Volume 89 — California Reports

<p>Judgment on Pleadings — Recitals in Judgment — Review upon Appeal. — Recitals in a judgment on the pleadings of the motion for the judgment, the grounds of the motion, the ruling upon it, and the entry of judgment as a consequence, are properly in the judgment, and upon an appeal therefrom, and in the absence of a bill of exceptions, must be taken as conclusive evidence of the action of the trial court.</p> <p>Id. — Estates of Decedents — Presentation of Claim — Pleading — Sufficiency of Denial. — In an action upon a claim against an estate, an allegation that the claim, duly verified, had been presented, is sufficiently denied by an affirmative allegation in the answer, that the claim was not verified or presented as required by the statute, and such averment raises a material issue, sufficient to render erroneous a judgment for plaintiff, upon the pleadings.</p> <p>Id.—Death during Pendency of Action — Presentation of Claim — Requirement of Proof. —Under section 1502 of the Code of Civil Procedure, providing that if an action is pending against a decedent at the time of his death, the plaintiff must present his claim, and that no recovery shall be had in the action Unless proof be made of the presentation, the presentation of the claim must he proved in such case, although not denied in the answer, and no judgment for the plaintiff can be properly rendered upon the pleadings.</p>

<p>State School Lands—Congressional Grant — Mineral Lands. —The grant of the sixteenth and thirty-sixth sections of public land to the state, by the act of Congress of March 3, 1853, did not include lands known to be mineral at the date of the grant.</p> <p>Id. — Grant in Presentí—Mines Subsequently Abandoned — Title of State. — The grant of the sixteenth and thirty-sixth sections being a grant in prcesenti, if the land was known to be mineral in character at the time the grant was made, no title passed to the state, and the fact that the mines upon the lands were worked out and abandoned as unprofitable, after the grant was made, gives the state no title to them.</p> <p>Id. — Ejectment — State Patent — Collateral Attack — Rights of Mining Claimants — Privity with United States.—Defendants in possession of a sixteenth or thirty-sixth section, which was known to be mineral land prior to 1853, and who are holding it as mining claims under locations recently made in accordance with the law of Congress, and with the local rules and customs of miners, are in privity with the United States, and may attack a patent of the land from the state to the plaintiff, in an action of ejectment.</p> <p>Id.—Evidence — Value of Mining Claims.—Evidence is admissible in favor of such defendants as to the work done by them on their mining claims since the date of their location, for the purpose of showing that the land, which was known to be mineral at the date of the grants, is still valuable for its minerals, and to overcome the theory of the plaintifls,. that they were of no value.</p>

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

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

<p>Certiorari to review and annul an order of the Superior Court of the city and county of San Francisco requiring an administrator to pay a family allowance.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Order Granting New Trial — Discretion — Presumption upon Appeal. — Every presumption will be indulged in favor of the proper exercise, by the trial court, of its judicial discretion in granting a new trial upon the ground of the insufficiency of the evidence to support the decision, and the order will not be reversed, unless there is a manifest abuse of discretion.</p> <p>Id. — Conflicting Evidence. —Where there is a substantial conflict in the evidence, an order granting a new trial on the ground of the insufficiency of the evidence to justify the decision will not be reversed.</p>

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

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

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

<p>Swamp and Overflowed Lands—Fitness for Cultivation — Rights of Actual Settlers — Constitutional Law.— Swamp and overflowed lands granted to the state by the act of Congress of September 28, 1850, which are ready for occupation, and which by ordinary farming processes are fit for agricultural purposes, are within the meaning of section 7, article 17, of the constitution, and can be sold only to actual settlers, and in quantities not exceeding 320 acres.</p> <p>Id. —Evidence of Actual Settlement.—Evidence tending to prove that an applicant for the purchase of swamp-land determined to settle on the land at the time he examined the boundaries thereof, and then intended to proceed immediately to build a cabin, and to complete it within a reasonable time, and that be commenced to build the cabin as soon as he could get the lumber, and actually completed it within a week after his application, is sufficient to justify a finding that he settled on the land at the time of his application for its purchase.</p> <p>Appeal'—Review of Findings—Error against Party not Appealing.— The fact that a finding is insufficient as against one of the defeated parties to an action who has not appealed from the judgment, and between whom and the appellant there is no privity, cannot avail the appellant.</p>

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

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

<p>Mining Corporations — Duty op Directors — Office of Corporation — Posting Reports — Penalty — Insufficient Defense .— Chapman v. Doray, ante, p. 52, followed and affirmed.</p> <p>Id. — Second Action for Penalty — Former P.ecovery — Amendment of Answer. — Each failure of the directors to post the monthly reports is a delinquency for which an action may be maintained as it occurs, and the recovery of judgment for one failure cannot be pleaded as a bar to a second action for a subsequent failure; and it is not error to refuse to allow the answer in the second action to be amended so as to plead a recovery in the first action for a previous delinquency.</p> <p>Id.—Failure to Sue for Previous Delinquency — Single Penalty.— If the stockholders of a mining corporation forbear to sue till after severed failures of the directors to post the monthly reports have occurred, only one penalty can be recovered up to the time such forbearance ceases and the suit is brought.</p>

<p>Water Rights — Ditch across Government Land — Capacity — Reconstruction — Privity — Rights op Patentee — Injunction against Enlargement. — A plaintiff claiming land under patent from the United States may enjoin the defendant from enlarging a water-ditch extending across the land to its original capacity as constructed long before the plaintiff acquired title and before the defendants took possession of it, where it appears that the ditch as originally constructed had been allowed to go to ruin, and had been unused for a long time when the defendants entered upon it, without any showing of privity between them and the original owners of the ditch, and reconstructed it to a size and capacity smaller than it originally had, and that it was so used by them before and long after the acquisition of title to the land by the plaintiff.</p> <p>Tax-deed — Void Assessment — Evidence.—The recital in a tax deed of an assessment of certain property to a person named and “ unknown owners ” is void, and the deed is inadmissible in evidence to prove title.</p>

<p>Appeal — Findings—• Support op Judgment. — Upon an appeal from a judgment upon the judgment roll alone, where there is no bill of exceptions, if the findings support the judgment, and there is either a direct finding or a finding by necessary inference from facts found on every material issue, the judgment will be affirmed.</p> <p>Id. — Statute op Frauds —Review upon Appeal — Insufficiency op Record.—If the record on appeal does not show which party introduced a verbal contract, which it is claimed should have been in writing under the statute of frauds, nor that either party objected to it, the question as to the application of that statute cannot be considered upon appeal.</p>

The action was brought for the purpose of determining the title to a water right and water-ditch situated in or near the city of Sonora, in the county of Tuolumne, and to obtain an injunction perpetually enjoining and restraining the defendant from interfering therewith. Further facts are stated in the opinion.

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

<p>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>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>

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

<p>Construction or Findings — Frivolous Appeal — Damages.— A finding “ that plaintiff is entitled to judgment that plaintiff take nothing by this action,” but that defendants “have judgment against plaintiff for their costs herein,” clearly expresses the meaning that plaintiff should take nothing, and that defendants should have judgment against him; and where the only point made on appeal is that the findings do not support the judgment, because the court finds as a conclusion of law “ that plaintiff is entitled to judgment,” while judgment is rendered for the defendants, the judgment will be affirmed, with damages.</p>

<p>New Trial — Discretion — Credibility of Witnesses. —Granting or refusing a new trial rests largely in the discretion of the trial court, and an order denying a new trial will not be reversed, where it appears that the question presented by the motion for a new trial necessarily involved a consideration of the credibility of the witnesses.</p> <p>Id.—Homicide — Husband and Wife — Evidence — Privileged Communication— Newly Discovered Evidence.—Affidavits on a motion for a new trial of a female defendant found guilty of manslaughter, made by herself and her husband, to the effect that he, and not the defendant, committed the homicide, and that he told her of that fact before the trial, but refused to allow her to use the communication in her defense, are not per se ground for a new trial, as the question of the truth of such affidavit is a matter for the consideration of the trial judge, and to be determined by reference to all the evidence in the case.</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>

<p>Appeal from an order of the Superior Court of Los Angeles County denying a motion to dissolve an attachment.</p> <p>The facts are stated in the opinion of the court.</p>

The witness James R. Garness, referred to in the opinion, testified orally, against the objection of the defendant, to the amount and name stated in the policy, and produced in evidence a printed form which he testified was the same as the printed part of the original policy, and was the customary blank policy.

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

<p>Statutory Construction — Rights of State. — The state is not bound by the general words o£ a statute which would operate to trench upon its sovereign rights, injuriously affect its capacity to perform its functions, or establish a right of action against it.</p> <p>Id.—Mechanic’s Lien Law—Public Property — School-house.—Under the constitution and laws of this state regulating mechanics’ liens, no public property or public building is subject to a mechanic’s lien, and none can be enforced against a school-house erected by a public school district.</p>

<p>Official Bond —Liability of Sureties—Construction. — The liability of sureties upon an official bond depends upon the terms and conditions of the bond; and the obligation being strictissimi juris, nothing will be taken by construction against the obligors.</p> <p>Id. — Bond of Notary— Official Doty — Misappropriation of Moneys. —As it is no part of the official duty of a notary to receive money from or for anybody, his sureties are not liable for money fraudulently obtained and retained by him.</p> <p>Id. — Forged Mortgages — False Certificates of Acknowledgment — Retention of Moneys Loaned. — Where a notary public, who was also a real estate agent and engaged in negotiating loans, by false representations procured money upon forged mortgages, to which he had appended his certificate of acknowledgment, and then fraudulently retained the money, his sureties are liable only for the loss occasioned by reason of his certificates of the due acknowledgment of the mortgages, and not for the amount of the money loaned and fraudulently retained by him.</p> <p>Id. — Value of Fraudulent Mortgages — Measure of Damages for False Certificate of Notary. —In an action for damages against the sureties of a notary for the fraudulent act of the notary in attaching to counterfeit mortgages certificates of their due acknowledgment, upon the faith of which the mortgagee loaned a sum of money, the measure of damages is the value of the mortgages if they had been valid, to be determined in view of the value of the property apparently mortgaged.</p>

The appellants offered in evidence upon the trial, marked “ Ex. A,” a certified copy of the application of M. Dods worth and others to the United States surveyor-general for California for an official survey of a certain mining claim located in Auburn mining district, in Placer County, and dated August 24, 1872, and also a certified copy of the official plat of the official survey of said mine, made pursuant to the said application, marked “ Ex.

<p>Attorney at Law — Assumpsit for Services—Contingent Fee — Quantum Meruit — Implied Contract — Evidence.— A promise to pay a “ contingent fee” to an attorney at law is never implied bylaw from, the rendition of his services, but such a promise, if it exist at all, is created by express contract, and in an action upon a quantum, meruit, for services rendered by an attorney, evidence of other attorneys as to what would be a reasonable contingent fee is inadmissible.</p> <p>Id.—Denial of Express Contract —Reasonableness of Contingent Fee — Evidence.—Although evidence of the reasonableness of a contingent fee may be given as having a bearing upon the probabilities of the case, where an express contract for a contingent fee is admitted, and the amount of such fee is the only matter of dispute, yet where the controversy is as to whether there was any agreement at all to pay such a fee, evidence of what would be a reasonable contingent fee is inadmissible.</p>

<p>Appeal — Dismissal — Failure to File Transcript. — An appeal will be dismissed, where, at the time of the hearing of the motion to dismiss, the time for the filing of the transcript prescribed by the rules of the court had long since passed, and no transcript was on file at the time of the hearing, and no cause shown for the failure to file the same.</p>

<p>Patent — Title by Record — Delivery and Acceptance. — Title to land by a patent from the United States is title by record; and it is not necessary that the patentee should have received and accepted the patent, in order to vest in him title to the land granted.</p> <p>Id. — Record after Commencement of Action. — The fact that the copy of the patent under which the plaintiff, in an action to quiet title, claims title was not recorded until after the action was commenced is immaterial.</p> <p>Id. — Evidence — Exemplified Copy of Patent. — Under sections 1919 and 1951 of the Code of Civil Procedure, it is not necessary to prove the loss of an original patent, before an exemplified copy thereof can be produced in evidence.</p> <p>Id. — Proof of Loss of Original. — Even if it were necessary for a patentee to prove the loss of an original patent before introducing the copy in evidence, his testimony that he never received the original, and did not know what had become of it, is sufficient.</p> <p>Action to Quiet Title — Proof of Title—Presumption of Continuance — Status. — A status, once established, is presumed by law to remain, until the contrary appears; and in an action to quiet title, after proof of title in the plaintiff, he need nob prove that he has not parted with the title, or that he is entitled to the possession of the land.</p> <p>Jurisdiction of Justice’s Court— Evidence — Proof of Title. — A justice’s court is an inferior court, and its jurisdiction must be shown affirmatively by a party relying upon or claiming any right or title under its judgments.</p> <p>Id.—Jurisdiction of Person — Constable’s Sale — Evidence — Presumption. — Where a defendant, in an action to quiet title,, claims title by and through a constable’s sale, under an execution issued on a judgment rendered against the plaintiff by a justice of the peace, but fails to show the service of summons on or the voluntary appearance of the plaintiff in the justice’s court, it will be presumed that the justice had no jurisdiction to render the judgment, and that the same was void, and the purchasers at the constable’s sale acquired no interest in the property bid in by them.</p> <p>Appeal — Review of Evidence — Bill of Exceptions — Specification of Particulars. — An objection that the findings are not justified by the evidence will not be considered, where the bill of exceptions in the record contains no specifications of particulars in which the evidence is alleged to be insufficient to justify the findings.</p>

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

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

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

<p>Criminal Law—Homicide — Evidence — Immoral Conduct of Accused — Prejudicial Error. — Upon the trial of a defendant charged with murder, the admission of the irrelevant testimony of a girl called as a witness for the prosecution, designed to show that the accused had asked her to live with" him in a state of immorality, which she had refused to do, is prejudically erroneous, as calculated to present the accused before the jury as a low and degraded character.</p> <p>Id. — Declaration of Witness at Time of Homicide — Hearsay. — A question as to whether a witness for the prosecution, after leaving the accused, and while holding a conversation with a third party, heard a pistol-shot, and exclaimed immediately that defendant had killed the deceased, is irrelevant and incompetent; and if the witness denies such declaration, it is incompetent to prove the declaration by another witness, or to prove that he made any remark indicating that he heard the shot that killed the deceased.</p> <p>Id. — Question by Juror — Withdrawal of Repeated Objection — Striking out Hearsay Evidence — Premeditation of Homicide. — After repeated rulings by the court, upon objection of the defendant, that a declaration made by a witness at the time of the homicide, to another person, was incompetent, if a juror asks such other person, as a witness, for the language of the declaration, which the counsel for the prosecution still insists shall be stated, the fact that counsel for the accused witly draws the objection under those circumstances, in deference to the wiib of the juror, should not prelude the court from striking out the answeh on the motion of defendant, as hearsay and incompetent, if the second witness answers that the first witness had declared to him that defindant told him he had sent a messenger for a pistol, and would shooft the deceased. j</p> <p>Id. — Discretion of Court — Striking out Illegal Evidence. — A motion to strike out evidence not previously objected to is addressed to the sound legal discretion of the court, and may be properly denied if made on account of the absence of preliminary proof, or is addressed to evidence of an irrelevant or immaterial fact, but should be granted when the objection is not technical, but substantial, and the justice of the case required the rejection of incompetent hearsay evidence or inherently illegal testimony as to a material fact.</p> <p>Id. — Instruction as to Hearsay — Error not Cured. — An error in admitting and refusing to strike out illegal hearsay evidence, as to the declaration of a witness respecting the premeditation of the homicide by the defendant, is not cured by an instruction of the court to the jury, to the effect that the defendant is not bound by anything the witness may have said, not in the defendant’s presence and hearing.</p> <p>Id.—Instruction — Credibility of Witnesses — Inmates of Low Theater— Province of Jury. — Where certain witnesses were inmates of a low theater, where actresses were employed to serve drinks, attend the boxes, and solicit patronage for the bar, it is error to instruct the jury that as the law allows and licenses such places, “it is submitted whether it is justifiable to charge its inmates with want of veracity, unless accompanied with other proof.” It is for the jury to determine whether or not such fact ought to influence them in passing upon the credibility of the witnesses.</p>

<p>Accident Insurance — Death by Accident — Pleading—Cause of Action. •—In an action upon an accident insurance policy, an allegation in the complaint that the deceased sustained bodily injuries effected through external, violent, and accidental means, and that the death of deceased was occasioned by said injuries alone, the same state of facts being provided against by the policy, states a cause of action.</p> <p>Id. — Conditions Precedent — Notice and Proofs of Death — Maturity of Cause of Action.—Where the policy provided that the money should be paid within ninety days after proof that the insured received injuries which alone “ occasioned his death within ninety days from the happening thereof, ” averments in the complaint, that “ more than ninety days had elapsed prior to the commencement of this suit, after sufficient proof that the insured, at a time within the continuance of the said policy, had sustained bodily injuries, effected through external, violent, and accidental means within the intent and meaning of said policy that such injuries alone had occasioned death within ninety days from the happening of such injuries,” together with a general averment that the deceased and plaintiffs “have duly complied with all the terms and conditions of said policy and renewal by them, or either of them, to be kept or performed, ”—sufficiently aver notice and proofs of death as required by the policy, and shows the maturity of the cause of action.</p> <p>Id. — “ Accident ” Defined. —The word “accident,” as used in accident policies, must be given its popular and common acceptation, and includes any casualty which takes place without the foresight or expectation of the person acted upon or affected by the event.</p> <p>Id. •—• Blow Struck by Third Person — Death by Accidental Means. — Although the evidence leaves it doubtful as to whether the death of the insured was caused by a fall or by a blow struck by a third person, yet in either case the death is caused by “accidental means,” within the general terms of a policy providing against injuries or death caused through “external, violent, and accidental means.”</p> <p>Id.—Undesigned Death Caused by Blow. — A provision, in an accident policy, that the insurance shall not be held to extend to any cause of death unless the claimant under the policy shall establish, by direct and positive proof, that the death was caused by external violence and accidental means, and was not the result of design either on the part of the insured or of any other person, merely states as a condition that the death shall not be caused by the act of one whose design was to cause death by the act, and does not include every case where a blow, not intended to kill, unfortunately and undesignedly produces death. Instructions already Given.—Instructions asked may be properly refused, if whatever was correct in them is given elsewhere.</p>

Appeals from orders of the Superior Court of Placer County denying new trials. The facts are stated in the opinion of the court.

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

County, and from ail order denying a new trial. The following are the fourth, fifth, sixth, seventh, and eleventh findings, referred to in the opinion of the court: 4.

<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 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 — Omitted Findings — Showing of Materiality. —A judgment will not be reversed merely for the failure of the trial court to make findings upon certain issues, unless it appears that sufficient evidence was presented to authorize a finding thereon, and unless it also appears that the issue was of such a nature that the finding which it is claimed should have been made would have the effect to countervail other findings in the record to such an extent that the judgment thereon would be invalid.</p> <p>Id.—Diversion of Water — Injunction — Immaterial Omission in Findings. —In an action for damages for the wrongful diversion of water, and to restrain the future diversion of the same, where the trial court found that all of the defendants hut one had the right, as against the plaintiffs, to divert the water in the mode and to the extent in which they were diverting it, and the other defendant was enjoined from diverting the water, findings upon issues as to whether all of the defendants threatened any further diversion, and as to the extent, time, and amount of the plaintiffs’ appropriation, there being no question as to the relative rights of the parties, are immaterial, and the failure to find thereon will not justify a reversal of the judgment.</p>

<p>School Fund — Power of Board of Education. — The board of education of the city and county of San Francisco is a creature of the legislature, and lias only such powers as have been conferred on it, and has no authority to divert the moneys of the school fund to any purposes other than such as have been expressly authorized by law.</p> <p>Id. — Unauthorized Employment — Inspecting Teachers. — The power of the board of education of the city and county of San Francisco to employ “ teachers ” for the public schools confers upon them no authority to employ “inspecting teachers,” whose duties, under the resolution appointing them, in no respect pertain to instruction, but are simply those which would pertain to a superintendent or director of the several schools to which their attention is directed.</p> <p>Id. — Rights of Tax-payer — Injunctions — Restraining Illegal Drafts. — A resident and tax-payer may maintain an action to restrain the hoard of education of the city and county of San Francisco from drawing drafts for compensation for services rendered and to be rendered under an appointment from the board which is unauthorized by law.</p>

<p>Criminal Law — Grand Larceny — Information—Ownership of Stolen Check. — An information for grand larceny charging the defendant with stealing a certain hank check drawn in favor of one P., “ which check was then and there of the value of $95.50, and was the property of said P.,” sufficiently alleges that at the time the offense was committed the check was the property of P.</p> <p>Id. — Name of Payee — Immaterial Variance. — Where the information charges the larceny of a check drawn in favor of “ one P.,” and the evidence shows that it was drawn in favor of “A. G. P. or hearer,” the variance is immaterial.</p> <p>Id. — Variance, when and when not Material. — A material variance between the proof and the information arises when an acquittal of the defendant under the information would be no bar to a further prosecution for the same offense; but where the discrepancy does not affect the validity of the information, or prejudice or affect the substantial rights of the defendant in his defense, the variance is immaterial.</p>

<p>County Licenses — Fixing Rates — Meetings of Supervisors — Repeal of- Code Provision — County Government Act—Void Ordinance. — Section 4045 of the Political Code, passed March 13, 1883, providing that “the board of supervisors of each county must, on the first Monday of October of each year, fix the rates of county licenses,” was repealed by section 22 of the County Government Act, passed March 14, 1883, providing that “the board of supervisors must by ordinance provide for the holding of regular meetings of the board at their respective county seats ”; and after the board of supervisors of a county has provided for holding regular meetings, as required by section 22, it has no authority to fix the rate of county licenses at any other than the ¡regular meetings or at a special meeting regularly called for that purpose; and an ordinance fixing rates, passed on the first Monday of October, without a regular meeting or special meeting regularly called for that purpose, is void.</p>

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

<p>Principal and Agent—Ratification of Unauthorized Act —Knowledge of Principal. —To constitute a subsequent ratification of an unauthorized act sufficient to create an agency, the principal must have had previous knowledge of all the material facts Id. — Assumption of Agency Essential to Ratification. — A subsequent ratification is effectual only when the act is done by a person professedly acting as the agent of the party sought to be charged as principal.</p> <p>Id.—Authorization of Agent — Husband and Wife — Circumstantial Evidence. — An agency by precedent authorization, including the agency of a husband for his wife, may be proved by circumstantial evidence.</p> <p>Id. — Sale to Agent — Liability of Undisclosed Principal — Husband and Wife. — A person selling property to a husband in ignorance of the fact that he is the agent of his wife may, upon discovering the agency, resort for payment either to the husband or to the wife.</p> <p>Appeal — Conflicting Evidence — Order Granting New Trial. — Where the evidence is conflicting, and an order granting.a new trial may have been made on the ground of a supposed preponderance of evidence in favor of the losing party, the order will not be disturbed on appeal.</p>

. The following is the instruction referred to in the opinion in regard to expert testimony: “In regard to the weight to be given by you to the testimony of Messrs.

<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>

■ 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 court.

<p>Specific Performance — Parol Contract — Part Performance. — A vendee claiming the right to a conveyance of land under a parol contract, upon the ground of part performance, must make out by clear and satisfactory proof the existence of the contract alleged by him; and it is not enough that the acts of part performance proved are evidence of some agreement, but they must be unequivocal and satisfactory evidence of . the particular agreement charged in the complaint.</p> <p>Id. —Improvements. — The fact that the vendee moved some fence-posts and lumber upon the land is not such a part performance of the contract as will entitle him to its specific enforcement.</p> <p>Id. —Acts of Part Performance. — To entitle a vendee of a parol contract for the conveyance of land to a specific performance, on the ground of part performance, the acts of part performance must have been done by the vendee, with the consent and knowledge of the vendor, and in pursuance of the contract, and with a design of carrying the same into execution.</p> <p>Id. — Statute of Frauds — Equitable Fraud.—Equitable fraud is the basis of an action to enforce a parol contract for the sale of land on the ground of part performance; that is, fraud as a necessary consequence, if the vendor were allowed to set up the statute of frauds as a defense, so as to secure for himself the benefit of the purchaser’s acts of part performance.</p>

The plaintiff gave to the defendant’s husband a lease of the property in controversy for the period of five years, which had expired before the bringing of the suit. The lessee died before the expiration of the lease, and no administration had ever been had upon his estate up to the time of the trial of the action. Further facts are stated in the opinion of the court.

The counterclaim of the defendants, referred to in the opinion, was for the sum of two thousand dollars damages for refusal of the plaintiff to deliver certain sets of chamber furniture and chiffoniers, of a specified number and price, alleged to have been sold by the plaintiff to the defendants. The numbers referred to photographs of old patterns of furniture. Further facts are stated in the opinion.

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

<p>Negligence — Action fob Death — Open Hatchway on Vessel — Carelessness in Loading — Master and Servant — Duty of Owner of Vessel — Pleading. — A complaint by an administratrix in an action for damages for a death caused by negligence, which alleges, in substance, that the defendant negligently left unprotected an open hatchway on its vessel, through which the deceased, who was lawfully employed on the vessel, was precipitated and killed, owing to his being struck by a barrel of lime by and through the carelessness and negligence of the defendant, and its servants and employees, in and about the loading of the vessel, states a cause of action, and shows a breach of duty on the part of the owner of the vessel.</p> <p>Id.—Evidence—Intoxication of Employee — Harmless Error.—The testimony of a witness, to the effect that the employee who had charge of the conducting of the barrel to the hatchway when the deceased was struck and thrown down the hatchway would get intoxicated when he “came off a trip,” though irrelevant, is not prejudicial to the defendant, where it also appears from the testimony of the same witness that such employee was not intoxicated at the time of the accident.</p> <p>Id. — Evidence of Negligence — Questions of Fact.—Where there is evidence tending to show that very shortly before the accident the deceased was engaged in calking near the hatchway, it is for the jury to determine from conflicting evidence what was his position at the time of the accident, and whether in the mode the lime was being hoisted the man employed could manage and control the barrels, and if so, whether, in view of all the circumstances, he was not negligent in attempting to convey the barrel to the hatchway without looking to see if it would in its passage strike the deceased, and whether the deceased was exercising the degree of caution required of him by his situation.</p> <p>Id. — Contributory Negligence — Anticipating Negligence.—The deceased was not guilty of contributory negligence, if he would not have been in danger had care been exercised by the person handling the barrel from the. railing to the hatchway, and was not bound to anticipate the latter’s negligence.</p> <p>Id. — Conflicting Evidence — Doubtful Inferences — Questions of Fact,—When the evidence is conflicting, or when reasonable men might differ as to the inferences which ought to be drawn from the undisputed evidence, the question of negligence or contributory negligence is not one of law, but of fact.</p> <p>Evidence — Impeachment of Witness by Party Calling Him — Contradictory Statements. — When a witness fails to give any evidence in relation to a fact, and he is then asked by the party calling him if he had not made a statement to others as to the existence of such facts, which is denied by the witness, the error in overruling the objection to such question will not warrant a reversal, when no evidence is offered to show that the witness did in fact make the statement denied by him.</p>

<p>Findings—Probative Facts — Ultimate Fact — Review on Appeal.— Where probative facts only are found, yet if the ultimate fact flows as a necessary conclusion therefrom, the findings are sufficient; but in order to warrant the appellate court in inferring an ultimate fact from probative facts, it must inevitably follow from the facts found.</p> <p>Id. — Deed to Defraud Creditors — Fraudulent Intent — Insolvency— Want of Consideration. —In an action by a judgment creditor to set aside deeds of gift made by the judgment debtor to his wife as being void as against prior creditors, it is necessary specifically to find that the deeds were made with a fraudulent intent, in order to sustain a judgment for the plaintiff, and such finding cannot be inferred from findings that the deeds were without consideration, and that the judgment debtor was insolvent when he made them, though without full knowledge of his actual financial condition, and that by the making of them he hindered, delayed, and defrauded the plaintiff in the collection of his debt.</p> <p>Id. — Question of Fact — Inference of Fact — Appeal. — Under the code of this state, the question of fraudulent intent is one of fact, and not of law; and though such intent might properly be inferred anm found as a fact by the trial court from the other facts found, to wit, msmtvencyañcf want of consideration, yet such inference or finding cannot bejfcade by the appellate court.</p> <p>Id. —Knowledge of Insolvency —- Disputable Presumptions—Inference of Fraudulent Intent —■ Rebuttal. — The presumptions that every man knows the condition of his own business, and that every man intends the consequences of his acts, are disputable, and an inference of the fact of fraudulent intent from a deed of gift by an insolvent debtor to his wiie, which might rest upon those presumptions, is overcome by a finding that he was ignorant of the fact of his insolvency.</p>

<p>Street Improvement — Performance of Contract — Extension of Time. — Under the act of 1872 (Stats. 1872, p. 807), an extension of time for the performance of a contract for a street improvement in the city and county of San Francisco must he granted within the life of the contract, in order to be valid.</p> <p>Id. — Indorsement of Extension — Record — Neglect of Street Superintendent. — The failure of the superintendent of streets to indorse npon the original contract an extension of time properly granted to the contractors by the hoard of supervisors, or to cause the resolution of extension to be recorded until after the period fixed by the contract, does not render the extension ineffectual.</p> <p>Id. — Contract — Power of Attorney — Defense to Assessment. — After a contract for street improvement has been completed and the work accepted, a property owner cannot, in an action to foreclose the assessment lien, question the sufficiency of a power of attorney given by one person to another to enter into the contract with the superintendent of streets.</p> <p>Id. — Regrading of Street — Power of Supervisors. — Whenever the condition of a street is such as, in the estimation of the board of supervisors, it is proper that the burden of regrading the same should be borne by the entire block, the board has authority to order the improvement, even though a similar expense has previously been borne by the property owners for the original grading.</p> <p>Id. — Street-railroad — Apportionment of Expense — Burden of Proof. — The mere fact that a portion of the street improved was occupied by a railroad company, whose duty it was to improve, or bear the expense of improving, a part of the street, does not impair the prima facie correctness of the assessment, and the burden is on a property owner who contests the validity of the assessment to show, in order to invalidate the assessment, that the expense of improving the portion of the street occupied by the railroad was included in the assessment against him.</p> <p>Id.—Failure to Appeal — Validity of Assessment — Estoppel.—The failure of a property owner, who is dissatisfied with a street assessment, to appeal to the board of supervisors, estops him from complaining of any matters which were the subject of appeal.</p>

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

<p>Street Improvement — Extension of Time.—Under the act o£ 1872, neither the hoard of supervisors of the city and county of San Francisco nor the superintendent of streets possesses the power to grant extensions of time for the performance of work under a street contract after the expiration of the time limited in the contract, and an order granting such extension is void.</p> <p>Id. — Void Assessment—Proceedings in Invitum. — Proceedings upon which a street assessment are based, being in invitum, must he strictly pursued in strict compliance with the law under which they are taken, else the assessment will he void.</p> <p>Id.—Contract for Street-work — Time for Completion — Power of Superintendent of Streets — Excessive Allowance of Time.— The award by the board of supervisors of a contract for a street improvement is the measure of the power of the superintendent of streets as to the time for the completion of the work, which is of the essence of the contract; and if the contract entered into by the street superintendent does not follow the award, hut grants more time for the completion of the work than is specified in the award, it is not the contract he was authorized to make, and is therefore invalid; and an assessment based npon such void contract is also void, and cannot he enforced.</p> <p>Id.—Failure to Appeal — Void Contract—Grievance of Property Owner — Estoppel. — Where the action of the superintendent of streets in awarding a contract is void, the failure of the property owner to appeal, under section 12 of the law of 1872, to the board of supervisors, would not render the void contract valid; nor would the failure of</p> <p>?! the contractor to appeal create a grievance on the part of the property owner, or estop him from complaining of a void assessment based upon the contract.</p> <p>Id. — Eight of Appeal — Party “Aggrieved. ”—A property owner whose property has been assessed under a void contract for street-work is not a party “aggrieved,” and is not entitled to appeal from the action of the street superintendent in letting the contract.</p>

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

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

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order 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 setting aside a judgment ¡by default, and from an order vacating an order requiring the payment of counsel fees as a condition of setting aside the judgment</p> <p>The facts are stated in the opinion.</p>

The depositions of plaintiffs and appellants referred to in the opinion of Mr. Justice Paterson were taken on commission in New York City, on direct and cross interrogatories, upon stipulations agreeing that the testimony should be taken, and that the witnesses should he interrogated in accordance with certain questions, direct and cross, “subject, however, to all objections as to the propriety, relevancy, and materiality of each thereof, and upon the express agreement that…

<p>Fraudulent Conveyance — Gift by Insolvent to Wife — Fraudulent Intent — Pleading. — In an action by an administrator, against the wife of the intestate, to recover property alleged to have been voluntarily conveyed by him to her while he was insolvent, the fraudulent intent of the grantor is a fact necessary to be alleged in the complaint.</p> <p>Id.—Voluntary Conveyance—Fraud as to Creditors — Question of Fact. —A voluntary conveyance by an insolvent debtor is not necessarily fraudulent and void as to creditors, and a fraudulent intent, which is itself a question of fact, will not be necessarily inferred from such facts.</p>

<p>Railroad Grant — Construction — Grant in Presentí—Location of Road — Title to Odd Sections. —The act of Congress of July 1, 1862, granting to the railroad company organized under its provisions certain odd sections of land, to he afterwards located, passed to the company a present interest in the lands to be designated within the limits therein specified, and upon the location of the route to he established, the grant became specific and attached itself to every odd-numbered section.</p> <p>Id. •—Filing of Map of Route — Withdrawal of Lands from Sale.— Under section 7 of the act of Congress of July 1, 1862, providing that the railroad company shall designate the general route of the road as near as may he, and shall file a map of the same in the department of the interior, and that the Secretary of the Interior shall thereupon cause the lands to be withdrawn from pre-emption, private entry, and sale, the filing of the map and an order of the Secretary withdrawing the lands precluded the acquisition or initiation of any right, other than that of the company, in any of the odd-numhered sections of land.</p> <p>Id.—Date of Operation of Grant — Adverse Claim before Withdrawal of Lands. —Under section 7 of the act, the route of the railroad was definitely settled so that the grant attached, when a map, approved by the directors, designating the route of the proposed road, was filed with the Secretary of the Interior, and no adverse right could he initiated between the time it was so filed and the time when the notice of the order withdrawing the lands was received at the local land-office.</p> <p>Id.—Application for Purchase of School-land — Survey — Withdrawal from Sale before Filing of Mae. — An application for the purchase of school-lands, and approval thereof by the state locating agent, made before the survey of the lands, is void; and the fact that the application for the purchase was on file when the agent of the state made application to the United States land-officers to locate the land, one day after the official map of the township had been filed by the surveyor-general, did not make the application or location valid, where it appears that prior thereto the lands had been withdrawn from sale by the Secretary of the Interior as having been granted to the railroad company.</p> <p>Id.—Jurisdiction of Land Department—Listing of Granted Land to State — Ejectment by Railroad Company — Evidence. — The lands having been disposed of to the railroad company, the land department had no jurisdiction to transfer them, and its listing thereof to the state was inoperative and void; and the facts showing such invalidity are admissible in an action of ejectment by the grantees of the railroad company against a defendant claiming under the state.</p> <p>Id. — Act of 1866 to Quiet Land Titles — Effect upon Granted Lands — Vested Rights. — The confirmatory act of July 23, 1866, does not apply to lands withdrawn from sale; but conceding that it does, it would be a nullity as to the lands granted and withdrawn from sale under the Pacific railroad acts. Congress could not, after the company had accepted the terms of the acts of 1862 and 1864, and acted upon them, divest it of its right in the lands.</p> <p>Id.—Reservation of “Lawful Claim” — Compliance with Laws.— One who has simply entered upon public land and improved it, without complying with the laws providing for the acquisition of the title, is not possessed of a “ lawful claim ” with the meaning of section 4 of the act of Congress of July 2, 1864, reserving from its operation any pre-emption, homestead, swamp-land, or other “lawful claim.”</p> <p>Id. — Bona Fide Settler — Question of Fact—Findings — Omission of Ultimate Fact — New Trial. — The question whether a prior settler upon lands included within the grant to the railroad company is a bona fide settler, within the meaning of the act of 1864, is a question of fact; and the failure of the court to find the ultimate fact of a bona fide settlement in an action of ejectment, where such a settlement is relied on by the defendant to defeat the title of the railroad company, leaves the question as to which party has the better title uncertain and unsettled, and is error entitling the defendant to a new trial.</p> <p>Id__Proof of Good Faith — Compliance with Law — Valid Claim. — A party who has entered upon public land to acquire the title from the government as a bona fide settler prior to the railroad' grant must show his good faith by diligently complying with the requirements of the law under which he expects to secure the title, and must be entitled to initiate a valid claim under the law.</p> <p>Appeal •— Dismissal — Lapse of Time. — An appeal from a judgment taken more than six years after the entry of the judgment will he dismissed.</p>

<p>Mining Partnership — Extent of Liability of Members. — A member of a mining partnership is liable to third persons, in respect to the obligations of the partnership, jointly with his copartners, for the full amount of indebtedness justly chargeable to the partnership, and not merely for a pro rata share of such indebtedness proportionate to his interest.</p> <p>Id. — Authority of Superintendent.—A superintendent of a mine has the right to purchase, for the partnership, necessary supplies and materials for the usual working of the mine, without express authority.</p> <p>Id. — When Partnership Arises — Contract to Work Mine on Shares. — A mining partnership arises only when the owners of a mine engage together in working it; and a mere contract by which a third person agrees with them to work the mine and pay one half the expenses thereof, and receive one half the product of the mine for his labor, does not constitute a mining partnership between the parties to the contract, but is a contract for working the mine on shares.</p>

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

<p>Appeal from 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>Constitutional Law — Obligation of Contracts — Prevention of Remedy. — An act of the legislature destroying the legal remedy upon a contract lawfully made, and binding upon the parties to it, impairs the obligation of the contract, within the meaning of the constitution, and is void.</p> <p>Id. — Municipal Corporations — Right to Sue and bb Sued — Bonds of City of Sacramento — Construction of Contract. — The provisions of the act of March 26, 1851, entitled “ An act to incorporate the ci.ty of Sacramento,” providing that the body politic then created might “sue and he sued in all courts and in all actions whatsoever,” entered into and made a part of the contract of the municipality in the issuance of bonds under the acts of April 26, 1853, and April 10, 1854, providing for the issuance by the city of Sacramento oE city bonds, and the legislature could not thereafter, without impairing the obligation of the contract, pass any act which would deprive a, holder of the bonds of the right to sue the maker.</p> <p>Id. — Statutory Prohibition — Suspension of Right of Action — Statute of Limitations. —If it was the intention of the legislature by the act of May 1, 1858, providing that the city and county of Sacramento should not be sued in any action or its property subject to any process whatever, and the act of April 25, 1863, providiug for the incorporation of the city of Sacramento, to prevent the institution of any laction against the municipality upon city bonds issued under the acts of April 26, 1853, and April 10, 1854, the latter acts would be unconstitutional and beyond the power of the legislature to enact, and could not therefore operate to suspend the right of action against the city, so as to extend the period for the running of the statute of limitations upon the bonds by reason of a statutory prohibition.</p> <p>Id.—Presumption against Unconstitutionality of Statute.—It is not to be presumed that the legislature intended to do anything unconstitutional, and in the absence of an express provision in the act of 1858 preventing the institution of an action upon the city bonds of Sacramento, issued under the acts of 1853 and 1854, it will not be presumed that it was so intended.</p> <p>Id. — Power of Legislature — Changing Name and Government of Municipal Corporation — Enlarging Territory— Rights of Creditors— Sacramento—Action upon Bonds. — The legislature cannot, by merely changing the name or government of a municipal corporation, or by abridging or enlarging its territory, so destroy its identity as ■ to impair the rights of its creditors to the enforcement of their obligations against the original corporation, and the fact that the corporation of “ the city and county of Sacramento ” created by the act of April 24, 1858, was different in territory as well as in government from the corporation of the “ city of Sacramento ” which had issued the bonds, and of which it was the legal successor, did not of itself prevent an action upon the bonds against the maker; and the city and county of Sacramento, being the successor of the city of Sacramento under the acts of 1858 and 1863, was liable to be sued upon the bonds issued by the city.</p> <p>City of Sacramento — Act for Bonding of Indebtedness — Bonds Barred by Limitation — Issuance of New Bonds. — The act of March 22, 1864, providing that the holders of all claims against the city of Sacramento which accrued prior to January 1, 1859, might present the same to the board of trustees, and that the said board should cause to be issued bonds payable February 1, 1903, for all such claims as they might consider legal and just, was not intended to extend the time for refunding the indebtedness of the city beyond the time within which an action upon that indebtedness could have been commenced, and a failure of the holder of bonds issued under the acts of April 26, 1853, and April 10, 1854, to present them to the board and demand the issuance of new bonds in their place, until after they had become barred by the statute of limitations, gave the board the right of refusing to issue the new bonds.</p> <p>Municipal Corporations — Identity — Change of Charter.—A municipal corporation does not lose its identity or become relieved from its liabilities by any change in its charter, or by the substitution of a new charter in place of the old one, unless there is an express legislative declaration to that effect.</p> <p>Id. — Defense of Statute of Limitations. — A municipal corporation has the legal right to avail itself of the defense of the statute of limitations as fully as any other creditor.</p> <p>Id. — Personal Privilege of Debtor. — The defense of the statute of limitations is a privilege personal to the debtor, and whenever in any legal proceeding it is invoked by the debtor, tile court is compelled to recognize it as a defense.</p>

from an order denying a new trial. Upon the trial of the case there was a conflict between the medical witnesses as to the extent and permanency of the plaintiff’s injury. It appeared in evidence that the jolt of the cars threw the plaintiff from his seat against the stove near which he was sitting, and he then fell backward. He claimed to have suffered a rupture, and also an injury to the chest and spine, as the result.

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

<p>Application to the Supreme Court for discharge upon habeas cm pus. The facts are stated in the opinion of the court.</p>

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

<p>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 — Conflicting Evidence — Damages fob Frivolous Appeal. — The decision of the trial court upon conflicting evidence is conclusive, and will not be reviewed upon appeal from an order denying a new trial; and where the only ground urged upon appeal for a reversal is that the trial court did not properly consider the conflicting evidence, the appeal will be treated as frivolous, and the order will be affirmed, with damages.</p> <p>Ed. — Waiver of Findings—Presumption upon Appeal. — Where findings are waived, it will be presumed on appeal that the trial court found all the facts necessary to sustain the judgment.</p> <p>Written Contract — Parol Evidence — Contingent Liability. — A written agreement cannot he limited or qualified by oral testimony that the liabili ty of one of the parties thereto was contingent upon some prior condition not expressed therein.</p>

<p>Injunction — Discretion — Appeal. — An order granting or dissolving an injunction is a matter of discretion with the trial court, and will not bé reviewed by the appellate court except where an abuse of that discretion appears; hut where an abuse of discretion appears, the order will he reversed.</p> <p>Id. — Restraining Sale under Execution against Grantor — Denial of Equities — Dissolution — Abuse of Discretion.—Injunction is the proper remedy where one claiming to be the owner of a tract of land, purchased in good faith for a valuable consideration, in the actual possession thereof, seeks to prevent its sale under execution against his grantor; and a dissolution of a restraining order in such case does nob follow from an answer denying the equities of the complaint. Such dissolution is an abuse of discretion.</p> <p>Id.—Temporary Injunction — Object of Suit — Preserving Rights of Plaintiff—Defendant not Prejudiced.—Where the principal relief sought in the action is to obtain an injunction restraining an execution sale, and the denial of a temporary injunction is equivalent to a dismissal of the action, and the granting of it cannot prejudice or imperil the rights of the defendant, the temporary injunction should he granted and continued until the hearing, notwithstanding an answer denying the equities of the complaint.</p> <p>Id.—Pleading — Answer — Denial of Equities — Information and Belief. —■ Denials in the answer, upon information and belief, are not such denials as will serve as the basis of a motion to dissolve a temporary restraining order on the ground that the equities of the hill are fully denied, by the ans wer.</p>

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

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

<p>Trial — Submission of Cause—Decision—Request for Findings of Law. — Where a cause has been tried and submitted for decision to the court upon the law and facts, and the court has orally announced its decision, but has not filed its findings, it cannot be compelled to pass upon propositions of law submitted to it as proposed findings.</p> <p>San Francisco — Act to Regulate Fees — Percentage upon Judgment — Replevin. — Section 6 of the act of February 9, 186G, entitled “ An act to regulate fees in the city and county o£ San Francisco,” which provides that the prevailing party in certain actions, shall be allowed five per cent on the amount recovered in litigated cases, not exceeding one hundred dollars on any one judgment, does not include a judgment in the alternative in an action of replevin for the return of the property, or its value with interest.</p>

<p>Landlord and Tenant — Abandonment of Leased Premises — Reletting— Surrender.—Where a tenant abandons the leased premises without the consent of his landlord, the taking possession of the premises by the landlord against his wish, and the reletting of the property thereafter to another tenant, do not constitute a surrender and termination of the lease.</p> <p>Id.—Election by Landlord — Reletting — Damages for Abandonment. — A landlord, upon a wrongful abandonment of the leased premises by the tenant, may elect not to meddle with the property and recover the full rent for the term; but if he relets the premises to , another tenant, he can recover as damages for the breach only the difference between the rent he was to receive and the rent actually received from the subsequent tenant, provided there has been good faith in the reletting.</p> <p>Id. —Construction of Code.— The right of a landlord to damages for the abandonment of the leased premises by the tenant is measured by the provisions of section 3300 and not by section 3302 of the Civil Code.</p> <p>Id.—Action for Damages — Pleading — Limitation of Relief.— The fact that between the time of the abandonment of the premises and the trial of the action the amount of damage resulting from the lessee’s breach of his obligation had increased would not warrant the trial court in allowing for loss upon any subsequent installments of rent, where no claim was made in the complaint for anything beyond the amount of the first installment of rent falling due after the abandonment.</p>

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

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

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

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 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>Statute of Frauds — Sale of Personal Property — Delivery and Change of Possession — Question of Fact — Conflicting Evidence — Appeal. — What constitutes an “immediate delivery” or an “actual and continued change of possession ” of personal property within the meaning of section 3440 of the Civil Code, providing that transfers of personal property are “conclusively presumed tobe fraudulent where they are not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things transferred,” is a question of fact to be determined by the court, and where the evidence upon the point is conflicting, the finding of the trial court that there was a delivery and change of possession is conclusive, even though there may be evidence tending strongly to show an attempt to evade the statute.</p> <p>Claim and Delivery — Judgment for Delivery Alone.—In an action to recover the possession of personal property, where the delivery of the property is made to the plaintiff before the judgment, a judgment in favor of the plaintiff for its possession is sufficient, without an alternative judgment for its value.</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, and in the opinion reported in 68 California, 156.</p>

<p>Appeal from a judgment of the Superior Court of Mendocino 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 setting aside an order settling the account of a referee.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinión of the court.</p>

<p>Execution—Certificate of Sale — Conveyance by Purchaser — Assignment — Sheriff’s Deed to Grantee. — The conveyance of a purchaser’s interest in land purchased at execution sale before the time for redemption expires operates as an assignment of the sheriff’s certificate of sale, and the subsequent execution of a sheriff’s deed to the grantee of the execution purchaser vests such grantee with a perfect title.</p> <p>Ejectment — Plea in Abatement — Another Action Pending — Order of Proof. — In an action of ejectment, where, in addition to the defense of abatement by reason of the pendency of a former action, the defendant relies upon other defenses, which go directly to the merits of the cause, it is the better practice for the trial court to require the defendant to present his evidence upon his plea in abatement at the opening of his defense.</p> <p>Ir. — Second Action on After-acquired Title. — A plaintiff may have two suits against the same defendant for the recovery of the possession of the same land pending at the same time, if the second action is brought on a title acquired after the commencement of the first; and the pendency of a former action by one having merely an equitable title to the land is not a bar to a second action by the same plaintiff after he has acquired the legal title.</p> <p>Id. — Statute of Limitations — Delivery of Sheriff’s Deed.—The statute of limitations does not commence to run against a purchaser of land at a sheriff’s sale until the sheriff’s deed has been delivered to him. Id. — Improvements by Defendant — Equitable Estoppel.—The fact that shortly after the entry of the defendant upon the land he placed valuable improvements thereon, with the knowledge of the plaintiff and his grantors, and without any objection from them, and that at that time the plaintiff and his grantors knew their title, and that it was the same at the commencement of the action, is not sufficient to constitute an equitable estoppel as against the plaintiff.</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>Partnership — Dissolution — Death of Partner — Termination of Unexpired Contract of Employment. — An unexpired contract of employment between a copartnership and an employee for a fixed period, at a fixed salary, is dissolved by the death of one of the partners during, the term of hiring.</p> <p>Id. —Service to Surviving Partners. —If the employee of a copartnership, under an entire contract for a year’s salary at a certain rate per month, continues to serve the surviving partners after the dissolution of the partnership by death during the year, and while the business is being wound up, the implication of law, in the absence of a new special agreement, is, that he was newly employed at a reasonable compensation for the services actually rendered in assisting to settle the affairs of the extinct copartnership.</p>

<p>Lease for Lumbering Purposes — Construction—Amount of Rental. — Under a lease for general lumbering purposes, providing that the lessee should cut and remove all the merchantable timber fit for saw-logs, at the rate of at least one million five hundred thousand feet the first year and two million feet every year thereafter, and pay therefor one dollar per thousand feet, the payments to he made in equal quarterly installments each year, provided, however, that if they should not remove the amount of timber specified to he taken in any one year, they should nevertheless pay therefor and remove the same in any subsequent year without further charge or pay, the lease to continue twenty years, with the privilege of renewal at a rent of ten dollars a year in addition to “the stumpage rent hereby reserved,” the lessor is entitled only to the value of the merchantable timber on the land fit for saw-logs at one dollar per thousand, payable in the quarterly payments fixed by the lease until the whole of such timber is paid for, and is not entitled to recover the quarterly payments, as rent or royalty, during the whole time that the lessee is in possession, whether the timber has been removed or not, after the amount of such rental equals the value of all of the merchantable timber fit for saw-logs.</p> <p>Id.—Renewal — Bad Faith —Negligence.—Under the terms of the contract, if at the end of the first term all the timber shall have been removed from the land, or if not removed, it be made to appear that the failure to remove it was caused by bad faith, negligence, or want of diligence, it seems that the lessees are not given the righ t of renewal for an additional term at a rental of ten dollars per year, whatever may be the meaning of the expression “ stumpage rent hereby reserved.”</p> <p>Id. — Percentage for Waste.—In an action to recover the rent due under the lease, the refusal of the court to add ten per cent for waste in sawing to the amount of merchantable timber found by the jury to be on the land is not error.</p>

<p>Insolvency Proceedings—Opposition to Discharge —Pleading — Striking out Irrelevant Specifications. — Under section 50 of the Insolvent Act, a creditor opposing the discharge of a debtor must state in his written specifications facts which, if denied, will raise material issues, and if admitted or established will constitute valid grounds of opposition to the discharge; and if he fails to do this, and states only irrelevant and im material matters, the specifications may, on motion, be stricken out or disregarded.</p> <p>Id.—Fraudulent Preference — Limitation of Time — Invalid Ground of Opposition. —No preference is fraudulent under sections 49 and 55 of the Insolvent Act, unless it is made within one month before the filing of the petition in insolvency; and an allegation by an opposing creditor, in his specifications of the grounds of his opposition, that, a year and eight months before the debtor filed his petition in insolvency, he, knowing that he was then insolvent, paid two of his creditors in full, with intent to prefer them to other creditors, does not constitute a valid ground of opposition to the discharge.</p> <p>Id.—Debt Fraudulently Contracted in Fiduciary Character—Invalid Opposition of Creditor. — Under section 52 of the Insolvent Act, a debt created by a fraud of the debtor while acting in a fiduciary character is not affected by the debtor’s discharge in insolvency, and the fact that the debt was so created is not a valid ground of opposition to the discharge.</p> <p>Id.—Pleading — Conclusion of Law — Fraud upon Creditors.—An allegation that the insolvent, by making the payments complained of, “ did thereby defraud his other creditors,” is an allegation of a mere conclusion of law, and in the absence of a statement of facts showing that the payments constituted a fraud upon the other creditors, or that the insolvent intended thereby to defraud his other creditors, is not a sufficient charge of a fraudulent preference.</p>

The judgment contained the recital that “the defendants moved the court for a nonsuit on the grounds that no contract of any kind between the plaintiff and the defendants, or either of them, has been shown or proved herein, and that the plaintiff has not made out his case, or sustained the allegations of his complaint.” The plaintiff moved for an order modifying the judgment by striking out the words “that no contract of any kind between the plaintiff and defendants, or…

<p>Criminal Law— Assault with a Deadly Weapon — Evidence — Subsequent Charos by Prosecuting Witness — Cross-examination — Reexamination.— Upon the trial of a defendant charged with assault with a deadly weapon, it is competent, for the purpose of showing the relations between the parties and the state of feeling of the prosecuting witness towards the defendant, to show by the witness on cross-examination that he had caused the defendant to be arrested and tried since the assault, on a charge of disturbing the peace, and that the defendant had been acquitted of that charge; but it is error to permit the witness, on re-examination, to state the facts in connection with the latter charge as involved in and brought out at the trial thereof.</p> <p>Id. — Impeachment of Prosecuting Witness — General Reputation — Personal Knowledge of Impeaching Witness. —Where a witness for the defense was asked, for the purpose of impeachment of the prosecuting witness, whether he knew his general reputation "in "the community where he lived, for honesty, truth, and veracity, and the witness answered that he only knew from what he heard people generally say of him, it is error for the court to rule that he could only testify as to what he knew of his reputation of his own personal' knowledge.</p>

<p>Nonsuit — Effect of Motion. — A motion for a nonsuit admits the truth of the testimony introduced, but challenges its sufficiency.</p> <p>Trust — Action to Enforce — Conveyance by Minor to Aunt — Confidential Relation — Agreement to Reconvey—Implication of Law — Nonsuit. — In an action to recover property claimed by the plaintiff to have been conveyed by her, while a minor, to her aunt, in trust, where the evidence of the plaintiff shows the confidential relations existing between her and her aunt, and that at the request of her aunt she conveyed to her the property, with the understanding that her aunt would hold it for her, the law implies an agreement by the aunt to re-convey upon request, and a trust is sufficiently established to entitle the plaintiff to recover, and the granting of a nonsuit is error.</p> <p>Id.—Infancy — Disaffirmance of Conveyance. — Such an action not being one brought to disaffirm the plaintiff’s acts as a minor, her minority at the time of the conveyance is material only as tending to establish that the relations between herself and aunt were confidential, and it was not necessary for her to disaffirm the deed before bringing the action.</p> <p>Id. — Continuing Trust — Statute of Limitations.—Where a trust, voluntarily assumed, was by the understanding of the parties to be a continuing one, and the trustee continued to hold according to the understanding, and never repudiated the relation, or did any acts inconsistent with it, the statute of limitations does not run as against the cestui que trust.</p> <p>Id.—Laches — Trustee in Loco Parentis.—The fact that the plaintiff neglected to sue until sixteen years after she had attained majority, and two years after her trustee’s death, does not constitute such laches as will prevent her obtaining relief, where it appears that for most of the time she was a member of the family of her trustee, who stood in loco parentis to her, and nothing is shown which would make it inequitable to enforce the trust.</p>

<p>Vendor and Purchaser—Rescission of Contract of Sale—Defective Title — Recovery of Deposit — Pleading. —In an action to rescind a contract for the purchase of real estate, and to recover money paid as a deposit and part payment, on the ground that the title to the land was defective, in order to entitle the purchaser to recover, he must allege and prove that he has performed all the conditions on his part to be performed, and that the vendor is in default as to the conditions to he performed by him.</p> <p>Id. — Time Allowed to Perfect Title —Maturity of Cause of Action. — Under a contract for the sale of real estate, providing that fifteen days should be allowed for the examination of title, and if the title should be defective, thirty days would be allowed to perfect it, the purchaser is not entitled to rescind the contract and recover the amount paid as a deposit, on the ground of a defective title, until the expiration of the thirty days.</p> <p>Id. —Default of Vendor — Tender of Deed — Demand and Tender by Purchaser. — The fact that the purchaser alleged and proved that the vendor, within thirty days after the making of the contract, did not tender the purchaser a deed, does not show a default of the vendor entitling the purchaser to rescind the contract, if the purchaser failed to tender the purchase-money and demand the deed.</p> <p>Id.—Mutual and Dependent Obligations—Putting in Default.— .The obligations of the parties to an agreement for the sale of land are mutual and dependent, where o íe is to convey and the other, at the same time, to pay the purchase price, and neither can put the other'in default except by tendering a performance on his part, unless the other party waives the tender, or by his conduct renders it unnecessary.</p> <p>Id.—Memorandum of Contract — Signature of Vendor — Statute op Frauds. — A written memorandum of a contract, whereby a vendor agrees to sell to a purchaser real estate for a specified sum, which sufficiently describes the property, need only be signed by the vendor, to render it valid and binding as against him.</p>

<p>Bill op Exceptions — Conclusiveness op Facts Settled — Appeal — Striking Matter prom Bill. — The settlement of a bill of exceptions is a duty imposed upon the trial judge by virtue of bis office, and the bill, when settled and allowed, will be deemed by the appellate court to be a correct statement of what took place on the trial; and the appellate court will not strike from the bill matters which are alleged not to have occurred in the trial court, or interfere with it in any manner, except in the case of a refusal by the trial judge to allow an exception.</p> <p>Id.—Irrelevant Matter — Review upon Appeal.—Although the appellate court will not remodel a bill of exceptions by striking matter out of it which is alleged not to have occurred in the trial court, yet where it appears upon the face of the bill that irrelevant matter is incorporated therein, the appellate court will not consider such matter.</p> <p>Id.—Amendment by Judge.—The fact that no amendments were proposed to a draught of a bill of exceptions proposed by the appellant does not preclude the trial judge from amending the bill to conform to the facts.</p> <p>Id.—Striking out Useless Matter — Power of Judge.—The statutory provision that the trial judge is “to strike from a proposed bill of exceptions all redundant and useless matter, so that the exceptions may be presented as briefly as possible,” is not a limitation upon his functions in settling the bill, but is in the nature of a definition of the course which the judge is authorized to adopt in settling the bill.</p>

<p>Appeal from a judgment of the Superior Court of Mendocino County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion, and in the former decision in the same case, reported in 76 California, 476.</p>

<p>Quieting Title — Recovery op Real Property—Legal Issues—Jury Trial. — In an action for the recovery of real property, the defendant is entitled to a trial by jury, under section 592 of the Code of Civil Procedure; and conceding that a plaintiff out of possession may bring an action in equity, under section 738 of the Code, of Civil Procedure, to determine an adverse claim against a defendant in possession, yet where the object of the action is to recover possession, and the defendant denies the allegations of the complaint and sets up a title by adverse possession, he cannot be deprived of a jury trial of the issues raised by the answer.</p>

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

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

<p>Libel — Distribution of Circulars — Charge of Selling Diseased Pork — Justification — Insufficient Proof.—In an action against the members of a “Butchers’ Protective Union,” for damages for distributing printed circulars charging the plaintiff, a retail butcher, with selling his customers “ Chinese pork and lard which contained the seeds of disease, and spread pestilence and death,” proof that the pork sold by the plaintiff was obtained from the Chinese, and that the Chinese often sold diseased pork, is insufficient to constitute the defense of justification, in the absence of evidence that the pork sold by the plaintiff was diseased, or would spread the seeds of disease and death.</p> <p>Id.—Object of Butchers’ Union — Refusal of Plaintiff to become a Member—Evidence — Reasons of Plaintiff. —In such action, where it was claimed that one object of the butchers’ union was to prevent the sale of unsound pork by the Chinese, it was not error to allow the plaintiff to explain that he had other reasons for refusing to join the union than a desire to deal in such pork.</p> <p>Id.—Justification—Implication of Malice—Evidence — Maliciousness of Charge. — Where the defendants justify the publication of libelous matter on the ground that it was true, they must prove the truth of the charge, to rebut the legal implication of malice, and cannot properly be asked whether they had any malice at the time of the publication.</p> <p>Id. — Personal Ill-will. — Although a defendant charged with libel may show in mitigation, by his own testimony, that he was not actuated by ill-will or a feeling of personal spite, yet such evidence is not sufficient to disprove that malice which constitutes a necessary ingredient of the cause of action, and which the law implies from the falsity of the libelous publication.</p> <p>New Trial — Order Granting—Newly Discovered Evidence—Abuse of Discretion. — Although the granting of a new trial on the ground of newly discovered evidence is specially within the discretion of the trial court, yet where the moving party makes no showing as to diligence, and the contrary appears by counter-affidavits, and the newly discovered evidence is merely cumulative, and does not meet the exigencies of the ease, such order is an abuse of discretion, and will be reversed upon appeal.</p>

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

<p>Survey os Swamp-land — Record — Interlineation—Evidence. — The record o£ the survey of swamp-land patented by the state is not rendered inadmissible in evidence because of an interlineation, where the maker and recorder of the survey testified that the interlineation was made before its execution by him.</p> <p>Id.—Evidence of Successor of County Surveyor—Handwriting of. Predecessor. — The evidence of the successor of the county surveyor who made and recorded the survey, that an interlineation therein was in the handwriting of his predecessor, is admissible and proper, where it is shown that the successor, as county surveyor, had charge of the official documents of that office, and had frequently examined numerous docu. ments therein, purporting to he in the handwriting of his predecessor and which the latter had testified were in his handwriting.</p> <p>Ejectment — Conflict of Surveys — Uncertain Survey — Evidence as to Location of Line —Error without Prejudice. —In an action of ejectment, where there is a conflict of surveys of the land in controversy, -it is not prejudicial error to refuse to allow the defendant to answer a question as to whether, in running his line of survey, it fell north or south of a certain wharf, where it appeared that he was not possessed of any knowledge where the true line ran.</p>

<p>Specific Performance—.Conveyance of Portion of Premises Sold — Retention of Contract by Grantor—Reformation of Deed.— An action by a grantee for the specific performance of a written contract for the conveyance of real estate, alleged to have been retained by the grantor of the land when he executed a deed for a portion of the premises described in the contract, which he had induced the plaintiff to accept as conveying the whole land contracted for, is, in effect, an action to reform the deed.</p> <p>Id.—Evidence — Negotiations Preceding Contract.—In such action, evidence as to the negotiations and conversations preceding the execution of the written contract is inadmissible.</p> <p>Depositions, Exceptions to.—Depositions are taken subject to all legal exceptions, except as to the form of the interrogatory; and when read upon a retrial of an action, the parties are at liberty to interpose new objections.</p> <p>Id.—Lost Writing — Terms of Contract — Intention of Parties.— The rights of the parties to a written contract must he ascertained from its terms; and whether the writing be lost or not, evidence of the intention of the parties in making it is inadmissible, in the absence of fraud or mistake.</p>

<p>Public Nuisance—Obstruction of Alley—Special Injury to Plaintiff — Pleading — Special Demurrer — Motion for Judgment. — In an action to abate a nuisance caused by the obstruction of a public alley, although the complaint does not by explicit, positive averment state a special damage or injury to the plaintiff different in kind from that sustained by the general public, yet if that essential fact appears by plain and necessary implication, and no objection to the pleading is taken by special demurrer, the pleading will be upheld, upon a motion for judgment on the pleadings made at the commencement of the trial.</p> <p>Id. — Obstructing Access to Private Premises — Private Nuisance. — A private individual may maintain an action to abate an obstruction which, while obstructing the public highway, also cuts off access from his premises to the public highway, and thus becomes as to him a private nuisance.</p> <p>Id. — Damage to Plaintiff—Equitable Relief. — The plaintiff need not show, nor need the court find, any actual pecuniary damage to the plaintiff, to justify the abatement of the nuisance. The fact that the threatened injury to the plaintiff, by reason of the obstruction, is of such a nature that it is incapable of pecuniary estimation is ground for equitable relief.</p> <p>Id.—Invasion of Substantial Right — Continuing Trespass—Nominal Damage—Abatement of Nuisance.—If a substantial right has been invaded by a nuisance, especially if the wrong be in the nature of a continuing trespass of such a character that its continuance will create a right against the estate of another, or operate to deprive such person of a substantial right incident to his property, the nuisance will be abated, although the damage suffered is merely nominal.</p> <p>Public Alley — Dedication. — Where the owners of land agreed to give a certain portion thereof for the purpose of opening an alley, and the alley was thereupon opened, and deeds and mortgages were made recognizing its existence, and it was kept open and accessible to the public and used by the public as a public alley for over thirty years thereafter, a dedication of the alley to the public is sufficiently shown.</p> <p>Id.—Evidence—-Map — Street Assessment—General Knowledge op Public. — A map showing the existence of the public alley, and a street '* assessment for its improvement, are admissible in evidence on the question of dedication, as tending to show general knowledge of the existence, of the alley.</p> <p>Id. — Prescriptive Bight. —Bo right can be acquired in a public alley as against the public by an adverse holding.</p> <p>Id.—Adverse Possession—Gate Erected by Consent of Abutting Owners — Free Access.—The fact that a defendant, who claimed title to an alley by adverse possession, erected a gate across its entrance, with the consent of the abutting owners, to prevent the depo.-it of rubbish in the alley, does not make his possession of the alley adverse, it appearing that the gate was opened and the alley at all times freely used by all who had occasion to use it.</p>

<p>Ostensible Agency — Superintendents of Mine — Liability of Mine-owner—Provisions for Boarding-house. —The owner of a mine is liable for the price of necessary provisions furnished to a boarding-house keeper with whom the miners boarded, by order of the superintendent of the mine, upon the ground of ostensible agency, if it appears that the superintendent was in the habit of purchasing provisions from various parties for the use of the boarding-house, which were paid for by the owner of the mine, with the knowledge of the plaintiff, and that the order for necessary provisions was given to the plaintiff by the superintendent, under a promise that the owner of the mine would pay for them.</p> <p>Id. —Authority of Mining Superintendent—-Necessary Provisions. — A mine superintendent, by virtue of his position, has the power to bind the mine-owners for the price of necessary provisions furnished to the keeper of a boarding-house where the miners board, where it is necessary that the provisions should be furnished the boarding-house in order that the mine may continue in operation; but the authority is limited to the supply of necessary provisions.</p> <p>Interest — Open Account — Goods Sold and Delivered — Construction of Code. — Section 3287 of the Civil Code has no application to an action to recover the price of goods sold and delivered upon an open account, and the plaintiff in such an action is not entitled to recover interest upon the items of the account from the time they became due.</p> <p>Id. — Unascertained Balance — Erroneous Allowance of Interest — Appeal —Modification of Judgment.—Under section 1917 of the Civil Code, providing that interest may he recovered on “moneys lent or due on any settlement of accounts, from the day on which the balance is ascertained,” a judgment for interest on an account sued upon, where the account was never settled or a balance ascertained, is erroneous, and the judgment will be modified upon appeal, by striking therefrom the amount of interest found due.</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 Alameda County, and from an order refusing to set aside the judgment.</p> <p>The facts are stated in the opinion.</p>

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