Volume 86 — California Reports

<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 Los Angeles County.</p> <p>The facts are stated in the opinion.</p>

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

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

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

<p>Appeal from an order of the Superior Court of Yolo County vacating an order of substitution of a trustee of an estate.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Setting aside Judgment byDefautt — Inexcusable Neglect — Failure to Examine Summons and Complaint.—A motion to set aside a judgment by default, based upon an affidavit showing that the defendant was sued in the county in which he was served with summons, upon a note dated and payable in another county, and that he took it for granted, without examining the papers, that he had been sued in such other county where the note was payable, and had thirty days in which to answer the complaint, and did not examine the papers or discover his mistake until after ten days had expired, when he left the papers with his attorney to prepare an answer, and was informed that the time for answer had expired, may be properly denied, upon the ground of inexcusable neglect and lack of diligence.</p> <p>Id. — Discretion—Review on Appeal.—An order denying or granting a motion to set aside a judgment by default, on the ground of mistake, inadvertence, surprise, or excusable neglect of the defaulting party, rests in the sound discretion of the court, and will not be reversed on appeal unless a clear abuse of suck discretion is shown.</p>

Application to the Supreme Court for a peremptory, writ of mandate to the board of election commissioners of the city and county of San Francisco. The facts are stated in the opinion of the court.

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

<p>Estates op Decedents —Removal of Administrator — Effect of Appeal — Power of Appointment Pending Appeal — Special and General Administrator. — Pending an appeal from an order removing an administrator of an estate, he is suspended from office, and it is within the power'of the court to appoint a special administrator to act during the period of suspension, but not to appoint a general administrator until such order or removal becomes final.</p>

<p>Application for a writ of certiorari to review and annul the action of the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.</p>

<p>Review upon Appeal — Order Granting New Trial — Sufficiency of Complaint — Illegality of Contract—Nonsuit — Evidence. —Upon appeal from an order granting a new trial, the sufficiency or insufficiency of the complaint may be considered where it appears that the new trial was granted for error in denying a nonsuit, the nonsuit being asked for on grounds that challenged the sufficiency of the complaint, in that it set forth a contract on which an action could not be maintained; and as the trial court in granting the new trial could not go beyond the grounds on which it was asked, and granted it on the sole ground that the contract sued upon is contrary to public policy, the contract being alleged in the complaint alone, the appellate court, in passing upon the question as to the character of the contract, is limited to what appears in the complaint, and cannot consider the evidence introduced on the trial.</p> <p>Id. — Review of Nonsuit — Error of Law —Bill of Exceptions — New Trial. — The ruling of the court on defendant’s motion for a nonsuit, and his exception thereto, may be set forth in a bill of exceptions or in a statement on motion for a new trial, and he is entitled to have it re-, viewed on motion for a new trial as an error of law occurring at the trial; and whether the court grants or refuses a new trial for such alleged error, its action may be reviewed upon appeal from the order.</p> <p>Contract — Violation of Law — Public Policy —Attorney and Client —Agreement to Procure Client for Share of Fee. — A contract between a third person not an attorney and an attorney and counselor at law, that he will procure the attorney’s employment by a litigant, and that in consideration of such procurement he is to have from the attorney so employed one third part of whatever remuneration the latter receives for his services from the litigant, is contrary to public policy and invalid.</p> <p>Id. — Rights of Assignee. — An assignee of such a contract takes only the rights of the assignor, and cannot recover upon it if his assignor could not recover.</p>

<p>Pleading—Monet Paid to the Use of Another. — A complaint which alleges a request to expend money and a promise to repay what should be expended as requested, and a compliance with the request, is sufficient as against a general demurrer.</p> <p>Id. — Presumption against the Pleader. — The presumption against the pleader does not require him to anticipate matters of defense. Instance.</p>

<p>Estates of Decedents—Foreign Probate of Will—Authentication — Domestic Probate — Collateral Attack — Ejectment — Evidence. — The question as to whether or not a will had been duly proved and allowed in a foreign country or state, as expressed in section 1322 of the Code of Civil Procedure, is a fact which a court of this state entertaining jurisdiction to admit such will to probate must find from the evidence, and if the court found this fact upon insufficient evidence or without proper authentication of the foreign probate of the will, or without competent evidence, and thereupon proceeded to exercise jurisdiction, the action of the court in this respect is not void, hut merely erroneous, and subject only to direct attack upon appeal, and is not open to collateral attack in an action of ejectment in which the probate proceedings had in this state upon proof of such foreign probate are introduced in evidence to show title under the will.</p> <p>Id.—Adjudication of Jurisdictional Fact. — Conceding that the authentication of the foreign probate of such will is a jurisdictional fact, yet it belongs to that class of jurisdictional facts which the court must find from the evidence, and its decision thereon, whether erroneous or not, is conclusive as against a collateral attack.</p> <p>Foreclosure of Mortgage — Venue — Land in Two Counties — Presumption— Sale of Whole Land in One County.—A mortgage of land may be completely foreclosed in any of the counties in which any of the mortgaged property is situated, and where land situated iu two counties was sold under foreclosure proceedings by the sheriff of the county in which the proceedings were instituted, it will he presumed that the mortgaged property consisted of one body of land situated partly in each county, where the contrary does not appear, and that the sheriff was authorized to sell and convey the whole premises in such suit.</p> <p>Id. — Collateral Attack upon Foreclosure Sale. — Conceding that the decree authorizing the sale of the mortgaged land to he made wholly in the county in which foreclosure was had was erroneous, such error could not make the decree void, or render it or the sale in pursuance thereof subject to collateral attack.</p> <p>Id. — What Foreclosure Involves — Sale and Deed.—The foreclosure of a mortgage embraces the sale of the property and the execution of the sheriff’s deed as well as the decree of the court ordering the sale, and a mortgage cannot be said to be foreclosed until the mortgagor’s right of redemption is out off.</p>

<p>Injunction — Raising Level of Street — Trespass—Rights of Abutting Owner. •—An injunction will lie against trespassers to restrain the raising o£ the level of a street, where it appears that they are about to raise it above the level of the property of an abutting owner, as such raising of the street is an obstruction to the abutter’s reasonable use of the street, and an encroachment upon his individual rights.</p> <p>■Id. — Nonsuit — Affirmative Defense — Justification under Authority of City. — An answer in a suit for an injunction justifying the act done, under the authority of the city, cannot be considered upon a motion for a nonsuit, where the defendants offer no evidence of their affirmative .defense.</p> <p>Id. — Insolvency of Defendants — Obstruction of Easement. — The fact that the defendants in such action are solvent does not defeat the plaintiff’s right to an injunction, as the acts complained of constitute such an obstruction of the plaintiff’s easement in the street as to constitute a permanent injury to the inheritance, which, if permitted to continue, would ripen into a right.</p> <p>Id. — Eminent Domain — Right to Compensation — Easement in Street — Rights T)f Abutting Owner. •— An abutting owner on a street has the right of access to and egress from his land abutting on the street, which right is property of which he cannot he deprived, even for a public purpose, without compensation first made, and the right exists although the abutter has no estate in fee in the street, but has only an easement therein; and he is entitled to an injunction against a wrongful appropriation of the street.</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>Homestead — Community Property — Survivorship — Retention of Homestead Character. — Community property duly dedicated as a homestead, upon the death of one of the spouses, becomes the sole property of the survivor, and is protected as such to the survivor in the same manner as before it had been protected to the community by its homestead character.</p> <p>Id. — Levy of Execution — Lien — Application of Excess in Value.— Property impressed with the character of homestead, no matter what its value, is exempt from seizure and forced sale, and a levy of execution upon such property creates no lien, hut simply creates a foundation for proceedings under the statute for the ascertainment of the value of the property covered by the declaration of homestead, and the procurement of an order for the partition or sale thereof, and the application of the excess to the satisfaction of the judgment.</p> <p>ID.—JUDQMENT AGAINST DECEASED HUSBAND—PRESENTATION OF CLAIM — Appraisement of Homestead—• Action to Enforce Lien.— It is the duty of a judgment creditor, who has recovered a judgment against the owner of a homestead declared upon common property, upon the death of the judgment debtor, to present the judgment to the administratrix, in like manner with any other claim; and if the judgment is not so presented as a claim, the judgment debtor acquires no existing lien upon the property, and proceedings under section 1245 of the Civil Code, for the appraisement and sale or partition of the homestead property and the application of the excess over five thousand dollars to the satisfaction of the judgment, cannot be maintained; nor can the judgment creditor, even if possessing a lien, maintain an action for the purpose of enforcing it against the homestead, without first presenting his judgment as a claim against the estate of the judgment debtor.</p>

<p>Taxation—Assessment of Real Property—Mistake in Name of Owner —Tax Deed, —Under section 3628 of the Political Code as amended in 1880, no mistake in the name of the owner or supposed owner of real property can render the assessment thereof invalid; and the assessment' to M. & Co. of real property standing in the name of M. is binding upon the property assessed, and a tax deed given upon the sale of the property for delinquent taxes is valid, and passes title to the land.</p> <p>Id. — Uiscketionary Power of Assessor. — Under that section, the ascertainment of the name of the owner of real property is a matter with respect to which the assessor has discretionary power, and his judgment or conclusion in regard to it is final, so far as the validity of the tax is concerned.</p> <p>Id. — Notice to Redeem—Review upon Appeal — Error against Respondent— Excluded Evidence.—The sufficiency of a notice to redeem, under section 3785 of the Political Code, which was offered in evidence by the respondent and excluded by the trial court as insufficient, will not be inquired into upon an appeal by the opposite party, as the appeal does not bring the excluded evidence before the appellate court.</p> <p>Id. — Recital of Notice in Deed — Discrepancy in Amount of Taxes — Validity of Tax Deed.—A tax deed to land conveys no title where it affirmatively appears therefrom that the notice from the purchaser to the owner required by section 3785 of the Political Code (as amended March 12, 1885) notified the owner that the land had been sold for a smaller amount of money than it actually was sold for.</p> <p>Id.—Computation of Time — Insufficient Time for Redemption.— Under section 12 of the Code of - Civil Procedure, providing that in the computation of time in which an act provided by law is to be done, ’the first day is excluded and the last included, a tax deed showing that the notice to redeem was served on the twenty-fifth day of July, 18S8, and fixing August 23, 1888, as the time when the purchaser would apply to the tax eollecter for a deed, is invalid as giving only twenty-nine days’ notice previous to the expiration of the time for redemption, instead of the thirty days required by section 3785 of the Political Code.</p> <p>Id. — Construction of Recital—Time of Notice of Redemption.— A recital in the tax deed that the date of service of the notice of redemption was the twenty-fifth day of July, 1888, and that the time specified therein for the redemption of the land sold for taxes, and when the purchaser would apply for his tax deed, was the twenty-third day of August, 1888, will control the recital that the thirty days’ notice was given as required by section 3785 of the Political Code.</p>

<p>Ejectment — Pleading — Averment of Ownership — Ultimate Fact.— An averment in a complaint in an action of ejectment, that the plaintiff is “the owner in fee-simple” of the demanded premises, is a sufficient averment as to the plaintiff’s title; and the complaint is not demurrable on the ground that the averment is of a conclusion of law, and not of an ultimate fact.</p> <p>Id. — Findings — Issue Rendered Immaterial — Ouster of Premises not Recovered. — Where a complaint in ejectment alleges that the defendant entered upon and ejected the plaintiff from the whole of a certain section of land, and the answer denies that the defendant ejected the plaintiff from the west half of the section, and alleges that the defendant is in possession of only the east half, the issue raised by the answer as to whether the defendant was in possession of the west half of the section is rendered immaterial, where judgment is given against the defendant only for the east half thereof, and the judgment will not be reversed for a failure to find upon that issue.</p> <p>Id. — Review upon Appeal — Failure to Find. —A judgment will never be reversed for failure to find upon an immaterial issue.</p> <p>Id.—Mistake in Findings—Clerical Error.—A finding that the defendant “withheld from plaintiff the east half of section 13 described in said complaint ” is a sufficient finding that he withheld from plaintiff the east half of section 31, where it appears that section 31 was the only section described or referred to in the pleadings, and that 13 is evidently a mistake, and should be read as 31.</p> <p>Id. — Finding as to Possession — Admission of Pleadings.—Where the plaintiff in ejectment alleged possession of the land by the defendant, and the answer admitted possession, a finding as to the defendant’s possession is unnecessary, the rule being that findings are never required as to facts admitted by the pleadings.</p> <p>Id. — “ Wrongful ” Withholding — Ouster — Pleading — Findings. — Although the gravamen of the action of ejectment is the wrongful withholding of the possession, and the wrongful withholding is an ouster, it is not necessary that the words “ wrongful” or “wrongfully ” be used either in the complaint or findings, and a finding that the defendant ousted the plaintiff is sufficient, although the court did not find that the defendant wrongfully withheld the property.</p>

Motion to dismiss an appeal from an order of the Superior Court of the city and county of San Francisco granting alimony. The facts are stated in the opinion of the court.

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

<p>Action fob Death — Parties — Separate Action — Former Recovery — Plea in Bar. — The right of action for damages for an injury resulting in death is purely statutory, and, under section 377 of the Code of Civil Procedure, can be brought by either the heirs or the personal representative; but separate actions cannot be brought or maintained by both, and a former recovery by an executor may be pleaded and proved in bar to an action subsequently brought by the heirs of one killed through the negligence of the defendant.</p> <p>Id. — Compromise of Action by Executor. — An executor has authority, with the approval of the probate court, to compromise an action for damages for injuries resulting in the death of his testator, owing to the negligence of the defendant.</p>

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

<p>Motion to dismiss an appeal. The facts are stated in the opinion of the court.</p>

<p>Estates of Decedents—Will — Homestead — Conversion — Power of Sale — Contingencies of Administration. — A will whereby a testatrix authorizes the sale of all her property, and attempts to dispose thereof in the form of money bequests, her property consisting of the premises she and her husband had occupied as a homestead, though not then protected as such by selection and recording, does not operate as an actual conversion of the property into money, and the beneficiaries take their interests subject and subordinate to all the contingencies of administration,1 and among others to the authority conferred by law upon the court to set the same apart for a limited period to the surviving husband as a homestead, as well as to appropriate the same for the payment of debts.</p> <p>Id. — Setting apart Homestead — Separate Property of Wife — Right of Surviving Husband. — Where no homestead has been selected and recorded during the lifetime of the decedent, it is the duty of the court to designate and set apart a homestead out of the community property, if there is any such, and if not, then for a limited period out of any separate property of the decedent suitable for the purpose; and though the husband could not have selected a homestead out of his wife’s separate property without her consent when living, this does not affect the power of the court to set it apart to him as such for a limited period after her death.</p> <p>Id.—Eff'ect of Unconfirmed Sale under Power.—The power of the court to set apart a homestead from the separate property of the decedent, after her death, is not defeated by the action of the executor in negotiating a sale under a power contained in the will, which is unconfirmed before the decree setting apart the homestead is made.</p>

<p>Mandamus—Settlement of Bill of Exceptions—Petition—Averments as to Judge—Judicial Notice—Answer Supplying Defects. — A petition for a writ of mandate to the judge of a superior court to compel the settlement of a hill of exceptions, though it would be better specifically to state that the respondent is the judge who tried the case, or who heard and determined the motion for a new trial, is not demurrable for not stating that the respondent is the judge of the superior court specified, as the supreme court will take judicial notice as to who is judge of a particular superior court, and that he is the only judge of that court; and if the petition shows that the trial was had, judgment rendered, and motion for new trial made and denied in the court of which the respondent is judge, and the answer of the respondent shows that he was in fact the judge who presided at the trial, the omission of the petition to make a specific averment to that effect is sufficiently supplied by the answer.</p> <p>Id.—Extension of Time to Prepare Exceptions in Criminal Case—• Notice to District Attorney—Object of Notice. — Under section 1171 of the Penal Code, providing that a party desiring to have a hill of exceptions settled must, upon not less than two days’ notice to the district attorney and within ten days after the rendition of the judgment, or such further time as may be allowed by the court or judge, present the same to the- judge for settlement, where the defendant was given an extension of time beyond that allowed by law, within which to prepare and present a bill of exceptions, but the extension was not in excess of the time allowed by law for the court to give, and within such time and upon not less than two days’ notice to the district attorney, defendant applied to the court to settle and certify the bill of exceptions, the bill should be settled and allowed; and it is error to refuse to settle and allow it upon the ground that when the extension of time was given, the time had already expired within which be could give notice to the district attorney of an application to be made on the tenth day for the settlement of the bill.</p>

<p>Appeal from an order of the Superior Court of San Diego County denying a writ of prohibition.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trust Deed — Lick Trust — Construction—California School of Mechanical Arts — Power and Duty of Trustees—Rights of Managers—Acquisition of Title. — Under the deed of trust executed by James Lick to certain trustees therein named, by the terms of which large sums of money were to be realized by the trustees from the property conveyed, and applied to various charitable and other beneficial purposes, and by the fourteenth clause of which the trustees were required, at a cost "of five hundred and forty thousand dollars, to found and endow “The California School of Mechanical Arts,” under the direction of seven persons named, who were directed to acquire the site thereof, and to form a corporation of themselves and successors appointed by the survivors of them, never exceeding seven in number, to own, control, and manage the said institution, the trustees have no other power or duty than to furnish the money up to the amount named, to be expended as directed by the seven persons named, and the latter are required to select and acquire the title to the site, and take the same in their own names or in the name of the corporation, if formed before the title is acquired.</p> <p>Id. —Validity oe Corporation. —The corporation formed as provided for in the deed of trust is a valid body.</p> <p>Id. —Ambiguity op Terms — Ascertainment óp Intent. — The meaning of the fourteenth clause of the trust being ambiguous and uncertain, in ascertaining the. intention of the donor, reference may be had to other parts of the deed providing for the acquisition and improvement of lands, and particularly to other trusts of like character, indicating the general intent of the donor as to the acquisition of title and the expenditure of the trust funds.</p> <p>Id. — Management op Institution — Direction op Endowment — Expenditure op Trust Funds. — The parties who are required to acquire the site and direct the founding and .endowment of “The California School of Mechanical Arts ” cannot call for the whole of the money and expend it themselves, but the trustees are required to expend the money donated under the direction of the parties mentioned, who are, however, the sole judges as to how, for what purpose, and when the money is to be expended, subject only to the purposes mentioned in the trust deed, and it is the duty of the trustees to furnish the money needed so long as the expenditure is within and for the purpose named in the deed, and to pay any surplus remaining to the corporation which is to control and manage the institution.</p>

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

<p>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>Estates of Decedents—Removal of Administrator.—While it is the duty of the courts to protect carefully the interests of estates, the rights of those who are appointed to take charge of and manage them should not be overlooked, and an administrator should not be removed except for good and sufficient cause.</p> <p>Id. — Insufficient Grounds for Removal — Payment upon Forged Order'—Mingling Property of Estate.—The court is not justified in removing an administrator and revoking his letters, on account of the payment of money to an attorney for minor heirs upon a forged order of the court, where it appears that he had previously paid him money under an allowance of the court on advice of bis attorney, and was led by the representations of the attorney for minor heirs to believe that the court would allow him a large sum, and had loaned him sums from his own money upon the faith of such representations, and advanced the remainder of the forged order out of his own money, which was not charged against the estate; nor can he be properly removed for mingling the property of the estate with his own, when it merely appears that he had the money of the estate on deposit in his own name in the bank, not having any money of his own in such bank, and the money of the estate being intact at the time of the order of removal.</p>

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

<p>Appeal from a judgment of the Superior Court of 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>Dedication oe Street — Intention. — The question of the dedication of a street is one cf intention, to be determined by the acts of the owner.</p> <p>Id. — Offer of Dedication—Survey — Sales of Lots with Reference to Streets — Record of Map after Sale and before Deed. —When the owner of a tract of land has it surveyed and laid off into lots and streets, which are designated on a map, with reference to which sales of lots are made at auction, running to the centers of the streets designated on the map, and which are designated in the deeds as streets, the deeds referring to the map, which is placed on record after the sale and before the conveyances, there is a complete offer of dedication of the streets by the owner of the land.</p> <p>Id. — Deeds to Centers of Streets — Easement of Highway — Withdrawal of Offer. — The conveyances of the lots by number as designated on the map, and referring to the map and survey on record, though the lots are described by metes and bounds in the conveyances as extending to the centers of the streets, only convey the legal title to one half of the streets, subject to the right of the public to use them as a highway; and the conveyances do not operate as a withdrawal of the offer of dedication by the owner of the land.</p> <p>Id. — Acceptance by Public — Order Opening Street — Removal of Obstructions by Road Overseer— Trespass. —There being no act shown on the part of the owner of the land withdrawing the offer of dedication, the public authorities may accept the offer by entering an order designating any one of the streets as a public highway, and ordering it to be opened and obstructions removed; and when the road overseer in complying with such order removes a fence erected along the center of such street by a lot-owner, he is not liable to the lot-owner as a trespasser.</p>

The mortgage was executed to secure anote for two thousand dollars, with interest at twelve per cent per annum from March 28, 1888, and stipulated for a reasonable counsel fee upon foreclosure of the mortgage. The mortgage note provided that should suit be commenced to enforce the payment of the note, the makers agreed to pay an additional sum ©f five per cent on the principal as attorney’s fees in such suit.

<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>Foreclosure op Mortgage — Venue •—Jurisdicton — New County — In an action to foreclose a mortgage brought in a new county framed out of the county described in the mortgage, the court will take judicial notice that the premises are situated in the new county, notwithstanding the failure of the complaint specifically to allege that fact, if the copy of the mortgage referred to in the complaint, and attached to it as an exhibit, describes the land by section, range, and township, according to the government survey, showing that the mortgaged premises are located as matter of fact in the new county. Pleading — Exhibit — Government Survey — Judicial Notice. —■</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 an order of the Superior Court of the city and county of San Francisco denying an allowance for alimony to pay counsel fees.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from part of a judgment of the Superior Court of the city and county of San Francisco refusing to allow alimony for counsel fees.</p> <p>The facts are stated in the opinion $f the court.</p>

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

<p>Criminal Law — Homicide — Burden of Proof — Instruction — Reasonable Doubt. — Upon a trial for murder, an instruction to the jury, taken verbatim from section 1105 of the Penal Code, that the burden of proving circumstances of mitigation or justification, after proof of the homicide, is on the defendant, is not erroneous, but should, in justice, be accompanied by what the Penal Code contains on the subject of reasonable doubt.</p> <p>Id. — Alibi — Self-defense — Preponderance of Evidence — Instruction — Error without Prejudice. —When there is no question of self-defense raised upon the facts of the case, hut the defendant denies the killing, and seeks to prove that it was done by others, and that he was elsewhere at the time of the killing, an instruction implying that self-defense, grounded upon the fears of a reasonable man, must be proved by a preponderance of evidence cannot be prejudicially erroneous.</p> <p>Id. —Construing Instructions Together—Preponderance of Evidence — Reasonable Doubt as to Alibi. — When there is evidence tending to prove an alibi, a general statement in the charge, that the defendant may establish any fact essential to his defense by a mere preponderance of evidence, though objectionable by itself, is not prejudicially erroneous as applied to the defense of alibi, and could not be misleading, if the court specifically charged the jury that if, from the whole case, and a consideration of all the testimony, the evidence w^s sufficient to create a reasonable doubt as to whether the defendant was present at the time and place of the murder, he should he acquitted.</p> <p>Id.—Misconduct of Jury — View of Premises — Momentary Separation of Juror—Consent of Defendant.—Where the accused joins with the prosecution in a request that the jury be permitted to view the various premises described in the evidence, and both parties consent that one of the jurors may pass over the roofs of certain buildings, the accused cannot object to the temporary separation of such juror from the remainder of the jurors, where it does not appear that any misconduct occurred during the separation, to the substantial injury of the accused, without his consent or knowledge.</p> <p>Id. — Irregularity—Objection — Waiver — Review on Appeal.— Such separation is, at most, only an irregularity, which cannot he considered on appeal, unless objected to when the opportunity was offered.</p> <p>Id. — Affidavit of Misconduct — Information and Belief—An affidavit of the misconduct of the jury, made merely upon information and belief, is insufficient.</p>

<p>Criminal Law — Visiting Gambling-house — Municipal Ordinance — Conflict with General Law. — A municipal ordinance making it a misdemeanor to become a visitor at a gambling-house is not in conflict with the Penal Code, and does not trench upon ground covered by that general law.</p> <p>Repeal by Implication — General Municipal Ordinance—Special Ordinance. — A general municipal ordinance, applicable to all parts of the municipality, is not repealed by implication by the passage of a special ordinance pertaining to the same subject-matter, applicable to only a small part of the municipality.</p>

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

<p>Artificial Watercourse — Percolation — Injury to Adjoining Lands — Damages —■ Injunction. — A land-owner who permits the water taken from artesian wells on his lands, and carried through a ditch for the purpose of irrigating his fields, to percolate through the ditch, and to saturate his neighbor’s land, to his injury, when it might have been drained from the ditch, so as probably to prevent such injury, is liable for the damages thereby occasioned, and may be restrained by injunction from continuing the injury.</p> <p>Id. — Distinction between Natural and Artificial Watercourse — Foreign Substance — Maxim. — The rule applicable to the percolation of water from a natural watercourse does not apply to water brought upon the land by artificial means; but in such case the rule applies, that, where one brings a foreign substance on his land, he must take care of it, and not permit it to injure his neighbor, and is subject to the maxim, Sic utcre tuo ut alicnum non Icedas.</p>

<p>Criminal Law —Burglary—Information — Degree op Intended Larceny. — An information charging a defendant with burglary in feloniously entering certain premises, with intent to commit larceny, need not state the degree of the intended larceny, as it is immaterial to the offense of burglary whether the intent was to commit grand or petit larceny; and such information is sufficiently certain as to the offense charged, and does not state the commission of two offenses.</p>

<p>Appeal—Dismissal — Service of Notice upon Clerk—Party Absent from State. — An appeal will not be dismissed for failure to serve the notice of appeal personally upon a party who appeared in his own person, and had no attorney, if it appears, from an affidavit filed in the court below, and properly certified to this court, that, at the time the appeal was taken and the notice served, such party was absent from the state, and the record shows that the notice o£ appeal was served on the clerk for him.</p> <p>Foreclosure of Mortgage—Lien of Judgment for Alimony—’Priority — Fraud — Want of Consideration — Evidence — Admissions of Mortgagor — Prejudicial Error. —In an action to foreclose mortgages, in which the priority of the lien of the mortgages was contested by the divorced wife of the mortgagor, and the lien postponed by the court to the lien of a judgment in her favor for alimony, on the alleged ground that the mortgages were executed without consideration to defraud creditors, and to cheat her out of her claim for alimony, the admission in evidence of ex parte statements and admissions of the mortgagor, made after the execution of the mortgages, in support of the alleged charges, is error presumably prejudicial to the mortgagee, and is ground for reversal of so much of the decree of foreclosure as postpones the lien of the mortgages to the lien of the judgment.</p>

<p>Eminent Domain — Compensation — Improvements by Railroad Company. — In an action to condemn a right of way for a railroad, commenced after the construction of the road, the land-owner is not entitled to be paid the value of improvements placed upon the land by the railroad company, or its predecessor in interest, before the commencement of the condemnation proceedings.</p>

<p>Insurance—Cancellation of Policy—Return of Premium — Rescission— Construction of Code. —Section 2617 of the Civil Code, providing for the amount of premium to be returned to one whose property is insured, where his interest in the property has not been exposed to any of the perils insured against, or where the insurance is made for a definite time, and the insured surrenders his policy, does not confer upon the insured any right to insist upon a cancellation of a policy, without cause, and upon his mere request, and to recover a ratable proportion of the premium, where the policy gives the insured no such right, and none of the reasons mentioned in sections 2610 and 2619 of the Civil Code exist for a rescission of the contract of insurance, and no ground of rescission appears, under the general provisions of the Civil Code relating to the rescission and cancellation of contracts.</p>

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

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

<p>Construction of Will — Intention of Testator. —In the exposition of a will, the intention of the testator, expressed in his will, must prevail, provided it be consistent with the rules of law.</p> <p>Id. —Recommendation—Trust.— A will devising real property, and recommending the devisee to leave his portion thereof, after his death, and that of his wife, in trust for his son, and the children or descendants of such son, if any be alive at his death, and if there be none so alive, to Harvard College, does not make such recommendation obligatory, or limit the estate, or create a trust in favor of Harvard College, it appearing that the testator was a lawyer who understood fully what was necessary in order to vest a trust estate, and what he desired done with his property, and it further appearing, from the whole of the will, taken together, that when he intended trusts to exist, he said so in plain language, and when he gave persons property and made recommendations concerning it, he meant to leave them free to act upon his advice or not, as they saw fit, but did not intend in any way to limit the estates he had bequeathed them.</p>

Application to the Supreme Court for a writ of review to annul an order of the Superior Court of the city and county of San Francisco granting an execution. The facts are stated in the opinion of the court.

<p>Eights of Pre-emptobs — Withdrawal of Public Lauds from Sale. — Congress has full power to withdraw public lands from sale, though in possession of qualified pre-emptors, if they have not paid for the land, and may sell or grant such land to others, as it pleases.</p> <p>Id. — Railroad Grant — Ejectment — Evidence as to Prior Preemption Claims. —In an action of ejectment by the successor in interest of the Central Pacific Railroad Company to recover possession of a strip of land forming part of the right of way granted to the company by Congress, evidence is not admissible to show possession of the land by the predecessors of the defendant prior to the railroad grant, and that they were qualified pre-emptors, if it appears that none of them procured title to the land before it was granted to the railroad company.</p> <p>Grant to Central Pacific Railroad Company—Right of Way — Easement — Grant of Land—Right of Possession—Ejectment.— The act of Congress of July I 18G2, granting to the Central Pacific Railroad Company a right of way two hundred feet in width on each side of its road, did not grant a mere easement for the construction and operation of its road, but operated as a special grant cf land, and is a conclusive legislative determination of the reasonable and necessary quantity of land to be dedicated to this public use, and gave to the grantee the exclusive right to the possession of all the land embraced in the grant of such right of way; and the railroad company may maintain an action of ejectment to recover possession of the whole of the four hundred feet so granted, although only occupying a small portion thereof for its road-bed.</p> <p>Id. — Offer of Lease.—The right of such railroad company to recover the land so granted is not affected by the fact that it offered to lease to defendant the parcel in dispute, as the defendant had no right to inclose or occupy the land without permission of the railroad company.</p> <p>Ejectment — When Action will not Lib—Easement—Right of Entry. —For a mere easement, an action of ejectment will not lie; but wherever a right of entry exists, and the interest is tangible, so that possession can be delivered, the action will lie.</p>

<p>Husband and Wife — Purchase by Wife—Loan by Husband — Separate Property. — Where a husband loans money to his wife to make a part payment upon the purchase price of certain real estate bought by her, there being no intention that he should, by virtue of such loan, become a part owner in the land, but the intention of both parties being that the property should be her separate property, to be paid for out of separate property which she then owned, such loan gives the husband no interest in the land, as between the husband and wife, but the whole thereof becomes her separate property.</p> <p>Id. —Money Raised by Joint Mortgage on Wife’s Separate Property. — Where a wife, to whom real estate had been conveyed as her separate property, joins with her husband in a note and mortgage upon the land, to raise money to pay off a prior mortgage thereon, the money thus realized is her separate property.</p> <p>Id. — Deed to Wife — Escrow—Purchase-money — Voluntary Payment by Husband—Advancement. —Where the deed to a wife of property purchased by her as her separate estate is delivered in escrow till the whole purchase price is paid, the voluntary payment by the husband of the balance due on the property out of his own separate funds, without her knowledge or consent, accrues to the wife, and gives the husband no right or interest in the property. The husband cannot, by such payment, convert the separate property of the wife into community property, and the payment will be deemed an advancement for her benefit.</p> <p>Id.—Dealings between Husband and Wife—Intention of Parties — Separate Property of Wife. —In dealings between husband and wife, the intention of the parties is of paramount importance, where the question as to the effect of a conveyance of real estate arises between themselves; and where it appears that a conveyance to the wife was intended, as between the husband and- wife, to vest the title to the property in her as her separate estate, the courts will respect their intention, and, as between themselves, will uphold her title to the property, although the legal effect of the purchase and conveyance would, independent of such intention, make the property community.</p>

<p>Criminal Law — Homicide — Insanity—Burden of Proof—Preponderance of Evidence — Reasonable Doubt — Instruction—Error without Prejudice. — Upon the trial of a defendant charged with murder, an instruction to the jury that the burden was upon the defendant to prove the defense of insanity by a preponderance of evidence is not prejudicially erroneous, where it appears that the defendant admitted being guilty of the crime of murder, and claimed as the sole defense that he had inherited from an insane mother an impaired mentality, which had been further weakened by the use of alcoholic liquors, and that his mental condition was such at the time of the homicide that he could not have entertained malice in the shooting and should not be found guilty of murder in the first degree, or at least should not be subjected to the death penalty, and it further appearing that the jury was charged to give him the benefit of every reasonable doubt as to all other matters, including his defense, and that, as to such matters, he was not required to prove them by a preponderance of evidence.</p>

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco settling the final account of an executor.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trustees —• Action for Money Received—Compensation under Will — Hotel Property — Tenancy in Common—Management of Divorced Wife’s Interest. —In an action by a divorced wife, against trustees appointed by the will of the divorced husband, to recover money which they had received as the proceeds of her one-third interest in certain hotel property, awarded to her by the decree of divorce, which it was agreed and decreed that the husband should be entitled to manage, but which was not subject to his testamentary disposition, nor disposed of by his will, it is no defense to such action that the trustees are entitled to keep the money as compensation for their services, as trustees under the will, in caring for the divorced wife’s interest in the property.</p> <p>Id. —Contract nor Services—Quantum Meruit—Findings —Appeal — Review oe Evidence. — In such action, where it appears, from the evidence, that the trustees thought they had a claim upon the wife’s interest in the property, for compensation as trustees under the will, for managing the entire property, but that they never pretended or acted under the belief that they had any agreement with her to be her agents for the management of her interest, and to receive any compensation directly from her therefor, or that they had any claim against her for services rendered at her request upon a quantum meruit, outside of their claim as trustees under the will, findings that there was no agreement of the wife to pay them, and that they had rendered no services for her, at her request or otherwise, will be sustained, and there can be no recovery against her for such services.</p>

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

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

<p>Mechanic’s Lien—Landlord and Tenant — Improvements on Leased Premises — Lien upon Land—Building Subject to Removal — Repayment op Lien. — When a tenant has erected a building on a leased lot, which largely increases the rental value of the premises, even if the building is subject to removal at the expiration of the lease, he cannot object on that ground to having the lien charged upon his interest in the land, if the lease provides that the building cannot he removed until all taxes, rents, and debts are paid, under which provision the landlord may insist that the amount of such lien paid to protect his realty shall he repaid before removal of the building.</p> <p>Id. — Construction op Lease — Appurtenances — Surrender — Removal op Improvements. —When a lease of a vacant lot by its terms demises the real property, with its appurtenances, and grants no express right to remove a building permanently erected thereupon, and the tenant covenants to surrender, at the expiration of the term, “in as good state and condition as reasonable wear and tear will permit, damage by the elements alone excepted,” the lease includes all buildings which may become appurtenant to the land by being imbedded in it and permanently resting upon it; and a proviso in the lease, that “no building shall be removed until the taxes shall he fully paid, and until all rents and indebtedness have been paid,” will not prevent such permanent buildings from becoming the property of the landlord; and there is no right of removal, except of such buildings as do not partake of the realty.</p> <p>Id.—Reformation op Lease — Rights of Bona Fide Lien-holders — Merger op Oral Negotiations. — If, by mistake, the parties to a lease have failed to express their intention in the making of the instrument, as to the removal of buildings by the lessee, it may be revised and reformed, as between the parties thereto, upon proper showing of the fact, hut it cannot be so done as to prejudice the rights of lien-holders, acquired in good faith and for value, without notice of the mistake; and if there is no attempt at such reformation, in an action to enforce a lien upon the land for materials furnished for the erection of such buildings, the written lease of the land and appurtenances must be considered as merging and superseding all oral negotiations or stipulations concerning the subject-matter of buildings, which preceded or accompauied the execution of the instrument.</p> <p>Id.—Erection of Permanent Building by Tenant — Notice'—Lien upon Land. — Where a landlord has leased land, and there is nothing to show or to put third parties upon notice that buildings permanently erected thereon would not inure to his benefit, and become a part of the realty, and the landlord has stood by and seen his tenants erect a large and costly building upon his lot without giving any notice, under section 1192 of the Code of Civil Procedure, that he would not be responsible for the same, he will not be heard to say that the men who performed labor upon and furnished material for such building have no lien upon his lot therefor, because the building has not become a part of the realty, and is not an improvement upon his property.</p> <p>Id.—Tenant’s Intention to Remove Building — Evidence.—Evidence of a tenant’s intention in reference to a future removal of a building erected by him upon leased premises is inadmissible in an action to foreclose a lien of material-men upon the land and building.</p> <p>Id. — Question of Intention — Rights of Third Parties.—Although as between a landlord and his lessee the question of whether a building about to be erected would become a part of the realty or not would depend largely upon the intention of the parties, it would not depend upon the intention of one of the parties, nor would a secret intention on the part of both defeat the rights of third parties who acted without notice of such intention, and upon the faith of the rule established by law, where no such intention existed.</p> <p>Id. —Foreclosure of Lien — Parties — Erection of Building by Tenants as Partners—Executor of Deceased Partner — Rights of Surviving Partner. — Where two tenants as copartners have erected a building upon, leased land, and one of them has died before the bringing of an action to foreclose a lien in favor of those who furnished material for the building, where no judgment is sought against the estate of the deceased partner, it is not error to refuse to continue the case, and make the executor of the deceased partner a party, as the surviving partner is fully authorized to defend for the partnership interest.</p> <p>Id.-—Lien upon Building Erected by Partners — Charge against One Partner — Validity of Lien. — A lien for materials furnished for a building erected by two tenants upon leased ground, filed against them both as partners, is not invalid because it shows upon its face that the original charge was made against one of them alone, it appearing that the claimant did not know at the time that the other tenant was interested in the building, or that they were copartners, but learned the facts in the case before the claim of lien was filed.</p> <p>Id.—Knowledge and Consent of Landlord — Findings — Appeal — Review of Evidence —Admissions, of Pleadings—Immaterial Finding. — In an action to enforce a lien for materials furnished, a finding that the building constructed upon leased land by tenants was constructed with the knowledge and consent of the landlord will not be set aside upon appeal because the evidence does not show his consent, where the finding that it was done with his knowledge is in accordance with the admissions of the pleadings. The finding of his consent is unnecessary, and may be treated as surplusage.</p>

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

<p>Mortgage — Foreclosure — Husband and Wife — Community Property — Estates of Decedents — Presentation of Claims. — A mortgage of a homestead on community property, executed by husband and wife, must be presented to the executor of the deceased husband before an action can he brought for its foreclosure; and a judgment of foreclosure without such presentation is erroneous, even if all recourse against other property had been waived in the complaint, and a presentation of the mortgage note without a presentation of the mortgage is insufficient.</p> <p>Id.—Rejected Claim—Presentation — Substantial Compliance with Law — Action upon Mortgage Note.—-A person seeking judgment against the estate of a decedent upon a rejected claim must show at least a substantial compliance with each requirement of the statute on the subject of the presentation of claims; and where the holders of a mortgage note, in presenting it as a claim against the estate of a deceased mortgagor, make no attempt at complying with the provisions of the statute relating to the affidavit, by which a claim against the estate of a decedent must he supported, they cannot maintain an action against the estate upon the mortgage note.</p> <p>Id. ■—• Affidavit by Agent of Claimant — Defective Presentation. — Where the affidavit in support of a mortgage note which was presented to the executor of a deceased mortgagor and rejected as a claim against his estate was made by an agent of the claimant, and failed to set forth the reason why it was not made by the claimant, and stated that there were no offsets, “ to the knowledge of the claimant,” instead of “to the knowledge of affiant,” as required by the statute, the presentation is fatally defective, and will not support an action or judgment upon the note.</p>

<p>Petition to the Supreme Court for leave to prove an exception. The facts are stated in the opinion of the court.</p>

<p>Vendor and Purchaser — Default of Purchaser — Bona Fide Release for Value —Resulting Trust — Quieting Title.—A vendor under a contract for the sale of land who, upon default of the purchaser and of his assignee in the payment of the last installment of the purchase-money, after demand for the same, and tender of a conveyance, procures from such purchaser and his assignee, with whom he dealt individually throughout the transaction, a release of all claims against him in favor of each of them, for a valuable consideration, without notice of a resulting trust existing in favor of a corporation whose funds have been used by them in payment of the previous installments of purchase-money, takes the land freed of such trust, and may maintain an action to quiet his title against the corporation and its successors in interest.</p> <p>Id. — Extinguishment of Equitable Title. — The releases so obtained extinguished the equitable interest in the land acquired by the contract of sale, and the vendor became thereby the legal and equitable owner of the lands as completely as though the contract of sale had never been executed and partly performed.</p> <p>Id. — Subcontract of Purchaser — Implied Trust—Notice to Vendor. — A subcontract of the purchaser purporting to sell the same land at an increased price to the corporation whose funds had been used in obtaining the purchase, though its contents may be known to the vendor, does not charge the vendor with notice of the implied trust, or put him en inquiry as to the company’s interest in the original contract of sale.</p> <p>Id. — Assignment. — A subcontract by a purchaser for the sale of the same land does not operate as an assignment of the original contract of sale.</p> <p>Id.—Rescission of Contract — Quieting Title — Pleading.—The rule in regard to rescission of contracts, that the parties must be placed in statu quo, has no application when the object of the action is to quiet the title of a vendor who has for value obtained a release of the rights of the purchaser and his assignee under a contract of sale; nor need such vendor allege, in his complaint to quiet title, more than his ownership of the land, and the defendant’s unfounded adverse claims respecting it, nor is he required to disclose the nature of their several claims.</p> <p>Id. — Quieting Title — Cross-complaint—Specific Performance—Implied Trust — Tender of Purohase-money — Procuring Title.— When the cross-complaint of the defendants in an action to quiet title relies upon enforcing specific performance of a contract of sale between the plaintiff and an individual purchaser, under allegations showing an implied trust in such contract in favor of a corporation under whom the defendants claim, the cross-complaint is insufficient to warrant a decree compelling specific performance, if it does not allege a tender of the balance o.' the purchase price, but relies wholly upon the failure of the plaintiff to procure and tender a title agreed upon, which the proof shows he did procure and tender as agreed.</p> <p>Id.-—Rescission Provided for in Contract-—Pleading — Readiness of Vendor to Comply with Contract — Abandonment of Purchase — Return of Purchase-money. —- Where the contract of sale provides for a rescission of the contract by the vendor upon default of the purchaser in payment of purchase-money, in an action to quiet title by the vendor, the facts entitling the defendants to a return of purchase-money must be specifically pleaded; and if it appears that the vendor was ready and willing to comply with his contract, and the purchaser or those claiming under him were not able or willing to comply with the contract of purchase, the vendor may treat the contract as abandoned, and maintain his action to quiet title, without a return of the purchase-money received.</p> <p>Id.—-Right of Possession under Contract of Sale.—Unless there is a stipulation in a contract for the sale of land surrendering the possession of the property to the purchaser, the vendor is entitled to retain the possession until the legal title passes to the purchaser.</p>

<p>Attachment—Undertaking for Release of Property Attached-Order of Release—Retention by Sheriff.—In an action upon an undertaking given to procure the release of an attachment, where the condition of the undertaking was, that the property should be released from the attachment, and not that it should he released from the possession of the sheriff, if it appear that an order for the release of the attachment was made by the court, the fact that the sheriff retained possession of the property after the court ordered the attachment discharged and the property released is no defense to the action, as the retaining of possession by the sheriff thereafter was wrongful, and not for the plaintiff.</p> <p>Id. — Commom-law Undertaking — Onerous Conditions — Receipt of Benefits — Estoppel. — An undertaking given to procure the release of an attachment becomes binding upon its makers as a common-law obligation when the order of court discharging the attachment is obtained, and cannot be repudiated in an action upon it by those who asked for and received its benefits, even if its conditions are more onerous than those of the statutory undertaking.</p> <p>Id.—Action upon Undertaking—Maturity of Cause of Action—■ Demand—Liability of Sureties. — Where the undertaking for the release of an attachment provides that the defendant in the attachment suit will, on demand, pay to the plaintiff the amount of whatever judgment may he recovered in the action, when demand for payment of the judgment is made upon the defendant and refused, the sureties become immediately liable, without demand upon or notice to them, and a cause of action at once accrues against them, and an action may he brought upon the undertaking immediately, without waiting for the day to expire in which the demand was made upon the defendant.</p> <p>Id. — Pleading — Demand and Refusal — Ground of Special Demurrer — Non-payment — Part Payment. —Where the complaint in an action upon such undertaking alleges that demand was made upon the defendant “for the payment of said judgment, with interest thereon, and costs," and that defendant neglected and refused to pay the balance due on said judgment, or any portion thereof, the allegation of demand and refusal is sufficient, in the absence of a special demurrer, even if a portion of the judgment had been already paid at the time of the demand, and such allegations sufficiently aver non-payment of the remainder of the judgment if the complaint discloses what amount had been paid and credited thereon.</p> <p>Judgment on the Pleadings.—When the complaint states a cause of action, and the answer discloses no valid defense to the action, judgment on the pleadings in favor of the plaintiff is properly entered.</p>

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

<p>Statute of Limitations — Execution of Judgment in Foreclosure Suit — Time of Issuance —Waiver of Judgment for Deficiency. — A judgment foreclosing a mortgage given to secure the payment of money is a judgment for the recovery of money, upon which an execution for the sale of the mortgaged premises cannot issue after five years from the date of its rendition, even though a judgment for deficiency was expressly waived by stipulation of the parties.</p>

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

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

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

<p>Vacating Judgment by Default — Power of Court—Discretion — Review on Appeal.—The supreme court will not interfere with the action of the trial court in making an order setting aside a default, and judgment thereon, and permitting the defaulting party to answer, where it appears to have been made upon an affidavit of merits, unless it affirmatively appears that the court was without jurisdiction to make the order, or abused its discretion in making it.</p> <p>Id.—Proof of Service of Summons — Void Certificate of Deputy Sheriff. —The act and return of a deputy sheriff is a nullity, unless done in the name and by the authority of the sheriff; and a certificate of the service of summons by a deputy sheriff, or one acting as such, is void as proof of such service, if signed by the deputy in his own name, and not sworn to, nor purporting to be an affidavit of service; and a judgment by default will be set aside upon motion, if rendered upon such proof of service.</p> <p>Id.—Jurisdiction of Person—Void Judgment.—If proof of service of summons is not made as required by law, the court acquires no jurisdiction of the persons of defendants, and has no authority to render judgment against them, and any judgment rendered without such proof is invalid and void, and may be set aside upon motion.</p> <p>Id.—Entry of Default — Proof of Service — Authority of Clerk — Ministerial Functions—Condition Precedent.—The clerk of the trial court has no authority to enter a default of a defendant upon a void certificate of service of summons. The clerk in entering defaults exercises no judicial functions, but acts merely in a ministerial capacity, and unless he confines himself strictly within the statute, his acts can have no binding force. Before default can be regularly taken against a party, there must be positive and sufficient evidence in court of due service, and no substantial defect in that respect can be cured by subsequent knowledge of the fact.</p> <p>Id. — Supplying Proof of Service—Hearing of Motion to Vacate — Relation. — Where a default and judgment are void, not because there was no service, but because there was, at the time of entering the same, no proof of service, the fact that, at the hearing of a motion to vacate the judgment, proof was made of the fact of service of summons at the time mentioned in the void certificate would not justify the court in refusing to vacate the judgment, although such proof might have been sufficient to have authorized the court, at any time after it was made, if the defendant had not answered, or had leave to answer, to enter a valid default and thereupon to proceed to a valid judgment; but it would not operate by relation to make that valid which when entered was void.</p> <p>Id. — Finding of Due Service — Void Proof — Judgment Roll.—A finding of due service of summons is not conclusive proof of the fact of service, where the defendant has not answered, as against the evidence of service found in the judgment roll; and a default judgment, entered on a void certificate of service, is void, and is not validated by the fact that the findings recite the fact of due service, the summons with the accompanying proof of service being properly a part of the judgment roll.</p> <p>Id.—Void Judgment — Direct Attack—Limitation of Motion to Vacate. — A motion to vacate a judgment on the ground that it is void is not a collateral but a direct attack; and it seems that where the judgment is void upon the face of the record, it may be vacated upon motion after the lapse of a year.</p> <p>Id.—Reversal of First Judgment — Vacating Second Judgment.— Where the first judgment, which was void as 'against a defaulting defendant, has been reversed upon appeal of defendants who appeared, and the reversal has operated to set aside the whole judgment, the judgment thereafter rendered becomes the judgment by default, which is equally void with the first judgment, and may be vacated upon motion within one year from the date of its entry.</p> <p>Partition — Several Tracts — J üdgment — Appeal — Effect of Reversal as to One Tract — Default.—A judgment for the partition of several tracts of land cannot be piecemeal as to any one tract, and the reversal of the judgment as to one tract, upon appeal of such of the defendants as have appeared, sets aside the whole judgment as to such tract as against a defendant against whom a judgment by default had been entered.</p> <p>Amended Pleading — Service — Opening Default. — The right to answer an amended pleading is one of which a party cannot be deprived, even after entry of default against him on the original pleading. The amendment of a pleading in matter of substance opens the default on the original pleading, and the amended pleading must be served upon a defaulting defendant.</p> <p>Id. — Amendment in Matter of Substance — Partition — New Parties. — In an action of partition, the bringing in of new parties, alleging that they have or claim an interest in the subject-matter of partition, is an amendment in matter of substance, requiring service of the amended complaint upon a defaulting defendant.</p>

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

<p>Criminal Law — Arson — Evidence — Previous Fires — Declarations of Defendant — Threats. —Upon the trial of one accused of arson, it is not error to introduce in evidence conversations between the defendant and different persons, at different times before the fire, as to former fires upon the same property, in which the defendant used expressions to the effect that the former fires were nothing to what would happen in the future, and other like expressions of a threatening character, indicating an intention to burn certain persons out.</p> <p>Id.—Proof of Intent — Previous Arson.—Evidence tending to show that the defendant started one of the former fires, to which allusion had been made in such conversations, by which another building on the same premises was burned, is admissible, as cumulative evidence tending to prove his intent to copimit the arson charged.</p> <p>Id. —Alibi — Instruction — Scrutiny of Evidence. —The defense of aVU is not one requiring that the evidence given in support of it should be scrutinized otherwise or differently from that given in support of any other issue in the cause; but an unnecessary instruction in regard to the scrutinizing of such evidence is not ground of reversal, if the charge of the court, taken as a whole, contains a full and fair exposition of the law.</p>

<p>Dedication of Streets and Highways — Recorded Map — Offer and Acceptance. — The filing and recording of a map is but an offer of dedication of the streets and highways delineated thereon; and in order to constitute a dedication which can be taken advantage of by the public authorities, the offer of dedication must have been accepted by them, either by user or by some formal act of acceptance.</p> <p>Id. —■ Limitation of Acceptance to Particular Streets. — The acceptance, by user or otherwise, of one or more particular streets or highways shown upon a recorded map will not operate as an acceptance of all or any other of the streets or highways delineated thereon.</p> <p>Id.—Time for Acceptance—Revocation of Offer — Effect of Acceptance.— The acceptance of a street dedicated to the public must be within a reasonable time after the offer of dedication, and if not accepted, the owner may resume the possession of the property, and thereby revoke his offer; but the offer cannot be withdrawn, if the public accepted it within a reasonable time, before any attempt to withdraw it, or to make any use of the property offered other or different from that made when the offer was recorded.</p> <p>Id. ■— Acts of Acceptance by Public Authorities — Evidence. •— Publicly dealing with property dedicated as a highway, widening, extending, and grading it, changing its name, and the like, are acts tending to prove acceptance by the public authorities; and evidence of such acts, if uncontradicted, is sufficient to establish an acceptance of the dedication, although no formal resolution of acceptance was passed by the board of supervisors.</p> <p>Id. — Right of Purchaser to Dedicate Streets — Construction of Contract of Sale — Impairment of Vendor’s Inclosure. — Where a large tract of land is sold upon installments, with the express understanding that upon the making of the first deferred payment the vendee should have the right to subdivide the same into smaller tracts, with streets and roads upon and through the same, and to make and record maps thereof, etc., and the contract contains a clause which provides that the “inclosures of the party of the first part shall be left practically unimpaired,” the removal of the position of a fence so as to place without, instead of within, the inclosure a strip of land along the westerly line of the tract, which had been appropriated as a public highway, as contemplated by the contract, is not a “practical impairment ” of the inclosure, if the fences are otherwise left intact and the inclosure of the tract remains complete.</p>

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

<p>Criminal Law — Separate Convictions — Concorrent Imprisonment — Release Pending Appeal — Unexpired Term — Habeas Corpus.— Where a defendant convicted in the superior court of libel, and sentenced to six months’ imprisonment, after being confined four days is released on bail pending an appeal, and while such appeal is pending is convicted in the police court of conspiracy, and sentenced to one year’s imprisonment, but after one day’s confinement is released on bail, pending an appeal from such judgment of conviction, and the sentence is affirmed in each case, the unexpired portion of the second term of imprisonment does not commence to run until the date of the affirmance of the second sentence, although the prisoner is in custody serving the first sentence when the second judgment is affirmed. The two terms are concurrent until tlie term of the first judgment has expired, and the prisoner will be entitled to his discharge 364 days after the date of affirmance of the second sentence, and not before.</p>

Motion to dismiss an appeal from the Superior Court of the city and county of San Francisco. The notice of appeal stated that the appeal was taken from the judgment,— describing it and giving its date,— and “also from the order overruling the motion for a new trial, and from each and every order and judgment made and entered in said cause,” and the undertaking on appeal recited the appeal as stated in the notice.

Certiorari in the Supreme Court to review an order of the Superior Court of Santa Barbara County dismissing an appeal from a justice’s court. The facts are stated in the opinion of the court.

<p>Landlord and Tenant — Rent ■— Agreement eor Reduction — Recovery Back of Fraudulent Overcharge — Tenancy from Month to Month. —Where a landlord agreed with tenants of a store, occupying from month to month, that if they would remain as such tenants, and an adjoining vacant store should he rented for less monthly rent than they were paying, they should have their store at the same reduced rental, they may recover hack the amount of overcharge for each month of their occupancy, if the adjoining store was in fact rented for one hundred dollars per month less than they were paying, hut a lease thereof was given for the same amount of rent, with a separate written agreement for a rebate of one hundred dollars per month, for the- purpose of deceiving them and inducing them to pay the same rent as formerly.</p> <p>Id.—Evidence — Written Agreement for Rebate of Rent — Proof of Fraudulent Overcharge.—To substantiate the claim of fraudulent overcharge of rent under such agreement, it is competent for the tenants to introduce in evidence the written agreement for a monthly rebate of rent to the tenants of the adjoining store.</p> <p>Id. — Continuance of Reduced Rent —Presumption.—Tenants from month to month are presumed to continue their rental for each new month upon the same terms as for the previous month; and after the right to the reduction of rental has accrued under an agreement therefor, such reduced rate must be presumed to continue for each succeeding month of their occ.upancy, though the agreement for reduction of the monthly rental was for no stated period,</p> <p>Id. — Parol Evidence — Agreement after Expiration or Lease. — When the term of a lease has expired, without renewal of the term, and the tenants are holding from month to month at the same monthly rental, it is competent for the parties to the lease to make a parol agreement for the reduction of rent, or as to the continuance of the tenancy for any period not exceeding one year; and any oral evidence as to what occurred between the parties in relation to such agreement is admissible, and is not subject to the objection that it tends to vary the terms of the written lease.</p> <p>Id. —Declaration of Agent—■ Proof of Fraud — Partnership—Power of One Partner. — The declaration of an agent of the lessors, who negotiated the lease of the adjoining store, regarding his reasons for concealing the true amount of rental and drawing the lease for a higher rate, is admissible against each of the lessors, as tending to prove fraud on their part, though they were a partnership, and he was employed by only one member of the firm to negotiate the lease for the benefit of the firm, and directed by such member to conceal the amount of rental from the tenants whose rights were fraudulently affected.</p> <p>Id.—Presentation of Claim for Rent Overcharged — Estate of Deceased Lessor — Partnership — Parties— Judgment. —■ A claim for overcharged rent against joint lessors who are partners need not be presented as a claim against the estate of a deceased partner, in order to enforce it against the firm; nor need the executors of the deceased partner be joined as parties to an action to enforce such claim against the firm, and if joined, a judgment against the firm is not erroneous because not requiring that the amount awarded he paid in due course of administration of the deceased partner’s estate.</p>

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

<p>Pleading — Amended Complaint — Waiver of Demurrer.—Where the plaintiff files an amended complaint, any error of the court committed in ruling upon a demurrer to the original complaint is waived.</p> <p>Negligence—Breaking of Rope — Evidence—Nonsuit—Action for Death. — In an action for damages for the death of plaintiff’s husband, claimed to have resulted from the negligence of the defendant, where it appears that the decedent was employed by defendant in loading defendant’s ship, and while so employed the rope-sling, by which freight was being carried into the ship, broke, precipitating freight down the hatchway, thereby fatally injuring the deceased, negligence on the part of the defendant will not be inferred from the mere breaking of the rope, in the absence of evidence tending to show that it was being properly used by the co-employees of the deceased, and in the usual manner, at the time of the accident, or what amount of freight it was intended to or should carry; and a nonsuit is properly granted, where the breaking of the rope and the injury resulting in the death were the only facts proved.</p> <p>Id. — Insufficiency of Machinery — Accident — Prima Facie Evidence — Manner of Use. — The rule that the occurrence of an accident is prima facie evidence of insufficiency of the machinery or appliance being used, if conceded to be the correct rule, only applies where the machinery or appliance is shown to have been used in the usual and proper way, at least where the same is being used by the party injured, or his co-employees.</p> <p>New Trial — Newly Discovered Evidence — Nonsuit. — Where judgment was rendered for defendant upon a nonsuit of the plaintiff, and the evidence set out in affidavits in support of a motion for a new trial upon the ground of newly discovered evidence does not supply the facts necessary to make out or tend to strengthen the plaintiff’s case where it lacked support, a motion for a new trial upon such ground is properly denied.</p>

The note alleged to have been paid by the plaintiff for. the use of the defendant was a note for four thousand five hundred dollars, payable April 11, 1879, by the defendant, as maker, to the order of the plaintiff, with interest at the rate of ten per cent per annum.

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

<p>Street Assessment—Act of 1885 — Limit of Power of Assessment.— Under the act of 1885 in relation to street improvements, a lot cannot be charged for work called for by one resolution of intention and order in a greater sum than one half the value of such lot upon the preceding assessment roll for municipal purposes; and it makes no difference that the work called for by the resolution and order is split up into separate contracts and assessments.</p>

<p>Fraudulent Conveyance — Deed in Lieu of Will — Fraudulent Record — Quieting Title — Pleading — Findings—Support of Judgment. — In an action to quiet title brought by the grantee of a deed against a subsequent purchaser at an execution sale, who was the judgment creditor of the grantor, and who alleged, in his answer, that the deed to the plaintiff was made to defraud the creditors of the grantor, a finding that the deed was made by the grantor when ill, with the intention, known to the grantee, that it should not take effect except in lieu of a will upon the death of the grantor, and that upon recovery of the grantor a record of the deed was made with intent to defraud the creditors of the grantor, is wholly inconsistent with the defense pleaded, and cannot support a judgment for the defendant.</p> <p>Id. ■— Trust Agreement. — Snch finding is not responsive to an allegation in the answer that the plaintiff agreed to hold the title in trust for the grantor, and to reconvey it upon demand, where the court fails to find any such agreement.</p> <p>Id__Effect op Delivery op Deed — Passing Title — Conditions — Parol Evidence — Testamentary Intention.—When an absolute deed has been delivered to the grantee, the title becomes vested free from any conditions, and its operation cannot be defeated by parol proof of an intention on the part of the grantor, known to the grantee, that it should not take effect except in event of the grantor’s death; nor is parol evidence admissible to show that the delivery of the deed to the grantee was subject to any condition not expressed therein.</p> <p>Id__Escrow. — A deed cannot be delivered in escrow to the grantee, but only to a third person.</p> <p>Undertaking on Appeal — Validity of Judgment against Sureties — Notice—Execution Sale. ■—A judgment taken against the sureties upon an undertaking on appeal, upon motion, without notice, is valid, and will support an execution sale thereunder.</p>

<p>Replevin—Findings — Omission of Material Issues — Judgment •—Appeal. — In an action for the recovery of personal property, where the complaint alleged the plaintiff’s ownership and right to immediate possession of the property, giving its value, and its wrongful taking and detention by the defendant, to his damage in a certain sum, and the defendant answered, denying all the allegations of the complaint except the value, if no findings are made upon the issues as to whether the plaintiff was entitled to the possession of the property or whether he was damaged by the taking, a judgment for the return of the property will be reversed upon appeal.</p> <p>Id.—Necessity of Alternative Judgment. —In such an action, the judgment should be in the alternative, for the return of the property or its value; a judgment merely for the return is erroneous.</p> <p>Id.—Description in Judgment — Uncertainty__A judgment for the possession of personal property which merely describes- it as “two stallion horses, ” and does not refer to any pleading or other paper for further description, is bad for uncertainty, and will be reversed.</p>

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

<p>Short-hand Reporter — Transcript of Evidence — Costs—Order of Court. — Where a transcript of the evidence is made by the short-hand reporter upon an order of the court, the amount of the fees paid by the successful party pursuant to such order becomes a necessary part of the costs and disbursments incurred by him in the action, which he is entitled to recover from his adversary, against whom he obtains judgment.</p> <p>Id. — Construction of Order — Duty of Parties. — Where the transcription is made upon the order of the court without any direction as to how the fees due therefor are to be apportioned between the parties, each side should pay one half of such fees.</p> <p>Id. — Transcription by Order of Party — Costs. — Where the transcription of the evidence is ordered by one party to the action, he must pay the fees therefor, and cannot recover the fees paid, or any part of them, from the defeated party, as costs or disbursements in the action.</p>

Application to the Supreme Court for a writ of certiorari. The facts are stated in the opinion of the court, and in the opinion in Estate of Moore, ante, p. 58.

<p>Appeal — Practice — Record. — The appellant must make up his record so as to clearly show the basis for his points.</p> <p>Instruction — Request — Modification. — If a requested instruction contains several propositions, one of which 'is erroneous, the court may refuse the whole instruction. It is not bound to modify it so as to separate the erroneous portion.</p> <p>Presumption — Possession — Ownership. — A presumption of ownership arises from possession.</p> <p>New Trial—Newly Discovered Evidence—Cumulative.—Newly discovered evidence which is merely cumulative, and not such as to render a different result probable, is not ground for a new trial.</p>

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

<p>Action for Breach of Contract — Sale of Newspaper-stand—Provision for Satisfactory Arrangements. — In an action to recover dam- • ages for the failure of the buyer to comply with a contract for the purchase of a newspaper and stationery stand, which, by its terms, was to be void unless such arrangements could be made with certain newspapers as would be satisfactory to him, evidence that the buyer made arrangements with the newspapers upon the same terms that they had given to the seller, and that such terms were stated to the buyer at the time of the negotiation, and were then agreed to be satisfactory to him, sufficiently shows a compliance with the condition upon which the contract was to become operative.</p> <p>Id. —Parol Evidence—Written Contract — Merger. — In such action, parol evidence as to the conversation between the buyer and the seller, with reference to the arrangements with the newspapers, whether had before or after the written contract was executed, is admissible to show that the buyer knew what the arrangements of the seller with the newspapers were at the time of the agreement, and that he would be satisfied with a renewal of the same arrangements, and to show that his repudiation of the agreement was not in good faith.</p> <p>Id.—Lien oe Seller — Passing Title — Breach oe Executory Contract. — Such contract being but an agreement to sell, section 1749 of the Civil Code, and other sections relating to the enforcement of a lien of the seller, do not apply, as the title to the property remained in the seller, and he could not enforce a lien against his own property, or sell it as the property of the buyer; and an action for damages for the breach of such executory contract will lie without the enforcement of any lien, or a rescission of the sale, as provided in section 1749 of the Civil Code.</p> <p>Id.—Damages — Loss on Resale — Evidence. — Evidence that the seller notified the buyer, upon his refusal to consummate the agreement of purchase, that he would sell the property to some one else for what he could get for it, and hold him responsible for the difference, and that he advertised it and sold it for a certain price, which was the highest price he could get, is competent as tending to show the amount of damages actually resulting from the breach of the contract.</p> <p>Id. — Value Fixed by Contract — Evidence. —In an action for damages for the breach of an agreement to buy, where the value of the property is fixed as between the parties by the contract, it is not necessary for the seller to prove the value of the property.</p>

<p>Vendor and Purchaser — Conditional Contract of Sale — Return os Deposit — Imperfect Abstract of Title — Refusal of Purchaser to Make Title Good. — Where a contract for the sale of land was conditioned that if the title was found imperfect, and could not be made good, the deposit made by the purchaser would be returned, and certain imperfections were found in the abstract of title, which there was a reasonable probability might give rise to litigation, and which made the title subject to grave doubts, and which the vendor refused to remedy or remove or warrant the purchaser against, an action will lie in favor of the purchaser to recover the amount of the deposit made by him.</p> <p>Id. — What Constitutes a Good Title. — A title to be good should be free from litigation, palpable defects, and grave doubts, should consist of both legal and equitable titles, and should be fairly deducible of record.</p> <p>Id. — Imperfect Title. — A title is not good, within the meaning of the foregoing rule, when the records show that a previous deed purporting to convey an interest in the land had been made to a person with whom the vendor does not connect himself, or when circumstances exist which render it possible for creditors of a prior owner of the land to attack a conveyance under which the vendor holds.</p>

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

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

<p>Appeal from a judgment of the Superior Court of Butte County, and from an order refusing a new trial-,</p> <p>Motion to dismiss appeal. The facts are stated in the opinion.</p>

<p>Parties — Death of Plaintiff — Substitution of Executor—Notice to Defendants in Default — Amendment of Complaint—Judgment. — Upon the death of a plaintiff, his executor may he substituted as plaintiff upon ex parte suggestion and proof of the death, and no notice thereof to defendants in default is necessary. Such substitution does not require an amendment of the complaint, though all subsequent proceedings should he in the name of the substituted party; and a judgment in favor of the substituted executor is supported by the order of substitution, without any amendment of the complaint, or any service of the amendment upon any of the defendants.</p> <p>Id. — Order of Substitution — Judgment Roll — Amendment of Pleadings. — An order substituting a party is a part of the judgment roll, and is different from an order allowing a party to amend any pleading by adding or striking out the name of the party, in the respect that the substitution is made by the court, and necessitates no change of defense, whereas the amendment in respect to parties is only allowed at the instance of the party whose pleading is to he amended, and may require or admit of a different defense.</p> <p>Id. —Judgment by Default — Presumption upon Appeal.—Upon appeal from a judgment by default in favor of an executor, where neither the date of an ex parte order substituting the executor as plaintiff nor the date of the qualification of the executor is made to appear by the record, it is enough, to support the judgment upon appeal, that the order of substitution was prior to the judgment; and it must be presumed, in the absence of any showing to the contrary, that the order was made at a date which would justify the entry of default and the judgment by default, and that the defendants were actually in default before the rendition of the judgment.</p> <p>Id. — Vacating Default Judgment —Laches — Motion without Merit. — A motion to set aside the judgment by default is entirely destitute of merit, where the motion is delayed nearly twenty months after the entry of the default, and nearly twelve months after the entry of judgment, and there is no affidavit of merits or intimation of desire to defend the action, and no pretense that the defendants were without actual knowledge of the default and judgment at the time of the entry of each, hut only that no notice or paper was served on the defendants after the substitution of the executor of the deceased plaintiff.</p> <p>Quieting Title — Void Adverse Claim — Pleading — Judgment by Default. — An action to determine an adverse claim may be maintained, under section 738 of the Code of Civil Procedure, although the adverse claim rests on proceedings which are void on their face.</p> <p>Id. — Cancellation of Papers. — A judgment in such action that the defendants have no right, title, or interest in or lien upon the land in question is equivalent to a judgment canceling all papers and proceedings upon which the adverse claim is founded, and has the same effect; and defendants who make default, and admit that the adverse claim is void upon its face, cannot be injured by an express cancellation in the judgment of assessments and certificates of sale upon which their adverse claim is alleged to be founded.</p> <p>Id.—Injunction in Judgment — Execution oe Deeds.—An injunction in a judgment in such action, against executing deeds in pursuance of the certificates of sale upon which the' adverse claim is founded, is proper in so far as it is ancillary to the principal relief and necessary to make that relief effectual; and if it is unnecessary to enjoin the execution of void deeds, the injunction is superfluous, and cannot injure the defendants.</p>

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

<p>Assignment—Non-negotiable Contract of Sale. — A non-negotiable contract of purchase and sale may be transferred by indorsement, so as to transfer all the rights of the assignor, subject to all equities and defenses of the other party to the contract at the time of the indorsement.</p> <p>Id.—Burden of Obligation — Novation. — The assignor of the contract cannot, however, be released from his burden of obligation to the other contracting party, if he refuses to consent to a novation.</p> <p>Id. — Obligation of Assignee — Suretyship of Assignor. — When the assignee takes the benefit of the contract, he also assumes its burden, so far as it is apparent upon the face of the contract, and the assignor, if not released from liability, stands in the relation of a surety for the performance of the obligation by the assignee, who is bound to fulfill the terms of the contract.</p> <p>Id. —Implied Contract between Assignor and Assignee. —An implied contract arises between the assignor and assignee of a non-negotiable instrument, whereby the latter becomes bound to the former to perform the contract according to its terms.</p> <p>Id. — Breach of Implied Contract —■ Assignment of Crop — Action by Assignor — Damages. —If the assignee of a contract for the purchase and sale of a crop of fruit refuses to accept and pay therefor, the assignor may sue him for breach of his implied contract, and recover as damages the difference between the price paid by him under the contract of purchase and sale, and that realized from the sale of the fruit in open market at current rates.</p> <p>Id. — Contract for Sale of Future Crops — Potential Existence. — When crops of fruit contracted to be sold for a series of years are to be the product of trees owned by the vendor at the time the contract was made, they must be considered as having a potential existence, and as being subject to sale; and an assignee of such contract acquires the right to purchase the fruit for each of the seasons subsequent to the assignment, and assumes the burden of paying the contract price therefor.</p>

<p>Dismissal of Appeal — New Trial — Service of Notice of Intention — Unauthorized Acceptance of Service of Statement. — An appeal from a new-trial order will be dismissed, so far as it affects a respondent upon whom the notice of intention to move for a new trial was not served, and who had given no authority to the attorney who accepted service of the statement, which fact was known to the appellant at the time of service.</p> <p>Quieting Title — Service of Summons by Publication — Validity of Judgment by Default. — A judgment in an action to quiet title to land against a non-resident is not void because of the service of the summons upon him, by publication, while absent from the state, although he does not answer or appear in the action.</p> <p>Id.—Power of State — Regulating Tenure of Realty — Constructive Service of Summons. — A state has power to regulate the tenure of immovable property within its limits, the conditions of its ownership, and the modes of establishing the same, whether the owner be a citizen or stranger, and may provide for quieting title to land within its limits by constructive service of summons.</p> <p>Id__Decree Quasi in Rem. — Although a decree quieting title is not in rem, strictly speaking, it fixes and settles the title to real estate, and to that extent partakes of the nature of a judgment in rem.</p> <p>Publication of Summons — Validity of Code Provision—Proceedings in Personam. — Section 412 of the Code of Civil Procedure, providing for the service of summons upon non-residents, by publication, although general, and in terms applicable to all actions, is not invalid because it includes in its provisions proceedings purely in personam.</p>

<p>Trust — Tenancy in Common — Adverse Possession — Prescription — Sufficiency of Evidence — Review upon Appeal — Decision upon Former Appeal— Change of Evidence. —In an action to establish a trust by one claiming to be co-tenant, with others, of a tract of land, where there is sufficient evidence tending to show that all of the contesting defendants had repudiated the plaintiff’s claim, and held adverse possession for more than five years after plaintiff’s right of action accrued, and before suit brought, findings of the court as to adverse possession of the defendant for the statutory period sufficient to bar the plaintiff’s right of entry will not be disturbed, although the evidence may be conflicting, and although upon a former appeal the judgment was reversed for insufficiency of a less amount of evidence in favor of the defendants t.o sustain such findings.</p>

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

<p>Judgment — Estoppel.—The judgment of a competent court, when properly pleaded, is conclusive in a subsequent action between the same parties for the same thing, although it be palpably erroneous.</p> <p>Id.—Decree in Equity.— Under the California practice, a decree in equity may be pleaded in bar of a subsequent action at law.</p>

<p>New Trial — Bill of Exceptions — Effect of Failure to Serve in Time. — The same rule of law applies to bills of exceptions as to statements on motion for a new trial, in the respect that the party moving for a new trial must prepare and serve his bill of exceptions within the time allowed by law for that purpose, or it cannot be settled, or if settled, cannot be considered, either at the hearing of the motion or on appeal.</p> <p>Id. — Relief for Mistake and Excusable Neglect—Mandamus. —The question whether the court has power to relieve the party moving for a new trial from the objection that the bill of exceptions was not filed in time, on the ground of mistake, surprise, or excnsable neglect, under section 473 of the Code of Civil Procedure, cannot he determined upon an application for a mandamus to compel the settlement of the bill, although the court has found and certified that the same was not served in time hy reason of the mistake, inadvertence, and excusable neglect of the counsel of the moving party.</p> <p>Id.—Discretion—-Review on Appeal.—Assuming that the court has power to; grant such relief under section 473 of the Code of Civil Procedure, whether it shall do so or not is matter resting in the discretion of the court, which cannot he controlled hy mandamus, and can only be reviewed on an appeal in case there is error or abuse of discretion in the action of the court.</p>

<p>Patent — Enforcement of Trust — Fraud — Mistake of Land Department. — Equity will decree and enforce a trust in favor of a party who shows a better right to land, a patent for which had been procured by the fraud of the defendant, and through mistake and misconception of the law on the part of the officers of the land department of the government.</p> <p>Id.—Equitable Title of Plaintiff—Right to Control Legal Title. — In such a case, it is not enough to show that the defendant was not entitled to have received the patent, hut the plaintiff must show that he himself occupies such a status toward the property as entitles him to control the legal title.</p> <p>Id. — Pre-emption Claim — Pleading — Conclusion of Law—Pacts Conferring Prior Right. —- Where the plaintiff in such action claims priority of right over the defendant to become the purchaser from the government, and to receive a patent for the land in controversy, under a pre-emption claim, it is not enough to allege be had or has such right, as that allegation is a mere conclusion of law; but the plaintiff must show the state of facts conferring such right, and also that he took the legal steps to avail himself thereof.</p> <p>Id. — Homestead Entry — Rejected Application—Failure to Appeal or Contest Issuance of Patent. — Where the application for a homestead entry, under which the plaintiff claims, was rejected, and no appeal was prosecuted from the order of the register and receiver rejecting the same, and no further steps were taken to secure its approval, or to contest the issuance of the patent to the defendant, who proved up and paid for the land as a pre-emption claimant, the plaintiff possesses no right, by virtue of his homestead entry, to control the patent, or to enforce a trust therein.</p> <p>Id.—Possession of Land Pre-empted by Defendant.— Nor will the fact that the plaintiff claims as an assignee of an actual possessor of the laud pre-empted by the defendant avail the plaintiff, it not appearing that such possessor objected to the defendant’s entry or possession of a portion of the land included in his inclosures, or resisted his pre-emption claim.</p> <p>Id.— Naked Possession of Public Domain — Acquiescence in Rejected Application.— Neither naked possession of the public .domain, nor a rejected application for leave to enter it, under whatever law it may be made, if the rejection is acquiesced in, and not appealed from, will give any such right or title as will enable the claimant successfully to attack or control a patent issued by the government to another claimant.</p> <p>Amendment of Complaint after Demurrer Sustained—Discretion — Failure to Except — Objection on Appeal.—The privilege of amending a complaint after the trial of the issue of law, raised by demurrer, is in the discretion of the trial court, and where the demurrer is sustained without leave to amend, and nothing appears in the record to show an abuse of discretion, or that the plaintiff applied to the trial court for leave to amend, or took an exception to a refusal of the court to grant such leave, it is too late to raise the objection for the first time on appeal that the court failed to grant it.</p>

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

<p>Proceedings Supplementary to Execution — Transfer by Debtor to Third Party — Jurisdiction of Court. — Upon proceedings supplemental to execution, where it appears that certain property claimed by the judgment creditor to be the property of the judgment debtor was conveyed to a third party upon the same day that the affidavit was filed for the institution of the supplementary proceedings, the court has no jurisdiction to take possession of the property by a receiver, but can only make an order authorizing the judgment creditor to institute an action against the parties claiming it, for its recovery and subjection to the satisfaction of the debt, and forbidding its transfer until such action could be commenced and prosecuted to judgment.</p> <p>Id.—Taking Possession of Property Conveyed — Order Appointing Receiver — Excess of Jurisdiction — Prohibition. — Orders in such proceedings directing that the property so conveyed be subjected to the satisfaction of the judgment, and that a receiver take possession thereof, are in excess of the court’s jurisdiction, and a writ of prohibition will lie to restrain their enforcement.</p>

The action was brought to enforce a lien for materials furnished to the original contractor under a contract to construct a portion of the San Francisco and San Rafael Railroad, lying between San Rafael and Point Tiburón, in Marin County.

The action was brought to enforce a lien for materials furnished to original contractors, under a contract to construct a portion of defendants’ railroad. Judgment was rendered for the defendants. The judgment was affirmed in Department One on the 4th of October, 1889. Upon a first hearing in Bank, the judgment was again affirmed, on the 3d of May, 1890.

Appeals of several parties, separately taken from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying the motion of each for a new trial. The facts are stated in the opinion of the court.

Application to the Supreme Court for a discharge on 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 San Diego County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Statute of Frauds — Employment of Keal Estate Broker — Sufficiency of Memorandum. — A writing, signed by the principal, which states' that the agent “can arrange for the sale of my ranch in Nevada, as per within memorandum, ” is a sufficient memorandum of employment under the statute of frauds.</p> <p>Id.—Contents of Memorandum — Compensation.—Section 1624 of the Civil Code does not require that a written agreement or memorandum authorizing or employing an agent or broker to sell real estate shall express that the employment is for compensation or a commission.</p> <p>Id. —Presumption of Consideration. —Such written contract of employment is presumptive evidence of consideration, and raises a presumption that the defendant, as principal, had agreed to pay the plaintiff, as his agent or broker, a consideration for services rendered under the contract.</p> <p>Id.—Action for Broker’s Services — Quantum Meruit — Evidence.— In an action upon a quantum meruit for the reasonable value of services rendered under such written memorandum of employment, the written memorandum is admissible, though not specifying the commission or compensation; and evidence is admissible to show what services were rendered under’the contract, and the reasonable value thereof.</p> <p>Remiddial Statutes — Construction. — A statute remedial in its object, if its meaning is doubtful, will be construed so as to suppress the mischief adverted to, and advance the remedy.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a motion for new trial. The facts are stated in the opinion of the court.