Volume 85 — California Reports

<p>Appeal—Law of the Case — Points Necessarily Involved — Examination of Former Transcript. — The decision of this court rendered upon a former appeal becomes the law of the case as to whatever was necessarily involved in the decision; and the transcript and briefs upon that appeal may be examined by the court, to discover what points were necessarily involved.</p> <p>Id. — Sufficiency of Complaint to Enforce a Trust. — When the transcript upon a former appeal shows that the complaint is the same as upon a subsequent appeal, and that the same argument against its sufficiency was made upon both appeals, the decision upon a former appeal, that upon the record before the court the plaintiff is entitled to a beneficial interest in one half the property, necessarily involves the sufficiency of the complaint to establish and enforce a trust in respect to such interest; and such sufficiency cannot be inquired into upon the subsequent appeal.</p> <p>Misjoinder of Causes of Action — Pleading—-Demurrer — Motion to Strike out. — A misjoinder of two causes of action in a complaint can only be objected to by a demurrer on that ground, and cannot be remedied by a motion to strike out part of the pleading.</p> <p>Variance in Proof — Remedy—Objection to Evidence — Nonsuit.— If the cause of action shown by the evidence is somewhat, but not rad« ically, different from that stated in the complaint, the objection should be presented, either by a specific objeetiou to evidence, or by a motion for nonsuit, particularly indicating the precise ground.</p> <p>Enforcement of Trust — Town-site Title —Patent in Trust for Occupants— Rights of Co-heirs of Occupant.— An heir of one who was in possession of a town lot under color of title, and who was one of the class for whose benefit the town-site acts were passed, can enforce a trust for his moiety of interest against a co-heir who obtains title to the whole lot under a patent issued “in trust for the several use and benefit of the occupants of the town site according to their respective interests,” and may enforce such trust against a purchaser from such co-heir with notice of the rights of the plaintiff.</p> <p>Id. — Deed of Town Lot — Assumed Name of Grantee — Identity.— The fact that the possessor of such town lot became the occupant under a deed from a prior occupant made to her as grantee under an assumed name, by which she was known, instead of her real name, is unimportant, and cannot affect her rights as a beneficiary under the town-site patent.</p> <p>Id.—Notice to Purchaser from Co-heir — Record of Deed to Occupant. — The record of such deed to the occupant of the town lot under such assumed name is notice to a subsequent purchaser from the husband of the grantee, who acquired the title to the whole lot, in fraud of the rights of plaintiff as a co-heir, sufficient to put such purchaser upon inquiry as to the true condition of the title, and he is chargeable with notice that the plaintiff was the equitable owner of one half of the property, if the evidence shows that slight inquiry would have apprised him of that fact.</p> <p>Secondary Evidence — Admission of Copy of Deed — General Objection. —The admission of a copy of a deed, without accounting for the original, can only be objected to on the ground that the copy is not the best evidence, and a general objection is insufficient.</p>

Writ of review from the Supreme Court to the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

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

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

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

<p>Municipal Incorporation Act — Petition for Incorporation — Insufficient Number of Qualified Signers—Void Incorporation.—When a petition for the incorporation of a municipality under the municipal incorporation act is not signed by the requisite number of qualified persons, the organization of an incorporation thereunder is absolutely void as being without authority of law; nor can a favorable vote of the people cure such defect, or confer jurisdiction upon the supervisors to issue the necessary certificate to exercise the municipal franchise.</p> <p>Id. —Fraudulent Petition — Canvass of Election Returns — Jurisdiction of Supervisors. — When such petition purports to be signed by a sufficient number of qualified persons, but after the holding of an election thereunder, the board of supervisors discover that a fraud was perpetrated in the signing of the petition, and that less than one hundred of the signers were residents or electors within the territory proposed to be incorporated, the hoard has jurisdiction to inquire into such fraud, and may refuse to canvass the election returns, or take any further proceedings in the matter.</p> <p>Id. —Void Election—Notice without Authority of Law. —An election held without notice, or without authority of law, can give no title to an office or franchise; and notice of an election to determine whether the people would incorporate or not, if given without jurisdiction, is given without authority of law, and is no notice.</p> <p>Id. — Mandamus to Supervisors. — Mandamus will not lie to compel the board of supervisors of a county to canvass election returns, and issue a certificate of municipal incorporation, when it appears that less than the required number of residents or electors signed the petition for incorporation, and that notice of the election to determine the question of incorporation was therefore given without authority of law.</p>

<p>Homestead — Mortgage by Husband and Wife to Secure Joint and Several Promissory Note — Foreclosure against Wife — Presentation of Claim against Estate of Deceased Husband — Pleading. — A mortgage on a homestead given by a deceased husband and bis wife to secure the payment of their joint and several promissory note (the homestead having been set apart to the wife out of the estate of the husband) cannot be foreclosed, unless the claim of indebtedness was presented for allowance against the estate of the deceased husband; and a complaint upon foreclosure against the wife alone, praying for a personal judgment against her, which omits to allege such presentation of claim, is subject to a demurrer on the ground that it does not state facts sufficient to constitute a cause of action. (Beatty, C. J., dissenting, holds that while the mortgage cannot be foreclosed, plaintiff is entitled to a personal judgment against the wife for the amount of the note.)</p>

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

<p>Negligence — Carrying Passenger beyond Railroad Station — Knowledge oe Special Risk — Breach of Duty of Carrier—Question of Pact. — Where a railroad company carries a passenger beyond and away from all its usual stopping-places, to a place where there are no accommodations for alighting, and the company knows there is special risk and hazard, owing to the switching of the engine, it is its duty to use every precaution for the protection of the passenger against danger from the passing engine, and whether it did so or not is a proper question of fact for the jury.</p> <p>Id. — Contributory Negligence of Passenger — Question of Pact.— In such case it is a question of fact for the jury to determine whether the passenger, with the knowledge she possessed as to the peril of the place, and with the presumption she was entitled to indulge as to the degree of care which the employees of defendant would exercise for her protection, was herself guilty of negligence which proximately contributed to her injury.</p> <p>Id.—Negligence Relative to Circumstances — Province of Jury'.— Negligence is not absolute, but is relative to circumstances surrounding the case, and always relates to some circumstance of time, place, and person. Contributory negligence is generally an inference from facts and circumstances, which it is the province of the jury to find.</p> <p>Id.—Nonsuit for Contributory Negligence.—Nonsuit on the ground of contributory negligence should only be granted when, giving the plaintiff the benefit of all controverted questions, it is apparent to the court that a verdict in his favor must he set aside.</p> <p>Id. — Duty of Carrier to Passenger—Passenger not Bound to Anticipate Negligence. — Carriers owe more than an ordinary duty to their passengers, and negligence cannot be imputed to a passenger for not anticipating culpable negligence on the part of the carrier, but he has a right to act on the presumption that the employees of the carrier will use that degree of care which persons of ordinary prudence are accustomed to employ under the same or similar circumstances.</p> <p>Appeal — Sufficiency of Evidence to Support Verdict.—Where there is evidence to support the verdict, and the evidence on most points is without substantial conflict, the judgment will not be disturbed on the ground of insufficiency of evidence.</p>

<p>Appeal from an order of the Superior Court of Del Norte County, setting apart a homestead to an insolvent debtor.</p> <p>The facts are stated in the opinion.</p>

<p>Insolvency — Right to Discharge — False Affidavit to Schedule — Unintentional Mistake — Construction of Insolvent Act. — The provision of section 49 of the Insolvent Act prohibiting a discharge if the insolvent debtor “shall have sworn falsely in his affidavit annexed to his petition, schedule, or inventory,” does not apply to an unintentional and innocent mistake in the affidavit. The words “sworn falsely” necessarily import a willful act done with a fraudulent intent, and from which the element of fraud cannot be eliminated.</p> <p>Id. —Opposition to Discharge — Finding of Mistake without Fraud — Appeal. — When the superior court finds that omissions complained of upon an opposition to the discharge of the insolvent were mere mistakes, made without any fraudulent intent or purpose, and it is not claimed by the creditors that the findings were not justified by the evidence, it must be conclusively assumed upon appeal that such findings are true.</p> <p>Id.—Understating Debts and Credits — Immaterial Mistake.— Turning over Omitted Credit. — The fact that a debtor, in proceedings in insolvency, by mistake and inadvertence, understated his indebtedness to one of his creditors in his schedule of liabilities, and omitted from the inventory of his assets a small sum due to him, will not prevent his discharge, and is immaterial, where it appears that the full amount of the true indebtedness was allowed to the creditor, and the debt due to the insolvent was promptly turned over to the assignee when received by the insolvent.</p> <p>Id.—Insufficient Ground of Opposition to Discharge — Appeal from Order Setting apart Homestead — Pleading — Demurrer. — An opposition of creditors to a discharge in insolvency setting up the pendency of an appeal from an order setting apart a homestead to the insolvent, which is claimed to be excessive in value, discloses no ground of opposition enumerated in the statute, and is subject to a general demurrer.</p> <p>Id. — Right of Insolvent — Effect of Discharge — Rights of Creditors— Excessive Value of Homestead. — The right of the insolvent to a discharge accrues at the expiration of three months from the adjudication in insolvency, and the discharge in no way jeopardizes the rights of creditors to appropriate the excess in value of the homestead, if there be an excess, since, if the appeal is sustained, and the order reversed, the matter goes back for further adjudication.</p>

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

<p>Criminal Law—Limitation of Misdemeanor—Mandatory Statute.— A prosecution for a misdemeanor is barred by the provisions of the Penal Code, if an information therefor is not filed in the superior court within one year after its commission, provided the defendant has not been absent from the state; and the bar of the statute is imperative and mandatory.</p> <p>Id. — Construction of Code — “ Information ” not Equivalent to “Complaint.” — The information referred to in section 801 of the Penal Code, which provides that an information for any misdemeanor must be filed within one year after its commission, is the paper which must be filed by the district attorney in the superior court pursuant to section 809 of the same code, and not the complaint made before a court or magistrate, provided for in section 800.</p> <p>Id.—Filing Complaint within One Tear — Continuance of Examination— Waiver of Limitation. — The statute being imperative that the information must be filed within a year after the commission of the offense, unless the defendant has been absent from the state, it is immaterial that a complaint was filed before a committing magistrate for the issuance of a warrant of arrest within the year; and the granting of continuances of the examination, at the request of defendant, until the bar of the statute against an information has attached, is no waiver of the filing of the information within the time limited by statute.</p> <p>Id.—Pleading of Limitation — Demurrer.—The defendant may demur to an indictment or information, when it appears upon the face thereof that the prosecution is barred by the statute of limitations.</p>

<p>Amendment of Answer — Retrial of Foreclosure Suit — Mortgage Note — Liability of Payee as Indorser — Agreement between Joint Payees.—After trial of a foreclosure suit, in which one of two joint payees of the mortgage note was charged as an indorser, and had filed an answer admitting the indorsement and waiver of demand, notice, and protest, and pleading that his co-payee was the real party in interest, and that the action was barred by limitation, and after reversal of a judgment in favor of the indorser, it is not error for the court before retrial to permit the indorser to amend his answer by averring that at the time of the indorsement and waiver it was agreed between himself and his co-payee, who joined in the indorsement of the note to a firm of which the co-payee was a member, that such co-payee would advance the whole consideration of the note to the mortgagors, and that he would repay him one half thereof on demand, and that he should he held harmless of his indorsement, and in no event be required to pay the note.</p> <p>Id. — Change of Issues-—Showing of Diligence. — Such amendment is not inconsistent with the admission of indorsement and waiver, but explains how they were made and what effect they were to have, and does not fall within the rule that an admission cannot be changed into a denial upon a second trial; and as the amendment would aid the court in doing complete justice between the parties, no showing of diligence was required, and it is immaterial that defendant had knowledge of the new matter pleaded when be filed his original answer.</p> <p>Id.— Amendment during Trial ■—Discretion. — It is in the discretion of the court to allow a further amendment of such answer during the second trial, to show more fully the circumstances under which the note and mortgage were obtained, and the indorsement and waiver made upon the note, there being no claim that the new matter operated as a surprise upon the plaintiff, whereby he was prevented from fully controverting it upon the trial.</p> <p>Negotiable Paper — Disputing Liability of Indorser — Parol Evidence. — Though it is a general rule that between an indorser and a bona fide holder of negotiable paper, the liability established by the indorsement cannot he disputed, yet it may be shown by parol evidence that from the way in which his indorsement was procured it would be a fraud upon him to permit its enforcement; and when the facts show that its enforcement against the indorser would be inequitable, the case comes within the exception to the rule.</p> <p>Ix>._Indorsement to Partnership — Consent to Agreement between Joint Indorsers. — The fact that the note was indorsed to a partnership of which one of the co-payees was a member can make no difference as to equities arising out of an agreement between the joint payees who indorsed the note, if the firm had knowledge of and assented to the agreement between the indorsers.</p> <p>Id. — Indorsement after Maturity Subject to Equities. — One who takes a note after maturity takes it subject to any defense which could have been interposed against a prior indorsee.</p> <p>Id. — Evidence — Competency of Witness — Testimony of Indorser against Indorsee of Decedent. —An action by an indorsee of a firm, one of the members of which is deceased, and who was also a payee and indorser of the note, against a co-payee and co-indorser of the note, upon his liability as indorser, is not an action against the legal representative of the deceased upon a claim against the estate of the decedent, and the defendant is a competent witness to testify to facts occurring before the death of the decedent.</p>

<p>Guardian and Ward — Account of Guardian — Board of Wards. — Items in a guardian’s account for payment of board of his wards while living with their elder brother, many years before the presentation of the account, are properly disallowed, where it appears that the brother made no demand for such payment, and did not claim that he was entitled to compensation for their keeping, and there is no evidence that any amount was agreed to he paid him, or as to what their keeping was worth, or whether it was worth anything beyond their services; it further appearing that the guardian, without demand or claim against his wards, hunted up the brother and proposed to settle for the board, and voluntarily gave his note therefor, when cited to account upon petition of his wards ten years after his appointment.</p> <p>Id.—Long Delay of Guabdian to Account — Use of Wards’ Money — Compound Interest. — Where a guardian has received money due his wards, which he has kept and used for his own purposes, and rendered no accounting for many years, until cited to appear and account on the petition of his wards, he is properly chargeable with interest upon the money received compounded annually.</p> <p>Id. — Law Strictly Applied against Guardian Failing to Account. — A guardian who has collected money of his wards, used it, and does not account for it until forced to do so by the court many years later, is entitled to nothing more than the strict letter of the law allows him.</p> <p>Rejection of Evidence — Undisputed Fact — Appeal — Error not Prejudicial. — The refusal of the court to hear evidence, where there is no dispute as to the fact sought to be proven, is not error for which the judgment should be reversed, if there was no formal offer to prove the fact, and no question asked and disallowed upon which an exception could have been reserved.</p>

The note in question was signed “Emily B. Sayre, Mrs. Nancy D. Sayre,” but the evidence shows that both signatures were written by Mrs. Nancy D. Sayre, who is the mother of Emily B. Sayre. The latter testified that she gave her mother no authority to sign her name to the note, and that it was signed without her knowledge or consent. Further facts are stated in the opinion.

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

<p>Divorce — Extreme Cruelty — Insanity of Wife — Default — Setting Aside Degree. — Where it appears that alleged acts of extreme cruelty on the part of a wife toward her husband were the result of a diseased mind, culminating in her insanity, and that she was insane at the date of service of summons upon her, and was judicially declared insane within one month after a decree of divorce was granted to the husband, upon her default, it is the duty of the court to set aside the decree upon mo. tion of her guardian, and to allow an answer to the complaint to be filed; and it is error to refuse the motion.</p>

<p>Vendor and Purchaser ■—Rescission of Contract for Failure of Title •— Recovery of Purchase-money. — In case of failure of title, whether the vendor is at fault or not, the purchaser may rescind a contract for the purchase of land, and recover the purchase-money paid by him as part of the purchase-price.</p> <p>Id. —Rescission of Option to Purchase before Time Fixed—Failure.— When a vendor, in consideration of a specified payment, gives an option to a purchaser to buy at any time within a fixed period certain lands particularly described, a portion of which is known to the vendor to belong wholly to another party, and it is agreed that the amount paid is to be forfeited unless the purchase is made within the time fixed, the purchaser of the option may, upon discovery of the failure of title before the time fixed, rescind the contract, and demand repayment of the purchase-money.</p> <p>Id. —Duty of Vendor of Option to Make Title Good. — The vendor of an option to purchase is in duty hound to be ready at all times within the period of the option given, during which a conveyance may he demanded by the purchaser, to convey a good title to all the land which he has agreed to sell, upon further payment by the purchaser.</p> <p>Id. — Tender of Balance of Purchase-money by Holder of Option — Condition of Rescission. — In case of failure of title, discovered by the holder of an option to purchase, he is not required to tender the remainder of the purchase-money, and to demand a conveyance before avoiding the contract, hut may at once rescind the contract, and demand repayment of the amount paid for the option.</p> <p>Id. —When Vendor may Make Title Good — When not — Lapse of Time for Performance •— Conditional Offer. — If the vendor, though not the absolute owner, has it in his power by the ordinary course of law' or equity to make himself such owner, he will be permitted within a reasonable time to do so; but if he has no contract for the title, and makes no attempt to obtain it until after the contract of purchase has been rescinded, and could not have conveyed it during the time w'ithin which the contract was to be performed, it is immaterial that he thereafter receives an offer for it on condition that the purchaser is ready to take the property, and the court need not pass upon the question whether the purchaser was then willing or anxious to take it.</p>

<p>Appeal from an order of the Superior Court of Santa Barbara County setting aside and vacating a judgment.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of San Diego County rejecting in part a claim against an insolvent’s estate.</p> <p>The facts are stated in the opinion.</p>

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

<p>Pleading — Construction — Statute of Frauds — Contract — Demurrer. — An allegation that a contract was made, without stating whether or not it was in writing, will be construed to mean that the contract was in writing, if the law requires it to be so.</p> <p>Easement ■— Wat of Necbssitt. — When a conveyance of land is made, and the grantee has no means of access thereto or egress therefrom, except over the land of the grantor, a way of necessity exists.</p>

<p>Appeal from a judgment of the Superior Court of Del Norte 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 of the court.</p>

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

The facts are as follows: Defendant Hubert was treasurer of the city and county of San Francisco from December 6, 1875, until December 6, 1877, and before entering upon the discharge of his official duties gave the bond in suit, upon which his co-defendants are sureties. Upon the expiration of his term of office he succeeded himself by re-election.

<p>Order to Sell Real Estate of Decedent — Sufficiency of Petition. — It is settled that a substantial compliance with section 1537 of the Code of Civil Procedure is sufficient in a petition for an order to sell real property belonging to the estate of a decedent.</p> <p>Id. —Order Remedying Defect in Petition. — The neglect to state, in a petition for an order directing the sale of real property belonging to the estate of a decedent, whether the property was separate or community property is remedied by the fact that it is stated in the order directing the sale that the property was separate property.</p> <p>Id. —Findings upon Order of Sale. — Whether findings are necessary upon probate orders of sale, queere.</p> <p>Id. — Waiver of Findings — Presumption on Appeal. — Assuming that the rules in reference to findings apply 'to probate orders of sale, yet the party alleging error in the failure of the court below to make such findings must affirmatively show, by the record, that the findings were not waived, otherwise the intendment in the supreme court, which is always in support of the judgment, must be that they were waived.</p> <p>Id.—Joint Petition by Creditor and Administrator. —It is immaterial whether a creditor has the right to petition for the sale of real ■ property belonging to the estate of a decedent, if the administrator joins in the petition.'</p> <p>Id. — Statute of Limitations — Allowed Claim. — The statute of limitations does not run while the administration is pending and unsettled, aá to a claim against the estate which has been allowed, so as to disqualify the creditor from petitioning for an order of sale.</p> <p>Id.—Laches of Creditor — Excuse for Delay—Discretion of Probate Court. — Laches will in some cases defeat a creditor’s petition for sale of property of the estate, and the probate court has discretionary power to deny a creditor’s petition for the sale of real property, when there has been unreasonable delay without circumstances to excuse it; but where the court finds that the delay was excusable, its decision in allowing the petition will not be reversed unless it appears that the court below has abused its discretion.</p>

<p>New-trial Statement — Insufficiency of Evidence — Specifications. — Specifications in a statement on motion for new trial, of particulars of the insufficiency of the evidence to sustain the decision of the trial court, which do not purport to state wherein in any particular the evidence is insufficient to sustain or justify the decision, but merely state that there was no evidence to sustain or justify certain findings by numbers, or which stand alone as mere statements as to what the evidence shows, or as to what it was upon the trial, without being joined to a proper specification, are insufficient, under section 659 of the Code of Civil Procedure.</p> <p>Van Ness Ordinance — Actual Possession — Usual Indicia of Ownership—-Questions of Pact — Province of Jury and Court. — In determining the existence or non-existence of possessio pedis necessary to confer title to land in San Francisco, under the Van Ness ordinance, it is the peculiar province of a jury, under proper instructions of the court, to decide whether or not the acts of dominion relied on, considering the size of the tract, its peculiar condition, and appropriate use, were of such a character as usually accompany the ownership of lauds similarly situated, and the court, when sitting without a jury, should decide the same questions of fact upon the same basis.</p> <p>Id. — What Constitutes Possessio Pedis — Exclusive Control — Defined Boundaries — Inclosure not Required. —The possession which the law requires to show a possessio pedis is the subjection of the land claimed to the will of the claimant, consisting in doing as he wishes with the land, and excluding others therefrom; and an actual and open occupation of a tract of land marked oat by and within visible and defined boundaries, and a subjection of such land to the dominion of the occupant, to the exclusion of all others, is sufficient to show a possessio pedis, which, if continued long enough, will satisfy the requirements of the law, and establish title, under the Van Ness ordinance, whether there be an inclosure or not.</p> <p>Possession of Administrator — Privity — Rights of Heirs — Ejectment — Conveyance before Distribution. — The administrator’s possession and title to land is not adverse to the heir, but the administrator is in privity with and represents both heirs and creditors; and so far as any but creditors are concerned, the heir in whom the title vests, subject only to the right of the administrator to dispose of the land to pay debts, has the right to the title and possession, and the right to maintain an action and recover possession, as against any one except the administrator, and may convey his title and right of possession while the estate remains undistributed.</p> <p>Id.—Ejectment by Administrator — Estoppel of Judgment — Rights of Vendees of Heir, — A judgment in ejectment recovered by os against an administrator is an estoppel in favor of or against the heir and those claiming under him; and a judgment recovered in such action by the administrator inures to the benefit of those to whom the sole heir had conveyed prior to the recovery of such judgment.</p> <p>Appeal — Failure to Find on Material Issue — Decision against Law. — The fact that there is no finding upon a material issue raised by the pleadings may he considered on appeal, where one of the grounds given in the notice of motion for new trial is, that the decision is against law.</p> <p>Id. —Failure to Find not Affecting Result. — The failure of the lower court to make a finding as to a matter which would not affect the result is not sufficient to reverse an order refusing a new trial.</p> <p>Landlord and Tenant — Judgment in Ejectment against Tenant — Estoppel — Evidence of Possession—Fraud and Collusion. — A judgment in ejectment in favor of one claiming title to laud, against one in possession of the land as tenant of an adverse claimant, who was not a party to the suit, though not an estoppel as to the title, is admissible in evidence in an action of ejectment brought by the adverse claimant against the successful party in the first action, when taken with other evidence, to show where the actual possession of the property was, and when it ceased to be peaceable, and that the only possession had by the adverse claimant was by a tenant who originally held under the plaintiff in the first action, and who had no possession adverse to him, but one founded in fraud and collusion.</p> <p>Id. — Disturbance of Adverse Possession — Suit against Tenant — Parties — Privity of Landlord — Statute of Limitations — Relation of Possession Recovered.—The adveise possession of a landlord by his tenant is disturbed when the tenant is sued, though the' landlord is not made a party to the suit, and there is such a privity between them that the suit against the tenant stops the running of the statute of limitations in favor of the landlord, and the judgment of possession against the tenant affects the landlord as well as the tenant, and the possession recovered by the plaintiff dates by relation back to the commencement of the action.</p>

<p>Criminal Law — Robbery — Evidence — Alibi — Flight of Defendant — Instruction as to Corroboration. — When the witnesses for the prosecution, upon trial of a defendant charged with robbery, have testified that the robbery occurred after dark, and that they were not personally acquainted with the defendant, and that other persons were with defendant, and ran away with him in different directions, when defendant grabbed the money and ran away, and there is no other evidence of the flight of defendant, and where equally credible witnesses for the defendant have testified that defendant was ill and in bed at the time of the alleged robbery, an instruction to the jury that such flight is a corroborating circumstance which, with other evidence, may be sufficient to justify a verdict against the defendant, is ground for a new trial, as being misleading, and liable to prejudice the case of the defendant by leading the jury to assume that the witnesses for the prosecution were corroborated by other evidence of the flight.</p> <p>Id. — Corroboration of Witness. —The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witness, or to comport with some facts otherwise known or established.</p>

<p>Criminal Law — Assault with Intent to Commit Rape—-Evidence of Other Lewd Acts. — Upon the trial of a person charged with an assault with intent to commit rape upon a young girl under fourteen years of age, evidence tending to show lewd, immoral, and indecent conduct of the defendant with other young girls, and tending to show lewd acts and occurrences between the defendant and such other girls, and en- . deavors to corrupt them, is inadmissible, and the admission of such evidence is ground of reversal.</p> <p>Id. — Proof of Other Like Offenses — Criminal Intent — Exception Inapplicable. —The general rule is well settled that the prosecution cannot prove the commission by the defendant of other like offenses, for the purpose of increasing the likelihood that he committed the particular offense with which he was charged, though in some exceptional cases proof of other acts is allowed in order to show the intent with which the act charged was done; but this exception does not apply to the case of an assault with intent to commit rape upon a female child under the age of fourteen years.</p> <p>Id. — Age of Consent — Proof of Force or Intimidation — Instruction. — To constitute the offense of an assault with intent to commit rape, if the acts charged were committed after the proescuting witness became of the age of consent, some force or intimidation must be shown, or some want of consent on her part; but if they were committed while she was not of such age, the defendant would be guilty, whether the prosecuting witness actually consented or not; and if the acts complained of might have occurred in both periods, the instructions should carefully distinguish between them.</p>

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

<p>Damages — Conversion — Expenses of Pursuit of Property — Form of Action. — The plaintiff may recover compensation for the pursuit of the property (under our statute) in an action to recover the property itself as well as in an actiou0for its conversion, provided his complaint be framed for that purpose.</p> <p>Conversion — Demand and Refusal — Pleading. — If defendant took plaintiff’s property, and refused to return it on demand, there isa conversion, and an allegation of these facts sufficiently shows a conversion.</p> <p>Damages — Exemplary Damages — Malice — Oppression. —In case of malice or oppression, the j ary may give damages by way of punishment for the offense, in addition to the actual damages.</p> <p>Exemplary Damages — Possession under Provisional Process. — The fact that the plaintiff has obtained possession of the property under provisional process does not affect the question of exemplary damages. Exemplary Damages — Form of Action. — Exemplary damages may be recovered in an action to recover the property itself as well as in an action for its conversion.</p>

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

<p>Habeas Corpus — Trial oe Imprisoned Convict—Conviction eor Murder. — A prisoner sentenced to be hanged under a conviction for murder cannot be released on habeas corpus because it appears that, while serving a sentence in the state prison under conviction for a felony, he was brought out therefrom before expiration of his sentence, to be tried for murder, under an order of the superior court of a county other than that from which he was sentenced, regardless of whether such order was lawful or not, or whether the warden of the state prison might have refused to deliver him up, his body having been produced, and the court having jurisdiction to try him for the offense charged.</p>

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

<p>Municipal Ordinance — San Francisco — County Government Act. — The provisions of the county government act do not apply to the passage and publication of ordinances of the city and county of San Francisco.</p> <p>Id. — Consolidation Act — Publication op Amendatory Ordinance.— Under section 68 of the consolidation act of the city and county of San Francisco, providing that “ every ordinance, etc., shall, after its introduction in the hoard, be published,” etc., the publication of an amendatory ordinance which is separate and complete in itself is sufficient, without republishing the original ordinance.</p> <p>Id. — Conflict with General Laws — License Tax — Punishment — Rules op Evidence — Validity op Ordinance in Part. — Where a municipal ordinance imposing a license tax provides a punishment for carrying on business without such license, in conflict with that prescribed by the general laws of the state, and establishes rules of evidence in conflict with the Code of Civil Procedure, but does not conflict with general laws in any other part, and properly fixes the license fee, and provides for the license, the portion prescribing the penalty and the rules of evidence may be rejected, and the portion providing for the license may stand.</p> <p>Id.—Statutory Construction—■ Separable Part op Law.—If part of a law or ordinance which is invalid is distinctly separable from the remainder, the latter can stand and the former be rejected.</p> <p>Id. — Unconstitutional Subdivision op Ordinance. — The fact that a certain subdivision of an ordinance has been declared invalid by the supreme court of the United States does not invalidate the remaining portions of the ordinance, where those portions are severable from the rest.</p> <p>Id. — Power of Supervisors over Rules of Evidence. —A city ordinance containing certain provisions in relation to the burden of proof and as to the effect of certain acts as evidence is void as to those provisions, as the board of supervisors has no power to establish rules of evidence for the guidance of courts.</p> <p>Id. — Violation of License Ordinance — Sufficiency of Complaint. — A complaint alleging that the defendant was doing business without the requisite license, and referring to the original ordinance fixing the license fee and an amendatory ordinance by number, and concluding that his acts are “contrary to the form, force, and effect of the statute in such cases,” etc., is sufficient to hold the prisoner for trial, though the punishment and rules of evidence must be regulated by the general laws of the state, and not by the ordinance.</p> <p>Id. — Constitutional Law — Regulation of Liquor Traffic — License Tax Subject to Arbitrary Approval.—A city ordinance making the issuance of a license to carry on the retail liquor business to depend upon the permission of a majority of the board of police commissioners, or if that cannot be obtained, upon the approval of twelve property owners in the block in which the business is carried on, is not in violation of the federal constitution, upon the ground that the license is made to depend upon the arbitrary will and pleasure of others, since the governing power may prohibit altogether the manufacture of and traffic in liquor, and may therefore impose such conditions thereupon as it pleases, provided that it does not interfere with interstate commerce. (McFarland, J., dissenting.)</p> <p>Id.—Refusal of New License—Revocation —Notice.—Where, by the terms of an ordinance, a license to sell liquor at retail could be granted for three months only, a refusal to issue a new license after the previous one had expired is not a revocation of an existing license, and therefore no notice to the petitioner of the refusal to issue the new license is necessary.</p>

Petition to the Supreme Court to settle exceptions disallowed in settling a statement on motion for new trial, in an action appealed from the Superior Court of .Stanislaus County. The facts are stated in the opinion of the court.

<p>Certiorari—Extension of Time to Answer— Vacating Default — Judgment — Remedy by Appeal. — The writ of certiorari will not lie to review an order refusing to vacate an order setting aside a judgment by default on the ground that the default was properly taken because the time allowed under the statute in which to answer had expired, and an order made extending the time beyond the number of days allowed by statute was void, since the court had jurisdiction to set aside the judgment by default, regardless of its jurisdiction over the extension of time, and the only remedy is by appeal from the order of the court.</p> <p>Id. —Review of Void Orders Extending Time— Appeal. — Void orders extending the time to answer cannot be set aside in a proceeding to review an order refusing to vacate an order setting aside a default; but if, on appeal, it should appear, from the transcript, that the order extending the time went further than the law allowed, the petitioner would be entitled to the benefit resulting from such facts.</p>

<p>Motion to affirm a judgment of the Superior Court of San Luis Obispo County. The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>Vendos and Purchaser — Bona Fide Purchaser — Unrecorded Lease as Notice — Possession of Lessee — Duty of Purchaser.—Though an unrecorded lease for a period of ten years is void as against a purchaser of the leased property, unless he had notice of its existence, or such notice as should put him upon such inquiry as would disclose its existence, yet such lease is good between the parties, and the actual possession by the lessee of the leased premises is sufficient to put the purchaser on inquiry as to the extent of the claim of the lessee, regardless of whether the purchaser knew of the possession, or not, it being his duty to know who was in possession before making the purchase.</p> <p>Id.—Possession of Locked Rooms by Lodge.—The fact that the rooms held under such lease were held by a lodge, and that the doors of the rooms were locked when the purchaser looked at the house, and that he did not know they were occupied, does not relieve the purchaser from inquiry as to who were in actual possession of the rooms.</p> <p>Id.—Presumption of Notice to Purchaser — Rebutting Evidence — Diligent Inquiry as to Right of Possessor.—A vendee is presumed to have purchased and taken a conveyance from the vendor with full notice of all the legal and equitable rights in the premises of a stranger to the vendor’s title of record, who is in actual possession, and to take in subordination of those rights; and this presumption can only be overcome or rebutted by clear and explicit proof on the part of the purchaser, or those claiming under him, of diligent, unavailing effort by the vendee to discover or obtain actual notice of any legal or equitable rights in behalf of the party in possession.</p> <p>Id.—Burden of Inquiry — Knowledge of Possession.—The burden of making the proper inquiry is east upon the purchaser by the mere fact of actual possession of a stranger to the record title; and he cannot, by failure to acquaint himself with the fact of possession, avoid inquiry, or evade the effect of the rule.</p>

<p>Constitutional Law—-Obligation of Contracts — Municipal Ordinance Limiting Employment of Labor. — An ordinance of the city of Los Angeles making it a misdemeanor for any contractor to employ any person to work more than eight hours a day, or to employ Chinese labor, where the work is to be performed under any contract with the city, is an attempt to prevent persons from employing others in a lawful business and paying them for their services, and is a direct infringement of the right of such persons to ‘make and enforce their contracts, and is unconstitutional and void so far as it attempts to create a criminal offense.</p> <p>Id. — Liberty of Avocation. — Any person is at liberty to pursue any lawful calling, and to do so in his owii way, not encroaching upon the rights of others; and it is not competent to forbid any person or class of persons, whether citizens or resident aliens, from engaging in lawful business, or to subject others to penaltis for employing them.</p> <p>Id. — Police Power. •—Such ordinance^ not a valid exercise of police power, it not appearing that the servic^^i be performed were unlawful, or against public policy, or that the , fit for certain persons, such as fe; ground. oyment was such as might be unir infants, or forbidden on that</p>

<p>Action for Services — Employment for Share of Profits ■—Evidence — Expert Accountant — Figures Furnished by Partner of Witness— Assent of Parties — Waiver of Objection. —In an action to recover for services rendered as manager of a certain business, for which services the plaintiff was to receive one half the profits of the business, evidence given by an expert accountant employed by the defendant to examine the books, as to the net profits of the business, is admissible for the plaintiff, where no objection is made to the testimony by the defendant, even though it appears that the expert made no personal examination of the books except of a few items, but that his partner made a detailed examination and furnished the figures from which the expert made the calculations, the figures having been presented to both parties and assented to, the defendant objecting only to the calculation as to the amount of profits.</p> <p>Id, — Books of Account not Exclusive Evidence — Testimony as to Profits — Opinions. — In such action, while the books of the firm are admissible evidence on the issue of profits of the business, they do not exclude other evidence as to what the defendant or other witnesses knew about the profits; and it is error to refuse to allow the testimony of such witnesses, as to their actual knowledge, though any mere conclusions or opinions of the witnesses should be excluded.</p>

<p>Place of Trial — Jurisdiction — County of Orange — Los Angeles Courts. — The act creating the county of Orange did not deprive the Los Angeles courts of jurisdiction over cases previously commenced. Such cases could only be removed to the county of Orange on motion properly made.</p> <p>Mortgage — Foreclosure — Judgment — Deficiency. — A decree which provides for the sale of land on foreclosure, and the application of the proceeds to the sum adjudged to be due from the mortgagor, but which makes no provision for docketing a judgment against the mortgagor for any deficiency that may exist, is not a personal judgment against her.</p> <p>Findings — Foreign Law — Fact. — A finding that the law of another state “is the same as the law of this state” is a sufficient finding of the fact.</p> <p>Community Property—Control of Husband. — The husband has the entire control of the community property, and may mortgage it without the consent of the wife, although the deed was taken in her name.</p> <p>Community Property — Presumption. — Prior to the act of 1889, the presumption was, that property acquired by either spouse by purchase during marriage was community property, and this presumption could only he overcome by clear and satisfactory evidence.</p> <p>Community Property — Deed — Recital — Evidence — Declaration. — Where the holder of a contract to sell mortgages the land as her own, the mortgagee is not bound by a recital that the property is her separate property, inserted in a deed subsequently made by the owner. Such a recital is at most a declaration of the grantor, and is overcome by his testimony that he knew nothing about the fact.</p> <p>Mortgage—Foreclosure — Litigation of Adverse Interests. — The rule that adverse interests cannot be litigated in foreclosure applies only to interests not subject to the mortgage. The question whether an interest is subject to the mortgage can be tried in the foreclosure suit.</p> <p>Mortgage — Priority — Contract of Purchase— Instantaneous Seisin. — Where the owner of land makes a contract to sell it, and before acquiring the title the purchaser mortgages it to a third person as her own property in such a way that such mortgage would he fed by the after-acquired title, and subsequently, when the deed is made to her, and as part of the same transaction, she mortgages the land to secure part of the purchase-money to her grantor, who is without notice of the other encumbrance, the mortgage to the grantor has priority over the other.</p> <p>Mortgage — Payment— Satisfaction — Subrogation.—Where the amount due on two mortgages is paid by a third person at the request of the mortgagor, and there is no understanding that they shall he considered satisfied, a court of equity will, for purposes of justice, keep the mort» gages alive, and much more so if the party paying takes an assignment of the mortgages.</p> <p>Mortgage — Satisfaction — Conditional Payment. — Where the assignee of two mortgages makes further advances to the mortgagor, who gives a new mortgage covering the amounts of the old mortgages and the further advances, but there is no agreement or understanding that the old mortgages shall be considered satisfied, and possession of them is retained, there is only conditional and not absolute payment.</p> <p>Mortgage — Conditional Payment — Suspension and Revival of Remedy —Priority. — The effect of conditional payment of one mortgage by another is to suspend the remedy on the old mortgage until the maturity of the new one. Until such maturity the old mortgage cannot be foreclosed. But if the debt be not paid at maturity the old mortgages revive and have priority over an intervening mortgage to a third person.</p>

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

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

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

Application to the Supreme Court for the discharge of petitioner upon a writ of habeas corpus. The facts are stated in the opinion of the court.

<p>Mexican Grant — Conclusiveness of Patent — Homestead Entry. — A patent to land, issued by the United States upon a confirmed Mexican grant, is conclusive upon the United States government and all claiming under it after the date of its issue, and precludes any subsequent homestead entry of the same land under an act of Congress.</p> <p>Boundaries — Description in Patent —Monuments. —In determining the boundaries of a patent as applied to the tract of land described in it, courses and distances must yield to natural objects or monuments called for.</p> <p>Id. — Survey of Public Land after Patent. — A survey of public land, made many years after a patent has issued to certain lands under a prior survey, confirming a Mexican grant, is entitled to but little consideration, and cannot disturb or damage the boundary lines of the lands which have gone into the patent, and which are conclusive between the holder under the patent and the United States government.</p>

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

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

<p>Constitutional Law—Establishment of Inferior Courts — Power of Legislature. — The jurisdiction, powers, duties, and responsibilities of the inferior courts established by the legislature under article 6 of the constitution must be provided for and fixed by a bill regularly passed through the stages necessary to constitute it a law, as provided in sections 15 and 16 of article 4 of the constitution; and the courts cannot be established by any less formal means, but must be established by the lawmaking power, including the governor, and by laws passed and approved as provided by the constitution. (Beatty, C. J., and Paterson, J., dissenting.)</p> <p>Id. — Afproval of Municipal Charter. — A provision in a municipal charter, adopted by a mere resolution of approval, establishing inferior courts in the city adopting the charter, and giving them jurisdiction, is not an exercise of the law-making power of the legislature, and is unconstitutional. (Beatty, C. J., and Paterson, J., dissenting.)</p> <p>Id.—Jurisdiction of Police Court — Invalid Conviction — Appeal._ Where the police judge who committed a defendant for a criminal offense was neither elected to nor claims to be holding any other office than the one attempted to be established by the resolution of the legislature approving a municipal charter, the defendant may on appeal from the judgment present the question as to whether or not the police court committing him was legally established.</p> <p>Id.—De Facto Officer — Judge of Illegal Court. — Though the action of a de facto officer to hold an existing office cannot be questioned collaterally, this principle does not apply when the office does not exist. There cannot be a defacto judge of a court that has no legal existence.</p>

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

<p>Jury— Discharge of Jurors — Verdict Willfully against Evidence. — Where a verdict rendered by a jury in. a criminal case is such as to convince the trial court that the jury had purposely and willfully disregarded the evidence and returned a verdict in violation of their sworn duty, it is the duty of the judge to discharge the jurors rendering such verdict from further service or attendance in other criminal cases; and in the absence of any showing to the contrary, it must be presumed, in favor of the action of the court, that the case was such as to justify the discharge of jurors upon that ground.</p> <p>Id—Discharge of Temporary Jury — Sufficiency of Reason.—The trial court has the right to discharge a jury, or any of them, not selected to try a pending case, nor selected to serve for any fixed term, at any time, without giving any reason for such discharge, and without the existence of a reason; and in such case the fact that a reason was assigned, which in some cases might be insufficient, is immaterial.</p> <p>Id. — Discharge of Panel without Prejudice •— Rights of Defendant — Summoning New Panel.—Where the discharged jury was not selected for the trial of the defendant’s case, the defendant had no vested right to a trial by such jury, and where the jury by which the defendant was tried was ordered to be summoned in precisely the same way that the discharged jury had been selected and summoned, and it is not shown or claimed that the jurors thus selected were less favorable to the defendant than the discharged jurors would have been, no injury could result to the defendant by reason of such discharge, as all of his rights of challenge to the new jurors were preserved.</p> <p>Evidence — Cross-examination — Impeachment of Witness — Statements Showing Animus. — Where a witness testified favorably to the defendant in his examination in chief, it is competent to ask, on cross-examination, whether he had not made statements out of court tending to show his friendly feeling toward the defendant, and whether he had not expressed an intention to suppress facts within his knowledge that would injure defendant’s case; and such statements may be proved to impeach the witness, if he denies making them.</p> <p>Id. — Immaterial Impeachment. — If the testimony tending to impeach a witness is immaterial, it cannot he held to have injured the party calling him, if it does not appear that the testimony impeached was material.</p> <p>New Trial — Improper Influence upon Jury.— Evidence.—Evidence is admissible in support of a motion for a new trial by one who has been convicted, to show that the verdict rendered against him is the result of improper influences.</p> <p>Id. — Violation of Right to Pair Trial. — An attempt on the part of any person, whether through the medium of a newspaper or otherwise, to influence a jury by any improper means to bring in a verdict against a defendant in a criminal case, is a palpable violation of his right to a fair and impartial trial, and if it appears to the court to have had suflti an effect, a new trial should be granted.</p> <p>Id.—Newspaper Publication — Intimidation of Jury — Inquiry as to Effect. — Where it was the clear intention of the publishers of a newspaper to intimidate the jury, and by abusing other jurors who had returned verdicts of acquittal, to induce them to find the defendant guilty, and impose upon him the extreme penalty of the law, the defendant has the right to have the court determine, on his motion for a new trial, the question as to whether the newspaper article had that effect or not upon the jury, and may make the proof, with leave to the people to show, if possible, that the particular articles were not read by the jury, or if they were, that the jury were not in any way influenced by them.</p>

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

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

<p>Application to the Supreme Court for writ of mandate to the common council and mayor of the city of San Diego. The facts are stated in the opinion of the court.</p>

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

<p>Pbactioe—New Tbial—Presumption. —If an order granting a new trial is silent as to the ground on which it was made, and the existence of a valid ground is shown by the record, the appellate court will presume that the order was made on that ground.</p> <p>Pbactioe — New Tbial — Conflict of Evidence — Duty of Judge.—It is the duty of the judge of the trial court to grant a new trial whenever he is not satisfied with the verdict upon the evidence. The rule as to conflict of evidence does not apply in the trial court.</p> <p>Agent— Contbaot— Pabol Change of Wbitten Instbuctions. —Written instructions to an agent to sell on commission may be changed by parol, subject to the agent’s right to sell for advances.</p>

order of the Superior Court of Los Angeles County granting a new trial. The facts are stated in the opinion of the court.

<p>Criminal Law—Pleading — Once in Jeopardy—Discharge'of Jury for Sickness of Juror. —The commencement of the trial of a defendant, and the discharge of the jury, on account of the sickness of one of the jurors, without the consent of the defendant, does not constitute jeopardy or acquittal of the crime for which he was on trial, and evidence of such proceeding is not admissible to support a plea of once in jeopardy or former acquittal, in a subsequent trial upon the same or another information filed against the defendant for the same offense.</p> <p>Id. — Argument of Cause — Bemarks of District Attorney.—Where the district attorney, after arguing the case to the jury, claimed the right to argue again, after the attorney for the defendant declined to reply, which claim the court denied, a statement by the district attorney to the court, in the presence and hearing of the jury, that “ the defense was endeavoring to prevent the prosecution from arguing the truth of this charge to the jury,” is not prejudicial.</p>

<p>Injunction — Restraining Execution Sale — Violation of Agreement — Remedy by Motion — Laches. — An action will not lie to enjoin the selling of property levied upon under execution and to compel the carrying out of a verbal agreement to stay execution for a year, in consideration of a confession of judgment, where it appears that the plaintiffs were guilty of laches in not taking advantage of their adequate and speedy legal remedy by a motion to set aside the execution that had been levied, and to stay all other process until the expiration of the year agreed upon.</p> <p>Equity — Remedy at Law. — Where there is an adequate and speedy remedy at law, the injured party is not entitled to the assistance of a court of equity.</p>

Appeals from a judgment of the Superior Court of Santa Clara County, and from an order denying a new ' trial. This action is the same as that entitled Mill v. Den, reported in 54 Cal. 6-24, in which the character of the action and the principal facts are stated, and various points of law decided. The case was originally entitled José Maria Mill-and Charles E. Muse, plaintiffs, v. Richard 8.

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

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

<p>Specific Performance—Contract of Sale —Agency — Authority to Find Purchaser — Commission. — A letter from the owner of real estate to his agent, saying: “As you stated you could get thirty thousand dollars for the place you occupy on Market Street, and if you can, we will sell at that price any time before the first day of September, 1887, and allow you two and one half per cent on said price, and if no sale is made, no expenses to us,”—simply authorizes the agent to find a purchaser who would pay the price stated, and binds the principal to pay the commission agreed upon for finding such purchaser; but it does not authorize the agent to execute a contract to sell and convey the property so as to bind the principal, nor can the purchaser specifically enforce against the principal such a contract, signed by the agent, by virtue of the authority contained in such letter.</p> <p>Id. —Imperfect Agreement. — Such letter does not constitute an agreement of the principal which such purchaser can enforce, as it merely fixes a price, and does not specify any form of deed or time of payment, or of delivery of possession, or authorize the agent to make such specifications.</p>

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

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

<p>Appeal —Review op Evidence. —A verdict cannot be disturbed upon appeal for insufficiency of evidence to sustain it, when it is supported by the preponderance of evidence.</p> <p>Id. — Instruction — Ambig uity — Grammatical Errors — Construction. —An instruction which, if standing alone, appears ambiguous because of grammatical errors, must be considered in the light of common understanding, rather than the strict rules of grammar, and also in connection with its context; and if the remainder of the charge upon the same subject is clear and correct, and free from ambiguity, and if the objectionable sentence, when properly corrected by grammatical rules, would be a correct exposition of the law, it will be presumed that the jury so understood it, and were not misled thereby.</p>

<p>Pueblo Lands — Mexican Grant — Patent—Title of San Francisco. — The pueblo of San Francisco derived its title to its lands from the grant of the government of Mexico, and not from the United States, whose patent is not an original grant, and did not emanate from the source of title, and was not necessary to invest title in the city, but is a mere acknowledgment that the pueblo had title under the Mexican government, which existed at the cession of the territory, and is a release of all claim of the United States to the property found by its tribunals to have been so vested in the pueblo.</p> <p>Id. — Sorvey. — Location of Quantity. — The pueblo grant of San Francisco was of a fixed and definite quantity, with boundaries established on three sides by the terms of the grant, and required a survey merely for the purpose of fixing the fourth or southern line so as to secure the given quantity, exclusive of lands held by title paramount within the exterior boundaries; but such quantity, though required, could not control the natural boundaries described, and could only be ascertained by going south for quantity.</p> <p>Id. — CONCLUSIVENESS OF SURVEY AND PATENT — PRIOR RIGHTS OF THIRD Parties. — The survey of such grant belonged to the political department of the government, and not to the courts, and the survey and patent are conclusive upon the courts in actions of ejectment when not in conflict with the prior rights of third persons; but when such prior rights are invol ved, the inconclusiveness of the survey and patent may be asserted to the extent essential for the protection of such prior rights.</p> <p>Id. — Ejectment — Collateral Attack upon Patent —• Power to Convey. — The courts have the right, even in actions of ejectment, when the parties present rely upon a patent from the United States, to inquire as to whether or not the description given in the patent includes land which the government or its officers had no power to convey.</p> <p>Id.—Construction of Patent — Quitclaim — Relation.—The' patent to pueblo lands, as a conveyance, is to be construed only as a quitclaim, and takes effect by relation at the time when proceedings were instituted before the board of land commissioners for confirmation of the Mexican grant; and can convey nothing which the government of the United States had not the power to grant or confirm at the date of filing the petition for confirmation, or which was not then or thereafter vested in the United States.</p> <p>Id. —Patent as Record Evidence. —Though a patent for pueblo lands is record evidence of the validity of the Mexican grant under the laws of Mexico, it is valid as such record only to the extent that it conforms to the decree of confirmation with reference to the fixed natural boundaries, and to the survey made by the political or ministerial department, establishing a boundary not fixed and determined by the decree of confirmation.</p> <p>Id. — Power of Land Department — Survey and Patent Controlled by Decree of Confirmation.—The officers of the land department have no power, to include in a survey and patent to land, issued in satisfaction of a pueblo grant, land outside of the natural boundaries given in the decree of final confirmation of the grant, but are bound by the description given in the decree so far as it describes definitive boundaries.</p> <p>Id.—Boundaries of Pueblo Lands of San Francisco — High-water Mark. —The decree of confirmation of the pueblo lands of San Francisco, having described one of the definitive boundaries of such lands as being the “ extreme upper portion of the peninsula above ordinary high-water mark,” etc., such boundary must control the survey and patent, though the survey made under the decree fixed the boundary below the ordinary high-water mark, and the patent recited the decree confirming the grant, and in its granting clause described the boundaries of the land as fixed in the survey. (McFarland, J., Beatty, O. J., and Works, J., dissenting.)</p> <p>Id. — Ejectment — Evidence — Location of Lands below High-water Mark. —Evidence is admissible in an action of ejectment to challenge the validity of such patent as a conveyance of a particular tract for the recovery of which the action is brought, on the ground that the tract is below ordinary high-water mark in a navigable arm of the hay of San Francisco, and was not embraced within the lands covered by the grant which the patent was intended to evidence, and was not land which the government or its officers had the power to convey, but consisted of land belonging to the state of California at the time of the patent.</p> <p>Id. — Tide-lands — Title of State. — Lands below ordinary high-water mark belonged to the Mexican government by virtue of its sovereignty, and were no part of the pueblo lands of San Francisco; but passed to the state of California immediately upon its admission to the Union; and the government of the United States had no power to grant such lands to the city of San Francisco.</p> <p>Id.—Nature of Pueblo Grant — Mexican Law — Rights of Government — Title to Seashore. — The pre-existing title to pueblo lands under Mexican law was never a fee, or in the nature of a private land grant, hut merely vested the use of the land in the pueblo in trust for the benefit of settlers, with power as the representative of the state to make private grants to settlers, but not upon the seashore; and the fee of all the lands which had not passed into private ownership remained in the government, which was not deprived of the power of making grants to private persons within the limits of the pueblo, and retained the title to the seashore unencumbered by any power or trust conferred upon the pueblo, which title passed to the United States, and from it to the state of California, before the United States saw fit to vest the fee of the pueblo lands in the citv as the successor of the pueblo.</p> <p>Id. —■ Stare Decisis — Case Overruled. — The rule of stare decisis does not apply to the decision in the case of People v. San Francisco, 75 Cal. 389, so far as it determines the conclusiveness of the patent to the city of San Francisco, that question being unnecessary to the decision of that case, and its determination being erroneous, and in conflict with the decisions of the supreme court of the United States. (McFarland, J., Beatty, C. J., and Works, J., dissenting.)</p>

<p>Reformation of Trust Agreement — Mistake — Contract between Beneficiaries—'Intervention in Creditor’s Suit—Demurrer to Complaint of Intervenor. — In a suit in equity by a judgment creditor of a beneficiary, brought against such beneficiary and his trustee to reach an undivided interest of the beneficiary in certain lands held by the trustee under a declaration of trust, a complaint in intervention by another beneficiary, which shows that prior to the conveyance to the trustee and to the declaration of trust, a copy of which is attached to the complaint, the several persons named in the declaration as beneficiaries were the equitable owners of the land in the proportions named in the declaration, and had caused and procured the legal title to be vested in the trustee for the purpose of sale and distribution of proceeds, under an agreement that a declaration of trust should be made showing the nature and character of the trust, and the interests of the respective parties; that it was also agreed prior to said conveyance and declaration between the intervenor and the defendant debtor that said declaration should show that the proceeds of sale of the debtor’s interest were to he paid to the intervenor, until a debt due from him to the intervenor should he fully satisfied, and that the surplus should he paid to the debtor, and that the debtor would have the declaration show such agreement; that when the declaration was executed the intervenor was absent from the state, and that his attorney in fact who executed it on his part in his absence was ignorant of the arrangement; and that by a mutual mistake on the part of the intervenor through his representative, and of the debtor, the declaration failed to state the truth, and showed" that the whole proceeds of sale of the debtor’s interest were to be paid to the debtor, — states a sufficient ground for intervention and for a reformation of the declaration of trust, and a demurrer thereto should be overruled.</p> <p>Id. —Parties—Declaration of Trust — Several Contract. —Such complaint in intervention is not demurrable on the ground that the declaration of trust could not be reformed in the absence of other beneficiaries who were not parties to nor interested in the particular agreement sought to be reformed. As to each of the separate interests provided for in such declaration of trust, the contract or declaration is several and not joint, and to reform it as to one of the separate interests, it is only necessary to make those persons parties who are interested in the particular inter est in respect to which the reformation is sought.</p> <p>Id. — Parties to Mistake •—Objection Personal to Trustee—Rights of Attaching Creditor. — Where the interests under a declaration of trust are several and not joint, and there is a mistake common to the parties beneficially interested in that particular interest, the instrument may he reformed in that particular, and the mistake need not be common to all the parties who executed the instrument; and it is immaterial whether they had knowledge of it or not; nor does it lie in the mouth either of a beneficiary debtor, or of his attaching creditor, to object to the reformation of the declaration of trust, on the ground that the trustee did not share in the mistake, he being a party to the suit and not making such objection, which, if tenable at all, is purely personal to himself.</p> <p>Id.—Trustee’s Knowledge of Mistake.—It is a matter of entire indifference to the trustee of a mere malted trust, not coupled with any interest, who will he entirely unaffected by the reformation asked for, whether he shared in the intention of the parties beneficially interested or knew of the mistake or not, on account of which the reformation is sought.</p> <p>Id.—Agreement as to Terms of Trust — Meeting of Minds — Presumption — Execution by Attorney in Pact.—Where it is shown that the minds of the parties had met and agreed upon what was to be done when the time came to act in executing the declaration of trust, in the absence of proof to the contrary the law presumes that they remained in the same condition of agreement until the a< t was done; and it is not requisite that the mind of the attorney in fact of one of the parties, who was authorized merely to sign the name of his principal to the agreement, but was charged with no discretion as to its terms, and who intended only to declare such a trust as he supposed the parties had agreed upon, . should meet in agreement with the other party at the time of signing the declaration.</p> <p>Id. — Revision of Mdtual Mistake. —A mutual mistake in and as to an instrument itself, in failing to have it embody what the parties had actually agreed should he inserted therein, is such a one as may be revised on the application of the party aggrieved, so far as it can he done without prejudice to the rights acquired by third persons in good faith and for value, as provided in section 3399 of the Civil Code.</p> <p>to. — Evidence — Proof of Mistake —Rule for Trial Court —Review on Appeal — Conflicting Evidence. — The rule that the evidence to reform a written instrument on the ground of mistake is to be so clear and convincing as to leave no room for doubt applies to the mind of the trial court, and not to the review of its findings by the appellate court; and where the evidence tending to prove the alleged mistake, if standing alone, without contradiction, would make out a prima facie case, the appellate court will not reverse the judgment on the ground that such evidence is contradicted by other evidence, since the right to pass on the credibility of witnesses is not vested in the appellate court.</p> <p>Id. — Statute oe Limitations — Extinguishment oe Lien — Agreement to Pay Barbed Debt—Objection by Attaching Creditor. — A judgment creditor who seeks to reach an equitable interest of the judgment debtor by virtue of an attachment levied subsequently to the trust agreement under which the property is held cannot object to a reformation of such trust agreement to conform to a prior agreement between the debtor and another beneficiary that the proceeds of sale of such equitable interests should be applied in payment of a debt due to such other beneficiary, on the ground that an assignment of the equitable interest for the security of such debt had become extinguished by lapse of time, before the trust agreement was executed, and that the agreement sought to be enforced was for the payment of a debt which was barred by the statute of limitations, the plea of the statute being a personal privilege of the debtor, which he might waive, by a new agreement for security, as against the plaintiff, who had no enforceable right or lien at the date of the creation of the trust.</p> <p>Id.—Relation oe Judgment Reforming Trust Agreement — Equity Maxim. — A judgment reforming a declaration of trust proceeds upon the theory that it ought to have been so written in the first instance, and must, if sustained^ cause the instrument to read and operate as reformed, as and from the original date of the declaration of trust, in accordance with the principle that equity presumes that that which ought to have been done was done, and gives it force and effect as if done.</p> <p>Ed.—Limitation of Proceeding to Reform Trust — Discovery within Three Years. —■ Where it appears that the mistake in the declaration of trust was not discovered until an attachment was levied by the plaintiff, less than three years before the commencement of suit and the filing of the complaint of intervention, the claim of the intervener to have the declaration revised or reformed is not barred by section 338, subdivision 4, of the Code of Civil Procedure.</p> <p>Express Trust — Title oe Trustee — Interest of Beneficiary—Attachment. — A conveyance upon an express trust for the management and sale of real property and disposition of its proceeds among certain beneficiaries named, pursuant to subdivision 1 of section 857 of the Civil Code, vests the whole title in the trustee, both legal and equitable, by virtue of section 863 of the same code; and the only right that any beneficiary has is to share in the proceeds of the rents and profits when realized, and of the sale of the land when sold, and his only remedy is to enforce the execution of the trust. He has no attachable interest in the land.</p> <p>Id.—Right of Attaching Creditor — Lien of Attachment. — An attaching creditor can acquire no greater right in attached property than the defendent had at the time of the attachment; and if the property is in such a situation that the defendant has lost his power over it, or has not yet acquired such interest in or power over it as to permit him to dispose of it adversely to others, it cannot he attached for his debt; and even if the debtor has an equitable interest in land subject to attachment, the lien of the attachment must be subject to all existing equities.</p> <p>Intervention — Amendment at Trial to Conform to Proofs — Discretion. •— It is within the discretion of the trial court to allow an intervenor to amend his complaint at the trial to conform to the proofs, and it is not error to allow such amendment.</p>

<p>Oath of Office — Time for Qualification of Appointee — Mandatory Statute. — The provisions of section 907 of the Political Code, providing that when a different time is not prescribed, the oath of office must be taken, subscribed, and filed within ten days after the officer has notice of his election or appointment, or when no such notice has been given, then within fifteen days from the commencement of his term of office; and section 997, providing that an office becomes vacant upon the happening of certain events, one of which is the refusal or neglect of one who is elected or appointed to an office to file his official oath or bond within the time prescribed, — are mandatory, and the official oath or bond must be filed within the prescribed time, or the right to the office becomes forfeited.</p> <p>Id.—Notice of Appointment — Commission — Delay after Commencement of Term—Construction of Statute.—The receipt of a commission or a certificate of election is notice of an appointment or election within section 907 of the Political Code, and that portion of the section which requires an officer to qualify within fifteen days from the commencement of his term of office, where no notice has been given, applies to cases where the result of an election is presumed to be known to the person elected, or where an appointment to a term of office has been applied for or is known to the appointee, and where the person elected or appointed has failed to receive his commission or certificate.</p> <p>Id.—Delay in Receipt of Commission — Member of State Board of Agriculture. — A person appointed by the governor as director of the state board of agriculture for the term of four years, who did not actually receive his commission until nearly thirty days after it was issued to him, and seventeen days after his term of office began, nor have any knowledge of his appointment until that time, has ten days after the actual receipt of his commission in which to qualify, and does not forfeit his right to the office by failure to qualify within ten days after its issuance, nor within fifteen days after the commencement of the term.</p> <p>Id. — Qualification as Director of State Agricultural Society — Variation of Oath from Commission.—Under the act of April 15, 1880, entitled “An act to provide for the management and control of the state agricultural society of the state, ” declaring the state agricultural society to be a state institution, and providing for a “state board of agriculture,” to consist of twelve directors to be appointed by the governor, for the exclusive control and management of the said “state agricultural society ” as a state institution, the qualification asa “ director of the state agricultural society ” of one commissioned as a director of the “state board of agriculture,” is a sufficient qualification of the appointee. The slight difference between the designation of the office in the commission and in the official oath is of no importance.</p>

<p>Constitutional Law — Right to Speedy Trial — Penal Code — Mandatory Statute. —Section 13 of article 1 of the constitution guarantees a speedy and public trial to every person accused of crime, and section 1382 of the Penal Code, providing the time within which an indictment or information must he filed, and within which the defendant must he tried thereafter, is mandatory and imperative in its provisions, and confers no discretion upon the court.</p> <p>Id.—Discretion of Ooup.t—Postponement of Trial—Dismissal of Information. — The court has no discretionary power to prolong the imprisonment of a defendant accused of crime, without a trial, beyond the time provided by law, and where a prisoner, against whom an information was filed, entered a plea of not guilty five days after such filing, and made no application for a postponement, the case should have been dismissed for want of prosecution, on his motion made more than sixty days after the filing of the information, where the defendant was not brought to trial withiu such period, and the prosecution showed no valid reason for the delay.</p> <p>Id.—Showing of Cause for Postponement — Presumption.—Under section 1382 of the Penal Code, entitling the defendant to a dismissal in such a case, “unless good cause to the contrary is shown,” it is enough to authorize the dismissal for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application, and the court cannot presume that there was any good cause for holding him for a longer time without a trial, hut the prosecution must show it affirmatively.</p> <p>Appeal — Review of Errors not Excepted to. — When proper exceptions are not reserved, the rulings of the trial court upon evidence cannot he considered by this court upon appeal.</p> <p>Criminal Law — Larceny — Felonious Intent — Time of Taking — Question of Fact for Jury — Instruction — Prejudicial Error. — An instruction to the jury, requested by the defendant, upon trial for larceny, that “if the jury believe that the defendant had no felonious intent to steal the property at the time he took it, they must acquit, even if they should believe that he subsequently conceived the intent to appropriate it,” is correct as an abstract proposition of law, and where the evidence was such as to render such an instruction applicable, it should have been given, and the refusal of the court to give the latter part of it was prejudicial error, as the question as to whether the felonious intent existed at the time the property was taken was a question which should have been left to the jury, under the instruction asked.</p>

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

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

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

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

<p>Assumpsit — Salary of Book-keeper — Reduction — Offset for Salary Overdrawn — Verdict Contrary to Evidence. — In an action by a book-keeper to recover for services rendered for the defendants as partners, where the defendants claimed an offset for salary overdrawn by the book-keeper, which was allowed by the jury, the verdict will be set aside, as not sustained by the evidence, where the evidence shows without conflict that the plaintiff worked for defendants for a number of years for an agreed salary of §150 per month, and that while defendants may have contemplated reducing his salary to $100 per month, which would make the difference claimed for overdrawn salary, and which constituted the basis of that claim, no such reduction was in fact made or intimated to plaintiff, and that when he left their service he submitted a statement showing his claim of wages at the rate of $150 per month, and the balance remaining due as claimed in the complaint, which was pronounced correct by one of the defendants, and the right to payment not disputed by the other defendant when the claim was referred to him for payment.</p> <p>Id.—Evidence — Embarrassed Condition of Business.—In such case evidence of the amount of sales, and the embarrassed condition of the business of defendants during the last three or four months plaintiff was employed by them, is inadmissible, in the absence of some evidence tending to show an agreement between the parties for a reduction of the salary.</p> <p>Id.—Instruction Contrary to Evidence—Account Stated.—An instruction to the jury that the evidence was conflicting as to whether the defendants objected to the statement of the plaintiff’s account with them, which he submitted to them at the time hi left their employment, is erroneous, where the evidence shows, without conflict, that the plaintiff’s statement of his account was presented to one of the defendants, who pronounced it correct, and referred it to his partner, the other defendant, to pay the money due upon it, the latter simply saying, when the account was presented to him for payment, that he had no money to pay it with. The accuracy of the items of the account is established prima facie by such evidence, and it has the effect of an account stated.</p>

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

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

<p>Conflict of Evidence. —Instance of the application of the general rule to a finding as to the right to water.</p> <p>Water-ditch — Water Right. ■— The ownership of a water-ditch is not necessarily the same as the right to the water flowing through it, and is not a necessary incident thereto.</p>

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

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

<p>•Criminal Law — Evidence — Testimony of Defendant — Reopening Case — Discretion of Court. — Upon a criminal trial it is discretionary with the court to grant or refuse permission to the defendant to testify on her own behalf where request therefor is made after the evidence had all gone to the jury, and the court had proceeded with its charge to that body as to the law governing the case; and its action in refusing such request is not an abuse of its discretion.</p> <p>Id. — Grand Larceny—Instruction — Reasonable Doubt — Definition of Offense. — Where a defendant is accused of grand larceny, an instruction to the jury that “unless the prosecution has proved beyond a reasonable doubt that the defendant feloniously stole the money of the complaining witness it is your duty to acquit the defendant,”is not erroneous upon the ground that it does not distinguish between and define grand and petit larceny, if the defendant asked for no further definition of the offense, and the proof showed beyond question that if any larceny was committed it was grand larceny.</p> <p>Id.—Assuming Fact in Instruction — Possession of Money by Prosecuting Witness.—Such instruction is not erroneous, as assuming that the prosecuting witness had money on the occasion of the alleged theft, but correctly conveys the idea that unless it is proved beyond a reasonable doubt that the prosecuting witness had money which was stolen by the defendant as charged, they should acquit.</p> <p>Id. —Failure to Define “Reasonable Doubt.”—The failure of the court in its charge to define a “reasonable doubt” is not error where the defendant did not ask for such a definition.</p> <p>Id.—Unperspicuous Instruction as to Evidence — Reasonable Doubt. .— An instruction to the jury, that “it is not a matter of the number of witnesses, but the preponderance, and you may, if you retain a reasonable doubt, give the defendant the benefit of it,” although not specially clear and perspicuous, is not erroneous, as the jury must have understood it as importing that the number of witnesses on either side was of no controlling force, but that the preponderance of evidence must show guilt of the defendant beyond a reasonable doubt, else they must acquit.</p> <p>Id. —Charge as to Matters of Fact—Stating Testimony. —An instruction to the jury that “it appears that these saloon-keepers, who were in the Louisiana saloon at this time, on the way from their ordinary places of business, according to their testimony; that they engaged in playing cards, and the prosecuting witness says that on this occasion he was robbed of his money, and there is no explanation why this defendant was there except that she was the wife of the witness, or was with the other woman who was there,” does not state to the jury as a matter of fact that the Louisiana saloon was the place where the alleged larceny took place, but is a mere statement of the evidence, and is not erroneous.</p> <p>Id.—Instruction Discrediting Witnesses for Defense,—It is prejudicial error for the court so to instruct the jury as to convey to their minds that the defendant’s witnesses were a disreputable class, and to tend to discredit them, as persons whose evidence might well be disregarded.</p>

<p>Equity — Special Verdict oe Jury — Adoption of Verdict—Recitals in Findings and Judgment. — In an equity case, where it appears from the recitals in the findings of fact and in the judgment that the court made its findings of fact and conclusions of law, upon special issues of fact submitted to a jury, in accordance with the verdict of the jury, it is sufficiently shown that the court adopted the findings of the jury, and it is not necessary that the word “adopt” be used in order to show an adoption of their verdict.</p> <p>Id.—Appeal — Identification of Special Verdict — Judgment Roll — Presumption. —The special verdict of a jury in an equity case is sufficiently identified to be considered on appeal where the clerk of the trial court certified that the transcript on appeal was a full, true, and correct transcript of the issues submitted and answers thereto, and verdict of the jury thereon. Such verdict is part of the judgment roll, and will be presumed to have been properly recorded and entered by the clerk in the minutes of the court, as required by section 628 of the Code of Civil Procedure.</p> <p>Id. — Husband and Wife — Separate Property of Wife — Ejectment — Cross-complaint to Quiet Title—Findings — Support of Judgment—-Immaterial Issue. —Where the wife of an execution debtor is sued in ejectment as a feme sole, by one claiming the land under an execution sale against her husband, and avers in a cross-complaint to quiet title that the property is her separate estate, and that she paid for the land with money owned by her in her own exclusive right, the special verdict of a jury returned and adopted by the court, finding that she bought the land with money which was her separate property, is sufficient to support a judgment in her favor, and renders an issue as to her marriage with the execution creditor, at the date of the purchase, immaterial, and a finding upon it not essential; and an alleged conflict between a special finding of the court as to the date of the marriage, and a general finding that the allegations of plaintiff’s answer to the cross-complaint are untrue, will be disregarded.</p>

<p>Criminad Law — Conducting Game of Tan — Opinion Evidence. — Upon the trial of a defendant indicted for playing and conducting the game of tan as owner, the testimony of a police-officer who arrested the defendant, but did not see him conduct or engage in the game played, that he supposed that the defendant was the banker from the position he occupied at the table, and that if any one else had been occupying that place and sitting in that chair he would naturally suppose he was the banker, hut that if he did not see the implements of the game he would not say that he was the banker, is evidence of the opinion of the witness upon facts which it was the province of the jury to pass upon, and its admission is an error importing injury to the defendant.</p> <p>Id. — Instruction — Aiding and Abetting Game. — Under an information making it incumbent on the prosecution to prove that the defendant played, carried on, opened or caused to be opened, and conducted as owner, a game of tan, an instruction to the jury that they should find the defendant guilty, if they found from the evidence, beyond a reasonable doubt that the defendant did deal, play, carry on, or cause a game of tan to he opened or conducted, either directly himself, or aided and abetted some other person in so doing, is not prejudicial to defendant, though obnoxious to unfavorable criticism.</p>

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

<p>Charter of Stockton — Municipal Court — City Justice of the Peace — Ex Officio Judge. — Under the charter of the city of Stockton of March, 1889, framed and adopted under constitutional amendment No. 6, providing for a municipal court to be held and presided over by a city justice of the peace appointed by the mayor, the police court under the old charter and the court of the city justice of the peace were practically consolidated by adding the duties theretofore performed by the police court, to the court of the city justice, giving it a clerk and seal, and making it a court of record, which the charter declares shall not be deemed a new court, but a continuation of the courts theretofore existing; and the appointment of the city justice as judge of the municipal court gives him no new term, and no new office, but simply makes him ex officio judge of the new court.</p> <p>Id. — Salary of Municipal Judge. —It was not intended by such charter to increase the salary of the city justice upon becoming judge of the municipal court, or to add a new salary as such judge to that which pertained to his office as city justice, but it was the evident intent of the framers of the charter to reduce the compensation of the city justice; and he cannot draw or receive an additional salary as ex officio judge of the municipal court. (Beatty, O. J., dissenting.)</p> <p>Id. — Constitutional Law — Change of Salary. — The compensation of the city justice of the peace, who is an officer provided for by the constitution, being fixed by general law, as prescribed in section 103 of the Code of Civil Procedure, can only be changed by an amendment of that code, and not by charter provision, and can neither be increased nor diminished during the term of an incumbent, or by any special or local legislation; and the city justice designated as judge of the municipal court of Stockton, whose term of office began prior to the adoption of the city charter, can claim his full salary as city justice under the code, notwithstanding the intent of the charter to reduce his salary.</p>

<p>Statute of Frauds — Contract for Services upon Commission—Examination of Lands. — A contract, by which the defendants agreed to pay plaintiffs a certain sum per acre for all the land which plaintiffs should examine and advise defendants to purchase, and which should be afterwards purchased by the defendants, is not such a contract as is required by the statute of frauds to be in writing.</p> <p>Action for Services — Evidence — Employment of Others for Same Service. —Evidence offered by the defendants, in an action on such contract, to show that they had employed and paid other parties to assist them in selecting a portion of the lands described in the complaint, is properly excluded, as uncertain and immaterial. (Paterson, J., dissenting.)</p>

Peoceeding in the Supreme Court to set aside and annul a judgment of a justice’s court of Fresno County. The facts are stated in the opinion of the court.

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

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

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

<p>Appeal from, ail order of the Superior Court of Los Angeles County denying an application for a preliminary injunction, and vacating a preliminary restraining order.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Constitutional Law—Charter or Los Angeles — Police Court.—The provisions of the charter of Los Angeles creating a police court are unconstitutional and void. (People v. Toal, ante, p. 333, affirmed.)</p> <p>Id. — Criminal Law — Battery—■ Jurisdiction or Justice’s Court — Erroneous Style or Orrice. —The grant of exclusive jurisdiction to the police court of the city of Los Angeles over the offense of battery, being void, cannot displace the jurisdiction oí a justice’s court in said city over that offense; and a judgment of conviction thereof by a justice of the peace of that city is not rendered invalid by the fact that the justice erroneously styled himself ex officio police judge of Los Angeles, thereby claiming to exercise authority under the Whitney act.</p> <p>Id.—Whitney Act — Police Judge ex Orricio.—It seems that the Whitney act does not apply to the city of Los Angeles, and that the mayor of that city is not authorized to designate a justice of the peace as police judge ex officio.</p>

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

<p>Summary Removal of Officer — Accusation—Parties — Complaint of Private Citizen. — Section 772 of the Penal Code, providing for the summary removal of officers, and for an accusation in writing, verified by the oath of any person against an officer for. neglect to perform his official duties, and requiring the superior court before which the accusation is presented to cite the party charged to appear before the court at a time designated, and to proceed to hear the accusation in a summary manner, etc., contemplates proceedings founded upon a written accusation of a private person, and not upon a public indictment or information brought in the name of the people.</p> <p>Id.—Verification of Accusation —Affidavit. — An accusation for the removal of an officer, commencing “ J. M. W. upon oath presents,’’ etc., “the following accusation, alleging,” etc., and subscribed and sworn to before the clerk, makes the whole document an affidavit upon which perjury could be assigned, and is a sufficient verification of the accusation under section 772 of the Penal Code.</p> <p>Id.—Summary Proceeding — Trial by Jury—Constitutional Law.— The “ summary manner" of the trial of civil officers for misdemeanor in office, mentioned in section 772 of the Penal Code, excludes the right of trial by jury, and the manner of the trial is within the power of the legislature, under article 4, section 18, of the constitution.</p> <p>Id.—Interpretation of Constitution—Right of Jury Trial — Common Law—Tenure of Office Created by Statute.—The provision of the constitution that the “ right of trial by jury shall be secured to all, and remain inviolate, ” refers generally to those cases in which the right of trial by jury existed at common law at the time of the adoption of the constitution, and does not include new offices created by the statute after the adoption of the constitution, or the case where the legislature creates an office, and subjects the incumbent to a trial for his official misconduct without a jury.</p> <p>Id. — Tax Collector — Failure to Perform Official Duties — Fraudulent Misappropriation of Taxes—Sufficiency of Accusation — Demurrer. —An accusation against a tax collector to remove him from office for failure to perform his official duties, which charges that the accused is, and was at all times mentioned, the duly elected and acting tax collector, and that as such he willfully and corruptly refused and neglected to perform his official duties, in that he collected taxes not legally due, and did not pay them into the county treasury, or notify the persons from whom they had been thus collected, but fraudulently and corruptly retained the same, and appropriated them to his own use, giving in detail the names of a number of persons from whom taxes were collected and the amounts of such taxes, is sufficient to require bis removal from office, and a demurrer thereto should be overruled.</p> <p>Id. —Construction of Penal Code — Requirement as to Accusation. — The accusation need not conform to the requirements of sections 950, 951, and 952 of the Penal Code, which do not apply to a proceeding to remove an officer from office, hut deal solely with the requirements of indictments in purely criminal actions; but the accusation is sufficient if it contains the substance of what is required in subdivision 2 of section 950, viz.: “ A statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.”</p> <p>Id. — Misdemeanor during Term of Office — Pleading. — The proceeding under section 772 of the Penal Code lies only against one in office, and not against one whose term has expired; but the accusation sufficiently shows the accused to he in office when it avers that he “is, and at all times herein mentioned was, the duly qualified and acting tax collector,” etc.</p> <p>Id,—Removal of Tax Collector—Failure to Pay over Taxes Collected at End of First Term — Misdemeanor during Second Term. — A tax collector who, during the last month of his first term of office, collected taxes not due, and willfully and corruptly retained them and converted them to his own use, it not being his duty to pay over such taxes to the treasurer or settle with the auditor until the next month, when his next term of office began, to which he had been re-elected, is guilty of misconduct during his second term, for which he can be removed during such second term.</p> <p>Id. — Misappropriation of Taxes Illegally Collected — Intent of Col- ■ lection Immaterial.—A tax collector may be removed from office under section 772 of the Penal Code, who knowingly, willfully, and corruptly retained in his possession and appropriated to his own use double and illegal taxes, although collected by his deputies and clerks inadvertently, and without evil intent on their part, or on the part of the tax collector.</p>