Volume 88 — California Reports

<p>Appeal from an order of the Superior Court of Santa Clara County settling an administratrix’s account.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Instructions — Duty of Jury.—The instructions of the court are the law of the case, so far as the jurors are concerned, and they are bound to follow them, whether they deem them correct or not.</p> <p>Action by Husband for Rape of Wife — Verdict against Evidence — Discredit of Wife’s Testimony — Review upon Appeal. —A verdict against the defendant in an action to recover damages for a criminal assault upon a married woman will be set aside upon appeal as against evidence, where it appears that it was based on the testimony of the wife alone, under circumstances tending to throw discredit upon her testimony, and all other testimony in the case, including uncontradicted evidence as to the actions and admissions of the wife, show it to be * inherently improbable that violence was used.</p> <p>Id.— Appeal— Conflicting Evidence — ¡Rule Inapplicable. —In such a case, the rule that the judgment will be affirmed upon appeal, where the evidence is conflicting, is inapplicable.</p>

<p>Appeal — Authentication op Papers — Bill op Exceptions — Certipicate op Judge. — On an appeal from an order vacating a levy of an execution, a bill of exceptions is not necessary to authenticate the papers used on the hearing of the motion in the lower court, but they may be properly authenticated by the certificate of the judge. It is essential, however, that it shall appear in some manner that all the papers used on the hearing are contained in the transcript.</p> <p>Id. — Appeal — Dismissal. — An appeal from an order vacating the levy of an execution will be dismissed, where there is nothing to show that all of the papers used on the hearing in the court below are contained in the transcript, and it is not sufficient that certain papers inserted in the transcript are authenticated by the certificate of the judge as having been used on the hearing, and placed on file in the court below.</p> <p>Id. — Presumption as to Counter-affidavits. — The order vacating the levy will be sustained upon the presumption that counter-affidavits were filed and used by the respondent, if the record does not show the contrary.</p>

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

<p>Mechanic’s Lien — Completion op Structure — Lien por Materials — Rescission op Contract — Occupation and Use—Acceptance by Owner. — A flume company which, after engaging a contractor to grade a flume-bed and surface-ditches, to excavate tunnels, and fully to prepare the foundation for the flume, consents to an abandonment and rescission of the contract by the contractor before its completion, and takes possession of the work and completes it, “ occupies and uses” and “accepts” it, within the meaning of section 1187 of the Code of Civil Procedure, and a lien for the materials used by the contractor, filed within thirty days after the company took possession and control of the work, is valid.</p> <p>Id. — Construction op Code — Evidence oe Completion. — Section 11S7 of the Code of Civil Procedure, providing that the occupation, use, or acceptance of the building, improvement, or structure shall be deemed conclusive evidence of completion, has reference not only to the occupation, use, or acceptance of a dwelling or other house, but to any kind of structure, building, or improvement in which the materials of a lien claimant have been used.</p>

<p>Appeal — Equal Division of Opinion — Affirmance of Judgment.—In jurisdictions presided over by judges holding for life, or for terms so great as to make the probability of a change in the membership of the court remote, the judgment of affirmance follows an equal division of opinion, from the necessity of the case.</p> <p>Id. — Effect of Affirmance. — The affirmance of the judgment in such case, though a bar to a subsequent action, does not involve the decision of any matters of law, but the judges simply agree that it is expedient to finish the litigation, and those in favor of the reversal of the judgment concur in its affirmance solely upon that ground.</p> <p>Id. —Constitutional Law —Effect of Equal Division. — The state constitution requires the concurrence of four justices to pronounce judgment, and a mere failure to agree cannot have the effect, ipso fado, of an affirmance of the judgment.</p> <p>Id. — Change of Justices — Refusal to Affirm Judgment.—A motion to affirm the judgment on account of an equal division of opinion among the justices qualified to act will be deuied, where it is evident that before the time for the next term of court at which the cause can he heard several of the disagreeing judges will he succeeded by others qualified to assist in deciding the case upon its merits.</p>

<p>Appeal — Law op the Case. — A question presented and decided by the appellate court upon an appeal from a judgment on demurrer, as to the sufficiency o£ the complaint, becomes the law of the case, and is not open to question upon a subsequent appeal.</p> <p>Estate of Deceased Persons — Allowance of Claim — Statute of Limitations. — The allowance and approval of a claim against the estate of a deceased person by the administrator and judge stops the running of the statute of limitations against the claim.</p> <p>Id. •— Presentation of Mortgage upon Homestead. — A mortgage given by a husband and wife upon property upon which a homestead is afterward declared must, upon the death of the husband, be presented as a claim against his estate, notwithstanding a waiver in the complaint, in an action of foreclosure, of all recourse against the property of the estate other than the property mortgaged.</p> <p>Id. — Interest of Deceased Wife. — The interest of a deceased wife in the homestead property at the time the mortgage was made cannot be reached unless a claim is presented against her estate; but in. so far as her rights as successor of her husband are concerned, the allowance of the claim against his estate is sufficient to bind those rights and stop the statute of limitations.</p> <p>Id. — Publication of Notice to Creditors — Time for Presentation of Claims. — A publication of notice to creditors of the estate of a deceased person, made in advance of an order of the court fixing the legal period of publication, is invalid; and where the number of publications after the order is made fall below the statutory minimum, the presentation and allowance of a claim more than four months after the last publication are within the time prescribed by law.</p> <p>Id. — Affidavit of Publication — Evidence—Files of Newspaper.—The affidavit of publication is only prima facia evidence of the facts therein stated, and may be contradicted by the files of the newspaper in which the notice was published, showing that the notice was not published for the statutory time.</p> <p>Id. — Decree Establishing Notice — Bes Ad judicata. — A decree establishing due notice to creditors is not conclusive, and may be controlled by proof that the publication was insufficient.</p> <p>Id.—Allowance of Mortgage Claim — Bes Adjudioata — Bights of Heir—’Foreclosure. — The allowance of a mortgage against an estate by the administratrix, and its approval by the judge, are not conclusive upon the heir; but he may show in an action of foreclosure either that the debt to secure which the mortgage was given had been paid, or that payments thereon had been made and not credited prior to the allowance of the mortgage.</p> <p>Id. — Improper Allowance — Effect of Foreclosure. —• A mortgagor cannot, by resorting to an action of foreclosure, deprive an heir of the mortgaged property of the right to show that the mortgage was improperly allowed in the administration proceedings.</p> <p>Appeal — Review of Evidence —Findings — Reversal.—The appellate court cannot direct final judgment upon evidence, where the findings are not sustained by the evidence, but will reverse the judgment and send the case hack to the trial court to have the facts established.</p>

<p>Mechanic’s Lien — Joint Lien upon Separate Buildings — Unrecorded Contracts. —• A joint lien for labor done and materials furnished may he filed against two separate buildings erected upon the same lot, though erected at different times and under different unrecorded contracts between the owner and the same original contractor.</p> <p>Id. — Claim oe Lien — Specification of Labor and Materials for Each Building — Postponement of Lien. — The failure of the claimant to specify in his claim of lien the amount of labor and material furnished for each building merely has the effect to postpone his lien, and to give precedence to other specific liens upon each building, and is of no concern to the owner of the lot.</p> <p>Id.—Foreclosure—Pleading — Finding — Value of Materials and Labor — Agreed Price — Void Contract. —An allegation in the complaint and a finding as to the value of labor done and materials furnished to a contractor for the erection of buildings under void unrecorded contracts is essential to support a judgment of foreclosure of a lien therefor, and it is not sufficient to allege merely what amounts the contractor agreed to pay for the labor and materials furnished for each building.</p> <p>Id. •—Evidence of Value — Contract Price — Unrecorded Contract.— Although the original contract is unrecorded, and therefore void, the contract price agreed upon between the original contractor, as the agent of the owner, and the material-men and laborers, is prima facie evidence of the value of the materials furnished and labor performed, and would support a finding of value.</p> <p>Id. — Pleading—Uniting of Liens — Separate Statement. —Where several mechanics’ liens are united in one complaint, and there is a distinct statement of the facts as to each lien, there is a sufficient separate statement of each cause of action, though they are not numbered or otherwise formally designated.</p> <p>Id.—Competency of Witness — Estates of Deceased Persons.—The claimant of a mechanic’s lien against buildings erected by a deceased person is a competent witness to testify to facts accruing before the death of the owner, in an action against the representative of his estate.</p> <p>Id. — “Claim” against Estate — Proceeding in Rem — Construction of Code. — An action to enforce a mechanic’s lien is in the nature of a proceeding in rem, in which no personal judgment can be recovered against the estate of the deceased owner payable in due course of administration, and the Hen is not a “claim” against the estate within the meaning of subdivision 3 of section 1880 of the Code of Civil Procedure.</p>

<p>Divorce — Corroboration of Plaintiff. —Under section 130 of the Civil Code, providing that no divorce shall be granted upon the uncorroborated statement, admission, or testimony of the parties, the testimony of the plaintiff need not be corroborated as to every fact and circumstance, but it is enough if the facts corroborated are sufficient to support the action, and justify the entry of a decree in the plaintiff’s favor.</p> <p>Id. — Extreme Cruelty—Corroboration as to One Act.—Where the defendant is charged with many acts of extreme cruelty extending through a period of years, the testimony of plaintiff as to a course of extreme cruelty on the part of the defendant, and evidence of his admissions of cruelty to another witness, is sufficiently corroborated by further proof of one of the acts of cruelty alleged in the complaint.</p> <p>Id.—Former Suit by Defendant — Unfounded Charges of Cruelty. — The institution of a former suit by the defendant against the plaintiff, without any cause, the complaint in which contained extremely cruel and unjust charges, such as no husband should be permitted to make against his wife if untrue, is an act of cruelty, which is sufficiently corroborated by evidence of the complaint containing the charges, and of the voluntary dismissal of the action, and by testimony of a witness as to its cruel effect upon the defendant.</p> <p>Id. — Dismissal of Soit — Presumption as to Falsity of Charges. — It will be presumed that charges niade in a complaint in an action for divorce were untrue, where the action is voluntarily dismissed by the plaintiff.</p>

<p>Appeal — Order Granting New Trial —Discretion— Conflicting Evidence. — An order granting a new trial will not be reversed, in the absence of a showing of an abuse of discretion, where the evidence is conflicting.</p> <p>Eminent Domain — Value of Land — Pleading—Burden of Proof.— In a proceeding to condemn land, it is the duty of the owner of the land to allege and prove its value, and the burden of proof as to the value is upon him.</p> <p>Id.—Issue as to Value — Objection on Motion for New Trial.— Where an action to condemn land proceeds to trial and judgment upon the assumption by both parties that the value of the land sought to be condemned is at issue, the owner cannot complain, upon the hearing of a motion for a new trial, that the court had no jurisdiction to hear or determine the question of value, for want of an issue of fact thereupon.</p> <p>Id, — Market Value — Measure of Damages.—In proceedings for the condemnation of land, the present market value of the land is the measure of damages, and not its value in use to the owner or to the parties seeking to condemn it.</p> <p>Id. — Benefit Arising from Proposed Improvement. —The benefit arising from the proposed improvement cannot be given in evidence, or considered as an element of the value of the land.</p> <p>Jd. — Value for Special Purposes—Evidence. —• The present value of the land for any special, prospective purposes to which it may he adapted, although it may never have been used therefor, including its present value for the purpose for which it is sought to he condemned, may he given in evidence, and taken into account as one of the elements tending to show its present market value; but is only to be considered as evidence bearing upon the ultimate fact of present market value, which is to he determined by the jury, and not as an independent measure of damages.</p> <p>"Id. — Exclusive Offer of Plaintiff to Purchase. — The fact that the plaintiff is the only person who has offered to purchase the land for the special purpose for which it is sought to be condemned cannot defeat evidence of its value for that special purpose; hut the demand of the plaintiff alone must not be considered exclusive of other considerations affecting the present market value of the land.</p> <p>Id.—Reservoir Site — Proximity to Dam of Plaintiff.—The proximity as well as the remoteness of the land sought to he condemned as a reservoir site to the dam site of the plaintiff may be taken into consideration in estimating its market value.</p> <p>Id. — Speculative Profits from Sale of Water — Evidence__In a proceeding to condemn land for a reservoir site, estimates of value, based upon speculative improvements, increase of population, extension of water systems, and the profits which would result from the distribution and sale of the water, upon the assumption that the land is to be used in connection with plaintiff’s reservoir, are not admissible in evidence.</p> <p>Id. — Value to Plaintiff—• Profits from Use of Land.—The compensation to be awarded the owner of the land condemned cannot be based upon the value of the property to the person or company in charge of the public use, nor by its necessities; and it is not proper to take into consideration the profits which may result from the use of the land, especially where they depend upon the expenditure of large sums of money in carrying out the contemplated enterprise.</p> <p>Id.—Value of Land Taken in Connection with Plaintiff’s Land.— The value of the land when used in connection with plaintiff’s land cannot be taken as a criterion; nor can its adaptability for reservoir purposes be considered in connection with the dam site of the plaintiff.</p> <p>Id. — Adaptability for Reservoir Purposes — Evidence. — Any facts showing the nature of the land taken for a reservoir site, and its adaptability for reservoir purposes, may be taken into consideration in estimating its value, including the area of the water-shed, and the amount of water, the fact that there is land irrigable from the reservoir, and that there are cities and towns which are supplied with water from wells which might be supplied therefrom.</p> <p>Id. — Expert Evidence — Opinions as to Value — Examination of Witnesses. — Thg proper and safe course for the examination of witnesses who testify as to the value of the land sought to be condemned is to state their opinion as to the market value of the property, having regard to the existing business wants of the community, or such as may be reasonably expected in the near future, and support their estimates by a description of the property, giving its location, surroundings, and advantages for any particular use, if it have any. The value of the opinion given may be tested by cross-examination of the widest latitude.</p> <p>Id. — Cross-examination—Opinion Previously Entertained.—It may be shown on cross-examination that a witness who gives his opinion as to the value of the property formerly entertained a different opinion.</p> <p>Id. — Qualification of Witnesses to Give Opinion.—The opinions of witnesses who never saw the land until several years after the right to compensation and damages accrued are not admissible.</p> <p>Id. — Opinion Based upon Incompetent Matter. — Where a witness bases his opinion entirely upon incompetent and inadmissible matters, or shows that such matters are the chief elements in the calculations which lead him to the conclusions, his testimony should be rejected.</p> <p>Id.—Irrelevant Evidence. — The introduction of irrelevant evidence upon one side without objection does not justify the introduction of irrelevant evidence upon the other side.</p> <p>Id. — Costs of Proceeding—Appeal — Discretion as to Costs.—The party seeking to condemn the land should pay all expenses attaching to the process, and it is a proper exercise of discretion to require such party to pay the costs of the trial, and of an appeal by the owner from an order granting the condemning party a new trial, though the order is affirmed.</p>

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

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

Appeals from judgments of the Superior Court of San Bernardino County, and from orders denying a new trial, in two actions consolidated and'tried together in the Superior Court. The facts are stated in the opinion of the court.

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

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

<p>Record on Appeal — Practice — Presumption.' — The récord tin appeal must show a foundation in fact for the points made. It is not sufficient that an objection by counsel at the trial recites certain facts.</p> <p>Attachment—Writ — Statement op Plaintiff’s Demand. —The words or .thereabouts,” after the statement of plaintiff’s demand in the writ of attachment, do not render the attachment void on a collateral attack.</p> <p>Attachment — Posting of Writ — Conspicuous Place. — The statute does not require the posting of the writ in the most conspicuous place, but only in a conspicuous place. Instance.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of Kern County for want of proper proof of service of the notice of appeal. The facts are stated in the opinion of the court.

<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' iopinion of the court.</p>

<p>Assumpsit — Goods Sold and Delivered — Joint Action — Several Judgment — Pleading — Findings. —In an action for goods sold and delivered, against several defendants, all of whom appeared, a several judgment against some of the defendants only is erroneous, where the complaint alleges a joint indebtedness, and the court finds that all of the allegations of the complaint are true.</p>

Application to the Supreme Court for discharge upon writ of habeas corpus. 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.</p>

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

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

<p>Criminal Law—Burglary — Previous Convictions—Arraignment. — Upon the arraignment of a defendant charged with burglary and previous convictions, it is not error for the court to ask him whether he had suffered the prior convictions charged against him in the information.</p> <p>Id.— Reading of Indictment —Presumption —Performance of Official Duty. —Where the defendant has confessed the former convictions, the presumption is, that the clerk performed his duty in reading the indictment to the jury, and omitted to read that part of the indictment which related to the prior convictions, and this presumption is not overcome by a statement in the record “that the information charging the defendant with the above crime wat read, and plea of not guilty stated to the jury-”</p> <p>Id. —Attempt to Commit' Burglary — Sentence — Former Convictions. — Where the record shows that the defendant had suffered former convictions, a sentence of ten years’ imprisonment for an attempt to commit burglary does not exceed the maximum term allowed.</p> <p>ID.—Oral Charge — Shorthand Reporter — Presumption upon Appeal. — Where the contrary does not appear in the record, it will be presumed that the law was obeyed, and that the oral charge of the court was taken down by the shorthand reporter.</p> <p>Id.—Degree of Burglary — Statement of Testimony.—A statement by the court in its instructions that the testimony showed that it was three or four o’clock in the morning when the attempt was made, in connection with a charge that it would be necessary to find the degree oí the crime, and that if the attempt was made in the night-time, it would be an attempt to commit burglary in the first degree, could not have prejudiced the defendant, where the testimony shows without conflict that the attempt was made in the night-time.</p> <p>Id. —Proof of Venue—Streets or San Francisco. — Where the indictment charges that the offense was committed on a certain street in the city and county of San Francisco, proof that the crime was committed on that street, in connection with which several of the principal and best-known streets of San Francisco are mentioned in the testimony, is sufficient to warrant the jury in sustaining the venue, although the witnesses did not testify directly that any of the streets named were in San Francisco.</p> <p>Id. — Judicial Notice — Circumstantial Evidence.—The question as to the location of the streets named by the witnesses is not a strict question of judicial knowledge, but is, whether, under all the circumstances of the case, there was sufficient evidence to warrant the jury in concluding that the crime was committed in San Francisco.</p>

<p>Appeal—Transcript — Copy of New-trial Order — Second Bill of Exceptions — Clerk’s Certificate. —Where, after an order denying a new trial, a second bill of exceptions is filed, setting out the proceedings on the motion and the order made thereupon, a certificate of the clerk that the record contains correct and complete copies of the records and documents on file in the case, and, among others, of the last bill of exceptions, “including the order refusing anew trial,” is sufficient to meet the requirements of section 952 of the Code of Civil Procedure as to the copy of the order.</p> <p>Pleading —Answer —Denials on Information and Belief—Presumptive Knowledge — Recorded Claim of Lien. — Where facts are alleged in a verified complaint which are presumptively within the personal knowledge of the defendant, he is not permitted to deny them upon information and belief, but must answer positively; hut this rule does not apply to the denial of the sufficiency of a recorded claim of lien.</p> <p>Id.—Mechanic’s Lien — Foreclosure — Issue as to Claim of Lien — Variance between Complaint and Record. — In an action to foreclose a mechanic’s lien, where the complaint alleges that the claim of lien was duly recorded, and states its contents substantially in the language of the statute, hut the recorded claim of lien was in fact inartificialiy drawn, and not in the language of the complaint, a denial in the answer, upon information and belief, that the claim contains the necessary facts, is sufficient to raise an issue as to the alleged claim of lien.</p> <p>Id.—Relevancy of Evidence to Pleadings—Unworkmanlike Character of Labor ■—Rebutting Evidence. — After the claimant of a mechanic’s lien has introduced evidence to show that the labor for which the lien was claimed was done in a good and workmanlike manner, evidence on the part of the defendant tending to disprove that fact, and to show that the work sued for was not done in a workmanlike manner, is admissible, notwithstanding an objection that there was no issue as to the unworkmanlike character of the work.</p> <p>Mechanic’s Lien — Contents of Claim — Substantial Compliance with Statute. — A substantial compliance with the statute regarding the contents of a claim of mechanic’s lien is all that is necessary to its validity.</p> <p>Bill of Exceptions-—Specifications of Error.—Specifications of the particular errors of law on which the appellant will rely are not necessary in a bill of exceptions.</p>

<p>Dire Insurance — Representation in Policy—Distance prom Other Buildings — Warranty, •—In an insurance policy which concludes with a covenant or agreement that the statements therein contained are true, “ so far as known to the applicant, ” a statement to the effect that the building insured was ninety feet from other buildings does not amount to a warranty that it is so situated.</p> <p>Id. — Construction of Policy—Truth of Statements—Conditions Precedent. —An insurance policy containing contradictory provisions, or so framed as to leave room for construction rendering it doubtful whether the parties intended the exact truth of the applicant’s statements to be a condition precedent to any binding contract, should be construed so as not to impose an obligation of a warranty upon the assured.</p> <p>Id.—Instruction as to Warranty — Materiality of Representation — Question of Law — Error without Injury.—If the provisions of the policy and the application, taken together, amount to a warranty as to the exact truth of a representation contained in the policy, it is erroneous to instruct the jury that it is for them to determine whether the misrepresentation was or was not material; but if the truth of the representation is not warranted, the error is immaterial.</p> <p>Id. — Certificate of' Notary — Employment by Company — Notice of Reasons for Change of Notary. —Under a provision of a fire insurance policy requiring that in case of loss by fire the assured must obtain the certificate of the notary nearest the insured building, not concerned in the loss as a creditor or otherwise, nor related to the assured, as to the justice of the claim, where it appears that the nearest notary had refused to act, on the ground that he was employed by the insurance company, in ascertaining the facts and taking affidavits concerning the fire, the assured is relieved of the necessity of obtaining his certificate, and need not inform the company of the reason for obtaining the certificate of another notary.</p>

The plaintiffs were partners engaged in the barber and bath-room business, and had leased from one Reynolds,for a term expiring April 26, 1891, the basement of the Nadeau Hotel, on the southeast corner of Spring Street, in the city of Los Angeles.

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

<p>Criminal Law — Burglary — Information — Previous Conviction — Withdrawal of Plea — Confession — Sentence. —One charged in an information with burglary and a previous conviction of grand larceny may withdraw a plea of not guilty to the charge of previous conviction, and confess the same at any time, and where he does so on the day of trial, and is found guilty of burglary only, both offenses may be taken into consideration, and will warrant a penalty of ten years’ imprisonment.</p> <p>Id. — Conviction of Felony — Waiver of Time for Sentence. — One found guilty of a felony may waive the time which the code says must elapse between the verdict and sentence, and may consent that judgment he pronounced immediately.</p> <p>Id. — Appeal — Presumption of Consent. — Where it does not appear in the record that the defendant made any objection in the court below to the shortness of time between the verdict and sentence, he must be presumed to have consented to it.</p> <p>Id. — Oral Charge — Shorthand Reporter — Presumption upon Appeal. —Where the charge to the jury was given orally, it will be presumed, upon appeal, in the absence of proof to the contrary, that it was taken down by the phonographic reporter.</p> <p>Id. —Appeal — Presumption against Error. —Error will not be inferred upon appeal, but must affirmatively appear in the record.</p> <p>Id.—Sentence — Informing Defendant — Recitals in Judgment.—An objection to a judgment, on the ground that the defendant was not informed by the court of the nature of the charge against him, of his plea, or of the verdict, is sufficiently met and answered by the recitals in the certified copy of the judgment contained in the record, which show sufficient to meet the requirements of the Penal Code in that respect.</p> <p>Id.—Venue of Offense — Judgment.—If the place where the offense is committed is charged in the information, it need not be stated in the judgment.</p> <p>Id.— Direction for Imprisonment-—Form of Judgment. — A judgment by which it is “ordered, adjudged, and decreed” that the defendant be punished by imprisonment in the state prison is a sufficient direction that he be imprisoned.</p>

<p>Criminal Law — Time for Pronouncing Judgment — Appeal—Objection for First Time. — The fact that the time appointed for pronouncing judgment was not at least two days after the verdict is not ground for reversal of the judgment, if the defendant made no objection to the action of the trial court.</p> <p>Id. — Oral Charge — Shorthand Reporter — Presumption upon Appeal. — It will be presumed upon appeal that the oral charge of the court was taken down by the shorthand reporter, if the contrary does not appear in the record. The defendant must show error affirmatively.</p> <p>Id. — Sentence — Formalities — Presumption upon Appeal. — It will also he presumed, that before judgment was pronounced the defendant was informed, as he should have been, of the nature of the charge against him, of his plea, and of the verdict, although the record does not disclose that these formalities were complied with, if it does not show the contrary.</p> <p>Id.—Burglary — Prior Conviction oe Larceny — Confession — Judgment. — Where upon a charge of burglary a prior conviction of larceny ia voluntarily confessed, and the jury then passes only upon the charge of burglary, and the judgment follows the verdict and confession of the defendant, it is in all respects regular, and if no error affirmatively appears in the record, the judgment must be affirmed.</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 Los Angeles County.</p> <p>The facts are stated in the opinion.</p>

Application to the Supreme Court for a writ of supersedeas to 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 Los Angeles County.</p> <p>The facts are stated in the opinion.</p>

<p>Parol License — Easement—Revocation.— As a general rule, the effect of an executed or partly executed parol license, where the act licensed is of such a nature that if granted by deed it would amount to an easement, is simply to excuse the licensee for liability for acts done in pursuance thereof, and the revocation puts an end to the license, and no further act can be justified under it.</p> <p>Id.-—Fraud—Relief in Equity.— In cases where the revocation of the license would be a fraud, courts of equity give a remedy, either by restraining the revocation, or by construing the license as an agreement to give the right, and compelling specific performance.</p> <p>Id. •—Enlargement of Levee — Injunction. —Where one land-owner has given an adjoining owner verbal permission to enlarge a levee upon a depression in his land, in order to protect the lands of the adjoining owner from overflow, and the enlargement has been made at the expense of the adjoining owner, and from his materials, an action will lie in favor of the adjoining owner to enjoin the owner of the land from tearing down, removing, or digging away any portion of the levee.</p> <p>Id.— Effect of Injunction — Repair of Levee.—A perpetual injunction to restrain the removal or injury of the levee does not confer a permanent right upon the adjoining owner in the property of the owner of land on which the levee is situated, or give a right to enter upon the land for the purpose of repairing the levee, or to rebuild it in the event of its destruction.</p>

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

<p>Hew Trial — Review of Evidence — Bill of Exceptions — Specifications of Insufficiency—Inadequate Verdict—Assault.— Damages.— In an action to recover damages for personal injuries, resulting Irom an assault and battery of the plaintiff by the defendant, where the plaintiff, in whose favor the verdict is rendered, moves for a new trial upon the ground of insufficiency of the evidence to justify the verdict, specifications as to what the evidence shows in regard to the extent of the injuries and loss sustained by thb plaintiff, and that the amount of the verdict is wholly inadequate and insignificant as compensation for the damage sustained from the injury inflicted, are sufficient to warrant a review of the evidence, and to sustain an order granting a new trial to the plaintiff on the ground of its insufficiency to j nstify the verdict.</p> <p>Id. — Order Granting New Trial — Review upon Appeal.— An order granting a new trial will not be reversed on appeal if it can be justified on any of the grounds upon which the motion was made.</p>

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

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

The main facts are stated in the opinion of the court. It appeared that the plaintiff, Elle Ellen, was prostrated by a stroke of paralysis in April, 1886, after which he was taken to San Francisco fur treatment.

<p>Contempt —-Appeal—Dismissal. — No appeal lies from a judgment rendered in a case of contempt, and an attempted appeal therefrom will be dismissed.</p>

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

<p>Criminal Law—Homicide—Instruction — Charge as to Matters of Tact — Constitutional Law. — Upon the trial of a defendant charged with murder, an instruction to the jury that if the testimony is believed it would undoubtedly make out a case by the prosecution of murder in the first degree, and that it tended to show that the murder was willful, deliberate, and premeditated, is a charge to the jury as to matters of fact, in contravention of the constitution.</p> <p>Id. —Degree of Murder — Province of Jury — Questions of Tact and Law. — It is peculiarly a question of fact within the province of the jury to determine whether the killing was perpetrated with the deliberation and premeditation necessary to constitute it murder in the first degree, unless the facts in evidence show that the murder was committed by such means as are, by the terms of the statute, made conclusive evidence of murder in the first degree.</p> <p>Id. — Appeal — Weight of Testimony. — Where the charge to the jury invades its province in determining a question of fact as to the degree of the murder, the appellate court will not weigh the testimony for the purpose of determining whether the verdict of the jury is right upon the evidence.</p> <p>Id. — Error not Cured. — An error in an instruction as to the degree of the murder is not cured by a subsequent statement of the court to the effect that the jury should utterly disregard any intimation of his opinion as to the testimony.</p>

Appeal for a judgment of the Superior Court of San Joaquin County, and form an order denying a new trial. The facts are stated in the opinion.

<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.</p>

<p>Corporations — Subscriptions to Stock — Condition Precedent to Organization. —Under an agreement between the subscribers to a proposed corporation, that a certain amount o£ the capital stock shall be subscribed before a meeting of the stockholders shall be called and the corporation formed, a subscriber incurs no obligation to pay his subscription unless the condition precedent to the organization is complied with.</p> <p>Id. — Requisite Amount of Stock — Unauthorized Subscriptions — Ratification. — Unauthorized subscriptions of other corporations to the stock of the proposed corporation cannot be counted in making up the requisite amount to be subscribed before organization; and no ratification of the unauthorized subscriptions subsequent to the organization can affect the liability of another subscriber without his consent, if the condition precedent to organization was not complied with.</p> <p>Id. — Conditional Subscriptions. — Conditional subscriptions cannot be counted in making up the proposed subscription of a certain amount of stock before organization.</p>

Applications to the Supreme Court for discharge upon writs of habeas corpus. The facts are stated in the opinion of the court.

<p>Appeal—Review—Finding op Fact—Conclusions of Law__Where there is no exception to a finding of fact, on the ground that it is not supported by the evidence, and no specification wherein the evidence fails to sustain it, the sufficiency of the evidence to justify it cannot be considered on appeal; but if the finding be one of law as distinguished from the finding of ca ultimate fact, it may be reviewed and the error corrected.</p> <p>Deed—Execution — Signatures—Delivery — Finding. — A finding that a deed was made and executed, but that it was never delivered, will be construed to mean that it was signed, but not in fact delivered.</p> <p>Husband and Wife — Community Property' — Title of Surviving Husband.— Estate of Deceased Wife.—Land, the title to which is taken in a wife’s name, but which is paid for with community funds is community property, and after the death of the wife belongs to the surviving husband, without administration, and the estate of the wife takes no title or interest in it which can be conveyed to any person.</p> <p>Id. — Administration of Wife's Estate — Probate Sale.— Estoppel of Husband’s Grantee. — The act of a husband in filing a petition for letters of administration on his deceased wife’s estate, setting forth therein that the land in controversy was his wife’s separate estate, and causing the same to be sold as such by order of tho probate court, does not estop a grantee of the husband, in an action to quiet title against a grantee of the purchaser of the property as the estate of the wife, at the probate sale, from showing that the property was community property, and belonged to the husband.</p> <p>Id. — Equitable Estoppel—Constituent Elements.—In order to constitute an equitable estoppel from claiming title to land by an admission of the owner that he had no title, it must be shown that the party making the admission, by his declarations or conduct, was apprise'd of the true state of his title; that he made the admission, with the express intention to deceive, or with such carelessness or culpable negligence as to amount to constructive fraud; that the other party was not only destitute of all knowledge of the true state of the title, but of convenient or ready means of acquiring such knowledge; and that he relied directly upon such admission, and will be injured in allowing its truth to be disproved.</p> <p>Deed — Delivery to Third Person — Evidence — Intention of Grantor —■ Opinion of Witness. — Where the delivery of a deed is disputed, evidence of the party with whom the grantor left it for the benefit of the grantee, as to any declarations made or conversations had by or with the grantor in relation to the delivery at that or any subsequent time, is competent to show the grantor’s intention; but evidence as to what the witness would have done if the deed had been afterwards called for by the grantor is inadmissible.</p> <p>Id. —Question of Fact — Intention. —Whether the delivery of a deed to a third party was a delivery for the benefit of the grantee named in the deed, is a question of fact to be determined by ascertaining the intention of the grantor in what he did in signing it and delivering it to the third party.</p>

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

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

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

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

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

<p>Appeal from a judgment of the Superior Court of Tulare County, and from orders made in proceedings in. insolvency against the appellants.</p> <p>The facts are stated in the opinion of the court.</p>

Motion to dismiss an appeal' from an order of the Superior Court of the city and county of San Francisco declaring a firm insolvent debtors and appointing an.assignee. The facts are stated in the opinion of the court.

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

<p>Constitutional Law—Special Legislation—Inconsistency with General Law. — The special act of March 25, 1874, establishing and defining the powers and duties of the board of education of Nevada School District, is constitutional and valid, notwithstanding that at the time the act was passed section 1593 of the Political Code contained provisions ■ inconsistent therewith, there being nothing in the constitution at the time of its passage preventing special legislation, and the subject-matter being properly controlled by the latest expression of the legislative will.</p> <p>Id. —Existing Constitution not Retroactive. —The provision of the existing constitution that the legislature shall not pass local or special laws in certain cases applies only to future and not to past legislation.</p>

<p>Estates of Deceased Persons — Statutory Proceedings — Limited Jurisdiction of Superior Court. —Proceedings for the administration and distribution of the estates of deceased persons are purely statutory, and though the superior court is a court of general jurisdiction, yet while sitting as a court of probate its jurisdiction is limited and special, and all acts in excess of the statutory power conferred are nugatory, and do not bind those wh o have invoked its authority or submitted to its decision.</p> <p>Id, — Determination of Heirship — “Special Proceeding.”—The determination of the heirship of claimants to an estate, under section 1664 of the Code of Civil Procedure, is a “special proceeding,” within the meaning of that term as defined in the Code of Civil Procedure, and the court, in the exercise of its jurisdiction, is limited to the terms and conditions of the statute under which the proceedings are authorized.</p> <p>Id.—Time for Proceeding — Jurisdiction. — The court has no jurisdiction to determine the heirship of a deceased person, under section 1664 of the Code of Civil Procedure, until after the expiration of one year from the issuing of letters of administration upon the estate, and has no power to determine it under other provisions of the code until upon or after the settlement of the final accounts of the administrator.</p> <p>Id. — Appeal — Jurisdiction — Dismissal. — The supreme court has appellate jurisdiction to revise, modify, or reverse judgments of the superior court rendered without jurisdiction; and an appeal from a judgment, in a special proceeding to determine heirship, will not be dismissed upon the ground that the superior court had no jurisdiction to entertain the proceeding, after that court has rendered an affirmative judgment therein.</p> <p>Id. — Time for Appeal — Dismissal. — An appeal from a judgment rendered under section 1664 of the Code of Civil Procedure must be taken within sixty days from the date of the entry of the judgment, else it must be dismissed for want of jurisdiction of the appeal.</p> <p>Deposition — Commission to Take Testimony — Misnomer of Witness. _A commissioner to take testimony has no authority to take the testimony of any person other than those named in the commission, and a misnomer of the Christian name of a witness will render the deposition as to him ex parte, and inadmissible in evidence.</p> <p>Id._Identity — Difference of Names — Presumption — Evidence. — Different names presumptively indicate different persons; and it cannot he shown, to justify the admission of a deposition taken under commission, that a name inserted therein was intended to designate a witness hearing a different name, if it does not appear that the identity was known by or communicated to the opposite party when the commission was issued.</p> <p>Id. — Name in Commission — Preparation of Cross-interrogatories___ The real name of the person intended to he examined under the commission must be given to the opposite party and inserted in the commission, in order that the opposite party may intelligently prepare cross-interrogatories.</p> <p>Incompetent Evidence—Appeal — Presumption__The introduction of incompetent evidence hearing upon a main point in controversy is presumed upon appeal to have caused an injury to the opposite party; and the party introducing such evidence, after a ruling in his favor against a proper objection thereto, cannot urge that the error was harm-</p>

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

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

<p>Negligence — Knowledge of Danger — Duty of Railroad Company. — A railroad company, if not aware of the position of danger of a person upon or near its track, owes such person no duty to take any particular precaution, and is not guilty of negligence if injury results from the running of its cars in the ordinary way; but if the danger is known to the employees of the company, they are bound to use care, and if they discovered it in time to have stopped the train and to have avoided the accident, they are guilty of negligence in failing to do so.</p> <p>Id. —Contributory Negligence— Ordinary Negligence of Defendant. — Where the negligence of the plaintiff contributes directly and proximately to the injm-y, there can be no recovery, notwithstanding the negligence of the defendant, if the defendant’s negligence is not willful or wanton.</p> <p>Id. — Standing between Platform and Cars. — A person standing within a space of three feet between a railroad track and a raised platform while a train passes, thinking that there was sufficient room to stand without being struck by the cars, and who is injured by the passing train, is guilty of contributing negligence, and cannot recover for the injuries so received, notwithstanding his dangerous position was seen by the employees of the railroad company, if the complaint does not charge and the evidence does not show that the negligence of the railroad company was willful or wanton.</p>

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

Application to the Supreme Court for a writ of review to annul a judgment of the Superior Court of the city and county of San Francisco rendered upon appeal from the justice’s court. The facts are stated in the opinion of the court.

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

<p>Criminal Daw — Assault to Murder—Evidence— Shifting of Burden of Proof — Construction of Penal Code. — Section 1105 of the Penal Code, relative to the shifting of the burden of proof in eases of homicide, has no application to a charge of assault with intent to commit murder.</p> <p>Id. — Error without Prejudice — Instruction as to Burden of Proof. — An erroneous instruction to the jury, upon the trial of a defendant charged with an assault with intent to coBimit murder, to the effect that if the assault and the intent are proven, the burden of proving circumstances of mitigation, justification, or excuse therefor devolves upon the accused, unless the proof of the prosecution tends to show that the crime was of a lower degree than that charged, or that the defendant was justified or excused, although ground for reversal if the defendant were convicted of the crime charged, is not prejudicial, if he is convicted of a lower offense.</p> <p>Id. — Acquittal of Offense Charged — Conviction of Assault with Deadly Weapon. —A verdict of guilty of the crime of assault with a deadly weapon is an acquittal of the charge of an assault with the intent to commit murder.</p> <p>Id. — Instructions —Statement of Substance — Evidence — Province of Jury—Constitutional Daw." — -It. is for the jury to determine what is the substance and effect of the testimony; añf[it-i^an invasion of their province, and a violation of the constitutional prohibition,~forths~judge to state his impression of the substance and effect of the testimony of the prosecuting witness, without properly stating its contents, and to tell them that other witnesses corroborate, in whole or in part, certain statements of the prosecuting witness in regard to the commission of the offense.</p>

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

<p>Municipal Incorporation Act — Construction—Limitation of Proviso — Cities of Fifth Class—Election of Trustees — Term of Office of First Board. — Section 752 of the general municipal incorporation act, approved March 13, 1883, providing for the election of officers of cities of the fifth class on the second Monday in April in each odd-numbered year, and that the members of the board of trustees are to hold for four years, and until their successors are elected, and containing a proviso that the first board of trustees “elected under the provisions of this act shall at their first meeting so classify themselves by lot as that three of their number shall go out of office at the expiration of two years, and two at the expiration of four years,” must be so construed as to be in harmony with section 4 of the act providing that the trustees elected at the first election are to hold only till the next municipal election, and until their successors are elected and qualified; and the words “this act,” in the proviso appended to section 752, must be read “this section” or “this chapter,” to accord with the evident intention o£ the legislature, and to reconcile the conflict.</p>

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

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

The action was brought to enjoin the execution of _a judgment rendered on a cognovit, the plaintiffs basing their claim to relief on an alleged promise of the defendant Knapp, that if they would allow judgment to be entered, he would stay execution for a year. An injunction was granted upon the complaint, and upon a former appeal (85 Cal. 885) the order granting it was reversed.

<p>Costs — Discretion — Order Refusing to Retax — Appeai. — The allowance or disallowance of items for the expenses and disbursements incurred upon the trial of an action is usually in the discretion of the judge of the trial court, and where there is nothing in the record to show that the court did not properly exercise its discretion in refusing to strike out certain items objected to upon motion to retax the costs, its order will be affirmed.</p> <p>Id.—Expense of Subpienaing Witnesses — Testimony for Co-defendant. — The character of the testimony of witnesses given at the trial with reference to the issues joined by several co-defendants, and the fact that they testified specially for co-defendants, is not a test of the necessity for incurring the expense of subpoenaing them as witnesses by a defendant in whose behalf they did not testify as to any separate issue made hy his answer.</p> <p>Id. — Affidavit to Cost Bill — Necessity of Disbursements. —An affidavit to a memorandum of costs, hy the attorney of the party in whose favor costs were given, that “the foregoing items of costs and disbursements in this action are correct, and that the said disbursements have been necessarily incurred in said action,” unless controverted, should control the decision of the trial court as to the necessity of the disbursements.</p> <p>Id. — Services Performed for Several Defendants — Separate Oost Bill. — The fact that certain items of the cost bill were for services performed for both of the defendants would not authorize the trial judge to strike them from the cost bill of one of the defendants.</p>

<p>Findings — Omission —'Support of Judgment — Sufficiency of Evidence — Appeal. — A failure to find upon an issue, the finding npon which might have the effect of invalidating a judgment fully supported by the findings made, is not ground for reversal, unless it be shown by a statement or a bill of exceptions that evidence was submitted in relation to the issue sufficient to authorize such a finding as would have the effect to invalidate the judgment.</p> <p>Id. — Omitted Adverse Finding. — The failure to find upon an issue a finding upon which must have been adverse to the appellant is not ground for a reversal of the judgment.</p> <p>Id.—Presumption upon Appeal — Recital in Findings.— It will not be presumed on appeal that evidence was offered upon an issne on which no finding was made; and a recital in the findings to the effect that the court proceeded to hear the cause upon the issues made, by the complaint and answer, and heard the proofs of the parties in support of the issues, does not justify such presumption.</p>

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

<p>Appeal prom Justice’s Court — Undertaking — Jurisdiction — Void Judgment. — The failure to file an undertaking on appeal from a justice’s court within thirty days from the rendition of the judgment renders the appeal ineffectual for any purpose, and the judgment of the appellate court rendered without such undertaking is void.</p> <p>Id.—Jurisdiction of Municipal Court of Appeals — Sale under Void Judgment.—The judgment of the former municipal court of appeals of the city and county of San Francisco, to which an appeal had been transferred from the county court, upon which no bond had been filed within thirty days, is without jurisdiction and void; and a sale of land under execution issued upon such judgment confers no title.</p> <p>Id.—Motion to Dismiss Void Appeal — Want op Jurisdiction — Estoppel op Appellant— Quieting Title. — The action of the appellant in resisting a motion to dismiss the appeal in the municipal court of appeals does not estop him from asserting want of jurisdiction in that court, or from assailing the invalidity of the judgment, in an action brought to quiet title to the land purchased at an execution sale thereunder.</p> <p>Estoppel in Pais — Pleading. — The party claiming an estoppel in pais, and relying upon it as a defense, should set out the matters constituting it in his answer.</p> <p>Id. •— Representation op Fact •— Statement op Law. — A representation, in order to work an estoppel, must generally be a statement of fact, and the statement of a proposition of law will not conclude the party making it from denying its correctness, unless it is understood to mean nothing but a simple statement of fact.</p>

<p>Husband and Wife — Agreement for Separation — Estate of Deceased Husband — Right of Wife to Family Allowance.—A wife who has voluntarily entered into a valid agreement with her husband for separation, whereby, in consideration of certain money paid, she waived all other claims upon her husband, and has voluntarily continued to live apart from him, without any attempt to set aside the agreement, or to assume again their matrimonial relations, or to demand further means for her separate support, ceases to be a member of the immediate family of the husband, and upon his death is not entitled to a family allowance out of his estate.</p> <p>Id.—Concealment of Husband’s Estate—Distribution—Discharge of Executors — Petition of Wife to Vacate Orders — Appeal — Party Aggrieved. —The wife thus separated from her husband is not a “party aggrieved” by the action of the court in refusing, upon her petition, to arrest all proceedings and to vacate its order of distribution and discharge of the executors, though her petition state under oath that a large part of the deceased husband’s estate had been concealed and withheld from administration, and she has no right to appeal from the order refusing to grant her petition.</p>

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

<p>Estates of Deceased Persons — Qualification by Administrator — Prejudice against Executrix—Public Administrator.—The fact that a son of a decedent is prejudiced against his sister, who was named in the will as executrix, is not ground for holding, upon a contest between the son and the public administrator for letters of administration, that the son was thereby disqualified from acting as administrator, and that the public administrator should be appointed in preference to him.</p>

Motion to dismiss an appeal from an order of the Superior Court of Tulare County revoking and granting letters of administration. The facts are stated in the opinion.

The defendant, James O’Brien, was accused by information, jointly with Francis White, Matthew Sullivan, and James McCIuskey, of the crime of robbery, committed upon one J. J. Merz, on the 15th of April, 1890. The defendant, O’Brien, was tried separately, and convicted of the offense charged. Further facts are stated in the opinion of the court.

<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>

The action was brought by the plaintiffs as trustees under the will of James Irvine, deceased, to quiet the title to certain real property alleged to have been set apart to them as trustees by the order of the superior court sitting as a court of probate.

<p>Insurance—Recital in Policy — Lease of Premises — Warranty — Unintentional Misstatement. — A recital in an insurance policy that “it is understood and agreed that the within-described premises have been leased ” by certain parties named will not he held to be an express warranty, where it appears that the property had formerly been leased to the parties named, although not then so leased, and that there was no intentional misstatement by the assured, if by another provision of the policy it was to become void only in case of an intentional misstatement or concealment of a material fact.</p> <p>Id.—Express Warranty—Construction in Favor of Assured.— Where there is any doubt as to whether a statement in an insurance policy is an express warranty, the court should lean against that construction which imposes upon the assured the obligation of a warranty.</p> <p>Id.—Statement of Fact — Intention of Parties.—Although under section 2607 of the Civil Code a statement in a policy of a matter relating to the person or thing insured, or to the risk as a fact, is an express warranty, yet if, taking the entire policy in all its terms and language, it can he seen that such was not the- intention of the- parties, the statement of fact will not be deemed an express warranty.</p> <p>Id. —Change of Possession of Insured Premises — Notice to Insurance Company — Knowledge of Mortgagee — Indorsement on Policy. — The fact that the insurance company has no notice of a change of possession of the insured premises will not invalidate the insurance as to a mortgagee who is not aware of the change, if an indorsement on the policy provides that the mortgagee shall become payee to the extent of the mortgage, and shall not he affected by the acts or negligence of the mortgagor, but must notify the insurance company of any change in title or possession of the property whenever he shall become aware thereof.</p> <p>Id.— Rights of Mortgagee — Effect of Sale under Foreclosure. — A mortgagee of insured property, to whom the loss is made payable, is entitled to recover the loss to the full extent of the mortgage debt, although the fire occurred after a foreclosure sale and purchase by the mortgagee thereat, but before the time for redemption had elapsed, and before the execution of a sheriff’s deed to the mortgagee.</p> <p>Id. — Extinguishment of Debt by Sale—Purchase by Mortgagee.- — There is no payment of the mortgage debt pro tanto, or extinguishment of the interest of the mortgagee in the mortgaged premises, by the mere crediting on the mortgage debt of a bid made by the mortgagee at the foreclosure sale.</p> <p>Id. — Foreclosure Embraces 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 is not foreclosed until the mortgagor’s right of redemption is cut off.</p> <p>Id. — Alienation of Title — Effect of Foreclosure — Recovery on Policy.—Where insurance is effected on mortgaged property, and the loss is made payable to the mortgagee, and the mortgage is foreclosed, the property sold, and a deed made to the mortgagee, it seems that there is not such an alienation of the title as to forfeit the mortgagee’s right to recover on the policy.</p>

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

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

The action was brought to determine a contest respecting the purchase from the state of 640 acres of swamp-lands, which contest had been referred to the superior court of Tulare County for adjudication, by order of the register of the state land-office.

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

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

<p>Action upon Contract—Damages for Breach — Quantum Meruit — Pleading — Joinder of Causes of Action.—A cause of action for damages for several breaches of the terms of an express contract, and a cause of action on a quantum meruit for work and labor performed and materials furnished, may be united in the same complaint.</p> <p>Id.—'Maturity of Cause of Action — Notice of Repudiation of Contract-Dependent Covenants'—Surrender of Possession — Time of Suit for Damages. —Where by the terms of a written contract the plaintiff was to enter upon, use, and possess for three years certain lands of the defendants under specified conditions and covenants, which made the beneficial enjoyment of the lands by the plaintiff depend upon the fulfillment of the contract by the defendants, a written notice of repudiation of the contract, given by the defendants to the plaintiff at a time whem the plaintiff was not in default, whereupon the plaintiff vacated the premises and defendants resumed possession thereof, constitutes such a breach of the contract by the defendants as will authorize the plaintiff to sue at once for damages for the breach, without waiting for the time to arrive for the performance of the other conditions of the contract.</p> <p>Id.—Construction of Contract — Irrigation of Lands—Furnishing of Ditch and Water Right — Dependent Covenants — Time of Performance.—Where by the terms of the contract the plaintiff was required thoroughly to irrigate the lands of the defendants during a specified period of time, and the defendants were to furnish a water right, and to construct a canal or ditch along one side of the land, without specifying a limit of time therefor, the contract will be construed to mean that the ditch should be dug and the water furnished when the time for the irrigation by the plaintiff arrived.</p> <p>Id. — Building of Fence — Performance by Plaintiff not Due — Consequences of Defendant’s Breach — Excuse for Non-performance. — Where the failure of the defendants to furnish the water required for irrigation as agreed caused the death of vines, for the protection of which the plaintiff had agreed to build a fence upon the defendant’s land, performance of the plaintiff’s covenant to build the fence was not due, and is not necessary to be excused in an action for the breach of the contract on the part of the defendants.</p> <p>Id.—Readiness of Plaintiff to Perform — Prevention of Performance. — Conceding that the failure of plaintiff to build the fence was necessary to be excused, an allegation that the plaintiff was ready and willing to irrigate, prune, cultivate, and in every way care for the vines and trees as promised in the agreement, is a sufficient allegation to cover the plaintiff ’s obligation to build the fence to protect the vines and trees, which are alleged to have died owing to the failure of the defendants to iurnish the water for irrigation, as agreed by them.</p> <p>Id. — Contract of Sale — Action foe Breach —Demand fob Deed — Waiveb — Repudiation of Contract.—Where it appears from the defendants’ act, in expressly repudiating a contract for a sale of land, that a demand upon them for a deed would have been refused, the defendants cannot object that no such demand was made by the plaintiff before suit for breach of the contract.</p> <p>Id. —Maxim — Useless Act. — The law does not require the performance of a useless act.</p> <p>Pleading — Joinder of Causes of Action — General Demurrer.— Where two causes of action are united in a complaint, if either count of the complaint states facts sufficient to constitute a cause of action, a general demurrer to the complaint should be overruled.</p>

<p>Appeal from a judgment of tlie 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>Payment—Recovery of Excess — Agreement to Repay — Pleading. — A complaint shows a cause of action with sufficient certainty for the - recovery of an excessive payment, if it alleges, in substance, that the plaintiff, a mortgagor of property, and the defendant, the mortgagee, differing as to the amount due upon the mortgage, agreed that if the mortgagor would pay the amount claimed by the mortgagee to be due, and if it should afterwards be found that the amount so paid was in excess of the amount due, the mortgagee would repay to the mortgagor such excess, and that the amount paid was in excess of the amount due, but that the excess had not been repaid.</p> <p>Id. — Proof of Agreement—Compulsory Payment — Insufficiency of Evidence. — Evidence to the effect that when the money was paid the plaintiff was prepared to pay the amount claimed under protest, and that when the mistake in the amount was discovered the plaintiff notified the defendant, who agreed to come and see about it, and said that if the plaintiff “ was right, it would be right,” fails to prove any agreement of the defendant to recoup or repay to the plaintiff any money, or to show that the payment of any excess was made under compulsion.</p>

<p>Appeal — Jurisdiction — Certiorari — Annulling Order of Justice’s Court. — The supreme court has jurisdiction of an appeal from an order of the superior court, made on certiorari, annulling an order of a justice’s court.</p> <p>Id. — Case Overruled. — The decision in the case of Bienenfeld v. Fresno Milling Go., 82 Cal. 425, is overruled.</p> <p>Id.—Amount in Controversy — Jurisdiction — Adequate Remedy.— The jurisdiction of the supreme court on appeal from a judgment rendered in a case of certiorari does not depend upon the amount in controversy; hut the only question the appellate court looks into is to ascertain whether the inferior tribunal, board, or officer had jurisdiction, and if not, whether there is any plain, speedy, and adequate remedy.</p> <p>Justice Court — Jurisdiction — Setting aside Judgment.—A justice of the peace has no power to set aside a judgment rendered after a regular trial.</p> <p>Id. — Time for Rendition of Judgment — Directory Statute. — Section 892 of the Code of Civil Procedure, providing that “when the trial is by the court judgment must be rendered at the close of the trial,” is merely directory, and a judgment is not void because not rendered until six weeks after the submission of the case.</p>

<p>Constructive Trust— Setting aside Transfer— Mental Incomfetency — Fraud — Promises with Intent to Deceive. —A trust in real and personal property may be declared and enforced, where it appears that the property was transferred to the defendant at his solicitation, while the plaintiff’s mental condition was such that he was incompetent to transact business, and that he was induced to transfer the property to the defendant by the fraudulent acts and representations of the defendant that he would manage the property and reconvey it to the plaintiff after paying off the plaintiff’s debts; that there was no further consideration, and that all the statements and representations made by the defendant were false and fraudulent, and were knowingly made with the intent to deceive and defraud the plaintiff.</p> <p>Id.—Statute of Frauds — Parol Evidence.—Trusts in real property arising from fraud, actual or constructive, are not within that part of the statute of frauds which requires the trust to be declared by a written instrument; but such trusts arise by operation of law, and may be proved by parol evidence.</p> <p>Id. — Intent not to Perform. — A promise made without any intention of performing it is fraudulent.</p> <p>Id. — Rescission of Contract — Weakness of Mind — Inadequacy of Consideration — Undue Influence. — A contract may be set aside in equity where there is imbecility or weakness of mind arising from old age, sickness, intemperance, or other cause, and plain inadequacy of consideration, or where there is weakness of mind and circumstances of undue influence and advantage.</p>

<p>Street Assessment — Foreclosure — Terms of Assessment — Compliance with Statute — Pleading.— In an action to foreclose a lien for a street assessment, the complaint should allege that the assessment was made in the terms prescribed by the statute, and a complaint alleging that the assessment was made “upon the property benefited by said street improvement ” does not show a compliance with the statute providing that the expenses incurred “shall be assessed upon the lots and lands fronting thereon, each lot or portion of a lot being separately assessed in proportion to the frontage. ”</p> <p>- Id. — Improvement of Street, Including Crossing. — Posting of Notices. —An allegation in the complaint, that after the resolution of intention had been passed by the board of trustees for the grading and graveling of two blocks-upon the same street, the street commissioner “ caused to be conspicuously posted along said contemplated work more than three notices of resolution at less than three hundred feet in distance apart,” shows a sufficient compliance with the statute in regard to the posting of the notices; and the fact that the work included a street-crossing does not render it necessary that notice be also posted in front of each quarter-block liable to be assessed.</p> <p>Id.—Bond of Contractor — Approval bv Street Superintendent — Defense to Assessment. —• A property owner cannot, in an action to foreclose a lien for a street assessment, object to the correctness of the assessment by reason of the omission on the part of the superintendent of streets to approve the bond of the contractor.</p>

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

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

<p>Summons — Affidavit of Service — Judgment by Defauit—Appeal.— An affidavit of service of summons, which fails to state or show that the person serving the same was over the age of eighteen years at the time of the alleged service by him, is insufficient to prove service; and a judgment by default founded upon such affidavit is erroneous, and will be reversed upon appeal.</p>

<p>Estates of Decedents—Will — Sale under Power—Bights of Pretermitted Children of Testator. — Where a will does not provide for the children of the testator, or show that the omission to do so was intentional, hut gives to the testator’s wife all of his property, with absolute power to sell any or all of it without application to or approval or authority of any court, a sale of the property by the wife of the testator, without any previous order of the court therefor, which is not shown to have been necessary for the payment of debts of the decedent, or expenses of administration, although Confirmed by the court, does not transfer to the purchaser the title to the land as against the testator’s children.</p> <p>Id. —■ Construction of Code — Operation of Law — Inheritance of Pretermitted Children — Effect of Will.—Under sections 1306 and 1307 of the Civil Code, providing that where a testator omits to provide in his will for any of his children, unless it appears that the omission was intentional, the child succeeds to the same portion of the estate of the testator as he would have received if the testator had died intestate, the child succeeds immediately, by operation of law, to the same portion of the real property as if no will had been made, the testator being regarded as dying intestate as to that portion, and every provision of the will directly or indirectly attempting to dispose oí such portion o£ the estate, except for the discharge of the decedent’s debts or other charges o£ administration, is inoperative as against the child.</p>

Motion to dismiss appeals from a judgment of the Superior Court of Alameda County, and an order granting a discharge in insolvency. 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>

Application to the Supreme Court for a writ of review to the Superior Court of the city and county of San Francisco.

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

The action was brought to foreclose a mortgage given as security for the payment of a promissory note made by the defendants to the plaintiff, “ Richard Scott, trustee for Miss Elizabeth Scott.” The plaintiff sued simply as “Richard Scott, trustee.” The defendants’ answer admitted the making, execution, and delivery of the note and mortgage, and alleged that they had no knowledge or information sufficient to form a belief as to whether the said Richard Scott was trustee of…

<p>Certificate of Partnership — Firm Hame — Surnames of Partners__ A film name composed of the surnames of all the partners is not a “fictitious name,” nor “a designation not showing the names of the persons interested as partners,” within the meaning of section 2466 of the Civil Code, requiring the filing of a certificate of partnership.</p> <p>Id. — Action by Partners — Pleading. — An objection to an action by-partners, on the ground that the plaintiffs had not filed a certificate of partnership, as required by section 2466 of the Civil Code, should be taken by answer, and not by demurrer to the complaint for failing to state that the certificate was filed.</p>

<p>Criminal Law — Larceny — Evidence — Cross-examination — Conversation with Defendant. — Upon the trial of a defendant charged with larceny, a witness for the prosecution who had merely testified that he saw the defendant on the night of the alleged stealing, but had not testified in chief as to having any conversation with him, cannot be cross-examined in relation to such conversation, nor can the defendant introduce such conversation in evidence in his own behalf.</p> <p>Id. — New Trial — Misconduct of Jury — Affidavit of Juror — An affidavit of a juror seeking to impeach the verdict for his own misconduct is not admissible, and cannot be used upon a motion for a new trial.</p> <p>Id. — Intoxication of Juror. —The fact that a juror drank intoxicating liquors out of court, and that at the recess on the day the verdict was rendered he-was for a time under its influence, does not vitiate the verdict, if it appears from the affidavits of other jurors and the officer in charge of the jury that the juror, while sitting or deliberating as a juror, was sober, intelligent, and in a fit condition to understand and deliberate upon the evidence, and determine the verdict.</p> <p>Id. —Intoxication in Court. — If a juror is palpably intoxicated in court, the defendant should object to his serving, before the jury is permitted to retire.</p>

<p>Appeal from an order of the Superior Court of Yuba County changing the place of trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Decedents — Inheritance from Deceased Wife — Right of Administration. — Where a wife dies, leaving a husband surviving, but no issue, father, mother, brother, or sister, the surviving husband is entitled to succeed to the whole estate, and a nephew of the wife, not being entitled to succeed to any portion of the estate, is not entitled to letters of administration.</p> <p>Id.—Surviving Husband — Qualifications of Administrator — Claim to Estate — Want of Integrity. — The fact that the surviving husband claims the whole estate of the deceased wife as his own does not show a want of integrity, or disqualify him to act as her administrator, within the meaning of section 1369 of the Civil Code.</p>

<p>Subpiena Duces Tecum — Disobedience of Defendant — Striking out Answer — Contempt — Error of Law — New Trial. —• An order of the trial court that the answer of the defendant be stricken from the files because the defendant has disobeyed a subpoena duces tecum is not a judgment for contempt, but if erroneous, constitutes an error of law occurring during the trial of the action, which, if excepted to, may be corrected on appeal from the judgment and order denying a new trial.</p> <p>Id.—Construction of Code—Protection of Adverse Party. — The provision of section 1991 of the Code of Civil Procedure, that in case of disobedience of a subpoena, “ if the witness be a party, his complaint or answer may be stricken out,” is intended for the protection of the adverse party, whose substantial rights are or may be affected by such disobedience, as well as a punishment for the contempt itself.</p> <p>Id.—Discretion — Striking out Answer. — The power conferred upon the court to strike out an answer should be exercised with guarded discretion, with a view to promote substantial justice; and it is error for the court to strike defendant’s answer from the files because of disobedience of a subpoena duces tecum, where the disobedience is by an illiterate person, without the advice of counsel, and where defendant’s counsel, before the making of the order, offer to admit everything that could be shown by the papers sought to be produced.</p>

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

<p>Toll-road — Rates op Toll — Duty op Supervisors — Mandamus.—It is the duty of the board of supervisors of a county, upon the application of a toll-road corporation whose road is within the county, to establish rates of toll, and they may be compelled to fix rates by writ of mandate.</p>

<p>Appeal from, an order of the Superior Court of Placer County granting a writ of mandate.</p> <p>The facts are stated in the opinion.</p>

The action was brought by Joshua Chadbourne and H. Arendt, claiming as grantees of A. C. Vanderwort, the holder of a sheriff’s deed of the interest of William Hart in the premises described in the contract of sale, which is set out in the opinion, to enforce the contract against the Stockton Savings and Loan Society.

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

The sixth instruction, referred to in the opinion as asked for by the defendant, required the jury to find, from a preponderance of the evidence, before plaintiffs could recover, that the services were worth more than the sum of $150. The complaint alleged that the services were worth $360, and the answer denied that they were worth that amount, or any greater sum than $150. Further facts are stated in the opinion.