Volume 84 — California Reports

<p>Injunction — Prescriptive Title ■—Unlawful Opening of Road—Parties— Joinder of Road Overseer and Supervisors— Joint Tres'pass. — A complaint showing a prescriptive title in the plaintiff to a tract of land hy adverse possession under a judgment of partition, and alleging that there has never been any road or highway over or across the premises, and that one of the defendants, who is the road overseer of the district, and who is insolvent, instigated and abetted by the other defendants, who are the supervisors of the county, had trespassed upon the premises hy tearing down the inclosure of plaintiff, digging up the soil, etc., for the purpose of constructing a road across the land, and would continue such acts to the irreparable injury of plaintiff, unless restrained by the court, states a cause of action for an injunction against the defendants, and is not liable to a demurrer for misjoinder of parties. The supervisors, appearing, under the averments of the complaint, to he joint trespassers with the road overseer, were properly joined with him as defendants.</p> <p>Id. —Judgment of Partition — Establishment of Public Road — Jurisdiction of Superior Court — Cessation of Highway by Non-user. — A judgment of partition rendered in 1873, purporting to establish a public road or highway across the partitioned premises, cannot justify the supervisors and road overseer in proceeding in their official capacity to open and construct the road fourteen years afterward, if it has never been before opened, and the plaintiff has all the time since the partition judgment occupied and held the premises adversely under inclosure and paid the taxes thereon; and it is immaterial whether the right of plaintiff rests upon the want of jurisdiction in the superior court to establish a</p> <p>road prior to the amendment of 1874 to section 764 of the Code of Civil Procedure, or upon the provisions of section 2620 of .the Political Code as that section stood when the judgment was entered in 1873, and continuously thereafter until 1883, providing that “ a road not worked or used for the period of five years ceases to he a highway for any purpose whatever. ”</p>

, Application to the Supreme Court for a writ of prohibition to the Superior Court of Sacramento County, and Hon. John W. Armstrong, judge thereof. 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, 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 the city and county of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Foreclosure of Street Assessment — Summons — Misdescription of Administrator as Executor—Default of Administrator — Judsment against Property of Decedent. — It seems, though not authoritatively decided, that a misdescription of an administrator as “executor” in the summons and entry of default, in an action to enforce a street assessment against the property of a decedent, will not render void a judgment enforcing the assessment upon such property, as against the administrator of the estate, if the complaint charges him as administrator, and the affidavit of service of summons shows that he was served as administrator. It seems that the estate is thus substantially and fairly brought into court through its legal representative.</p> <p>Id. — Appearance by Attorney — Recital in Judgment — Appeal —■ Judgment Roll. —If the judgment in such action recites that the defendants appeared by attorney, who was present upon the trial thereof, such recital must be taken as prima fade true, upon an appeal from the judgment, if there is nothing in the record to show the contrary; and such appearance on behalf of the administrator of the estate is equivalent to personal service of summons and complaint upon him. Such recital is not inconsistent with or overcome by the failure of the judgment roll to show such appearance. The code does not require the appearance of an attorney, to be made part of the judgment roll, and it is no proper part of the record upon appeal therefrom.</p> <p>Id. — Amendment of Complaint — Appeal — Parenthetical Statement • in Transcript — Judgment Roll. — The fact that the printed record upon appeal from the judgment in such action contains a parenthetical statement that the complaint was amended by changing “ executor ” to “ administrator ” cannot be considered, if such statement is no part of the judgment roll or of the record in the case; nor would such fact, if properly authenticated, make any difference if the administrator appeared by attorney after the amendment, whether served with the amended complaint or not.</p> <p>Judgments — Recitals — Collateral and Direct Attack — Appeal — Presumptions. — The main difference between collateral and direct attacks upon a judgment, in respect of the judgment and its recitals, is, that upon collateral attack the record alone can be inspected, and it is conclusively presumed to be correct, while on direct attack the true facts may be shown in contradiction of the record, and thus the judgment itself on appeal may be reversed or modified. But the judgment and its recitals will be presumed to be correct upon appeal, unless the contrary is made to appear. All presumptions not contradicted by or inconsistent with the record upon an appeal from a judgment are in favor of its correctness.'</p>

The following is the last assignment of error referred to in the opinion:— “The court erred in giving the following instruction: Formerly, a man interested in a case, civil or criminal, was not allowed to testify at all.

<p>Criminal Law—Obtaining Property under False Pretenses—Pretense not Relied upon —Sale upon Credit. —When a defendant is charged with the crime of obtaining horses under false and fraudulent pretenses, the offense is not matte out if it appears that the horses were sold to the defendant on credit, and that the vendor took a note from defendant for the price, and relied on the sale of the horses by the defendant for his pay, although defendant may have falsely represented that he had money in bank equal to the price of the horses.</p> <p>Id.—Improper Instruction — Promissory Note—Pro^f of Contents—■ Secondary Evidence. — When the giving of a note and its contents are proved by witnesses without objection, the note is as much in evidence as if it had been proved by the production of the written instrument itself; and it is prejudicial error in such case to instruct the jury that the note is not in evidence before them.</p>

<p>Insolvency — Definition — Ability of Merchant to Pay Debts — Preference of Creditor — Action by Assignee. —A debtor is not insolvent, within the meaning of the insolvent law of this state, if he has sufficient means or resources of any kind to enable him to pay all of his debts as they become due in the ordinary course of business, though he may not have sufficient money in hand or in hank to meet them, or to pay a particular debt in money when due; and a finding, in an action by the assignee of an insolvent merchant against a preferred creditor to recover property transferred in payment of the debt to such creditor, that, at the time of the conveyance and transfer to the creditor of such property, the debtor was not insolvent or unable to pay his just debts, will be sustained, if the evidence shows that the merchant then had property enough to enable him to pay all of his debts, and that he intended to pay them all, and did not contemplate insolvency, though he was then under attachment for a small amount, and had not money on hand sufficient to pay all of his creditors whose claims were due at that time. (Beatty, C. J., and Thornton, J., dissenting.)</p>

<p>Contempt—Judgment of Conviction —Habeas Corpus—Conclusiveness of Facts — Review of Evidence. —The facts stated in a judgment of conviction for contempt of court are conclusive, and the sufficiency of the evidence to support them cannot be reviewed on habeas corpus.</p> <p>Id.—Affidavits upon Information and-Belief. — After a full and fair hearing, in which the prisoner has been given full opportunity for defense, a judgment of conviction, for contempt cannot be held to be void because some of the charges in the affidavits are made upon information and belief, and the prisoner will not be- released upon habeas corpus on that ground.</p> <p>Id. ■— Abuse of Process or Proceedings of Court ■— Fraud —■ Preventing Return of Property Replevied —Dismissal. —When the facts stated in a judgment of conviction for contempt show that an action of replevin was commenced in bad faith by the plaintiff for the purpose of using the process of the court to obtain the possession of property from the defendant in an improper manner, without a trial of the right of property, and that after the same had been replevied, its removal from the defendant’s premises, where it was seized and kept, was wrongfully procured from the keeper without the sheriff’s consent, for the purpose of preventing its return under an undertaking tendered therefor, and that the action was thereupon dismissed, and the property delivered by the sheriff to the plaintiff, under the false representation of plaintiff that the action had been compromised, such facts must be accepted as true upon habeas corpus, and the acts so stated are punishable contempts, within the meaning of section 1209 of the Code of Civil Procedure, making deceits or abuse of the process or proceedings of the court by the parties to an action or-special proceeding, or rescuing any property in the custody of an officer by virtue of an order or process of court, contempts of the authority of the court; and the plaintiff could not shield himself from the legpl consequences of his acts by a dismissal of the action.</p> <p>Id. — Liability to Civil on Criminal Action. — The fact that the party-accused of contempt may be prosecuted in a civil or criminal action for the act complained of does not prevent a prosecution for contempt.</p>

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

<p>Corporations — Benevolent Association—Division of Corporate Funds — Departure from Charter — Action by Member. — A benevolent association, incorporated to promote the cause of temperance, and not for pecuniary profit, cannot divide any part of the corporate property or funds among its members; and any member of such association may maintain an action to prevent or set aside such a plain misappropriation of the corporate funds. Every stockholder or member of a corporation has the right to sue in equity to prevent any departure from the chartered purposes of a corporation by the action of the majority.</p> <p>Id.—Demand upon Trustees — Useless Act.—While it is the general rule that a member or stockholder of a corporation cannot have redress for any wrong or injury to the corporation until he has made an earnest effort to secure proper action by the managing body of the corporation, yet where it appears that it would be futile and useless to make a demand upon the corporation, or upon its trustees or officers, to commence a suit to obtain relief, or that the trustees are parties to the transaction complained of, and claim the right to do what they did," no such demand need be made.</p>

<p>County Ordinance — Conflict with General Law. — A county ordinance in conflict with a valid general law is void; but the ordinance must prevail, notwithstanding conflict with a general statute, if such statute is unconstitutional, and the ordinance harmonizes with the constitution and with other general laws.</p> <p>Id. — Constitutional Law — County License Tax—Payment into City Treasury —Special and Local Legislation — County Government Act. — Subdivision 15 of the county government act as amended in 1889, which provides that money collected by the county license-tax collector in counties of the twenty-seventh class, for licenses within the limits of any incorporated city or town, shall be paid into its treasury for street improvements, is void, as being special and local legislation, not germane to the section of the general law to which it is attached, and in conflict with the general laws upon that subject, and in conflict with sections 4, 5, and 16 of article 11, section 11, of article I, and sections 25 (subdivision 9) and 33 of article 4, of the constitution. License taxes collected under the provisions of the code, or of an ordinance of a board of supervisors, are collected for the use of the county, and it is the duty of the collector to deposit them in the county treasury. It is only municipal license taxes imposed and collected for municipal purposes which can be paid into the city treasury.</p>

.Proceeding in the Supreme Court for the disbarment of C. C. Stephens as an attorney at law. The facts are stated in the opinion of the court.

<p>Motion for a stay of proceedings upon 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.</p> <p>The facts are stated in. the opinion.</p>

<p>Insolvency — Opposition to Discharge — Deed of Insolvent — Suit by Assignee — Former Adjudication. — When the creditors oppose the discharge of an insolvent on the ground that he executed a conveyance of a tract of land a few days before his petition was filed, a former adjudication, in an action by the assignee of the insolvent to set aside the deed, that such deed was valid, and not fraudulent, constitutes a defense to the opposition of the creditors upon that ground, and is admissible in evidence against them.</p> <p>Id.—Insufficiency oe Evidence. — When the evidence is insufficient to sustain any of the alleged grounds of opposition to the discharge of an insolvent, a judgment sustaining the opposition must be reversed.</p> <p>Plea of Former Adjudication. — A plea of former adjudication need not state that the former judgment had not been appealed from, nor that it had become final.</p>

The fraud set out in the complaint,, which is referred to in the opinion of the court, related to the securing by defendants of a composition with their creditors, which plaintiffs alleged they were induced to- sign under false representations. Further facts are stated in the- opinion of the court.

<p>Equity — Jurisdiction or the Person — Conveyance or Property Outside or the State. — Where a court o£ equity has jurisdiction over the person of the defendant, it has power to- decree a conveyance by him of property outside of the state.</p>

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

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

<p>Appeal from an order of the Superior Court of San Joaquin County denying a petition to revoke and set aside an order granting letters of administration.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations — Forfeiture of Franchise — Quo Warranto. — Corporations are creatures of the law, and when they fail to perform duties which they were incorporated to perform, and in which the public have an interest, or do acts which are not authorized or are forbidden them to do, the state may forfeit their franchises, and dissolve them by an information in the nature of a quo warranto.</p> <p>Id.—Willful Acts and Neglects of Officers — Approval of Corporation. — Upon a public inquiry into the acts or neglects of a corporation, with a view to the forfeiture of its charter, the willful acts and neglects of its officers are regarded as the acts and neglects of the corporation, and will render the corporation liable to a judgment or decree of dissolution, unless it is made to appear that the agent has departed from his duties as prescribed by the corporation, or violated his instructions in the performance of the acts complained of and relied upon as a basis of forfeiture.</p> <p>Id.—Grant of Franchises — Implied Condition — Principle of Forfeiture—Perversion — Usurpation — Public Interest'. — The grant of corporate franchises is always subject to the implied condition that they will not be abused. The principle of forfeiture is, that the franchise is a trust, and the terms of the charter are the conditions of the trust, and if any one of the conditions be violated, it will work a forfeiture of the charter. But to work a forfeiture, the case must either he one of perversion by an act inconsistent with the nature of the grant and destructive of its ends, and which amounts to an injury to the public, who are interested in the 'franchise, or it must he one of usurpation by the exercise of an unauthorized power, regardless of any interest or injury to the public.</p> <p>Id. — Corporation Organized to Promote “ Temperance ” —Perversion of Funds — Injury to Publio—Charitable Use—Uncertainty of Terms — Construction. — An information in the nature of a quo warranto will not lie to enforce a dissolution of a corporation, organized merely “to promote the cause of temperance,” on the ground that it has disregarded its corporate trust and violated its charter by perversion and misapplication of its funds from the object for which it was formed, and from the use for which the funds were given and received, by dividing the same among its members, for the reason that the perversion of the funds is not an injury to the public. Though the enforcement of charitable uses cannot be limited to any narrow and stated formula, yet the word “ temperance ” has no fixed legal meaning as distinguished from its usual import, and is too vague and uncertain in its general signification to establish a public charity which can be administered by a court of equity, when not clearly limited to the sense of restraining the abuse of intoxicating liquors. The court cannot affix a limitation or definite meaning to a term which, standing by itself, or in the context in which it is used, has only a general or unlimited signification.</p> <p>Id.—Procedure in Quo Warranto — Constitutional Law — Repeal of Code Provisions. — Whether the constitution of 1879, restoring the writ of quo warranto, which was abolished by section 802 of the Code of Civil Procedure of IS72, has or has not had the effect to repeal sections 803 to 809 of the Code of Civil Procedure, which provide for an action by the Attorney-General in the name of the people against the usurper or unlawful holder of an office or franchise, can make but little difference, as the power under a writ of quo toarranto is quite as broad as under the statute, and an information or complaint sufficient under those sections of the code will be sustained as in support of a writ of quo warranto, if the proper parties are before the court.</p>

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

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

<p>Corporation — Transfer of Stock, by Agent to Himself—General Power of Attorney. — A general power of attorney authorizing an agent to sell, dispose of, transfer, and deliver all or any of the interests of the principal in the capital stock of any association or body corporate does not confer on him the power to transfer to himself the shares of the principal in the stock of a corporation, or to do anything in relation to such stock except for and in the name of the principal; and the surrender of such stock by the agent, without any indorsement thereon, and the exchange thereof for an equal number of shares issued to himself in his own name, is unauthorized and illegal.</p> <p>Id. — Signature to Transfer of Stock.—Under section 324 of the Civil Code, the signature of the proprietor, to whom a certificate of stock was issued, must be indorsed thereou by the proprietor or his attorney or legal representative, in order to effect a valid transfer of the stock, or to authorize the cancellation of the certificate, and the issuance of a new certificate to another.</p> <p>Id. — Cancellation of Stock of Principal —Signature by Agent — Transfer without Signature. — The indorsement of an agent’s signature upon a certificate of stock issued to the principal, without stating the name of the principal, on whose behalf he gave the signature, cannot authorize the corporation to cancel the principal’s certificate of stock; and a transfer or surrender of such certificate by the agent without any signature cannot place the corporation in any better position to justify such cancellation than if the certificate were indorsed by the agent merely in his own name, without mentioning the principal.</p> <p>Id. — Liability of Corporation for Conversion of Stock Illegally Canceled. —The owner of a certificate of stock has the right to rely on the observance by a corporation of its own by-laws and of the laws of the state with reference to the transfer and cancellation of stock, and may hold the corporation liable for the conversion of his stock, if canceled by its secretary without authority, upon the mere surrender of the certificate by another person, without the indorsement of transfer required by law. Id. —Ignorance of Fraud of Agent — Maxim. —The corporation, in such case, is not aided by the maxim that “where one of two innocent persons must suffer, the loss shall fall on him who has afforded the opportunity for the same,” notwithstanding its ignorance of any fraudulent intent of the agent who surrendered his principal's certificate of stock without evidence of authority, and without written transfer, and took other certificates in his own name in exchange therefor, since it afforded the agent an opportunity to inflict loss upon his principal, and aided him in inflicting it.</p>

The action was brought to foreclose a street assessment of $249.17 upon lot No. 18, situated upon the southwest corner of Union and Polk streets, for the grading of Union Street from Larkin Street to the westerly line of Franklin Street, under a contract between the superintendent of streets of the city and county of San Francisco and J. S. Dyer, the assignor of plaintiff.

<p>Grant upon Condition Subsequent — Forfeiture — Common Law — Office Found—Re-entry. — Under the common law, a breach of condition subsequent will not itself revest title to public or private lands granted upon such condition, without office found or a re-entry for the forfeiture.</p> <p>Id. — Alcalde Grant of Pueblo Lands — Denouncement — Civil Law — Forfeiture a Question of Right and Wrong.—The civil law, which applied to all grants made in California prior to the adoption of the common law in 1850, did not require any formal denouncement or re-entry for forfeiture to revest title in a pueblo to lands granted by its alcalde upon condition subsequent, but the question of forfeiture in each case must be determined in view of the circumstances of the case, upon principles of right and wrong.</p> <p>Id. — Inexcusable Breach under Civil Law — Adoption of Common Law — Subsequent Grant — Patent to Pueblo Lands. — Where there was no attempt at any time to perform a condition subsequent contained in an alcalde grant, and nothing to prevent or excuse performance, and an inexcusable breach of the condition had occurred long prior to the adoption of the common law in this state, and for nearly forty years thereafter the grantee remained silent, asserting no claim to the lot, and allowing a subsequent grantee of the city to occupy and improve the premises without objection for thirty years of that time, and finally asserted a right only because of the recent issue of a patent for the pueblo lands of the city, it must be held that all right of the grantee under the grant had been forfeited, and the title reverted in the pueblo before the adoption of the common law, and neither such adoption nor the subsequent issuance of such patent restored to him any right in the premises.</p> <p>Id. — Authority of Decisions — Obiter Dictum — Stare Decisis. — The case of Ton chard v. Touchard, 5 Cal. 307, has not been overruled as an authority; and the case of Hart v. Burnett, 15 Cal. 599, so far as declaring it to have been overruled, is obiter dictum, and cannot be affirmed upon the principle of stare decisis. A decision is not even authority, except upon the point actually passed upon by the court and directly involved in the case.</p> <p>Patent for Pueblo Lands—Statute of Limitations — Confirmation of Survey — Act of 1803—Code Provisions. — Under the act of 1863, the statute of limitations commenced to run against pueblo lands derived from the Spanish or Mexican government, from the date of final confirmation of the official survey of the lands. Under the codes, which went into effect January 3, 1873, the limitation runs against such lands, without regard to the confirmation of the survey or grant, or to the issuance of any patent,</p>

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

<p>Boundaries — Relocation of Survey for Patent — Lost Corner-stake —</p> <p>Courses Controlled by Topographical Features and Witness-monuments. — In relocating the boundaries of an official survey upon which a patent of the United States was based, the calls of the field-notes of the survey as to the location of certain topographical features of the country, and of a road and gulch and certain houses described therein as witness-monuments, must prevail over the specified courses of the boundary lines, and the location of a lost corner-stake to which no living witness can testify is not to be fixed by starting from an admitted location of another corner, and surveying the lines of the patent by courses and distances therefrom, if such survey departs from the field-notes of the original official survey in respect to such topographical features and monuments.</p> <p>Id. — Overlapping of Adjoining Ranchos — Evidence—Testimony of Surveyor — Re-examination — Exhibits — Error without Prejudice. — When a surveyor who has made a survey to fix the location of a lost corner-stake which determined the boundary line between adjoining ranchos, states, on re-examination, in elucidation of testimony called out on his cross-examination by appellant’s counsel, that the location of the line as fixed by another surveyor is wrong, because it produced a conflict or overlapping of the ranchos, and the location of the ranchos appears from exhibits put in evidence by appellant, the refusal of the court to strike out such statement, if an error at all, is a trivial error, without prejudice, whether the surveyor was or was not competent to testify as to the location of the ranchos.</p>

Motion to the Supreme Court to admit Hong Yen Chang to practice as an attorney and counselor. The facts are stated in the opinion of the court.

The petitioner was convicted in the police court of the city and county of San Francisco of the crime of misdemeanor for keeping a tan game, in violation of section 330 of the Penal Code. Further facts are stated in the opinion of the court.

The action was brought to recover the value of a farm-wagon attached by a creditor of John A. Bunting, and which the plaintiff claimed to have been sold and delivered to her before the attachment. The instruction, numbered 15, referred to in the opinion of Mr. Justice Paterson, is the last instruction quoted in the opinion of the court rendered by Mr. Justice Sharpstein. Further facts are stated in the opinion of the court.

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

The complaint -alleges that plaintiff is, and was at the time set forth therein, the secretary of the Santa Clara Valley Co-operative Wine Company, a corporation of which defendant is and then was president and a stockholder, and proceeds to allege as follows: “That on the twelfth day of November, 1887, in the presence of one F. Duchatel, the superintendent of said corporation, William Farrington, a stockholder and director thereof, Richard Faull, and other persons then and…

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

<p>Pleading—Breach of Contract — Non-payment —General Demurrer — Special Demurrer. — A complaint which entirely fails to state a breach of the contract sued upon, or to allege the non-payment of money sought to he recovered, states no cause of action, and may be assailed by general demurrer; but if there is not an entire failure to state the fact of breach or non-payment, and the averment is simply uncertain and defective, the defect can only he reached by special demurrer particularly designating the specific point at which it is aimed.</p> <p>Id. — Allegation of Demand and Refusal to Pay. — A complaint in am action to recover money, which alleges a demand of payment of the amount sued for, and that “ defendant has refused, and still refuses, to account for or pay the same, or any part thereof,” while subject to special demurrer for not definitely and certainly alleging non-payment of the money, does not so entirely fail to allege non-payment as to he subject to a general demurrer for not stating facts sufficient to constitute a cause of action.</p> <p>Id.—Appeal — Support of Judgment—Finding of Non-payment.— Such complaint will support the judgment upon an appeal taken from the judgment roll alone, if tne court has found that no part of the money for which judgment was entered had been paid.</p> <p>Sufficiency of Findings—Appeal from Judgment..— Though the findings may be open to some criticism, yet if they are intended to and in effect do cover all the issues tendered by the pleadings, they will be held sufficient upon appeal from the judgment.</p>

<p>Pleading — New Matter in Answer — Replication. — A replication traversing new matter alleged in the answer is unnecessary, and has no place in our system of pleading; hut such new matter must, on the trial, he deemed controverted by the opposite party.</p> <p>Id. —New Matter in Avoidance oe Answer — Evidence. —The plaintiffs must he considered to have pleaded any new matter in avoidance of a counterclaim or affirmative defense set up in the answer, and may give evidence of such matter in avoidance.</p> <p>Id. — Foreclosure of Mortgage — Plea of Payment — Evidence of Agreement in Avoidance — Application of Payments. —In a suit to foreclose a mortgage upon real estate, where the defendant pleads payment of the mortgage note out of the proceeds of the sale of a crop of defendant’s wheat, upon which plaintiff held a chattel mortgage to secure the same note, plaintiff must be deemed to have pleaded in avoidance of such defense an agreement that the grain, when harvested, should be held as security for other advances made and to be made to and for the defendant, and that the proceeds of the sale of the grain should be applied first in payment of such advances, and the remainder, if any, to the payment of the note; and the court may receive evidence in support of such agreement.</p> <p>Statute of Frauds—Oral Agreement—Mortgage on Crop — Pledge of Harvested Crop for Advances — Extinguishment of Mortgage.— Section 2922 of the Civil Code, requiring a writing to create, renew, or extend a mortgage, does not render incompetent a verbal agreement to divert harvested grain from the satisfaction of the debt secured by a chattel mortgage on the growing crop, and to convert the grain into a pledge to secure other and subsequent advances from the mortgagor to the mortgagee. Such agreement does not create a chattel mortgage, but operates to extinguish the mortgage on the crop.</p> <p>Foreclosure of Mortgage — Allowance of Attorney’s Fee.—The trial court is in duty bound to allow only a reasonable attorney’s fee for the foreclosure of a mortgage, and the stipulation in the mortgage respecting such fee is not controlling.</p> <p>Id. — Correcting Allowance upon Appeal. — When the attorney’s fee fixed by the trial court exceeds a reasonable sum, it will be corrected by this court upon appeal.</p>

<p>Action- on Special Contract — Misleading Instruction as to Amount of Recovery — Conflicting Evidence—-Impeachment of Plaintiff.— In an action to recover money on a special contract, if the plaintiff’s evidence tends to show him entitled to recover the amount sued for, and the defendant, for the purpose of impeaching plaintiff's testimony, offers counter-evidence as to plaintiff’s admissions, tending to show him entitled to a less sum under the contract, an instruction that the jury are limited to the amount sued for, and that their verdict must be for the whole of that amount or for no sum at all, is misleading, and prejudicially erroneous.</p> <p>Id.—Agency — Commissions for Sale — Finding Purchaser — Refusal of Principal — Instructions.—In an action by an agent to recover commissions for the sale of mining stocks, under a written contract entitling him to receive all sums for which the stocks might be sold in excess of a certain amount, within a specified time, if the evidence adduced on his part tends to show that during the existence of the contract he did find purchasers who were ready, willing, and able to take the stocks, and pay therefor a sum in excess of that amount, and that the principal, when informed thereof, refused to transfer or sell the stock, it is sufficient to entitle him to have the case submitted to the jury for its determination of the facts, and to hare proper instructions given respecting the amount which he is entitled to recover.</p> <p>Id.—Repudiation of Contract by Principal — Tender by Agent. — When the principal repudiates a contract with his agent in respect to the sale of mining stocks, it is not necessary for the agent to take any further steps toward sending or tendering the money to him, in order to entitle him to sue for his commissions.</p> <p>Sale of Personal Property — Place of Delivery. —Personal property is deliverable at the place where it is at the time of sale or agreement to sell, unless the seller has agreed to deliver it elsewhere, or an option as to the place of delivery is provided for.</p> <p>Id. — Mining Stocks. — Mining stocks are personal property, and subject to the rules of personal property in regard to the place of delivery when sold.</p>

<p>Costs — Offer of Judgment — Construction of Code. — Section 997 of the Code of Civil Procedure, providing that in case of an offer of judgment hy the defendant “if the plaintiff fail to obtain a more favorable judgment he cannot recover costs, but must pay the defendant’s costs from the time of the offer,” is to be construed as applying only to costs accruing after the time of the offer.</p> <p>Id. — Costs Accruing before Offer. — The plaintiff may recover costs accruing in his favor before an offer of judgment by the defendant, though he may recover a less favorable judgment than was offered.</p>

<p>Pleading — Breach of Contract — Appeal — Support of Judgment.— In an action upon a contract, the complaint must show a breach of the contract, or it states no cause of action which will support the judgment upon appeal.</p> <p>Id. — Injunction Bond —Hon-payment. —In an action upon an injunction bond, the complaint must allege the non-payment of the money claimed under the contract, in order to state a cause of action.</p> <p>Id. ■— Allegation of Damage. — The allegation that the plaintiff has been injured and damaged in a certáin sum by reason of the issuance and continuance of the injunction does not allege non-payment by implication.</p> <p>Id.—Answer after Demurrer Overruled — Waiver of Demurrer.— A demurrer is not waived by the filing of an answer upon leave given by the court after the demurrer is overruled.</p>

<p>Negligence — Pleading.—The negligence for which a recovery is sought, must be alleged in the complaint. — Instance.</p>

The declarations of Joaquin Serpa, made after the sale to plaintiff, referred to in the opinion, were to the effect that he would see that his wife got nothing; that if his wife would live with him he would get the property back; that he had sold the property, but hadn’t got any money for it, and liad told one of the witnesses who testified to his declaration not to tell anybody what he had said. The further facts are stated in the opinion of the court.

<p>Constitutional Law — Vaccination Act—General Vaccination of School Children.—The act of 1889, entitled “ An act to encourage and provide for a general vaccination in the state of California, ” which provides for the vaccination of all children attending the public schools, and for the exclusion of nil vaccina ted children therefrom, sufficiently expresses the subject of the act in its title, is sufficiently general in its scope, and is a constitutional exercise of the police power of the legislature.</p> <p>Id.—Title of Act—Object of Constitution — Construction.—The object of the constitutional provision requiring every act to embrace but one subject, which shall be expressed in its title, is to prevent legislators and the public from being entrapped by misleading titles to bills, whereby legislation relating to one subject might be obtained under the title of another; and it must receive a reasonable, and not a narrow or technical, construction.</p> <p>Id. — Title Broader than Body of Act — Single Subject — General Law Applicable to a Class of Persons. — A general law relating to one subject only, but describing that subject in the title by the use of the word “general,"’ which appears broad enough to include all the people of the state, is not invalid because the body of the act relates to only a certain general class of persons in the state. The term ‘ ‘ general, ” used in the title, applies to the general class specified in the act; and such title is not misleading.</p> <p>Id. — Specifications in Title. — It is not necessary that the title of an act should embrace an abstract or catalogue of its contents.</p> <p>Id. —Local and Special Legislation. —An act, to be general in its scope, need not include all classes of individuals in the state, and it answers . ’ the requirement of the constitution if it relates to and operates uniformly upon the whole of any single class.</p> <p>Id. — Exercise of Police Power. — The legislature has power to enact such laws as it may deem necessary, not repugnant to the constitution, to secure and maintain the health and prosperity of the state, by subjecting both persons and property to such reasonable restraints and burdens as will effectuate such objects.</p> <p>Id.—Public Good — Prevention of Disease — Discretion of Legislature. — It is for the legislature to determine what is for the public good, and what are necessary and salutary burdens to impose upon a general class of persons to prevent the spread of disease, and its discretion cannot be controlled by the courts, if its action is not clearly evasive and unlawful, under pretense of lawful authority.</p>

Alternative writ of mandate to Hon. J. P. Hoge, judge of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

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

<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>Statute of Frauds — Delivery and Change of Possession from Father to Daughter—Sale of Interest in Cattle Running at Large.— Evidence which tends to show a bona fide sale for value by a judgment debtor to his daughter, though living in his household, of an interest in cattle running at large, on a range of very considerable extent, without notice to the daughter of the existence of the debt, and that immediately after the sale the daughter assumed control of such interest, and performed all the duties which would pertain to a man similarly circumstanced, having charge of and owning a like interest in cattle running on such a range, and that she notified all the co-owners as well as other persons of her purchase, and secured a division of the cattle, and received and retained control and care of her share of the cattle, after division, as fully and assiduously as a man would take care of his own cattle in a like case, is sufficient to warrant the jury in believing that the sale was in fact bona fide and accompanied by an immediate delivery, and followed by an actual and continued change of possession, and in sustaining the validity of the sale as against the judgment creditor of the father.</p>

<p>Specific Performance — Verbal Contract of Sale — Statute of Frauds'—Part Performance. —A verbal contract fertile sale of land is taken out of tile operation of the statute of frauds, and will be specifically enforced, when there has been a part performance of the contract by the taking of actual possession of the land by the vendee with the consent of the vendor, or by the making of valuable improvements upon the land on the faith of the contract.</p> <p>Id.—Mutuality of Contract — Option and Election of Vendee.— The general rule that contracts of sale must lie mutual, or courts of equity will not enforce them, is subject to the exception that a contract for the sale of real estate at the option of the vendee only, upon election and notice, may be specifically enforced; and tile refusal of the vendor to accept the purchase-money will not destroy the mutuality, though the vendee could thereupon withdraw his election.</p> <p>Id. — Oral Agreement as to Temporary Division Line — Option to Purchase —Rights of Assignee. — A verbal contract between adjoining owners of land, providing that if a division line temporarily agreed upon should be found incorrect by subsequent survey, the owner who should occupy and clear the land of the other up to the agreed line should have the option to purchase the same at its value when uncleared, or to claim payment of the cost of clearing, as he may elect, may be specifically enforced by the assignee of the owner having -the option if the land was possessed, cleared and improved by his assignor, and the assignee has tendered payment and demanded a conveyance of the land.</p> <p>Id. — Time fob. Exercise of Option — Running of Statute of Limitations.— A cause of action for the enforcement of such contract does not accrue so as to put the statute of limitations in motion until the true line is determined, and it is known which one of the parties is called upon to exercise his option, and to make the election provided for. Id. — Laches — Acquiescence in Delay.—No such laches is imputable to the party seeking specific performance of such contract as will bar his right thereto by reason of a delay of more than three years before any attempt to ascertain the true line, and of more than four years before suit for specific performance, if no time was fixed by the contract for making the proposed survey, and the burden of making it was not cast upon either of the contracting parties, and both of them acquiesced in the delay as to the ascertainment of the true line.</p>

<p>Settlement of Partnership in Mining Stocks — Division of Stock — Order to Sell and Buy — Liability of Brokers. — When a partnership has dealt in mining stocks in the name of one of its members, through brokers, and an order in writing is given in the name of such member'to sell certain specified shares of stock, for the purpose, expressed in the order, of closing up the partnership account and opening an individual account with each member, and each partner gives at the same time an order to the brokers to buy for him one half of the same shares ordered to ■ be sold, if the object of the several orders is effectuated according to the intention of the parties by a division of the stock between them, without any sale or repurchase, it appearing that the partners had been jointly interested in many other stocks included in the account of the partner giving the order to sell, and that he expressed no dissatisfaction with the division, his executor cannot recover from the brokers for conversion of the stock divided, nor are they liable to such executor for the original cost of the stock ordered to be sold.</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>New Trial — Continuance — Discretion.—It is not an abuse of discretion warranting a new trial for the court to refuse a continuance on the ground of the inflamed condition of the eyes of counsel, if, notwithstanding the alleged disability, the counsel immediately proceeds to participate in and conduct the trial in person.</p> <p>Oral Waiver oe Jury Trial — Transfer of Cause — Estoppel. —When an oral waiver of a jury trial is made in open court by the defendant’s counsel, at the time when the case is set for trial, in consideration of an agreement with plaintiff’s counsel that the case shall be transferred to another department of the superior court and tried at a future time therein, the defendant is estopped from objecting at suieh future trial that his waiver was not entered upon the minutes of the court. After having received the benefit of the transfer, and secured the delay sought by him, he cannot be allowed to avoid the accompanying burden of a trial before the court without a jury.</p> <p>Findings — Want of Finding upon Affirmative Defense. — When the findings support the judgment, and contain nothing inconsistent with it, the failure to find upon affirmative defenses will not be ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to the issues presented by such defenses.</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>Appeal from a judgment of the Superior Court of Napa 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 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 county of Alameda,</p> <p>The facts are stated in the opinion of the court. .</p>

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

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

<p>Common Carrier — Liability Limited to Disclosed Value of Articles Carried. — A common carrier is not liable upon any package carried for more than the value of the articles as named in the receipt or bill of lading. He has a right in all cases to be truly informed as to the value of the property, in order to estimate the risk, and determine the care which should he exercised in the protection of the property, and to save himself from loss.</p> <p>Id. — Trover for Goods Stolen from Carrier. — A carrier is not liable in trover for property, of which he has been robbed, beyond the value specified in his receipt, in the absence of charge of fraud, malice, oppression, or collusion with the robber, or of willfully mingling the property after rescue with other property of the same kind, so that it cannot he identified or segregated.</p> <p>Id. — Settlement with Consignee. —A carrier has the right to assume that the consignee is the owner of goods consigned, and to settle with him therefor, if he has been robbed thereof, in the absence of notice that the consignor was the owner of the property.</p> <p>Id. — Agency of Consignee for Consignor—Notice to Principal— Settlement with Agent. — If the consignee is authorized as agent of the consignor to receive money from a carrier as damages for the loss of goods consigned, the consignor, as principal, is charged with notice of what the agent has done, and is hound by a settlement and abandonment of further claim made by the agent.</p> <p>Id. —Rights of Owner of Goods Stolen from Carrier. — The owner of goods stolen from a carrier may either demand the value of the property which was lost, or wait until the property is recovered, and then demand possession of the property itself.</p> <p>Id. — Recovery of Stolen Articles by Carrier after Settlement of Damages — Passing Title. — If the value of articles stolen from a carrier has been paid to and accepted by the owner or his agent in the amount specified in the receipt, without suit being brought therefor, such acceptance passes’ title of the goods to the carrier, regardless of their actual value, as fully as if a judgment for their value had been recovered and paid; and if the property is subsequently recovered by the carrier, the former owner cannot set aside the settlement and reclaim the property.</p>

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

Writ of prohibition to the Superior Court of the city and county of San Francisco, Department No. 6, Hon. William T. Wallace, judge. The facts are stated in the opinion of the court.

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

<p>Landlord and Tenant—Non-payment of Rent—Forfeiture of Lease — Option of Landlord — Waiver — Acceptance of Rent in Arrear.</p> <p>— Where a lease provides for a re-entry for non-payment of rent and a termination of the lease for such non-payment, at the option of the landlord, the acceptance of rent in arrear, after notice of forfeiture and of termination of the lease, will not constitute a waiver of the forfeiture, unless it appears that the rent accepted became due after the breach was committed by the tenant.</p> <p>Id.—Unlawful Detainer—“Expiration of Term” — Enforcement of Forfeiture — Notice — Ejectment. — Subdivision 1 of section 1161 of the Code of Civil Procedure, providing that a tenant is guilty of an unlawful detainer in holding over after the “expiration of the term,” refers only to expiration of the term specified in the lease by lapse of time, and summary proceedings cannot be instituted under said subdivision on the ground of expiration of the term by forfeiture; the only remedy to enforce such forfeiture unconditionally, in the absence of the three days’ notice required by subdivisions 2 and 3 of said section, is by action of ejectment.</p> <p>Id. —Breach of Covenant — Demand and Notice — Alternative Notice of Performance, ■— In this state, summary proceedings will lie upon breach of any covenant or condition of the lease and a demand of possession, hut the three days’ notice prescribed by subdivisions 2 and 3 of section 1161 of the Code of Civil Procedure, requiring in the alternative the performance of such covenant or condition, or possession of the property, must be given.</p>

<p>Conflict between Federal and State Courts — Priority of Jurisdiction — Conclusiveness of Judsment. —When the circuit court of the United States has first acquired jurisdiction of the persons and subject-matter of an action before the commencement of a subsequent action in a state court between the same persons, essentially involving or depending upon the same subject-matter, the judgment of the circuit court, no matter when rendered, whether before or after the date of judgment in the state court, becomes binding and conclusive as to that subject-matter, upon all parties and upon all other courts and tribunals whatsoever.</p> <p>Id. — Canceling Forged Contract of Marriage — Allowance of Alimony. — If the circuit court, having prior jurisdiction, has rendered judgment canceling a forged instrument, claimed by the defendant to be a subsisting contract of marriage with plaintiff, and enjoining the use of such instrument, or the claiming of any rights or interest in property thereunder, its judgment will prevail over the judgment of the superior court of this state declaring that a contract of marriage subsisted between the parties by virtue of said instrument only, and granting a divorce and alimony, counsel fees, and costs, in an action for a divorce subsequently commenced in such superior court by the defendant in the circuit court against the plaintiff therein, though the judgment of the superior court was first rendered and was affirmed upon appeal.</p> <p>Id.—Motion for Judgment against Executor — Decree of Circuit Court as Defense. — When, upon the going down of the remittitur from the supreme court upon appeal from the judgment in such divorce case, and from the order granting alimony and counsel fees, a motion is made for judgment against the executor of the defendant, who had been substituted as defendant for the purposes of appeal, the executor may present and rely upon the decree of the circuit court as a complete defense to the motion.</p> <p>Id. — Effect of Injunction of Circuit Court. — It is the duty of the state court to respect and enforce the injunction of the circuit court embodied in such decree, and to compel the plaintiff in the state court to obey the injunction, and desist from the enforcement of any marital or property rights in the action in the state court, which are essentially based upon the forged and canceled contract of marriage.</p> <p>Id. — Comity of Courts — Injunction of Co-ordinate Court. — The comity which one court owes to another of concurrent jurisdiction should always prevent the one from lending itself as an instrument in permitting a contempt of the process of the other, by allowing a proceeding before it to be conducted in violation of the injunction of such co-ordinate court.</p> <p>Id. — Violation of Injunction. — To claim alimony and costs against defendant’s executor under a judgment of the state court, based upon an alleged contract of marriage canceled by decree of the circuit court, is to make a claim under and by virtue of that writing in violation of the injunction of the circuit court prohibiting the one who is the plaintiff in the state court from “making any claim, or setting up any right, interest, or claim of any kind under or by virtue of said instrument or declaration of marriage, either as wife of complainant, or for any interest in property or right of any kind or nature against said complainant, his heirs, executors, administrators, or successors in interest. ”</p> <p>Appeal — Judicial Notice. —This court is bound to take judicial notice of its own decisions, though not made part of the record of the ease before it, and when for any cause it reverses a proceeding had in a court below, it may look into its own records, for the purpose of ascertaining what instruction, if any, it is proper to give to the court below.</p> <p>Id. — Effect of Reversal of Order Denying New Trial—Vacating Judgment of Divorce —Alimony and Costs. — The legal effect of the reversal of an order denying a new trial in an action for divorce is to vacate and set aside the judgment for divorce, and also a judgment for alimony and costs based upon that judgment.</p>

<p>Conflict between Federal and State Courts — Priority of Jurisdiction ■—Injunction. —The principles established in Sharon v. Sharon, supra, affirmed, and applied to this case.</p> <p>Appeal Bond—Motion for Judgment against Sureties — Liability of Principal. —A plaintiff who is not entitled to recover against the principal defendant cannot recover against the sureties on his appeal bond; and the sureties may avail themselves of any defense against a motion for judgment upon the bond of which the principal defendant could avail himself.</p>

<p>Eminent Domain — Right of Way for. Railroad—Just Compensation — Improvements by Trespasser — Bona Fide Intent to Condemn.— Where a railroad company, prior to the commencement of proceedings to condemn a right of way for its road, but with the bona fide intent to commence such proceedings, enters upon land and erects structures thereon for the use of its road, it is not required, in making just compensation for the right of way in the subsequent condemnation proceedings, to pay the land-owner for the structures so erected.</p>

The defendant was convicted of grand larceny on November 13, 1883. The superior court granted a new trial on November 20, 1883, which order was reversed on March 22,1884, by the supreme court, whose opinion is reported in 65 Cal. 121.

<p>Appeal from orders of the Superior Court of the city and county of San Francisco for the sale of real property of a deceased person, and confirming the sale and directing conveyances to be made.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law — Prior Conviction—Beading Confession to Jury.— Where an indictment or information for felony charges a prior conviction, which the defendant has confessed, it is clearly erroneous to require the whole indictment, including the charge and confession of prior conviction, to be read to the jury.</p> <p>Id.—Waiver of Error — Proof of Pardon.—Such error is not waived by proof on the part of the defendant that he was pardoned for the offense, the prior conviction of which had been charged against him in the indictment.</p> <p>Id. — Curing Error—Instruction.—Nor is such error cured by an instruction to the jury that they have nothing to do with the prior conviction, but only to determine whether the offense charged was committed by the defendant.</p> <p>Id.—Bobbery—Evidence of Possession of Burglars’ Tools.—Upon the trial of a defendant accused of stage robbery, committed in Placer County, and charged with a prior cohviction of burglary, it is not competent to introduce evidence that burglars’ tools were found in his possession, forty-one days after the robbery, in Sacramento, it not appearing that the robbery was committed by aid of such tools, and the evidence being conflicting and wholly circumstantial as to defendant’s connection with the robbery.</p> <p>Id.—Circumstantial Evidence—Instruction as to Probabilities.— It is erroneous to instruct the jury in a criminal case, where the evidence is circumstantial, that “when direct evidence cannot be produced, minds will act on the probabilities of the case, and that they should be governed by the superior number of probabilities on the side of the people or the defendant.” (Per McFarland, J.)</p> <p>Id. — Instruction as to Degree of Certainty. — An instruction that, “in order to convict, the circumstantial evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony,” commented on and criticised. (Per McFarland, J.)</p>

<p>Quieting Title — Legal Title Held by Defendant as Trustee of Plaintiff— Enforcement of Trust.—An action to quiet title will not lie in favor of the owner of an equitable title, for whom the defendant holds the legal title in trust, the only proper remedy for such plaintiff being an action to enforce the trust, and to compel a conveyance of the legal title.</p> <p>Id. —Reason for Withholding Conveyance. —The fact that the reasons of the defendant for withholding a conveyance from the plaintiff are insufficient, unreasonable, or unjust will not warrant the court in declaring that the defendant has no title.</p> <p>Id.—Express Trust—Expiration of Term—Possession by Beneficiary. — When an express trust has been created by a conveyance of land to the defendant to be held in trust for the plaintiff for five years, and to be reconveyed to the plaintiff at the end of said term, the mere possession of the plaintiff at the expiration of the five years, without a reconveyance, will not justify a finding that the legal title is in her.</p> <p>Id. — Adverse Claim. — The claim of defendants to hold the legal title as trustees of an express trust in favor of the plaintiff as sole beneficiary is not adverse to the title of plaintiff as such beneficiary.</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>Replevin by Assignee of Insolvent Debtor. — The assignee of an insolvent debtor cannot maintain an action of claim and delivery against the insolvent to recover personal property which never belonged to the insolvent, and which he never possessed, or refused to deliver to the assignee.</p> <p>Id. — Judgment on Pleadings — Disclaimer by Insolvent — Sufficiency of Answer.—An answer of the insolvent in such action, disclaiming and denying that he was ever the owner, or in possession of or entitled to the possession, of the property claimed, or ever withheld it, or refused to deliver it to plaintiff, raises material issues, which will preclude a judgment on the pleadings in favor of the assignee.</p> <p>Id.—Judgment for Possession Only—Appeal by Insolvent — “Party Aggrieved ” — Costs.—A judgment rendered upon the pleadings in such action, in favor of the assignee, for possession of the property claimed, without costs, or an alternative judgment for value, may be appealed from by the insolvent, as a “ party aggrieved, ” notwithstanding his disclaimer of all interest in the property sued for, since, if the denials of his answer were sustained, he would be entitled to judgment that the plaintiff take nothing, and that defendant recover his costs.</p>

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

<p>Premature Appeal —Dismissal. — An appeal taken before the judgment is entered of record is premature, and must be dismissed.</p> <p>Id. — Eepeot op Abortive Appeal. — An appeal taken prematurely, or in any other than the prescribed mode, is abortive, and leaves the cause in the court below as undisturbed as though no attempt had been made to remove it to this court.</p> <p>Id.—Mandamus — Void Substitution op Successor in Oppioe. — When a manlamm proceeding against an officer has been prematurely appealed, an ex parte order substituting the successor in office of the appellant made by this court inadvertently is invalid, and must fall with the futile appeal, for want of a case to support it.</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>Public Lands—Pre-emption — Payment for Land — Equitable Title — Subsequent Claim. —When a pre-emptor of public land of the United States pays for the land, and takes the receiver’s receipt, he thereby becomes the equitable owner of the land, and the government cannot thereafter sell it or hold it open to pre-emption by another, and a subsequent settlement and filing upon the land by another gives no title or right whatever.</p> <p>Certificate of Purchase— Construction of Code. —To constitute a certificate of purchase, within the meaning of section 1925 of the Code of Civil Procedure, it is not necessary that it should contain the word “certify.”</p> <p>Id.—Receiver’s Receipt — Action of Ejectment. — A receiver’s receipt for land pre-empted in a United States land-office contains the whole substance of an official certificate of purchase, and ejectment may be maintained on the title and right of possession evidenced by such certificate.</p> <p>Id. — Absence of Record in Land-office—Evidence of Pre-emption and Payment. — The absence of any record in the local land-office showing the payment of the purchase-money does not overcome the receiver’s receipt as evidence of payment. The making of such record is a matter between the officer and the government, and cannot affect the rights of the purchaser under the certificate of the receiver, which is sufficient evidence that the pre-emptor had taken all the necessary steps toward pre-empting the land.</p> <p>Id.—Assignment of Certificate — Delivery — Deed of Land.—The conveyance of the land pre-empted, and delivery of the certificate of . purchase, is sufficient evidence of an assignment of the certificate, and all rights acquired thereby.</p> <p>Findings — Failure to Find upon Issues Rendered Immaterial. — It is immaterial whether the court fails to find upon affirmative allegations of the answer which constitute no defense to the case as proved by the plaintiff and found by the court, and which could not alter the judgment if the court had found them all in favor of the defendant.</p>

<p>Fraudulent Conveyance — Rights of Creditors — Effect of Deed. — A deed in fraud of creditors is absolutely void as against them, and an execution sale of the debtor’s interest carries the legal title, and not an equitable interest merely.</p> <p>Fraud — Question of Fact — Whose Intent is Material. — Under our statute, the question of fraud is a question of fact, — that is to say, a question of intent; and where there is no consideration for the deed, the material thing is the intent of the grantor; the intent of the grantee is immaterial.</p> <p>Id.—Instance — Facts Showing Fraudulent Intent.—If a person is heavily indebted, and conveys all his property, without consideration, in trust, for his children and himself, the inference of a fraudulent intent is irresistible.</p> <p>Practice — Statement — Specification — P resumption. — Where there is a proper specification of the insufficiency of the evidence to justify the decision, the presumption is, that the statement contains all the material evidence in relation to it.</p>

Motion to stay proceedings pending an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from orders amending the record and appointing new referees. The facts are stated in the opinion of the court.

The complaint contained the following allegations as to the appointment of plaintiff as administrator of the deceased: “ That on the twenty-sixth day of June, 1885, John Munro, the plaintiff, filed a petition for letters of administration on the estate of said Michael Stanton, in the superior court of said city and county, department 9, probate; that thereafter such proceedings were had that on the seventh day of July, 1885, said court, by an order duly given and made,…

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

Application to the Supreme Court for a writ of prohibition to the Superior Court of the city and county of San Francisco, The facts are stated in the opinion of the court.

Motion to dismiss an appeal from 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>Street-work — Implied Promise of Payment. —After a property owner has protested against street-work, a promise to pay for it cannot be implied from the fact that he saw the work done without further objection, and made suggestions to the workmen as to the proper way of doing it. Id. — Permit from Street Superintendent. — A permit from the superintendent of streets to private parties to do work on the street does not impose any liability on the property owner.</p>

<p>Appeal — Law of the Case. —The decision of this court rendered upon a first appeal becomes the law of the case, and must be adhered to upon a second appeal, in the same case, if the facts are substantially the same.</p> <p>Partition — Title Acquired Pendente Lite—Amendment of Answer — Conclusiveness of Interlocutory Decree. — A new adverse title acquired by the defendant pending an action of partition, after answer filed, and before the interlocutory decree, is conclusively adjudged by that decree, which fixes the rights of the parties, as to title or claim held by •them, as of its date; and such title, though acquired after close of the evidence, could only be asserted by Way of amendment to the answer in the partition suit, so as to permit it to be proven in that suit before the interlocutory decree was rendered.</p> <p>Ejectment — Statute of Limitations — Prescriptive Title — Answer— Cross-complaint — Findings. —• In an action of ejectment, when the answer, in addition to a general denial, pleads the statute of limitations, and a cross-complaint for cause of action alleges facts showing a prescriptive title in the defendant, and there is evidence tending to sustain the issues thus tendered by the defendant, a failure to find thereon is ground for reversing the judgment.</p>

<p>Mandamus — Duty of County Auditor — Decision of Supervisors upon Appeal—San Francisco Consolidation Act.—Mandamus will lie to compel the county auditor of the city and county of San Francisco to audit and allow a demand upon the treasury of said city and county, after a decision of the supervisors allowing the demand has been rendered upon appeal from the refusal of the auditor to audit the same, taken pursuant to section 92 of article 6 of the Consolidation Act, the decision of the supervisors upon such appeal being expressly made final, so far as the auditing of the demand is concerned.</p> <p>Id.—Ministerial Action of Auditor — Discretion.—The auditor, after such decision upon appeal, has a mere ministerial duty to perform, enjoined upon him by law, to audit and allow such demand, and can no longer exercise any discretion in the premises.</p>

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

Proceedings for the disbarment of Moses G. Cobb, an attorney at law, upon the accusation o'f Andrew Crawford. The facts are stated in the opinion of the court.

<p>Chattel Mortgage — Registry—Validity as against Creditors — Construction of Code. — Section 2957 of the Civil Code, declaring that a mortgage of personal property is void as against creditors of the mortgagor unless it is recorded in the same manner as grants of real property, is designed to substitute the record of the mortgage for the actual delivery and change of possession, otherwise required by section 3440 of the same code.</p> <p>Id. — Attachment before Record. —Without holding that such unrecorded mortgage is void per se as against creditors at large of the mortgagor, it is certainly void as against creditors who obtain a lien by attachment of the mortgaged personalty in the hands of the debtor before record of the chattel mortgage.</p> <p>Id.—Dissolution of Attachment — Effect of Insolvency Proceedings.</p> <p>— Though such attachment is dissolved by subsequent proceedings in insolvency within one month, such dissolution does not inure to the benefit of the holder of the chattel mortgage which was unrecorded at date of the attachment.</p> <p>Id. — Replevin by Assignee of Insolvent. ■— The attached property may be recovered in an action of replevin by the assignee of the insolvent debtor, as having, by force of the attachment befoie record of the mortgage, remained in the insolvent debtor by operation of law.</p> <p>Id. — Disposition of Attached Property. — The attached property, when recovered by the assignee, must be regarded as a portion of the general assets of the insolvent, which must be disposed of for the common benefit of all his creditors.</p> <p>Id. •—Construction of Insolvent Act. —The Insolvent Act must receive a reasonable construction, in order to effectuate its object and promote justice; and it must be regarded as designed to protect the creditors of the insolvent, and not to give an advantage to their detriment to a mortgagee of personal property who had failed to acquire a lien by his own laches in not recording his mortgage before the property was attached.</p> <p>Appeal — Reversal of Judgmf.nt upon Findings—Waiver of Damages.</p> <p>— When the findings show a right of the plaintiff to recover, and leave only the question of damages undetermined, an erroneous judgment for the defendant may be reversed, and judgment ordered for the plaintiff upon the findings, if he consents to waive damages.</p>

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

The defendant was indicted for forgery. The state appeals from the judgment sustaining the demurrer.

<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>Criminal Law — Homicide — Self-defense — Conflicting Evidence — Province of Jury. —• When the evidence is conflicting as to whether a defendant convicted of murder acted in self-defense or not, the jury are the sole judges of the credibility of the witnesses whose testimony tends to establish either position, and their verdict cannot be disturbed upon appeal, if no error is shown in the rulings of the court.</p> <p>Id.—Evidence — Opinion of Witness—Effect of Mixing Cattle— Province of Jury.—A question as to whether the mixing of his own cattle by the deceased with those of the defendant upon government land occupied by defendant was not apt to give rise to trouble or dispute, is objectionable, as calling for an opinion or inference which the jury alone were competent to form upon or infer from the facts in evidence.</p> <p>Id. — Attempt of Defendant to Prevent Mixing of Cattle — Rejection of Evidence — Error Cured.— When the court sustains an objection to a question as to whether the defendant at the time of the homicide was attempting to prevent the deceased from mixing his cattle with those of defendant, the error, if any, is cured by permitting an answer that the defendant appeared to he trying to keep the deceased from driving his cattle in that direction.</p> <p>Id. — Expert Evidence —Powder-marks — Distance of Deceased from Defendant. — When there is a material inquiry as to the distance of the deceased from the defendant at the time of the homicide, as bearing upon the question whether deceased was near enough to strike the defendant, and whether the shooting was in self-defense, and it appears in evidence that no powder-marks were found upon the clothing or body of the deceased, it is proper to allow expert testimony for the prosecution as to the farthest distance at which clothing could or would be powder-marked with a rifle such as was used by defendant.</p> <p>Id. —Immaterial Evidence — Eormer Trespass of Deceased — Conspiracy — Offer of Evidence. — A former trespass of the deceased upon defendant’s leased land would not justify the defendant in killing the deceased, and evidence of such trespass is properly rejected, in the absence of any offer to connect it with other evidence that would tend to establish a conspiracy to drive the defendant off from the land occupied by him.</p> <p>Id. — Insufficient Evidence of Conspiracy — Threats. — Evidence that a witness had been instructed by deceased to drive the sheep of deceased upon the claim rented by defendant, and had informed deceased that defendant had rented the claim, and did not want the sheep driven upon it, is irrelevant and immaterial, and does not tend to show a conspiracy to drive defendant from the claim, or that deceased had made a threat against defendant.</p> <p>Id.—Rebuttal of Guilty Flight. — When the testimony of the prosecution does not tend to establish a guilty flight, and there is no claim made by the prosecution that it does so tend, the defendant cannot give evidence to account for his rapidly riding off from the place of the homicide.</p> <p>Id. — Animus of Defendant towards Step-son of Deceased — Explaining Hostile Remark.—Evidence relating to the animus of the defendant toward a step-son of the deceased is irrelevant, and it is not error to refuse to permit defendant to explain whether he intended for a joke certain hostile remarks which he testified he had made concerning such person.</p> <p>Id. — Permitting Repetition of Evidence — Discretion.—It is within the discretion of the trial court to permit a witness for the prosecution in rebuttal to testify to what he had testified to before on his examination in chief for the prosecution, and such discretion is properly exercised if the court cannot recall, at the time, whether the question calls for the repetition of his former testimony, or not.</p> <p>Id.—Modification of Instructions—Authentication upon Appeal. — In order to be reviewed on appeal, the modification of instructions requested by either party in a criminal case must be shown, either by the indorsement of the judge thereon, or by a bill of exceptions. The clerk cannot give verity to what purports to he instructions given or refused, or to modifications thereof unauthenticated by the judge.</p> <p>Id.—Discrediting Willfully False Witness—“Discredit” Synonymous with “Distrust.” — It is not error to instruct the jury that if they believe any witness has willfully testified falsely to any material fact, it is their duty to discredit him. The verbs “ discredit ” and “ distrust ” have substantially the same meaning.</p> <p>Id. — Omission of Limitations in Separaie Instructions — Construing Instructions Together. — Objections that certain instructions, considered separately, do not contain the proper limitations and conditions required by the facts, are obviated, if all the instructions, read and considered together as one charge, without straining the language, show a fair, harmonious, and correct statement of the law applicable to the facts of the case, and contain all the conditions and limitations omitted from the instructions complained of.</p>

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

<p>Riparian Rights—Action to Restrain Diversion—Pleading — Cross-complaints. — In an action to restrain the diversion of water from a riparian proprietor,. two cross-complaints of defendants,, one of which sets out the right of defendants to the reasonable use of the stream in controversy as riparian proprietors, and the other their right to the use of twenty-five inches of the waters thereof, as prior appropriators, and each of which alleges unlawful acts of plaintiffs done and threatened in interference with the rights of defendants, and prays for affirmative relief, affecting the property to which the action relates, state causes of action which are proper to be pleaded by way .r cross-complaint.</p> <p>Id. — Separation of Cross-complaints. — Instead of setting up such separate rights in the form of two cross-complaints, they should be stated separately in one cross-complaint, to avoid confusion.</p> <p>Id.—Prior Appropriation by Riparian Proprietor—Insufficient Findings — Judgment Cutting off Riparian Rights.—When the court finds that both parties are riparian proprietors, and that defendants are prior appropriators of twenty-five inches of the stream, and fails to find what amount would be reasonable for defendants to use as riparian proprietors for irrigation, or other necessary purpose, a judgment ordering that all the waters of the stream be allowed to flow unrestricted to plaintiffs’ lands, excepting twenty-five inches, to which defendants are entitled as prior appropriators, and cutting the defendants off from all reasonable use of any other part of the water as riparian proprietors, is unsupported by the findings, and is contrary to law.</p>

<p>Appeal — Recalling Remittitur—Conditional Affirmance of Judgment — Costs — Modification of Judgment. — When a judgment appealed from by the defendant has been affirmed conditionally upon the plaintiff’s filing in the court below a release of part of the judgment, and of his costs in that court, the remittitur will not be recalled after the plaintiff has complied with the required conditions, for the purpose of modifying the judgment upon appeal so as to require plaintiff to pay the costs in this court.</p> <p>Id. — Where a judgment is reversed on condition, with directions that upon the performance thereof it is to stand affirmed, and the condition is afterwards complied with, the judgment thereupon becomes and continues to he affirmed.</p> <p>Id. —Remedy by Petition for Rehearing. —If the appellant is not satisfied with the judgment as rendered in this court, his remedy is to ask for a rehearing, or for a modification of the judgment, within thirty days after the decision, and before the remittitur goes down, and it is too late to ask for siich modification after the regular issuance of the remittitur.</p>

Application to the Supreme Court for a writ of prohibition to the Superior Court of Santa Clara County. The facts are stated in the opinion of the court.

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

<p>Motion to Vacate Judgment — Lapse op Time Limited by Statute — Action. — A motion will not lie to vacate a Judgment alter the lapse of the time limited by statute, if the judgment is not void on its face, and in all cases, after the lapse of such time, when the attempt is made to vacate the judgment by a proceeding in court for that purposes, an action regularly brought is preferable, and should be required.</p> <p>Id. —Judgment Void on its Face. —A judgment void on its face is one that appears to be void by inspection of the judgment roll, and it is only such a judgment that can be attacked either directly or collaterally, without reference to the lapse of time.</p> <p>Id. —Omission of Proof of Service of Process — Recital in Judgment. — The mere absence from the judgment roll of a paper showing the service of summons, personally or by publication, cannot invalidate the judgment, if it recites that the defendant was regularly served with process as required by law; and a motion will not lie to vacate a judgment containing such recital after the lapse of sixteen years from the entry of the judgment.</p>

<p>Appeal from an order of the Superior Court of Fresno County denying a motion to vacate a judgment.</p> <p>The facts are stated in the opinion of Commissioner Belcher.</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>Mexican Grants — Fraudulent Antedating — Conflict of Patents — Quieting Title. —■ Where both parties to an action to quiet title claim the land in dispute under patents confirming Mexican grants, the question of the genuineness of each original grant is a legitimate subject of inquiry in the action, provided such inquiry is admissible under the pleadings; and it may be shown in such case that the grant bearing the oldest date was not made during the term of office of the Mexican governor whose signature it bears, and that it was frau lulently antedated.</p> <p>Id.—Absence of Arohives — Presumption against Genuineness of Grant — Oral Testimony—Review of Conflicting Evidence.— When the evidence in such action shows that there is no official paper appertaining to an alleged Mexican grant, nor any record or trace thereof, which appears anywhere in the archives of California, when a part of Mexican territory, a strong presumption arises against the genuineness of the grant, which can only be overcome by the clearest proof of its genuineness; and when the oral testimony oí witnesses, offered in support of such genuineness, is of an inconclusive or suspicious character, a finding against the genuineness of the grant will not be disturbed, upon appeal.</p> <p>Id. —Impeachment op Witness — Date op Signature to Other Grants — Testing Recollection — Comparison op Signatures. — While a witness cannot be impeached by proof of specific wrongful acts, or by contradicting him upon collateral matters, yet where the witness has shown great positiveness of recollection as to the date of his own signature to a grant in controversy, his accuracy of recollection may he tested by inquiry as to the date of his signature to other grants; and if he shows no accurate remembrance of such date, it is competent to show the real date of such other signatures, for the purpose of comparison with the signature in question, which is alleged to have been antedated. •</p> <p>Id.—Particular Wrongful Acts—Knowledge op Court—Presumption against Impeachment. — When such witness is asked as to the date of his signature to particular grants, concerning which no wrongful act is proven, and no attempt is made to contradict or impeach the witness by any evidence offered in the case, it cannot he presumed that the trial court would he influenced to disbelieve the witness by its knowledge of published decisions of the United States supreme court not in evidence, tending to show that in making such grants the witness was guilty of turpitude.</p> <p>Id. — Contradicting Witness as to Existence op Collateral Grant — Cross-examination.—When a witness is asked on his examination in chief as to whether he had received a grant, for the purpose of strengthening his testimony as to having seen and being capable of recognizing papers pertaining to the Mexican grant in controversy, it is competent to cross-examine him as to whether the grant he had received was a Mexican grant, and to contradict him by showing that no such grant appeared in the Mexican archives.</p> <p>Id.—Impeachment Commensurate with Proper Cross-examination — Testing Accuracy op Witness — Rebuttal — Date of Collateral Grant. — When a cross-examination is proper as testing the accuracy of the recollection or knowledge of a witness relating to the date and genuineness of a Mexican grant in controversy, concerning which he has testified in chief, the whole evidence must be considered as that of the party calling the witness, and if the date of a collateral grant testified to on such cross-examination bears upon the accuracy of recollection or knowledge of the witness as to matters testified to in chief, it is competent to contradict him by rebutting evidence as to the date of such collateral grant.</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 Contra Costa County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Writ oe Review — Function to Annul, not to Restrain.— The function of a writ of review is to annul proceedings which have been taken in excess of jurisdiction, and not to restrain the proceedings of an inferior tribunal; and it cannot be employed to prevent a threatened excess of jurisdiction.</p> <p>Id. — Presumption as to Anticipated Action oe Court.— Until a final determination has been reached in the inferior court, it must be presumed that it will limit its action to its proper jurisdiction, and will not decide erroneously against a valid objection.</p> <p>Id.—Remedy by Motion.— The writ of review will not lie, so long as proceedings remain in fieri, since the petitioner has a plain, speedy, and ade- ■ quate remedy by motion in the court below.</p> <p>Id, —Petition —Information and Belief as to Order.—An allegation in a petition for a writ of review, made upon the information and belief of the petitioner, that an order has been made adjudging him guilty of contempt, is insufficient, and cannot he considered.</p> <p>Id. — Order to be Reviewed must be Filed.— Even though an order may have been signed, it is not subject to be examined upon a writ of review, until it has been filed.</p> <p>Id.— Contempt — Facts not Review able. — Allegations of fact, in a petition for a writ of review, which are within the j urisdiction of a court to determine upon proceedings for contempt sought to he reviewed cannot be considered, as the determination of such facts is conclusive, so far as a writ of review is concerned.</p>

<p>Fraud — False Representations — Exchange of Horses — Liability for Damages—Knowledge of Falsity — Unwarranted Assertion.— It is not essential to the liability of the owner of a horse for damages for false representations as to the soundness of the horse, inducing an exchange therefor, that such owner should be proven to have actually known the horse to be unsound at the time of the trade; but actual fraud is made out if it appears that the horse was unsound in fact, and that the positive assertion as to its soundness was not warranted by the information of the person making it, though he may have believed it to be true.</p>

<p>Criminal Law — Burning Insured Property — Evidence — Discrediting Witness by Particular Acts op Immorality. — Upon the trial o£ a defendant accused of burning insured property, if the keeper of a house of ill-fame has testified to certain damaging statements made by defendant at her house both before and after the fire, and the defendant, when called as a witness in his own behalf, denied the statements, while admitting that he may have been at such house at the dates testified to, he cannot he asked on cross-examination, for the purpose of discrediting him and degrading his character, whether he did not remain all night at that house upon a certain date, some six months after the fire.</p> <p>Evidence — Impeachment op Witness — Cross-examination upon Irrelevant or Collateral Matters. — A party cannot cross-examine his adversary’s witness upon irrelevant or collateral matters for the purpose of eliciting something to contradict or impeach him; and the court should stop the inquiry there, if such matters are drawn out, and not allow contradictory evidence to he introduced in rebuttal.</p>

<p>Constitutional Law — Municipal Corporations — Repeal of Special Charters by Implication — Justices of the Peace — Special Charter of Berkeley. — The adoption of the present constitution, and tlie general legislation had under it, has not affected or repealed by implication the provisions of prior special charters of municipalities of less than ten thousand inhabitants respecting the number of justices of the peace therein; and the special charter of Berkeley providing for th election of two justices of the peace for that municipality is still force.</p> <p>Id.—Justices’ Courts in Municipalities — Power op Legislature.— Justices’ courts in municipalities are inferior courts, which may be created by act of the legislature; and the question whether a general law has repealed or affected a special charter on that subject is one of legislative intent.</p>