Volume 87 — California Reports

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

The action was brought by the plaintiff, as the assignee of E. B. Smith, in the form of a complaint in assumpsit for goods, wares, and merchandise sold and delivered to defendant at his request, viz.: Nine thousand gallons of wine, at twenty cents a gallon, amounting in the aggregate to the sum of eighteen hundred dollars.

<p>Boundary — Natural Monuments — Shore Line — Courses and Distances.— Where there is a conflict between the natural boundary, or shore line, and the line as given by courses and distances in the description of land, the former must control.</p> <p>Pleadings — Support op Judgment—Appeal. — A judgment cannot be rendered which will settle rights between litigants, unless the pleadings are framed to support it.</p> <p>Ejectment — Verdict and Judgment — Uncertain Description — Appeal. — In an action of ejectment, a verdict, and judgment based thereupon, that plaintiff is entitled to the possession of land described by boundaries not corresponding to the complaint or answer, or to any documentary evidence in the case, and not mentioning any natural monuments, nor fixing the location of the lands, directly, or by reference to anything in the record, or elsewhere, will be set aside upon appeal for uncertainty in description.</p> <p>Id. — Substitution of Plaintiff — Amended Complaint — Evidence of Title — Conveyance Pendente Lite — Supplemental Pleading. — The vendee of a plaintiff in ejectment who is substituted as plaintiff under an order of court providing that all the allegations and denials of the pleadings should apply to him if the complaint as amended alleges that he was the owner at the time of bringing suit, must stand upon such allegation, and prove himself the owner at that time, and evidence is inadmissible of a deed from the original plaintiff to him, executed after the commencement of the action.</p> <p>Id. — Evidence — Disputed Boundary — Call of Patent — Question for Jury.—In an action of ejectment, where a question of disputed boundary is involved, evidence tending to show the location of a certain house, which was one of the calls of a United States patent issued to the defendants, is admissible, the question whether the evidence is sufficient to prove such fact being for the jury to determine.</p> <p>Verdiot against Law — Instructions — Question of Pact. — A verdict cannot be said to be against law, as contrary to the instructions of the court, because inconsistent with the facts as maintained by one party, if the jury might, upon the evidence, have decided the question of fact contrary to such party, aud consistently with the instructions.</p> <p>Tide-lands — Certificate of Purchase — Patent — Curative Act — Case Affirmed. — A certificate of purchase of tide-lands, issued prior to the curative act of March 27, 1872, was validated by that act, and a patent from the state for such lands, issued subsequent to the passage of that act, and pursuant to the prior certificate, vests title in the patentee. (Upham v. Boshing, 62 Cal. 250, affirmed.)</p>

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

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

Appeals from a judgment of the Superior Court of Fresno County, from an order refusing a change of venue, from an order refusing to set aside a default, and from an order refusing to vacate the judgment. The facts are stated in the opinion of the court.

<p>Jurisdiction — Adjudication of Jurisdictional Fact — Judicial Action - of Supervisors — Petition for Grading of Street — Majority of Frontage. — The rule that whenever the jurisdiction of a court not of record depends on a fact which the court is required to ascertain and settle by its decision, such decision, if the court has jurisdiction of the parties, is conclusive, and not subject to any collateral attack, applies to the judicial action of a board of supervisors upon a petition for the grading of a street in deciding that a majority of the frontage of lots on the street Where the work was proposed to be done was represented in the petition for the work.</p> <p>Id.—Action for Street Assessment in San Francisco—Evidence.— In an action to recover an assessment for the grading of a street under the act of April 1, 1872, relating to street-work in San Francisco, which provides that no grading can be ordered by the supervisors unless a majority of the frontage of the lots shall be represented in the petition requesting the work, where the petition under which the grading was done did not show whether the petitioner owned a majority of the whole frontage or not, evidence that the petitioner was not the owner of more than one half of such frontage is inadmissible.</p> <p>Id. —Failure to Demonstrate — Waiver of Objection tó Grading — Collateral Attack upon Decision of Supervisors. — An owner of land on such street who fails to file the remonstrance required by the act waives all objections to the form and granting of the petition, and the decision of the board in ordering the grading to be done is conclusive as against a collateral attack in an action to recover the assessment.</p> <p>Id. — Grading of Several Blocks — Previous Grading of Gross-streets. — The fact that the portion of the street sought to be improved had been divided into two separate parts by a cross-street, which had been previously graded, does not invalidate the assessment, as the whole of the street might have been graded, and the blocks divided by cross-streets included in one petition and assessment.</p> <p>Id. — Letting Second Contract for Increased Price — Presumption of Regularity. —Where the contract to grade the street was entered into for a certain sum per cubic yard, and afterwards, without any request of the contractor, another resolution of intention was published, resulting in a second contract with the same contractor, for a larger sum per cubic yard, and no reason appears for letting the second contract, it will be presumed that the board acted regularly in effecting the second contract, and that a valid and sufficient reason existed for its action, and an assessment against the owners is not thereby invalidated.</p> <p>Id. —-Remedy for Objection to Second Contract — Appeal to Supervisors. — The remedy for any objection by a land-owner to the letting of a second contract for the grading of a street for an increased price, while a- previous contract was in force, is by an appeal to the board of supervisors, under section 12 of the act of April 1, 1872, and not by defense to an action to recover the assessment under the second contract.</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>

The following instructions were given by the superior court upon the subject of the burden of proof, and of the right of plaintiff to be upon the platform of the railroad car: “ The court instructs you that the burden of proving negligence rests on the party alleging it; and where a person charges negligence on the part of another as a cause of action, he must prove the negligence by a preponderance of evidence.

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

The land in controversy was included within the exterior boundaries of a tract deeded to Nathan Coombs oil the 6th of December, 1848, by one Nicholas Higuera, a grantee of the Mexican government.

<p>Judgment on Pleadings — Material Issue.—A judgment on the pleadings cannot be taken where a single material issue is presented by the answer.</p> <p>Id.—Action to Recover Deposit—Vendor and Purchaser—Defective Title. —In an action by the vendee to recover hack a deposit made under a contract for the purchase and sale of land, by the terms of which the vendor was to convey the land as soon as he received a deed, and in pase of a defective title, to return the deposit made, where the complaint alleged a demand by the plaintiff for a conveyance, and a refusal by the defendant to convey, on the ground of an alleged defective title, an answer denying such allegations, and alleging that the defendant expects to he and will be able soon to obtain the legal title, raises material issues, which the defendant is entitled to have tried, and a judgment on the pleadings in favor of the plaintiff is erroneous.</p>

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

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

The action was brought by the plaintiffs, Julia K. Duff -and Agnes Duff, who are the wife and infant daughter of William R. Duff, deceased, against the defendants, Robert P. Duff and Frank S. Duff, who are the brothers of said decedent, seeking to have the defendants declared trustees of the plaintiff of certain mill property in Eureka, Humboldt County, alleged to have been fraudulently conveyed to the defendants by Richard Duff, tire father of defendants and of William R.…

<p>Libel — Evidence — Des Gestas — Certificate of Character — Contradiction of Witness. — Where a libel is justified on the ground o£ its truth, and a witness for the defendant has testified that the plaintiff was denounced by himself and all good citizens at the place of his residence, on a certain date, a certificate of recommendation of the plaintiff for good and correct habits in business and social relations, signed by several prominent citizens of that place, at a date four months earlier, is not admissible as part of the res gestee, to contradict the statement of the witness, nor to prove the good character of the plaintiff.</p> <p>Id.—Impeachment of Witness — Specific Acts — Battery.—A witness cannot be impeached by evidence of particular wrongful acts; nor is it proper to ask him, for the purpose of impeachment, whether he had been arrested, pleaded guilty, and paid a fine for heating, bruising, and battering a woman of the town.</p> <p>Id. — Objection to Impeaching Evidence. — An objection to such question, on the ground that it did not tend to impeach the witness, and that the record was the best evidence, is specific enough to invoke the rule which does not permit a witness to he impeached by evidence of particular wrongful acts.</p>

<p>Brorer’s Commissions on Sale of Real Estate — Assumpsit — Parol Contract—Quantum Meruit — Statute of Frauds.—To entitle a broker to recover commissions due for the sale of real estate, his contract therefor must be in writing, and no recovery can he had upon a verbal contract or on a quantum, meruit.</p> <p>Id. — Conditional Contract for Commissions — Failure of Condition. — Under an agreement by a vendor to pay a broker a commission for selling land when the vendees paid a specified sum on account of the price, and executed their notes and a mortgage for the balance, no recovery can be bad for the agreed commission, if the purchasers merely executed their notes and mortgage to the vendor, hut never paid the sum required, and on account of their failure to make such payment the vendor was compelled to take back the property.</p> <p>Appeal — Review — Error without Prejudice. — Where the record shows that the appellant is not entitled to recover in any event, error in rulings of the court upon the admission of evidence cannot entitle him to a reversal of the judgment.</p>

<p>Criminal Law —' Homicide — Evidence ■— Dying Declaration. — Upon the trial of a defendant charged with murder, the dying declaration of the deceased, in order to be admissible in evidence, need not show or state, in terms, that it was made under a sense of impending death, if there is sufficient evidence aliunde the written declaration to show that it was so made.</p> <p>Id. — Written Declaration of Deceased — Notes of Oral Statement. — Where notes were taken of what the deceased said, and a statement written out therefrom, which was read to the declarant, sentence by sentence, and the accuracy of each sentence assented to by him, and then signed in the presence of witnesses, the statement becomes his dying declaration, although the written declaration contains some words that were not used by the declarant in his oral statement.</p> <p>Id. — Practice — Challenge of Juror — Actual Bias — Appeal—Exception. —The ruling of the trial court upon the challenge of a juror for actual bias will not he reviewed on appeal, and its disallowance is not the subject of exception.</p> <p>Id.—Peremptory Challenge.—It is not error to permit the prosecution to peremptorily challenge a juror after he has been sworn, where good reasons are shown therefor.</p> <p>Id.—Instruction •—Reasonable Doubt.—An instruction to the jury defining a reasonable doubt as “ such a doubt as would induce a man of reasonable firmness and judgment to act upon it in matters of importance to himself” is erroneous.</p> <p>Id. — Indorsement of Instructions — Review on Appeal. — In the absence of an indorsement allowing whether a certain instruction was given, it will not be reviewed on appeal.</p>

The information accused the defendant of the crime of grand larceny in feloniously stealing, taking, and carrying away certain articles specifically described, stating the value of each, which amounted in the aggregate to $630; “also, various other articles, of the value of eight hundred and ninety dollars in lawful money of the United States,”— all described as the personal property of one Martha Cooper.

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

<p>Appeal from a judgment of the Superior Court of Santa Clara County.</p> <p>The action was brought to obtain a judgment that plaintiff is the owner of a ditch, and the right of way therefor, over the lands of the defendant Isaiah Shaw; and the owner of the use of eleven hundred inches of the water of Penetencia Creek, in Santa Clara County, to he used through said ditch, measured under a four-inch pressure; and that plaintiff is the owner of all the waters of Penetencia Creek, after supplying said ditch to the extent of four thousand inches of water under a four-inch pressure, to he used through a second ditch, located on plaintiff’s land below the land of defendant Shaw; and to enjoin, interference with the flow of water into said ditches, or either of them. The court finds the following facts: The plaintiff, J. H. Flickinger, and one C. Smith, were the owners of a tract of land of seventy-four acres bounded upon the northeast by a tract owned by the defendant Isaiah Shaw. Penetencia Creek flowed as a natural stream along the eastern boundary of the land owned by Shaw. In November, 1880, it was orally agreed between Shaw and Flietinger and Smith that Flickinger and Smith should at their individual expense survey, excavate, and keep in repair a ditch by which the waters should be diverted from said creek, and by which they could be used for irrigating alike the land of Shaw and that of Flickinger and Smith; Shaw to have the use of one half of the water, so diverted, and that Flickinger and Smith should have the other half, and the right of way over the land of Shaw for the ditch, and one half of the water to be diverted thereby. On the 27th of December, 1880, the survey was made, and the ditch located to conform to Shaw’s requests, and was so constructed as to convey all the waters usually running in the creek for the equal use of Shaw and of Flickinger and Smith, at an original cost of about four hundred dollars to Flickinger and Smith, and at a further cost to them of two hundred dollars for keeping it in repair. The capacity of the ditch was increased by them so as to finally carry eleven hundred inches of water. The ditch was used jointly according to the agreement until December 25, 1885. After its completion, it was agreed that the waters should be appropriated by posting a notice, and that Shaw should convey to Flickinger and Smith a conveyance of one half thereof, and of the right of way over his land; but Shaw posted the notice in his own name in December, 1881, and never conveyed to Flickinger and Smith. Before December, 1885, the plaintiff, Flickinger, acquired all the rights of C. Smith in the ditch and water right, and also acquired from defendant Shaw a tract of land fronting on the creek, below the head of the ditch, and Shaw then conveyed to Flickinger a right of way across his land for a ditch leading to the tract so conveyed; and in October, 1885, Flickinger posted a notice claiming four thousand inches of the water of the creek to be conveyed to the lands so purchased from Shaw, and other lands not included in the tract originally owned by Flickinger and Smith, and constructed another ditch to said lands, 'which was not intended as a substitute for the ditch originally constructed under the agreement, but for the purpose of utilizing what water might at any time flow down the creek in excess of the capacity of the upper ditch. In December, 1885, Shaw fitted up the ditch by. which the water had been conveyed to the land of Flickinger and Smith, and enlarged the capacity of the upper ditch on his own land to two thousand inches, and denied the right of plaintiff to any of the water so appropriated. The court decreed that plaintiff is entitled to the flow of eleven hundred inches of water through the upper ditch as originally constructed to the lands of Flickinger and Smith, to be equally divided between plaintiffs and defendant, and that plaintiff is the owner of one half of the ditch, and is entitled to maintain it in repair, and is entitled to all the surplus water of the creek above eleven hundred inches to the extent of four thousand inches, and enjoined the interference by defendant with the rights of the plaintiff. The further facts are stated in the opinion of the court.</p>

<p>Nuisance — Brass-foundry— Proof Required. — A brass-foundry and machinery incident thereto are not prima facie nuisances, and one complaining of them must allege and prove that they are such by reason of their peculiar location or the improper or negligent manner in which they are conducted.</p> <p>Id.—Qualified Injunction. — Where the injurious effects complained of as resulting from the running of a foundry and machinery may be prevented without entirely abating or enjoining the works or the operations thereof, only the canses of the specific injurious effects proved should be enjoined, leaving the defendant at liberty to operate his works, if he can, and elects to do so, in such a manner as to remove the cause and prevent the injury.</p> <p>Id. — Review on Appeal — Bindings Contrary to Evidence — Reversal of Judgment — Modification of Injunction. —Where, on account of exaggerated findings of fact not justified by the evidence, the extent of the relief by injunction to which the plaintiff is entitled against the improper operation of the foundry cannot he finally determined on the appeal, a judgment totally enjoining the operation of the foundry will be reversed, and not modified.</p>

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

<p>Foreclosure of Mortgage — Pleading — Answer of Subsequent Mortgagee—Cross-comblaint— Service — Default.—In proceedings for the foreclosure of a mortgage, the answer of a subsequent mortgagee, which sets up a junior mortgage and prays for a foreclosure thereof, must be treated as a cross-complaint, and must be served upon all the parties affected thereby, including the mortgagor, though he has made default upon the original complaint.</p> <p>Id. —Judgment by Default — Jurisdiction — Appeal. —Where such service is not made, the court has no jurisdiction to render judgment of foreclosure by default in favor of the subsequent mortgagee, even though the parties against whom the default was taken were properly served with summons issued, on the original complaint and had failed to appear; and the error in rendering such judgment will be corrected upon appeal from the judgment by default.</p>

<p>Contest oe Will — Evidence—Facts not Occurring at Trial — Argument of Counsel. —Upon a contest of a will, the issue as to the validity of the will must be determined solely upon the evidence introduced at the trial; and the court cannot properly consider any facts not occurring at the trial, and which were stated for the first time in the argument of counsel.</p> <p>Id. —New-trial Statement — Amendments •— Appeal — Presumption. —Where the judge who tried the contest of a will, and rendered judgment for the contestant, amended the statement on motion for now trial, against the objection of the proponent of the will, by inserting facts adverted to in the argument, hut which were not proved or offered to be proved at the trial, it must be presumed upon appeal that the court, in coming to its conclusion, considered the facts contained in such amendment, and the judgment will be reversed.</p>

<p>Pleading — Demurrer for Uncertainty — Copy of Note — Indorsements of Payments — Execution. — A complaint alleging that defendants executed their promissory note to the plaintiff upon a certain day, “which note is in the words and figures following,”and setting forth a copy of the note, showing indorsements thereon of payments of later date than the date of the note, and alleging a payment upon the note of a sum equal to the sum of the indorsements, is not subject to a special demurrer for uncertainty as to whether the indorsements were a component part of the note at the time of its execution, or were subsequently added, nor as to whether the copy of the note set forth is a copy of the note executed.</p> <p>Id.—Foreclosure of Mortgage — Reasonable Attorney’s Fees.— Where the mortgage provides that, in the event of foreclosure, “reasonable attorney’s fees, to be taxed by the court, shall be allowed to plaintiff,” an allegation in an action of foreclosure that “two hundred dollars is a reasonable attorney’s fee to be allowed to the plaintiff for the collection of the said promissory note, and for the foreclosure of the said mortgage,” being limited to the action in hand, is neither ambiguous nor uncertain; and even if the averment were uncertain, it would not be ground of demurrer, as no averment as to what would be a reasonable fee is necessary.</p> <p>Foreclosure of Mortgage — Findings — Percentage — Appeal — Objection for First Time. — In an action to foreclose a mortgage, where the court finds that there was due to the plaintiff from the defendants a certain sum for “costs, percentage, and necessary disbursements, including attorney’s fees,” and this sum was included in the judgment, an objection that the court was not authorized to add a percentage to the costs and disbursements cannot .be considered for the first time on appeal.</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>Mines — Mortgage of Patented Mineral Tract — Appurtenances — Lode in Adjoining Tract.— A mortgage of a patented tract of mineral land, with the appurtenances.thereto, does not cover an undeveloped portion of a lode the situs of which is in land adjoining the patented tract; and such portion of the lode does not become parcel of or appurtenant to the tract mortgaged by being subsequently connected therewith by workings on the lode.</p> <p>Id. — Subsequent Possession — Inclosure of Mineral Land—Title to Mineral Lode. —• The subsequent possession of the adjoining tract, acquired by actual inclosure thereof by the mortgagor, will not inure to the benefit of the morgagee, hut is sufficient to give the possessor title to a mineral lode contained therein as against all persons not connecting themselves with the source of title by compliance with the mining laws of the United States.</p> <p>Id.—Foreclosure Suit—Appointment of Receiver — Jurisdiction — Void Order. — An order appointing a receiver in a foreclosure suit, in so far as it confers the right to occupy or mine in land not included in the mortgage or trust deed sought to be foreclosed, is to that extent in excess of the jurisdiction of the court and void.</p> <p>Id. — Power of Receiver — Construction of Order — Mining without Authority. — An order appointing a receiver in a foreclosure suit must be construed with reference to the pleadings upon which it is based, and cannot confer color of authority upon the receiver to extract ores fróm lauds not covered by the securities involved in the suit.</p> <p>Id. — Liability of Receiver — Property of Mortgagor — Rights of Creditors—Proceedings Supplemental to Execution. —If the receiver works ores in lands of the mortgagor which are not included in the securities involved in the foreclosure suit, he becomes liable to the mortgagor as a trespasser for the net proceeds of the ore extracted; and the general creditors of the mortgagor may avail themselves of such liability by proceedings supplemental to execution.</p> <p>Id. —Unauthorized Extraction of Orf.s — Common System of Working — Net Proceeds..— The fact that the part of the adjoining lode from which the ores were taken by the receiver was connected by a common system of working with the mortgaged premises, which were worked at a loss, does not relieve the receiver from liability for the net proceeds of the ores taken.</p> <p>Id. — Ex parte Appointment of Receiver — Presumption — Rights of General Creditors. —Where the orders appointing the receiver were made ex parte, and it is not shown that their terms, or the proceedings of the receiver under them, ever came to the knowledge of the mortgagor, and it appears that the mortgagor was insolvent, and left its general creditors to recover what they could out of the property, without objeetion, the presumption is, that the mortgagor desired its property to go to its creditors according to their legal rights, and never approved the proceedings of the receiver in removing ores from the lode in the adjoining tract.</p> <p>Execution — Supplemental Proceedings — Torts upon Property op Judgment Debtor — Creditor’s Bill — Order Allowing Suit.— Proceedings supplemental to execution can reach choses in action arising from torts committed on the property of the judgment debtor which might be reached by a creditor’s bill; and the court in the supplemental proceedings may authorize a suit by the judgment creditor to recover such choses in action.</p>

<p>Insane Persons — Restoration to Capacity — Construction of Code.— The provisions of section 1766 of the Code of Civil Procedure authorizing the court to restore a person adjudged insane or incompetent is only applicable to those for whom guardians have been appointed under section 1764 of the same code, and does not apply to persons committed to insane asylums under the regulations of the PoKtical Code.</p> <p>Id.—Discharge from Insane Asylum — Jurisdiction of Court — Habeas Corpus. —No court in this state is authorized to discharge a person who has been committed to an insane asylum, or to restore him to capacity, under any circumstances, except upon writ of habeas corpus.</p> <p>Id. — Power of Officers of Asylum. —• The power to discharge an inmate of an insane asylum otherwise than upon habeas corpus is vested exclusively in the officers of the asylum, and includes the power to determine whether the patient has recovered, and the authority to discharge persons who have sufficiently recovered, and also persons who have been improperly committed.</p> <p>Id.—Effect of Discharge from Asylum — Restoration to Capacity— Right to Sue. — The effect of a discharge by the officers of an asylum of an insane inmate, if no guardian has been appointed under the act of «March 9, 1885, is, to restore the person discharged to legal capacity to sue.</p> <p>Id. —Malicious Prosecution — Commitment of Sane Person to Asylum. — An action for damages will lie for a malicious prosecution on a charge of insanity, resulting in an order of commitment to an insane asylum of a person who was not insane.</p> <p>Id. — Order of Commitment — Evidence — Probable Cause. — In such action, the order of commitment is not conclusive evidence against the plaintiff of his insanity at any time, or of probable cause for the prosecution.</p> <p>Rehearing-—■ Practice.—A rehearing in the supreme court will not be granted in order to consider points not made in the argument upon which the case was originally submitted.</p>

Motion to dismiss an appeal from a decree of distribution of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Fresno 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 Santa Cruz 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 an order of the Superior Court of the City and County of San Francisco vacating a judgment, and from an order refusing to vacate the order setting aside the judgment.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Street Improvement — Assessment — Lien upon Lots — Foreclosure —• Several Right of Action — Former Recovery — Plea in Bar. — Under the act of March 18, 1885 (Stats. 1885, p. 147), providing for the assessment of abutting lots for the expenses incurred for street improvements, and that the amount assessed upon each lot shall be a lien thereon, each lot or portion of a lot is separately liable for its proportion of the cost of the improvement, and the liability of each is independent of any other, and constitutes a separate demand upon which a separate cause of action may be based, and the foreclosure of a lien upon one lot is not a bar to an action to foreclose a lien upon another lot owned by the same person.</p> <p>Id. — Personal Liability. — The expense of the improvement is a lien upon the property benefited, and not a charge against the owner personally.</p> <p>Id.—Attorney’s Fees — Allowance against Each Lot.—Under section 12 of such act, allowing a certain amount as an attorney’s fee, in addition to the taxable costs, in all cases of recovery under the provisions of the statute, the fee may be allowed as against each lot, although owned by the same person.</p> <p>Id.—Record of Warrant of Assessment. — A warrant of assessment must, in order to create a lien upon the property charged, be recorded in the office of the superintendent of streets before it is delivered to the contractor or his assigns.</p> <p>Id. — Omission of Name of Mayor from Record. — Where the warrant of assessment was properly signed by the superintendent of streets, and contersigned by the mayor, the fact that the name of the mayor and the designation of his office were omitted from the record by the superintendent does not render the recording ineffectual.</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 of the court.</p>

Petition to the Supreme Court for a writ of prohibition to the Superior Court of Los Angeles County, and J. W. McKinley, Judge. The facts are stated in. the opinion of the court.

Action to recover $3,750, and interest at the rate of three per cent per month from June 24, 1887. The action is upon a contract in writing, whereby the plaintiff agreed to pay, and did pay, to the defendant, $3,750 for a certain lot of land which the defendant agreed to convey to the plaintiff one year after the date of the contract. The contract was dated June 24, 1887.

Upon a former hearing in Bank, a decision was rendered upon the merits of the appeal on the 8tli of July, 2890, by which the judgment was reversed, and the cause remanded for a new trial. A rehearing was granted, upon the question of the jurisdiction of the court. The facts appertaining to this question, and to the dismissal of the appeal, are stated in the present opinion of the court.

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

<p>Contract — Acceptance of Goods —Waiver of Defect.—If a party accepts and pays for part of a quantity of goods delivered under a contract, without reserving the right to object subsequently, and does not offer to return the goods delivered, but retains them, he waives any defect in their quality, and he cannot make such defects a ground of objection to goods which are to be subsequently delivered, and which are in accordance with the contract.</p>

<p>Eminent Domain — Condemnation Proceedings — Lis Pendens — Lease after Suit Brought — Parties — Res Ad judicata. — Under section 1246 of the Code of Civil Procedure, one claiming an interest in land under a written lease executed pending an action to condemn the land is authorized to appear, plead, and defend his interest, though not named as a party to the proceedings; and where he fails to do so after he has notice of the proceeding, he is estopped by the judgment from claiming anything by virtue of his written lease, entered into subsequent to the filing of the Us pendens.</p> <p>Id.—■ Action to Enjoin Taking — Evidence.—Such lessee cannot maintain an action to enjoin the taking of the property condemned pursuant to the judgment; and the judgment roll in the condemnation proceedings, and the notice of Us pendens, are admissible evidence against him in bar of such action.</p> <p>Findings — Allegations not Denied.—Where some of the material allegations of the complaint are not denied, it is not necessary to find in relation to them.</p>

<p>Appeal — Notice— Joinder of Parties. — An appeal from a judgment, and from an order denying a new trial, may be taken by one notice, although all of the parties to the former fail to appeal from the latter; and a notice stating who are appellants and what they respectively appeal from is sufficient.</p> <p>Id. — Double Appeal—Undertakings — Clerk’s Certificate — Dismissal.—A motion to dismiss such appeals on the ground that but one undertaking was filed, instead of two, will be denied, where there is nothing to contradict the clerk’s certificate that “sufficient undertakings on appeal in due form were properly filed. ”</p> <p>Power of Attorney-—Conveyance to Attorney in Fact—Fraud upon Principal. — A power of attorney authorizing the sale of real estate does not authorize the attorney in faict to give away the property, or to convey it to himself and wife for a nominal consideration, and such a conveyance is a fraud on the principal, and a nullity.</p> <p>Quieting Title—Burden of Proof. — In an action to quiet title, the burden rests upon the plaintiff to show title in himself, and if he fails to make out a case, he is not entitled to recover.</p> <p>Id. — Cross-COMH.AINT—Equitable Title.—A cross-complaint is proper in an action to quiet title, When it seeks to enforce an equitable title against the plaintiff as the holder of the legal title.</p> <p>Id. — Execution Sale of Beneficial Interest — Pleading. — Where the defendant in an action to quiet title has acquired the beneficial interest of the owner of the equitable title, by an execution sale, he is entitled to havd it adjudged to him in the action; but in order to have it so adjudged, he must state the facts as fully in his cross-complaint as they should he stated in a bill in equity.</p> <p>Id.—Failure to Answer Cross-complaint — Homestead — Waiver.— In such action, evidence that the plaintiff’s grantors had declared a • homestead on the property is inadmissible, where the grantors have, by failure to answer the cross-complaint, waived any claim under the homestead declaration.</p> <p>ID.—Lien of Plaintiff—Testing Validity by Cross-complaint.— Where the plaintiff alleges title in himself he cannot recover by showing simply a lien without possession or right of possession; but the defendant may, by cross-complaint, test the validity of a lien claimed by the plaintiff, if he alleges that the property which he has purchased at execution sale was conveyed to the plaintiff by the execution debtor merely to secure him against liability on a bond, and that no liability Was incurred by plaintiff.</p> <p>Id.—Parties — Beneficiary in Possession — Execution Sale. ■—The defendant may, by his cross-complaint, bring in whatever parties are necessary to a determination of the controversy; and where the defendant claims under an execution sale of the interest of a beneficiary in possession, for whose benefit the plaintiff holds the legal title, such beneficiary is a proper and necessary party, and. may be brought in by the cross-complaint.</p>

Contempt proceedings against AVilliarn T. AA7all ace, judge of the superior court of the city and county of San Francisco, and Patrick Reddy, receiver, for alleged disobedience to an alternative writ of prohibition. The facts are stated in the opinion of the court, and in the opinion in Havemeyer v. Superior Court, 84 Cal. 327.

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

The verdict of the jury found the defendant guilty of an assault with a deadly weapon.

<p>County Boundary — Statutory Construction — Reference to Mexican Grants — Survey — Patents. —The acts organizing the counties of San Bernardino and San Diego, and fixing the common boundary between them with reference to the lines of certain Mexican grants, must be construed as intending to adopt a line that could thus be definitely fixed; and an official survey of the grants which had been theretofore made and recorded is proper evidence of the location of the boundary, though not finally approved as the basis of patents confirming the grants, in preference to a subsequent survey, upon which the patents were based.</p> <p>Id. — Mandamus to Surveyor-General — Question of Title — Intention of Legislature. —Even if the courts have jurisdiction to control the surveyor-general by mandamus in the matter of a survey of a county boundary, the proceeding does not involve any question of title to real property, or of the correct boundaries of land as between private claimants, although the act establishing the boundary may refer to private grants; but the sole question is as to the intention of the legislature in fixing the boundary at the time of adopting the line.</p>

The action was brought to recover the sum of $3,630 for money loaned to the defendant. The defendant deDied the loan, and pleaded that all but fifteen hundred dollars of the money was given to the defendant freely and without solicitation, and that the remaining sum of fifteen hundred dollars was a present from the plaintiff to defendant’s daughter, and' that by the plaintiff’s direction, he gave his note for that sum to his daughter.

<p>Exemption from Execution — Remedial Statutes — Construction.— Statutes exempting personal property from execution are remedial in character, and are to be liberally construed, as being intended to protect the debtor, and enable him to follow bis vocation, so as to earn a support for himself and family.</p> <p>Id. — Implements—Tools — Construction of Code. — The term “implements, ” as used in subdivision 4 of section 690 of the Code of Civil Procedure, which provides that “ the tools or implements of a mechanic or artisan necessary to carry on his trade ” shall be exempt from execution, has a broader signification than the term “ tools,” and includes any instru- ' meat needed and used for the purpose of carrying on his trade or business.</p> <p>Id.—Jeweler’s Safe — Insolvency.—A jeweler’s safe owned and used in the business of a jeweler and watch-repairer is exempt from execution, and should be set apart as such to him in proceedings in insolvency.</p>

<p>Appeal from a judgment of the Superior Court of Santa Barbara County, and from an order granting an injunction.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mutual Benefit Association—Insurance oe Life — Chance of Beneficiary. —Where a certificate of membership in a mutual benefit association, purporting to be an insurance on the holder’s life, payable after his death to his wife as beneficiary, provides that the member may, in writing filed with the association, substitute some other beneficiary, the sending of a letter to and filing it with the association by the holder of the certificate, requesting that the beneficiary he changed to the executors named in his will, and an indorsement upon the certificate, signed by the secretary, changing and substituting the beneficiary, is a substitution in writing of another beneficiary, in accordance with the provisions of the certificate.</p> <p>Id.—Change in Writing — Act of Secretary — Agency. — It is not necessary, to effect a change of the beneficiary, that the change should he wholly in the handwriting of the member; hut it may he done through the agency and handwriting of the secretary, provided it was done by the authority of the member, and for him.</p> <p>Id. — Substitution of Executors as Beneficiaries —Will —Devise. — The substitution of the executors of the member as his beneficiaries, and the insertion in his will of a direction to them to apply the proceeds in payment of his debts, is not an attempt to devise by will the policy or its proceeds.</p>

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

The following facts appear in the findings of the court: The defendant, since July 7, 1882, has been a corporation under the laws of the state of California, and is the owner of large bodies of land situated in the counties of Fresno and Tulare,and of certain waters, canals,.and water rights, by which its lands could be irrigated.

<p>Pueblo Lands — Title, op San Francisco — Trust — Control of Government.—The tille ot the city of San Francisco to the pueblo lands, as successor to the pueblo of San Francisco, was not ail indefeasible estate, nor strict ownership, but was a restricted ami qualified right to alienate portions of the lands to the inhabitants, and to devote the residue to public uses, and was in the nature of a trust for the benefit of the inhabitants; and its right of disposition and use was in all particulars subject to the control of the government.</p> <p>Outside Lands in San Francisco — Act op Conoress — Trusts — Bona Fide Possessors. — The legal title to outside lands in San Francisco passed to the United States from Mexico upon the acquisition of California, and passed to the city by the act of Congress of March 8, 1866, upon the trusts set forth in said act, in favor of persons in bona fide actual possession of the same at the date of its passage, by themselves or by their tenants.</p> <p>Id. — Possession op Head op Family — Surviving Wipe — Trust. — The grant of Congress by said act to the city was intended to be made in trust for the head of a family residing on the lands, and inured to the benefit of a surviving wife in bona fule possession with her children at the date of its passage by virtue of such possession, and not to the estate of her deceased husband, who held bona fide possession prior thereto, nor would she take title from the city in trust for the estate of her husband or for their children.</p> <p>Id.—Possession by Tenant—Conventional Tenancy — Husband and Wipe. —The “possession by tenant” spoken of in the act of Congress signifies possession by a conventional tenant, and does not apply to the possession of a surviving wife continued after the decease of the husband, which occurred before the passage of the act.</p> <p>Id. —Act op Congress — Order 800 — Ordinance 822—Legislative Acts — Bona Fide Possession — Conveyance — Presumption. — Where a conveyance was made by the city in pursuance of the act of Congress of 1863, and of order 800 and ordinance 822 of the board of supervisors, and of the acts of the legislature of 1SG8 and 1870 ratifying said order and ordinance, to a person in actual possession of outside lands, if it does not appear that any suit was pending against such person in regard to the land, it will be presumed that no suit existed, and that the possession was bona fule.</p> <p>Id. — Homestead — Act op 1862 — Survivorship — Descent — Bona Fide Possession of Surviving Wipe. — A homestead acquired under the act of 18G2 on the death of either spouse vested absolutely in the survivor by descent, and need not be set apart by the probate court; and where it appears that the possession of outside lands by a surviving wife was under a legal devolution to her of the whole land as a homestead at the date of the act of 1SG6, the bona fides of her possession are beyond doubt.</p> <p>Id. — Trusts — Parent and Child. — A trust arises from contract or from circumstances which affect the conscience of a party, and charge him with the rights of another, but cannot arise in respect of outside lands in favor of children, as against a surviving wife who acquired title thereto as a bona fide possessor, if she had no contract with her deceased husband, and owed no duty to her children in respect to the lands.</p> <p>Id. —• Husband and Wife — Death of Husband — Possession before Act of 18ti6. —The mere possession of outside lands by a husband, who died before the passage of the act of Congress of 1866, when the title was in the United States, conferred no rights upon him or his heirs, nor could he be the recipient of a grant after his death; hut the donation given by the act inured directly to the surviving wife, who was then in bona fide possession.</p> <p>Id. — Estate of Deceased Husband — Administration by Wife —Estoppel— Mistake of Law. — The fact that the surviving wife became administratrix of the estate of her deceased husband, and by mistake of law, in ignorance of her rights, inventoried outside lands as his property, which did not belong to his estate, hut were her own property by operation of law, does not estop her from claiming the property as her own.</p>

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

<p>Criminal Law — Trial.by Jury—Common Law.—By the common law, the trial of all crimes is required to be by a jury selected from the vicinage or county where the crime is alleged to have been committed.</p> <p>Id.— Constitutional Law — Bill of Rights.—Section 7 of the bill of rights, in the state constitution, providing that “the rights of trial by jury shall be secured to all, and remain inviolate,” refers to the right as it existed at common law.</p> <p>Id.-—Penal Code — Unconstitutional Provision—-Change of Place ob Trial — Application of District Attorney. — Subdivision 2 of section 1033 of the Penal Code, authorizing a change of the place of trial of a criminal action to another county, upon application of the district attorney, without the consent of the defendant, where no jury can he obtained for the trial of the defendant in the county where the action is pending, is unconstitutional and void.</p> <p>Id.—Jurisdiction—Venue.— The superior court of another county than that in which the crime was committed has no jurisdiction to try the case, where the venue was changed to such county upon application of the district attorney without the consent of the defendant.</p> <p>Id. — Construction of Penal Code — Change of Place of Trial"—Insufficient Application. — If it be conceded that subdivision 2 of section 1033 of the Penal Code is valid, it must be strictly construed and strictly pursued; and an application on the part of the district attorney showing merely that a fair and impartial jury cannot be obtained therein, and not showing that all legal means had been exhausted to procure a jury, and that no jury can be obtained therein, is insufficient.</p> <p>Id. — Competency of Jurors— Impartiality. —A juror is not necessarily incompetent because he is not impartial; and proof that a fair and impartial jury cannot be obtained is not equivalent to proof that no jury can be obtained.</p> <p>Id.—Homicide — Evidence — Rebuttal — Habit of Deceased — Declarations. —Upon trial of a charge of murder, evidence that the defendant believed that the deceased was armed at the time of the killing cannot be rebutted by evidence that the deceased was not in the habit of carrying arms, and had so stated on various occasions, and had refused to go armed on the morning of the homicide, the declarations of the deceased not appearing to have been communicated to the defendant.</p> <p>Id.—Character of Deceased for Peace and Quietness.— Evidence to sustain the character of the deceased for peace and quietness cannot be given by the prosecution unless it has been attacked by the defendant; nor can such character be proved by evidence that he was not in the habit of carrying arms, or of his refusal to do so.</p> <p>Id.— Declarations of Deceased — Quarrels — Rebuttal. — Evidence that the deceased had said that he had quarreled with several persons is incompetent, and if given by the defendant, without objection, cannot be rebutted by proof that the deceased was not in the habit of going armed.</p> <p>Id. — Conversations of Witness with Third Persons — Striking out Evidence. — When a witness for the prosecution has testified to conversations with third persons, which the prosecution fails to connect with the defendant by proposed proof, a motion of the defendant to strike out such conversations should be sustained.</p> <p>Id.— Declarations of Defendant —Threats against Witness. —Evidence of a conversation of a witness with the defendant, relating to threats of the defendant toward the witness, on the supposition that he was the author of a newspaper article published by the deceased, is incompetent against the defendant, it not appearing that the conversation was communicated to the deceased.</p> <p>Id. — Self-defense — Reasonable Fear of Bodily Harm — Dangerous Character of Deceased — Warning of Defendant. — Where the defendant claims to have killed the deceased in self-defense, while acting with reasonable prudence, and under an honest belief that he was in imminent danger of death or of great bodily injury, it is competent for him to show that before the shooting he was informed that the deceased was a dangerous man, and such information need not have been brought home to the deceased; butdt is not competent merely to prove that the defendant was warned to look ont for the deceased.</p> <p>Id.— Argument—Private Counsel — Assistance of District Attorney — Discretion.— lb is discretionary with the trial court to allow private counsel to be employed to assist the district attorney in the prosecution of a defendant charged with murder, and to open and close the argument to the jury, with the consent and acquiescence of the district attorney.</p> <p>Id. — Burden of Proof — Preponderance of Evidence — Reasonable Doubt. — Proof of the homicide by the prosecution does not cast upon the defendant the burden of proving, by a preponderance of evidence, that the killing was justifiable or was only manslaughter, but it is sufficient if the evidence adduced by the defendant raises a reasonable doubt of his guilt.</p>

J. P. Hoge, Judge of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court,

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of Sail Francisco. The facts are stated in the opinion, and in the opinion upon the application for a writ of mandate in the same case, ante, p. 367.

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

<p>Exceptions—Petition to Supreme Court — Construction op Code.— Section 652 of the Code of Civil Procedure, providing for a petition to the supreme court to prove an exception which the judge has refused to allow in accordance with the facts, has no application, except where the judge lias refused to allow an exception which he had the power to allow.</p> <p>Id. — Settlement or Facts. — If an exception has been disallowed contrary to the facts, the party may prove to the supreme court that the exception was taken, and in connection therewith may prove sufficient surrounding facts to show the point of the exception; but if uo exception has been disallowed, a petition will not lie to the supreme court merely to determine whether the judge has inserted or refused to insert "a correct statement of the proceedings and evidence in the action.</p>

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

<p>Pleading — Fraud — General Allegation—Waiver — Appeal — Objection for First Time.—Where an answer alleges fraud in general terms, and the plaintiff goes to trial upon the issue without objection to the pleading, or to the evidence of fraud, all objection is waived, and it cannot be urged upon appeal for the first time that there was no issue of fraud by reason of the failure of the answer to allege the particular facts constituting the fraud.</p> <p>Id. — Justification of Attachment — Fraudulent Transfer — Demurrer— Waiver. —The answer of a sheriff in an action for damages for seizing goods claimed by the plaintiff, under a writ of attachment against his vendor, which denies the plaintiff’s title, and pleads in general terms that the sale to him was pretended, false, and fraudulent, and made with the purpose an 1 intent to hinder, delay, and defraud his creditors, is demurrable on account of the general allegation of fraud; but a failure to demur to the answer, or object to the evidence of the fraud, is a waiver of the objection.</p> <p>Id. ■— Failure to Object to Evidence — New-trial Statement. — Where the party pleading fraud generally moves for a new trial, and the statement fully sets out the evidence of fraud, and specifies sufficiently that the verdict is against that evidence, the fact that no objection to the evidence of fraud appears in the statement is sufficient proof that none was made at the trial.</p> <p>Id. — Benefit of Waiver—Appeal by Party Pleading Fraud Generally. — The fact that the verdict was against the party alleging tile fraud in general terms is not ground for denying him, on appeal, the benefit of the waiver by the prevailing party of the insufficiency of the allegations of fraud.</p> <p>Exception to Instructions—Entry of Exception. — Where the record shows that counsel for the defendant, as the jurors were retiring, asked to have an exception entered to all the instructions given at the request of the plaintiff and on the court’s own motion, and to all instructions refused upon the request of the defendant, to which request the court assented, a sufficient exception is shown as to the written requests to charge given and refused, though not to the oral charge of the court; and the fact that no exception was in fact entered in the minutes of the court, nor in the reporter’s notes of the trial, is immaterial.</p> <p>Fraudulent Transfer — Instructions. —Where facts are established from which the jury would be justified in inferring fraud in the transfer of goods to the plaintiff, though the inference may not be absolutely necessary, the defendant is entitled to have the issue of fraud submitted to the jury upon instructions fully and fairly stating the law applicable to a fraudulent transfer.</p> <p>Id. ■—Value oe Goods — Admission of Pleadings — Erroneous Instruction. — Where the pleadings admit the value of the goods seized by the defendant, an instruction authorizing the jury to find a less value is erroneous, though perhaps not sufficient ground for a reversal.</p> <p>Id. — Preference of Creditor — Good Faith.—Instructions to the efixct that a transfer of property by a debtor to one creditor in preference to others is not necessarily fraudulent, although not positively erroneous, should be qualified by the statement that the transfer must be made in good faith.</p> <p>Id.—Fraud in Law — Consciousness of Wrong.—It is error to refuse an instruction that a man is guilty of fraud in doing what the law deems fraudulent, although he may not be conscious that lie is committing any wrong.</p> <p>Id.—Fraudulent Intent—Transfer to Creditor in Excess of Demand. — The acceptance by a creditor from an insolvent debtor of an amount of property largely in excess of his demand is a circumstance tending to prove a fraudulent intent, and a refusal to so instruct the jury is erroneous.</p> <p>Id. — Agreement to Refund Surplus. ■— Aii agreement between an insol- . vent debtor and a creditor, to whom he transferred all his property, that the creditor would refund the surplus proceeds, is a circumstance tending to show that the transfer was made with intent to delay and defraud creditors, and it is error to refuse an instruction to that effect.</p> <p>Id —Evidence of Agreement. — The fact that the value of the property so transferred is grossly in excess of the' creditor’s claim is a circumstance tending to show that such an understanding exists, and the jury should be so instructed.</p> <p>Id. —Circumstantial Evidence. ■—Where the evidence of the alleged fraud is circumstantial and presumptive, it is error to refuse a correct instruction as to the necessity in most cases of relying upon such evidence to prove fraud, and as to the amount of proof required to establish it satisfactorily.</p>

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

<p>Appeal—Review of Evidence — Credibility of Witnesses — Finding' Rendered Immaterial. —• The' findings of the court below will not he disturbed upon appeal, when there is evidence to support them, and nothing appears in the record to show that the court did not justly estimate the credibility of the witnesses; nor will a particular finding be disturbed, if other findings, justified by the evidence, render the issue immaterial.</p> <p>Verdict in Equity Case — Power of Court. ■—The verdict in an equity case is only advisory to the court until adopted, and the court may of its own motion disregard it and set it aside.</p> <p>Delay in Setting Aside Verdict — Waiver of Objection.—The fact that no action was taken by the court in respect to the verdict for three months after it was rendered, and after each party had moved for judginent upon it, is no objection to the action of the court in then disregarding it, and hearing additional evidence, it not appearing what was the cause of the delay, or that any objection thereto was urged by the appellants.</p> <p>Id. — Opening Case for Further Evidence — Discretion.—It is within the discretion of the court to permit further evidence, when it sets aside the verdict in an equity case; and if both parties are permitted to introduce additional evidence without any apparent restriction, and there is no showing of surprise, or of want of opportunity to produce any additional available evidence, no abuse of discretion appears.</p> <p>Limits of Discretionary Power — Abuse of Discretion. — Discretionary judicial power may be exercised either way, and the only limitation upon its exercise is, that it must not be abused; and while it may be difficult to define what is meant by abuse of judicial discretion, one of its essential attributes is, that it must plainly appear to effect injustice.</p> <p>Evidence— Impeachment of Witness — Contradictory Statement after Testimony Given — Insufficient Objection.—The question of the admissibility of evidence offered for the impeachment of a witness, by showing that after his testimony was given lie° had made contradictory statements, is not raised by an objection that no proper foundation had been laid for impeachment, if the objection was expressly limited to evidence of prior contradictory statements.</p> <p>Id.—Immaterial Evidence — Harmless Error — Appeal. — Where evidence, admitted against objection, relates only to an issue which is rendered immaterial by the evidence and findings upon other issues, which are decisive of the case, any error in its admission is harmless, and is not ground for reversal of the judgment.</p>

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

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

<p>Order — Verbal Acceptance — Evidence.—A written order given by a debtor to his creditor for the amount of his indebtedness, addressed to a person indebted to the drawer in a like sum, and verbally accepted and partly paid by the drawee, is admissible in evidence, together with proof of the verbal acceptance, in an action by the payee to recover the remainder of the indebtedness from the drawee,</p>

<p>Order Granting New Trial —Review on Appeal — Discretion.— An order granting a new trial will be reversed as readily as an order refusing it, when it is granted solely through a misapprehension of law; but if the grounds of the motion are numerous, and include insufficiency of the evidence, and other grounds upon which the discretion of the court might be exercised, and the order is in general terms, and no clear abuse of discretion appears, the order will be affirmed.</p>

<p>Real Estate Agent—■ Contract tor Compensation — Reservoir Site — Possessory Right —• After-acquired Title — Sale by Principal, •— A written contract to pay to an agent for the sale of a reservoir dam site a certain share of the purchase price, whether the sale should he effected hy the agent or by the principal, is not defeated or affected by the fact that the principal had only a possessory title to the site at the date of the contract, and thereafter procured the legal title thereto, and sold it as land.</p>

<p>Several Torts — Common Injury—Damages — Joint Action..— Several tort-feasors, not acting in concert or by unity of design, are not liable to a joint action for damages, although the consequences of the several torts have united to produce an injury to the plaintiff.</p> <p>Id.—Injunction.—An injunction will be sustained in such case against (j all the tort-feasors. *</p> <p>Id.—Ditches — Débris — Injunction — Joint Judgment for Damages.,. — Where débris is deposited upon the lands of the plaintiff by means of different ditches constructed and operated by several defendants, between whom there was no concert of action, a joint action máy be maintained to enjoin them all from continuing the wrong, bnt a joint judgment for damages in such action is erroneous, and will he reversed. - .</p>

<p>Contracts — Oral Agreement — Subsequent Memorandum — Merger. — Where an oral agreement has been made and partially performed, a writing subsequently given as a mere acknowledgment or memorandum thereof, and containing nothing inconsistent therewith, does not operate to merge or supersede an express provision of the oral agreement not included in terms in the memorandum.</p> <p>Id. — Partnership in Lands — Time for Division of Profits. — An oral agreement for a partnership in the purchase and sale of lands to be acquired and sold in the name of one partner, with an express provision that the net proceeds of each sale were to he equally divided immediately after the sale, is not merged or superseded as to such provision by a subsequent memorandum, made after certain lands were acquired under it, which consisted of a mere written acknowledgment by the partner who had acquired the title to the land, that he had acquired it, and that it was understood and agreed that the other partner was to share equally in the net profits of the land, without stating the time of division.</p> <p>Id.—Refusal to Account — Action for Dissolution and Accounting — Maturity of Oause of Action.—Upon the refusal of the partner holding the legal title to account after a sale by him of part of the partnership lands, an action will lie in favor of the other copartner for a dissolution of the partnership and an accounting of the profits of the land sold, and to establish his interest in all the unsold lands acquired under the verbal agreement.</p> <p>Partnership — Accounting —Purchase of Land — Interest. —Interest, if not stipulated for in the partnership agreement, cannot be allowed on the purchase-money of the lands bought for the partnership.</p> <p>Id. — Taxer and Expenses — Appeal — Objections for First Time.—■ It cannot be objected upon appeal that no allowance was made to tlis defendant for taxes and necessary expenses incurred in reference to the lands, the net profits of which were to he divided, if no evidence of taxes or expenses %vas offered nor claim made therefor at the trial.</p> <p>Id. — Decree Establishing Interest in Lands — Future Taxes — Taxation. — No provision for future taxes need be made in a decree establishing the plaintiff’s interest in the partnership lands, the legal title of which was in the defendant, as the plaintiff’s interest is taxable to himself alone, and not to the defendant, after the date of the decree.</p>

<p>Appeal — Review of Conflicting Evidence. — Where there is a plain conflict of evidence upon an issue material to the plaintiff’s recovery, and the questions of law are properly submitted to the jury by correct instructions, a verdict and judgment in favor of the defendants will not he disturbed upon appeal.</p>

<p>Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a motion to set aside the judgment.</p> <p>The facts are stated in the opinion of the court.</p>

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

The agreement,on which the action is founded, in addition to the provisions recited in the opinion, contained a further provision, to the effect that the farm should not be resold for less than five thousand dollars. The further facts are stated in the opinion of the court.

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

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

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

<p>Estates of Deceased Persons — Sale of Realty — Petition of Creditor of Executor — Nonsuit.—Where a petition for the sale of the real estate of a decedent, presented by a creditor of the executor whose claim has been allowed by the court, states sufficient facts to justify the sale, and the petitioner introduces evidence tending to prove every material allegation of the petition, it is error to grant a nonsuit on motion of the devisees.</p> <p>Id. .— Allowance for Services during Administration — Petition of Claimant—Neglect of Executor. —A claimant for services rendered to the estate during administration, whose claim has been allowed by the court as a proper expense of administration, may apply for a sale of the real estate to pay his claim, if the executor lias not funds sufficient to pay it, and neglects to apply for the order of sale.</p> <p>Id. — Construction of Code — Creditors of Executors — Expenses of Administration. — Sections 1536 and 1545 of the Code of Civil Procedure are intended to afford creditors of the executors as well as creditors of the decedent the means of securing payment of tbeir claims against the estate, and contemplate expenses of administration which the executor neglects or refuses to pay.</p> <p>Id. — Unpaid Claims against Executor — Settlement of Account — Jurisdiction, — Claims against an executor for services rendered or materials furnished to the estate during administration need not be paid until they are allowed m the settlement of his account; hut the court may determine, after notice to all persons interested, whether the estate is liable at all, and if so, in wliat amount.</p> <p>Id.—Settlement of Executor’s Account — Appealable Order.—An order settling the account of an executor is appealable.</p> <p>Id.—Conolusiveness of Allowance of Claim —Petition for Sale of Realty. —The allowance by the court of a claim for services rendered to an executor as part of the expenses of administration included in his account is conclusive against all parties interested, except those laboring under disability, if no appeal is taken from the order settling the account, and cannot he questioned by the devisees upon a petition for the sale of realty to pay the claim.</p>

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

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

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

<p>Water Rights — Appropriation for Special Use — Rights of Subsequent Appropriator—Temporary Diversion—Injunction—Insufficient Findings. — In an action by a subsequent appropriator of water for purposes of irrigation and domestic use, to restrain its diversion when not needed by a prior appropriator for mill purposes, an allegation that the defendant was continuing, and that he threatened to continue, to divert the water, when not needed for mill purposes, is material; and a finding that on a certain day the defendant deprived the plaintiff of the use of the water is insufficient to sustain an injunction, without a finding as to how long the deprivation continued, or as to whether the defendant threatened to continue it.</p>

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

The action was brought by the plaintiff against the city of Los Angeles and one L. M. Bigelow, to quiet title to certain land in the city of Los Angeles. By a stipulation filed in the lower court, the only portion of the property described in the complaint of which the title was litigated was a lot known as the “ engine-house lot,” to 'which the plaintiff claimed title under a grant from the former pueblo.

<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 Los Angeles County setting aside a judgment.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Action on Note — Parties — Incompetent Person — Guardian. — An action upon a promissory note made by an incompetent person cannot be maintained against his guardian, but should be brought against the incompetent person.</p> <p>Id. — Service of Summons — Appearance of Guardian. — The summons in an action against an incompetent person must be served upon both the incompetent and his guardian; and it is then the duty of the guardian to appear and defend the action.</p> <p>Id. — Guardian ad Litem.—If deemed expedient, the court may also appoint a guardian ad litem to represent the incompetent.</p>

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

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

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

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

<p>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>Mortgage on Growing Crops — Storage of Harvested Crop—Warehouse Receipt.—The lien of a mortgage on growing crops is not lost by the mortgagee permitting the mortgagor to store the harvested crop in a warehouse, under an agreement between them that it should be stored in the name of the mortgagee, although the property is stored in the name of the mortgagor, against his protest-that the warehouse receipt should show that it was stored for the mortgagee.</p> <p>Id.—Neglect of Warehouseman.—The neglect or refusal of the warehouseman to issue a receipt showing that the property was stored in the warehouse for the mortgagee does not destroy the mortgage lien in favor of an assignee in insolvency of the mortgagor.</p> <p>Id.—Assignment of Warehouse Receipt — Preference — Insolvency of Assignor. — The assignment of the warehouse receipt to the mortgagee by the mortgagor on the day of and before the filing of the latter’s petition in insolvency, is not void as a preference under section 55 of the Insolvent Act, where the value of the property is less than the debt for which it was mortgaged.</p> <p>' Id.—Effect of Assignment—Title to Property in Warehouse — Insolvency of Assignor. --The assignment of the warehouse receipt, conceding it to be a transfer of the legal title to the property described in the receipt, is nevertheless valid as against an assignee in insolvency of the mortgagor appointed in proceedings subsequently commenced by him on the day of the assignment.</p> <p>Id.—Conversion by Warehouseman — Sale by Assignee in Insolvency —Action by Mortgagee.—The mortgagee of the growing crops, who is also assignee of the warehouse receipt of the harvested crops, may maintain an action for damages for conversion of the crops against the warehouseman, if the latter delivers them to a vendee of the assignee in insolvency.</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.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County denying a petition for a writ of mandate.</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 refusing a new trial.</p> <p>The facts are stated in the opinion,</p>

<p>Mechanic’s Lien — Foreclosure — Pleading — Demurrer — Appeal — Objection for First Time.—An objection to the complaint in an action to foreclose a lien for materials furnished a contractor, on the ground that it states merely a conclusion of law as to the amount due and owing from the owner to the contractors, and that it contains no specific averment as to what was the contract price between them or that there was any express agreement to pay anything, or what was the reasonable value of the work co be done, can only be raised by demurrer, and cannot be urged for the first time on appeal.</p> <p>Id.—Notice of Claim to Owner — Duty "of Owner.—Under sections 1183 and 1184 of the Code of Civil Procedure, whether a building contract is recorded or not, if proper notice is given to the owner, by a material-man, of the material furnished to the contractor, it is the duty of the owner to withhold from the contractor sufficient money to pay the claim, if it is then due or afterwards becomes due.</p> <p>Id. — Contents of Notice — Pleading. —A complaint alleging that materials were furnished by the plaintiff for the construction of a building at the request of contractors named, and stating in general terms the kind and total price of the materials, and that the plaintiff gave the owner a written notice that it had agreed to furnish the materials “ as aforesaid,” sufficiently shows the contents of the notice to meet the requirements of section 1184 of the Code of Civil Procedure.</p> <p>Id. — Copy of Claim of Lien —• Pleading. — The contents of the claim of lien may he pleading by attaching a copy thereof to the complaint, and making it a part thereof by apt reference.</p> <p>Id. — Claim of Lien — Substantial Compliance with Statute. — A claim of lien is sufficient if it substantially complies with the statute.</p> <p>Id. —Name of Owner of Building. — A claim of lien stating that a person named was the owner of a lot of land described, and that he entered into a contract with persons named to erect and finish a building on the lot, which was completed at a time named, sufficiently states that the owner of the lot was the owner of the building, and designates the name of the owner of the building.</p> <p>Id.—Terms of Contract.—A statement in the claim of lien that the claimant furnished the materials under a contract with the contractors named, by which they agreed to pay the market value thereof at the date of delivery in cash, and showing the whole value of the materials furnished and balance unpaid, sufficiently shows the names of the persons to whom the materials were furnished and the terms of the contract.</p> <p>Id. — Claim of Charge upon Property. — A statement in the claim of lien that the claimant “ claimed the benefit of the provision of the Code of Civil Procedure relating to lien of mechanics on real property ” sufficiently purports to charge the property described in the claim.</p> <p>Id. — General Finding — Validity of Lien — Support of Judgment.—A general finding to the effect that the plaintiff’s claim of lien duly verified was filed for record in the office of the recorder of the county where the premises are situated, pursuant to the Code of Civil Procedure, aud that said claim of lien is in due form, and was filed in due time, and is a valid subsisting claim of lien under the law, is sufficient to support a judgment foreclosing the lien.</p> <p>Id.—Lien for Materials — Judgment against Contractors — Foreclosure.— A judgment against the contractors to whom the materials were furnished is not necessary to support the lien of the material-man; and the fact that the contractors are parties defendant, and no judgment is taken against them, is not ground for reversing a judgment foreclosing the lien against the owner of the building.</p>

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

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

Appeal—Dismissal — Failure to File Transcript in Time—Rule of Supreme Court.— Rule 3 of the supreme court, providing that if the transcript is on file when notice is given of a motion to dismiss the appeal for failure to file the transcript in time, that shall be a sufficient answer to the motion, will not preclude the dismissal of an appeal, where the notice of motion is given before the filing of the transcript, although the transcript is filed a few hours later on the…

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

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

<p>Vendor’s Lien— Equity. — A vendor’s lien, properly so called, is not the result of any agreement or intention of the parties, but is a simple equity raised by the courts for the benefit of a vendor of real estate, after he has parted with the title.</p> <p>Id. — Express Lien. — So long as the title is retained, the vendor has an express lien for the unpaid purchase-money, which exists by virtue of the contract of sale and reservation of the title, and for which equity makes no special provision, but leaves the parties to rely upon their contract.</p> <p>Id. — Assignment. — The express lien of a vendor who retains the title is capable of assignment and enforcement by his assignee; but the implied lien raised by equity, in favor of a vendor who has parted with the title, is a privilege purely personal to the vendor, and is not assignable even by express contract, nor does it pass to the assignee of the vendee’s obligation for the purchase-money.</p> <p>Id.—Waiver—Security for Purchase-money.—Although it is competent for the vendor to take security for the payment of the purchase price of the land which he has conveyed, and by express agreement not lose the right to resort to his implied lien, yet his taking such security is prima facie ,a waiver of the lien, and in the absence of some agreement to the contrary, the vendee will hold the land discharged from the vendor’s lien.</p> <p>Id.—Mortgage — Express Lien for Purchase-money — Relation.— The fact that a mortgage which the vendor takes at the time of the conveyance is expressed to be for the purchase-money of the land conveyed does not prevent a waiver of the vendor’s lien, nor can it have the effect to extend the mortgage lien by relation to the date of the contract of sale.</p> <p>Id.— Mechanics’ Liens — Mortgage — Priority — Sale of Equity.— The lien of a material-man for lumber furnished for a dwelling will take precedence of a mortgage of the land executed immediately upon a conveyance thereof, but after the time when the materials were commenced to be furnished, notwithstanding the mortgage was given for the purchase price of the land to a vendor who had sold it to the mortgagor prior to the furnishing of any materials, and who had conveyed it to the mortgagor on the same day that he received his own deed from a prior vendor from whom he had purchased it.</p> <p>Id. — Mortgage at Time of Conveyance — Priority — Construction of Code. — Section 2898 of the Civil Code, declaring that a mortgage for the price of real property, given at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the recording laws, does not give priority to the mortgage over a lien for building materials furnished to the vendee of the land prior to the conveyance. Such lien has priority over the mortgage, under section 1186 of the Code of Civil Procedure.</p> <p>Id. —Notice by Vendor of Equity. —Under section 1192 of the Code of Civil Procedure, the vendor under a contract of sale of land, with knowledge that the vendee is constructing a building thereon, must give notice that lie will not he responsible for the improvement, else his interest in the land to its entire extent becomes subject to liens filed pursuant to the law regulating mechanics’ liens.</p> <p>Mechanics’Liens — Materials Furnished — Consistency of Findings— Presumption upon Appeal. — A finding that materials of a specified value were furnished by the claimant of a lien upon a dwelling-house to be used in its construction is not inconsistent with a finding that part of them were furnished by another party, who refused to deliver the same until paid for, and that tile claimant paid such other party therefor; and it must be presumed, in support of both findings, where the appeal is upon the judgment roll without a bill of exceptions, that the evidence showed that the claimant of the lien received and furnished the portion of the materials in question under his contract with the owner of the dwelling-house.</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>County Government Act — Purchase of Real Property — Publication of Notice—Mandatory Statute—Power of Supervisors.— The provision of the County Government Act requiring the board of supervisors of a county to publish notice of their intention to make a purchase of real property for the benefit of the county in some newspaper of general circulation published in the county, ete., is mandatory, and operates as a limitation upon the power of the board to make any purchase of real property unless the publication is made as directed.</p> <p>Id. — Price of Publication — Combination of Newspapers. — The fact that no newspaper published in the county is willing to publish the notice for the price fixed by the supervisors, and that all the newspapers published in the county have combined to charge higher rates for advertising than 'the board are willing to pay, cannot affect or alter the jurisdiction of the board, or confer upon it power to purchase real property without making the publication required by the statute.</p> <p>Id. —Validity of Newspaper 'Combination. —The question as to the validity of a contract between newspapers adopting a uniform schedule of prices for advertising and printing, including all county work, is not involved in an action to prevent an illegal payment for land purchased by the supervisors without the publication of any notice.</p> <p>Id. — Injunction — Restraining Auditor from Drawing Illegal Warrant— Suit by Tax-payer.—A tax-payer may sue to enjoin the county auditor from drawing his warrant in payment for the purchase of land of which no notice has been published.</p> <p>Id. — Interest of Tax-payer.—A tax-payer of a county has such an interest in the proper application of funds belonging to the county that he may maintain an action to prevent their withdrawal from the treasury in payment or satisfaction of demands which have no validity against the county.</p> <p>Id. — Damage to County — Illegal Purchase. — It cannot be inquired whether the county will gain or lose by an illegal purchase of land, in an action to restrain the drawing of a warrant in payment therefor, it being sufficient to support the action that the purchase was made without authority of law.</p>

<p>Adoption — Void Order— Different Names. —An order of adoption of a child is void, and affords no warrant for the detention of the child from its parents, where it appears that the parents consented to the adoption of the child by a person of one name, that the agreement to adopt is signed by another name, and that the detention is by a person whose name does not appear in the record of the proceeding, there being nothing in the record to show that the three names indicate one and the same person.</p> <p>Id. — Residence of Person Adopting. —It is essential to the validity of an adoption that the record should show that the person adopting the child is a resident of the county in which the order of adoption was made.</p> <p>Id. — Superior Court — Special and Limited Jurisdiction.—In cases of adoption, the power of the superior court is special and limited, and not exercised according to the course of the common law; and its jurisdiction must affirmatively appear by the record as to both subject-matter and the person, notwithstanding the court is one of general jurisdiction.</p> <p>Id. ■— Common Law —• Statutory Right — Strict Compliance with Statute. — The right of adoption is purely statutory, and unknown to the common law and repugnant to its principles; and the provisions of the statute must be strictly followed, and every condition prescribed therein strictly complied with, else the child by adoption cannot inherit from the adopting parent.</p> <p>Id.—Rights of Natural Parents —Doubts Resolved in their Favor. ■—No transfer of the rights of natural parents can be acquired by adopting parents unless the statute regulating adoption is strictly followed, and all doubts in controversies between the natural and the adopting parents should be resolved in favor of the former.</p> <p>Id.—Habeas Corpus — Amendment of Record of Adoption.—Proceedings taken to amend the record of adoption pending the determinations, upon writ of habeas corpus, of the right to a transfer of the child from the custody of the adopting parties to the custody of its natural parents, cannot affect the decision of the court upon the writ, which must take the record as it finds it, and determine the rights of the parties accordingly.</p> <p>Id.-—Estoppel of Parents—Acquiescence.—The natural parents are not estopped from asserting their right to the custody of their child as against an illegal order of adoption, by acquiescence in the claim of the adopting parents for several years.</p> <p>Id. •— Fitness for Custody of Child. — The relative fitness of the respective parties to care for the child cannot be inquired into upon habeas corpus, if it is conceded that both parties are competent and fib persons to care for the child.</p> <p>Id. — Emancipation op Child — Consent to Illegal Adoption.—Although a. parent is not entitled to the custody of a child who is old enough to work and care for himself, after consenting to his emancipation, there can be no basis for such a claim, where the minor is a young child incapable of caring for himself, because of mere consent of the parents to an illegal order of adoption. n</p>

Appeajl from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. • The facts are stated in the opinion of the court.