in this state is settled by sections 1566, 1567, 1568, and 1689 of the Civil Code, the effect of which is to limit the remedy of rescission to cases where the consent would not have been given had the alleged cause of rescission not existed. A misrepresentation, in order to avoid a contract, though it need not be the sole cause of the contract, must be of such nature, weight, and force that the court can say, “Without it the contract would not have been made”; and if the court properly finds it as a fact, from the evidence, that the contract would have been executed by the plaintiff had the truth been known, and the defendant, upon being made aware of the facts, had still insisted upon'the same contract, there is no basis for a rescission.</p> <p>Id.—■ Unimportant Misrepresentation -—Effect of Expenditures Enhancing Value.— A mistaken representation of the defendant, not going to the main inducement to plaintiff in entering into the - contract, but relating to a matter of comparatively small importance, will not justify a rescission of the contract by the plaintiff after large expenditures have been made by the defendant, on the faith of the agreement, which have materially enhanced the value of the property in litigation.</p> <p>Id. — Compromise Agreement — Representation as to Value—Rating of Railroad Bonds — Equitable Estoppel.—When a compromise agreement is effected between plaintiff and defendants, in which railroad bonds involved in the compromise are represented to plaintiff to be worth only sixty cents on the dollar, and are so rated in the settlement, the fact that a few days after the compromise they are used by defendants to pay the indebtedness of one railroad corporation to another at ninety cents on the dollar does not constitute a fraud upon the plaintiff, or an equitable estoppel, so as to prevent the defendants from proving the truth of their representation, it appearing that the defendants practically dealt with themselves in the subsequent transaction, and rated the bonds at what they supposed they would become worth in the future, the transaction being merely a temporary mode of settling up a corporate-obligation, and the plaintiff not being in any way bound by the transaction. Equitable estoppels must be mutual.</p> <p>Id. — Uncon-sionable Advantage — Consideration of Circumstances.— In determining whether unconscionable advantage of plaintiff has been taken by the defendants in the negotiation of a compromise between them, the question must be determined, not in the light of subsequent events, but upon the circumstances existing at the time of the negotiation and execution of the contract; ■ and if it appears in view of those circumstances that no advantage was taken, and that the contract was fair, just, and equal, it will not be set aside. ’</p> <p>Id. —Delay in Seeking'Resoission — Change in Value. —When a settlement and compromise of business relations has been effected between plaintiff and defendants under adverse circumstances, in view of which it was the desire of defendants that plaintiff should continue to prosecute the business at their mutual risk, which plaintiff was unwilling to do, the failure of plaintiff to seek a rescission of the compromise for two years,-or to seek to become informed as to the facts upon which rescission is sought until the property involved in the business had under ■fortuitous "circumstances greatly enhanced in value,, is an important circumstance to be considered by the court.</p>

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

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

<p>Appeal from a judgment and order of the Superior Court of Fresno County dismissing a writ of certiorari.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Marriage — Evidence — Cohabitation and Repute — Presumption — Matrimonial Consent. — If a man and woman cohabit together as husband and wife, and are held and reputed by their neighbors and friends as married persons, they are presumed to have entered into marriage. Cohabitation and repute do not make marriage, but are merely items of evidence from which it may be inferred that a marriage has been entered into. The facts in evidence must be such as to justify the inference that matrimonial consent had been interchanged between the parties.</p> <p>Id. — Consent to Marriage Prior to Code — Maxim-—Contract per Verba de Futuro. — Prior to the adoption of the Civil Code in this state, consent alone constituted marriage, and the law was correctly expressed in the maxim, Concensus, non concubitus, facit nuptias. The contract, per verba de futuro cum subsequento copula, is only evidence of marriage, as proving the requisite matrimonial consent.</p> <p>Id. — Character of Cohabitation — Illicit Intercourse — Presumptions. •— The cohabitation of a man and woman not shown to have been in its origin illicit is presumed lawful; but the law will presume intercourse from cohabitation, and if the intercourse was illicit from the beginning, in the absence of evidence from which a change to the matrimonial relation may be inferred, the illicit relation is presumed to continue, until the contrary appears. This presumption is rebuttable, whether it be regarded as a presumption of law or of fact.</p> <p>Id. — Change from Illicit to Matrimonial Relations—Habit and Repute — Visible Acts — Introduction of Wife. — A change from illicit to licit or matrimonial relations may occur, and be satisfactorily established, although the precise time or occasion cannot be clearly ascertained; provided there is no impediment to marriage, and the subsequent conduct of the parties shows a general, undivided, and uniform habit and repute, from which it may be inferred that they had interchanged the requisite matrimonial consent. The repute which, with cohabitation, will be proof of marriage, must be uniform and gen- . eral, and not divided and singular, and cannot be established, except by the open, undisguised, and undoubted acts of the parties, which are visible to outsiders. But the law does not require a formal introduction by the husband of the woman as his wife to each member of the social circle into which they go. It is sufficient if his conduct is such as to justify her reception in such circle as his wife.</p> <p>Divorce — Adultery — Public Offense — Conflict of Presumptions — Evidence of Cohabitation and Repute. — It is only in cases where the question of a public offense is involved that consent to marriage cannot be proved by evidence of cohabitation and repute of marriage; and the exception proceeds upon the ground that the presumption of marriage, without proof of actual marriage, cannot overcome the stronger presumption of innocence. Such evidence is admissible to show marriage, in an action for divorce upon the ground of mere adultery, which does not constitute a public offense.</p> <p>Evidence — Cross-examination — Discretion or Court — Impeachment ■—Deposition or Party. •—When a party whose deposition was taken before the trial becomes a witness at the trial, it is an objectionable mode of cross-examination to read to the witness several questions and answers from the deposition, and ask if each of such answers was correct or true, or what was said when the deposition was taken. The court has the power to stop the continuance of such examination as a useless consumption of time. The opposite party may show any contradictory statements for the purpose of impeachment, by offering in evidence the deposition, or any part thereof, as an admission of the party, without first calling the attention of the witness to inconsistent statements; and if the deposition is afterward placed in evidence, any error of the court in stopping the cross-examination would be rendered harmless.</p> <p>Id. — Leading Questions — Discretion. — It is in the discretion of the trial court to allow leading questions, and, unless there is a manifest abuse of this discretion, there will be no reversal for such allowance.</p> <p>Id. — Admission or Irrelevant Evidence — Trial by Court — Harmless Error. •— The admission of irrelevant evidence, when a case is tried by the court, is not ground of reversal, unless it appears that the court, in making its decision, relied on the irrelevant evidence; nor will the appellate court reverse for the admission of evidence, where it appears that the evidence is of so trifling a character that it could not have prejudiced the appellant.</p> <p>Divorce — Adultery — Recrimination — Extreme Cruelty — Finding. — When a divorce is granted to the plaintiff upon the ground of adultery, the want of a finding on the issue of extreme cruelty set up by the answer will not cause a reversal of the judgment, when the evidence upon that issue is insufficient to sustain a finding in favor of defendant.</p>

<p>Habeas Corpus — Conviction for Misdemeanor — Denial of Jury Trial —Waiver—Review of Errors. — A prisoner will not "be discharged upon habeas corpus because a jury trial was denied in the justice’s court in which he was convicted of a misdemeanor. When the offense charged is not a felony, a jury may be waived, and even if erroneously denied, the error cannot be reached by habeas corpus, there being a valid commitment by a court having jurisdiction of the subject-matter, and of the party.</p> <p>Id. — Imprisonment for Pine — Violation of County Ordinance not Providing Imprisonment. — A prisoner will not be discharged on habeas corpus because held under a judgment of conviction providing the alternative of imprisonment for non-payment of a fine for misdemeanor in violating a county ordinance, which did not provide for such imprisonment. The code provides for such imprisonment as a means of enforcing a fine for misdemeanor.</p>

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

<p>Jury Trial — Waiver—Recital in Findings—Bill of Exceptions. — The recital of the waiver of a jury trial in the findings cannot prevail against a showing in the bill of exceptions that a jury trial was demanded and denied.</p> <p>Id.— Trial of Legal Issues in Equitable Action—Foreclosure of Mortgage. —In an action for the foreclosure of a mortgage, issues raised as to the execution of the note and mortgage, and as to a homestead in the property, though not equitable issues, are not separately triable by jury. The action, being equitable, is triable by the court, which may pass upon all legal issues incidental to the equitable relief sought.</p> <p>Record of Mortgage. —The recording of a mortgage is not necessary as between the parties to it; and is only necessary to give notice to third parties. The execution of the mortgage creates the lien, without reference to the recording.</p> <p>Certificate of Acknowledgment by Married Woman — Finding — Sufficiency of Evidence.—The certificate of the officer taking an acknowledgment of a married woman, showing that the acknowledgment was in due form, is prima facie evidence of proper acknowledgment sufficient to support a finding that the instrument was acknowledged as required by law, whether corroborated by parol testimony or not.</p> <p>Consideration of Note and Mortgage — Evidence.—No proof is required, in an action to foreclose a mortgage, of any consideration moving to the mortgagor. The note imports a consideration.</p>

Upon the trial of the case, the counsel for defendant Romer objected to the examination of the witness Gottschalk, who had testified that he was attorney for Romer in another matter, and had acted as his friend in respect to the transfer of property in question, without a retainer.

Application to the Supreme Court to settle a bill of exceptions refused by the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Appeal — Review of New Trial Order.—When the statement on motion for new trial contains no sufficient specification of insufficiency of the evidence to justify any of the findings of fact, and the specified errors of law therein seem to he groundless, and are not urged by counsel for appellants, the order denying a new trial should he affirmed.</p> <p>School Law— Construction of Code — Power of City Board of Education— Removal of Teacher Elected without Limitation as to Time — Transfer to Lower Grade.—Construing section 1793 of the Political Code with section 1617 of the same code (which should be done since they form part of the same statute upon the same subject), a teacher elected by a city board of education, without limitation as to time, is entitled to hold the position while competent and faithful, and can only he dismissed for violation of the rules of the hoard of education, or for iucompetency, or for unprofessional or immoral conduct; nor can such teacher be transferred against his will to a school of lower grade, without contravention of the law. Fox, J., and McFarland, J., dissenting.</p> <p>Id.—Amendment of Code — Retrospective Operation — Election of Teacher, before Amendment. — The clause of section 1793 of the Political Code, forbidding the removal of teachers except for cause, which was added by amendment iu the year 1881, applies to all teachers elected by hoards of education, and protects them iu the right to continue in their positions, whether they were elected before or after its enactment.</p> <p>Id, — Transfer of Teacher—Removal from Grade.—The statute does not forbid the transfer of a teacher by the board of education from one school to another of the same grade, but merely guarantees the right of the teacher to continue in the grade to which he was elected under his city certificate. Removal from the grade in which the certificate and the statute confer the right to teach is as much a violation of the statute as if the teacher were dismissed without cause, and not given another position.</p> <p>Id. — School Law of San Francisco — Consolidation Act — Subjection of City Charter to General Laws. — The general provision of the Political Code as to the control of city schools by the board of education are applicable to the city and county of San Francisco; and it is not governed by the consolidation act alone. The general statute which applies to all cities must control special statutes made applicable to particular cities.</p> <p>Id. — Rules of Board of Education. — The rules adopted by the board of education cannot control the provisions of the statute, and are immaterial in determining the statutory rights of a teacher.</p> <p>Id.—Restoration of Position Filled by Another Teacher.— The fact that another teacher has been placed in .the position from which the teacher originally entitled thereto has been unlawfully removed cannot affect the right of the removed teacher to a mandamus to regain the position. The position is not in the nature of an office, within the rule that mandamus cannot be used to regain an office claimed by or in possession of another. Fox, J., and McFarland, J., dissenting.</p> <p>Id.—Mandamus — Restoration of Teacher. — Mandamus is the proper remedy to restore a teacher in the public schools to a right given by express law, from which he is unlawfully precluded.</p>

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

<p>Pleading—General Demurrer — Defects of Form.—Defects of form of averment or uncertainty cannot be urged upon general demurrer.</p> <p>Id. — Complaint on Promissory Note — Averments of Legal Effect. — A complaint on a promissory note which states the material substance and legal effect of the note, showing its date, consideration, parties, principal sum, and rate of interest, and the amount due and unpaid, and avers that defendant refuses to pay the same or any part thereof, and that plaintiff is still the owner and holder of the note, is not subject to a general demurrer on the ground that a copy of the note is not embodied in the complaint.</p> <p>Id.—Exhibit of Note Annexed to Complaint —Admission of Execution. — A copy of a note annexed to the complaint, and referred to in the body of the complaint as an exhibit, forms a part of the complaint, and may properly he referred to by the court for the pulpóse of ascertaining the form and contents of the note. Unless denied by a verified answer, the genuineness and due execution of the note in the form exhibited are admitted for all purposes of the trial, if the complaint directly alleges that the defendant executed and delivered to plaintiff the note, a copy of which is referred to as an exhibit.</p> <p>Stipulation Admitting Pacts — Power of Court to Set Aside for Mistake.— Under section 473 of the Code of Civil Procedure, the court may, upon such terms as may be just, set aside a stipulation entered into between the attorneys in a pending case, admitting the truth of certain facts alleged in the answer, and dispensing with proof thereof, where it is shown that the stipulation was made without plaintiff’s knowledge, and under a mistake of plaintiff’s attorney as to its legal effect, and that the stipulation admitted material averments which were not true, and that its effect would prevent a trial of the case upon its real merits. Such stipulation performs the function of an express replication to the answer, and is subject to be amended or set aside by the court to the same extent and under like circumstances as would he a pleading having like effect.</p> <p>Amendment of Pleadings and Proceedings — Relief against Mistake of Law. — The discretionary power of the court conferred by section 473, Code of Civil Procedure, extends to relief against a mistake in any respect, and enables it to mold and direct its proceedings so as to dispose of cases upon their substantial merits, whether the obstruction to such a disposition of cases be a mistake of fact or a mistake as to the law; although it may be that the court should require a stronger showing to justify relief from the effect of a mistake in law than in case of a mistake as to matter of fact.</p> <p>Non-payment of Note —Findings — Conclusion of Law—Computation of Amount Unpaid.—A finding that a certain balance is due and owing from defendant to plaintiff upon the note in suit states merely a conclusion of law, and is not a finding of fact covering the issue of nonpayment. But that is certain which can be made certain, and it is sufficient if the findings show that no part of the note has been paid excepting the principal and interest of a certain collateral note, which .gives the , balance found due to plaintiff by computation, after deducting from the amount of the note in suit the whole amount of the collateral note.</p>

<p>Criminal Law ■—Sentence for Felony — Imprisonment for Non-payment of Fine — Jurisdiction — Habeas Corpus.—If a fine be imposed for a felony in addition to a sentence for imprisonment, it is beyond the jurisdiction of the court to adjudge that the fine be enforced by further imprisonment in the state prison; and if the term for which the prisoner was sentenced has expired, allowing him the credits provided by law, he will be discharged on habeas corpus. McFarland, J., and Paterson, J., concurring, hold that the same rule of jurisdiction should apply to imprisonment for a misdemeanor in the county jail, where a fine is imposed in addition to the sentence of imprisonment.</p> <p>Id. — Statutory Allowance of Credits — Action of Governor — Constitutional Law —Pardoning Power. —The statute allowing certain credits or deductions from the term of imprisonment in the state prison for good conduct does not require any action on the part of the governor, but its provisions enter into and form part of the sentence to imprisonment; and the statute is not unconstitutional as an infringement of the pardoning power of the executive.</p> <p>Id. — Duty of Warden to Discharge Prisoner — Power of Board of Prison Directors — Forfeiture of Credits.—If the term for which a prisoner in the state prison was sentenced has expired, allowing him the credits provided for by statute, he is entitled to be discharged by the warden, as in any other case where the term of imprisonment has expired, without an order from any other officer, subject, however, to the right of the board of prison directors to determine, before the expiration of his term, that he has, by subsequent misconduct, forfeited his right to such deductions.</p>

The third count of the complaint alleged “that on the twenty-fourth day of December, 1887, at the city and county of Fresno, in a certain other discourse which the defendant then had in the presence of divers good and worthy persons, 'he defendant falsely and maliciously spoke of and concerning this plaintiff the false and malicious words following: ‘Bob [meaning R. E. Scronce] was using Ida [meaning this plaintiff] as a mistress.' ” Further facts are stated in the opinion…

<p>Appeal — Review op Conflicting Evidence.—When the record upon appeal discloses a substantial conflict of evidence, and does not show that any of the facts found are contrary to the evidence, the findings of the court below will not be disturbed.</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>Estates of Decedents — Probate Sale— Petition — Statement of Value — Collateral Attack — Substantial Compliance with Law.—A substantial compliance with the law in regard to probate sales is snffi- <■ lent as against a collateral attack. Such a sale cannot he objected to as roid for want of jurisdiction in ejectment by an heir of the decedent against the purchaser, upon the ground that the petition for the sale failed to state the value of the property sought to be sold, if it stated that a full description of all the real estate of which the said decedent died seised, etc., and the condition and value of the said real estate, are set forth in a certain schedule annexed to the petition, which gave a full description of the property in contest, and showed its condition and appraised value. In the absence of a special demurrer for uncertainty, the averment in the body of the petition may be taken as an averment that the amount named in the schedule was the present value of the property at the time of the petition.</p>

<p>Sacramento Bonds — Interest on Overdue Coupons — Mandamus.— The treasurer of the city of Sacramento cannot be compelled by mandamus to pay interest on overdue coupons of the bonds of that city issued under the act of 1858. (Davis v. Porter, 66 Cal. 658, affirmed.)</p> <p>Id.—Interest on Interest — Special Statute Entering into Contract — Surrender op Coupons. •— The general statute providing for interest after maturity on all contracts does not apply to interest on the coupons of bonds issued under a special statute, which provided a specific fund out of which the bonds should he paid, and for the payment of the principal and annual interest, and nothing more. Such special statute enters into and forms part of the contract for the payment of the bonds, and no interest on interest is recoverable thereon. The treasurer paying overdue coupons of such bonds may require them to be surrendered as fully paid and satisfied, as a condition of payment of the amount called for by the coupons. Thornton, J., dissenting.</p>

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

<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>Water Rights — Prior Appropriation — Failure to Post and Record Notice — Riparian Rights of Subsequent Patentee.—The failure to post and record a notice of appropriation will not vitiate a prior actual appropriation of waters flowing upon the public domain, as against a riparian proprietor who subsequently settles upon and obtains a patent to land below the point of diversion.</p>

<p>State School Lands —Contest—Survey and Listing — Pleading—Evidence— Recital in Order of Reference.— An application to purchase school lands from the state cannot be made until after the township in which the same may be situated has been surveyed by the United States, and it is necessary for each contestant to allege and prove that the land applied for was surveyed by the United States at the time they severally sought to purchase it. But if the pleadings on both sides allege the fact of such survey, a recital in a certified copy of the order of reference by the state surveyor-general, introduced in evidence without objection, setting forth that the register of the United States land-office had certified to the state that there was no valid claim to the land adverse to that of the state, sufficiently tends to prove the filing of an approved survey by the United States surveyor-general in the United States land-office, and a listing of the land to the state by the register of the United States land-office, to sustain findings of such facts.</p> <p>Id.—Evidence Received without Objection.-—Inadmissible evidence, if admitted without objection, is sufficient proof of the fact to which it relates.</p> <p>Id. — Admissions oe Pleadings in Contest fob. State Lands.—The rule that each party to a contest of the right to purchase state lands is an actor, and must set forth in his pleadings and show by his proofs that he has strictly complied with the law, does not change the rule of the Code of Civil Procedure that material allegations which are not denied must be taken as true.</p> <p>Id. — Evidence — Naturalization — Citizenship.— In a contest of the right to purchase state land, the naturalization of an applicant cannot be proved by the great register of the county, nor by his personal testimony that he had been naturalized and had lost his naturalization papers. It can only be proved by production of the judicial record of naturalization, or a properly exemplified copy thereof, or by proof of the loss or destruction of the record. Parol evidence may be received to prove the minority and residence of the children of naturalized parents, to show their citizenship, after proper proof of the naturalization of the parents; and proof of naturalization may be made by affidavit of the party naturalized, in proceedings concerning mining claims, by virtue of section 2321 of the Revised Statutes of the United States; but parol evidence of naturalization is not admissible in cases not coming within those limitations.</p>

<p>Appeal from Judgment—Review of Evidence. — The evidence will not be reviewed upon an appeal from the judgment, if there is no bill of exceptions or settled statement in the transcript, nor if the appeal was not taken within sixty days after the rendition of the judgment.</p>

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

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

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

” The complaint was demurred to for want of facts' sufficient to constitute a cause of action. Further facts are stated in the opinion.

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

<p>Official Bond of Constable — Liability for Negligence—Injury to Goods Attached. — A constable and the sureties on his official bond are responsible for the non-performance of his official duty in so carelessly or negligently using goods attached by him that they are damaged through such negligence while in his custody, though they were seized under a proper writ.</p> <p>Order Refusing Nonsuit — Failure to Except — Review on Appeal__ An order refusing a nonsuit, not being appealable, is not deemed excepted to, and when not actually excepted to cannot be reviewed on appeal.</p> <p>Pleading — Amendment — Supplemental Cause of Action—Waiver.— The answering of an amended complaint is a waiver of objection that it alleges a new cause of action which arose after the institution of the suit.</p>

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

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

<p>Prohibition — Justice’s Court — Denial or Jury Trial eo6 Misdemeanor — Criminal Law—Vagrancy — Jurisdiction — Appeal. — A writ of prohibition is not allowable to prevent a justice’s court from trying a charge of vagrancy, under section 647 of the Penal Code, without a jury. The justice’s court has jurisdiction of the subject-matter, and any error as to its mode of procedure cannot he arrested or corrected by the writ of prohibition, the defendant having a plain, speedy, and adequate remedy by appeal to the superior court.</p> <p>Id. — Office of Writ of Prohibition—Questions Review able — Stipulation as to Question of Error—-Appellate Jurisdiction. — Upon an application for a writ of prohibition from a superior court to a justice’s court, the only questions which can properly be considered are as to whether the act sought to be prohibited is in excess of the jurisdiction of the justice’s court, and whether there is a remedy by appeal. A stipulation upon appeal to the supreme court submitting the question as to whether the justice’s court erred in its action, and agreeing that the judgment of the superior court as to the writ of prohibition may be reversed or affirmed according to the decision of that question, must be disregarded. The writ of prohibition cannot be made by stipulation to serve the purpose of an appeal; nor can the supreme court exercise appellate jurisdiction by means of a writ of prohibition, without any appeal, and in a case to which its appellate jurisdiction does not extend.</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.</p>

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

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

<p>Change of Place of Trial—Joinder of Unnecessary Defendant. —The right of a defendant to have the place of trial changed to the county of his residence is not affected by the joinder of another defendant who is not a necessary party, and against whom no cause of action is stated.</p> <p>Id. — Specific Performance of Agreement for Sale of Corporate Stock — Corporation not Necessary Party. —In an action to compel an individual to perform an. agreement made by him for the transfer of shares of stock in a corporation, and to account for dividends received thereon, and to restrain the negotiation of the stock, the corporation is not a necessary party defendant, and its joinder will not prevent a change of the place of trial to the residence of the individual defendant.</p>

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

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

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

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

<p>Ejectment—Vendee in Possession under Contract of Purchase — Failure to Perform Contract — Equitable Defense. — A vendee in possession under a contract of purchase who has not performed his contract, but is in default with his payments, without excuse, cannot maintain an equitable defense to an action of ejectment by the vendor or his grantee.</p> <p>Id. •—Demand — When not Necessary. —Where such vendee has been out of possession for five or six years after default in his payments, and then re-enters, no demand is necessary to make his possession tortious.</p>

<p>Estoppel by Judgment — Subsequent Installments Due under Bylaw of Mutual Benefit Society. ■— Where, in an action against a mutual benefit society to recover an installment of sick-benefits, the defense was that the by-law under which plaintiff claimed was altered by a subsequent by-law, and the question litigated was whether the defendant had power to make the alteration, a judgment in favor of the plaintiff is conclusive of the want of power, and estops the defendant from maintaining the same defense in an action for installments subsequently due.</p> <p>Id.—Justice’s Court — Superior Court.—Above rule applied to the judgment of a superior court rendered on appeal from a justice's court.</p>

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

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