Volume 91 — California Reports

Bernardino County. The action was brought by the plaintiff, as assignee of a note and mortgage, to foreclose the mortgage, and the first paragraph of the complaint introduces all the succeeding allegations, including the allegation of non-payment of the note, by the statement that the plaintiff “ alleges, upon information and belief, that,” etc. A general demurrer was interposed to the complaint and overruled. Further facts are stated in the opinion.

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

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

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

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

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

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

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

<p>Negligence — Master and Servant — Injury to Driver of Horse-car —Loose Pin — Instructions — Safety of Appliances. — In an action by the driver of a horse-car against a street-railroad company for injuries received in consequence of the alleged negligence of the company in furnishing a straight pin to attach the single-tree to the draw-head of the car, which worked out of its hole while the ear was in motion, instead of furnishing a safety-pin to prevent accident, it is error to instruct the jury that the obligation upon the master required him to furnish such appliances “ as combine the greatest safety with practical use.”</p> <p>In. — Railroad Company not Bound to Servants as Carrier.—A railroad company is not in any respect an insurer of the safety of its employees, and its relations to them differ materially from those existing between a carrier and its passengers, being only the ordinary relations of master and servant.</p> <p>Id, — Measure of Care Required. — The company is only bound to exercise reasonable and ordinary care in the selection of reasonably safe appliances, such as a prudent man would exercise if his own person were exposed to the danger resulting from their use, and to keep them in suitable condition and repair.</p> <p>Id. —Selection and Care of Appliances — Question of Fact. — Whether a master has been negligent in the selection or care of appliances furnished to his servants is a question of fact, to be determined from all the circumstances of the ease.</p> <p>Id.—Burden of Proof — Notice of Defective Appliance — Presumption from Injury. — The burden is on the servant to prove negligence on the part of the master, and he must show that the appliance was radically faulty, or so generally obsolete that its adoption or retention would indicate negligence, and that the master knew or had notice that it was defective; and no presumption of negligence can arise from the mere fact of the injury or accident.</p> <p>Id. —Appliances in General Use — Improvements — Defects. —A master is not bound to adopt every latest improvement, and the selection and retention of appliances in general use which are reasonably adapted to the purpose, although better ones are used by others, or later devices have overcome observed defects therein, does not prove negligence; nor do defects not rendering a generally used appliance positively unsafe indicate negligence, unless it be shown that when selected ordinary care would have disclosed or could have obviated the defects.</p> <p>Id.—Appliance not Obviously Dangerous — Continued Use. — When an appliance or machine not obviously dangerous has been in daily use for a long time, and has uniformly proved safe and efficient, its use may be continued without the imputation of imprudence or carelessness.</p> <p>Id. —Evidence — Opinion of Witness — Province of Jury. —When the question to be determined is the result of common experience, or is to be inferred from particular facts, the inference is to be drawn by the jury, and not by the witness. If the circumstances out of which negligence is said to arise have been or can he established by proof, the ultimate fact of negligence is to be inferred by the jury, and cannot he established by the opinions of witnesses.</p> <p>Id. — Opinion of Street-car Driver—Safety of Pin.—Whether the straight pin which fastened the single-tree to the draw-head of a horse-car was safe, or whether, if it should come out, it would he unsafe, are questions for the jury to determine; and the opinion evidence of a streetcar driver that from his experience it was not safe, and that in ease it should come out the chances are that the horse would get away, is incompetent.</p> <p>Id.—Substitution of Safer Appliance after Accident — Notice of Defect—Admission. —It is incompetent to prove that shortly after the accident the employer substituted a safer appliance. The employer is chargeable with negligence only upon proof that before the accident he knew or had notice that the. appliance was unsafe or unsuitable to its purpose; and the adoption of a safer appliance after knowledge of an unexpected accident is not an admission of prior negligence.</p> <p>Instructions — Curing of Error. — An erroneous instruction is not obviated by an instruction subsequently given, wherein the law applicable to the case is properly presented.</p> <p>Id, — Duty of Jury— Contradictory Instructions__The jury are bound to accept all the instructions of the court as correct, and when several instructions are inconsistent and contradictory, it is impossible to tell which was adopted by them in reaching their verdict, and the verdict must be set aside.</p>

<p>Vendor and Purchaser—Assignment of Contract of Purchase — Agreement between Assignor and Assignee — Parol Evidence to Bind Joint Assignee not Named. — An assignor of a written contract for the purchase of land, who claims that the assignment was in fact made to two assignees jointly, each of whom was known to the assignor, although hut one assignee was named in the written assignment, cannot show by parol evidence that a contract executed between the assignor and the assignee named, in consideration of the assignment, which did not name nor by any of its terms purport to hind the other alleged assignee, was intended to bind both of them.</p> <p>Id. —Parol Evidence to Defeat Rights of Assignor. — In an action by the assignor against his assignee to recover the amount due as consideration for the assignment, parol evidence that the contract assigned was the property of a third party other than the assignor is properly excluded. The assignee cannot he excused from paying the price agreed because some one else may have a right to claim it from his assignor.</p> <p>Id.—Liability of Assignee — Collusion to Defeat Rights of Assignor. — Procuring Deed under New Contract—Release of First Contract by Beneficial Owner. — The assignee of a contract of purchase, who has agreed to pay a sum to the assignor in consideration of the assignment, cannot escape liability therefor by collusion with other parties, to procure the benefit of the contract, without a formal assignment thereof, uiider the pretense that a conveyance from the vendor was made in pursuance of a new contract of purchase after a release of rights under the first contract, from a person claiming to he beneficial owner thereof, the purchase-money paid under the first contract being credited upon the new contract at the time of the conveyance. The assignee is especially liable on his promise to the assignor, if he was a participant in the alleged new purchase. ' " ^</p> <p>Principal and Agent—Contract with Agent — Liability of Undisclosed Principal. — An undisclosed principal may be sued upon a contract taken exclusively in the name of his agent, if the principal is unknown to the other contracting party at the time of the contract, biit, not when he is known, and especially not when he is present at the time of the making of the contract.</p> <p>Attorney and Client — Privileged Communication. — A statement made to an attorney in respect to a matter concerning which he is not the attorney of the party making the statement, or a statement made to an attorney with the purpose of having it communicated to others, and not intended^to he confidential, is not a privileged communication.</p>

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

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

<p>Criminal Law—Pleading—Information — Motion to Set Aside— Commitment by Magistrate.—An information should be set aside where the offense is found neither in the commitment nor depositions.</p> <p>Id. — Authority of District Attorney. — The district attorney may file an information based either upon the offense set out in the commitment or upon the facts disclosed by the depositions; but that is the limit of his authority.</p> <p>Id. — Burglary — Ownership of Property Entered — Variance of Information from Commitment and Depositions. — While it may not in all cases be necessary, in charging the offense of burglary, to allege the ownership of the property entered, yet such allegation is necessary where it constitutes the entire and only description of the property entered; and if such description in the information is wholly different from that contained in the complaint and depositions, the information should be set aside.</p>

<p>Homestead—Declaration—Conveyance—Resistry — Construction of Codes.— A declaration of a homestead is not a “conveyance ” within the meaning of that word as used generally in the codes of this state; and the doctrine that unrecorded deeds and mortgages are good except as against subsequent purchasers for a valuable consideration does not apply to homesteads, the rights to which are defined by the provisions of the code which directly deal with that subject.</p> <p>Id.—Exemption of Homestead from Execution.—Section 1241 of the Civil Code enumerates the cases in which a homestead may be taken for a debt, and it can be so taken in no other instance.</p> <p>Id.—Husband and Wife — Mortgage of Husband — Homestead Declared by Wife —Priority of Registry.—A mortgage executed by the husband, and not recorded before a valid declaration of homestead by the wife is filed for record, cannot be enforced against the wife’s claim of homestead.</p> <p>Id. — Vendor and Purchaser — Assignment of Contract of Sale as Security— Deed to Wife of Purchaser — Notice.— The assignee of an unrecorded contract for the purchase of real property, to whom the contract was assigned as security for the payment of a promissory note of the purchaser, cannot enforce the security as against the recorded claim of homestead of the purchaser’s wife, to whom the purchaser procured a conveyance to be made, after the assignment of the contract, the wife taking the deed without knowledge of the assignment.</p>

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

<p>Summons — Service by Publication — Jurisdiction — Prohibition — Remedy by Appeal. — Where a court has jurisdiction of the subject-matter of an action, and has ordered that the summons be served upon the defendants by publication, the question as to whether it acquires jurisdiction over the defendants so served is one which the court has authority to pass upon, and a writ of prohibition will not lie to restrain the court from further proceeding in the action until the defendants. should appear or be personally served with the summons, on the alleged ground that the case is not a proper one for the publication of summons. The defendants have a plain and adequate remedy by appeal from any judgment which may be entered against them, if error should be committed in the decision of the court.</p>

<p>Appeal from an order of the Superior Court of San Bernardino County refusing to retax costs.</p> <p>The facts are stated in the opinion.</p>

<p>Slander — Evidence — Common Report — Mitigation.—In an action for slander, evidence that the slanderous statements made by the defendant were matter of common report is altogether inadmissible. Such report is not regarded in law as a mitigating circumstance.</p> <p>Id. — Imputation of Unchastity — Evidence — Import of Words — Harmless Error. —Where the words proved to have been spoken by the defendant clearly impute a want of chastity, they are actionable per se; and evidence of a witness that he understood from such language that the defendant intended to impute to the plaintiff a want of chastity, if error, is without injury.</p> <p>Id. —Repetition of Slanderous Words — Proof of Malice—Pleading. — It is always competent, in an action for defamation, to prove a repetition of slanderous charges for the purpose of showing malice, and it is wholly unnecessary to plead the repetition of the words.</p> <p>Id.—Evidence of Prior Slander—Cross-examination.—It may be shown upon cross-examination of the defendant that similar statements to those charged were made by the defendant prior to the date of the alleged slander.</p> <p>Id.—Privileged Communication — Attempted Settlement — Voluntary Repetition of Slander — Malice. —There can be no privileged communication where the slanderous words are spoken with malice, and without the request of a person interested. Slanderous statements concerning the plaintiff, spoken voluntarily by the defendant without request, in a spiteful and malicious manner, in the presence of an attorney at law and justice of the peace, who had not been retained as a counsel or lawyer for either party, bub with whom the parties met at the plaintiff’s request for the purpose of adjusting the slanderous charges, and who repeatedly told the speaker he did not wish to hear them, are malicious slanders, and not privileged communications.</p>

<p>Contracts — Illegality—Agreement to Procure State Title — Contravention or Land Laws — Specmo Performance.—An agreement the purpose of which is to secure from the state large tracts of land through the applications of other persons in a manner unauthorized by law, and which contravenes the spirit and policy of the land laws of the state in force at the time of its execution, is illegal and void, and will not be specifically enforced. The parties being in pari delicto, the court will leave them where it finds them.</p> <p>Id. —Illegality by Implication — Contravening Policy of Law.—No court will lend its aid to give effect to a contract which is illegal, whether it violate the common or statute law, either expressly or by implication. It is not necessary that any statute should expressly declare the contract void; but if, upon review of all the state legislation upon the subject, the contract appears to contravene the design and policy of the laws, a court of equity will not enforce it.</p> <p>Id. —Refusal of Relief — Voluntary Action of Court. —Although no objection is made by either party, when the court discovers a fact which indicates that the contract is illegal and ought not to be enforced, it will, of its own motion, instigate an inquiry in relation thereto.</p> <p>Id. — Appeal — Reversal — Dismissal of Action. — Where a contract specifically enforced by the court below appears from the record to be illegal, the judgment will be reversed, with direction to dismiss the action, although the appellant may not have questioned the legality of the contract.</p>

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

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

<p>Judgment—Action to Annul — Fraud Extrinsic tc Merits — Perjured Testimony. — To authorize: a court of equity to set aside and annul a former judgment on the ground of fraud in its procurement, the fraud must be extrinsic or collateral to the questions examined and determined in the action, and must have prevented a fair submission of the controversy, and the judgment will not be vacated merely because it was obtained by forged documents or perjured testimony, or by bribing a witness to swear falsely.</p>

<p>Appeal from 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>Action foe Goods Sold and Delivered — Contents of Summons —■ Reference to Complaint — Statement of Amount of Judgment upon Default. — A summons, in an action for goods sold and delivered, stating that the action was brought to obtain a judgment for a specified sum, with legal interest thereon until paid, alleged to be due plaintiff upon account, and for costs of suit, and referring for particulars to the complaint, and containing a notice that in case defendants failed to appear and answer as required under the law, the plaintiff would “ take judgment as prayed for,” although not stating in terms the amount for which judgment would be taken, in effect complies with the requirements of the statute.</p> <p>Id.—Place of Sale of Goods—Pleading—Demurrer for Uncertainty. — It is not necessary to state, in a complaint in an action for goods sold and delivered, where the goods were sold; and a demurrer for •uncertainty will not lie for want of such averment.</p> <p>Appeal—Modification of Judgment. — Where the judgment as entered was for more than the amount found to be due by the court, the judgment will be modified upon appeal by striking therefrom the excess.</p>

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

Motion to dismiss appeal from a judgment of the Superior Court of Mono County. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Alameda County, and from an order denying a new trial.</p> <p>The power of attorney referred to in the opinion of the court was a power from George W. Thomas and wife to R. V. Dey, dated March 7,1878, authorizing the transfer of additional homestead lands acquired by Thomas under section 2306 of the Revised Statutes, and the conveyance thereunder was dated August 24, 1885. The patent for the claim was issued to Thomas September 7, 1887. . Further facts are stated in the opinion of the court.</p>

<p>Assumpsit—Evidence—Void Parol Contract for Lease — Explanatory Proof.— In an action of assumpsit for goods sold and delivered, money paid out, and labor performed by the plaintiff, the indebtedness for which appears to have accrued to the plaintiff while residing upon the defendant’s land, testimony of the plaintiff that he was induced to go on the land by a verbal promise of the defendant that he would give the plaintiff a five years’ lease thereof, but that after his removal to the premises the defendant refused to execute the lease, and told him to go on and cultivate the land and that he would pay him for the work, is admissible as explanatory of how he was induced to go upou the land, and is not rendered inadmissible because the proposed lease was for more than a year and was not in writing.</p> <p>Id. — Cross-examination—Hostile Feelings of Defendant — Harmless Error.—In such action, the refusal of the court to allow the defendant’s counsel to ask the plaintiff, on cross-examination, as to what his feelings were toward the defendant at the time he made a written statement of the accounts between himself and the defendant, which had been made nearly a year before the trial, and which the plaintiff had introduced in evidence, if error at all, was not prejudicial.</p> <p>Id.—Impeachment of Witness — Insufficient Foundation—Admission of Tenancy Denied — Record of Former Action.— Where the plaintiff in such action testified, upon cross-examination, that upon a date prior to the action, when the defendant entered the premises and ousted him, he did not claim to be in possession of the premises under a lease, because there was no lease, it is not error for the court to refuse to permit the defendant to introduce in evidence a transcript in a former action, wherein the plaintiff had recovered from the defendant damages for the entry, for the purpose of showing a former admission of the plaintiff that he was in possession as tenant, if the witness had not been asked what he had admitted or alleged in the former action, and his attention had not been called to the transcript.</p>

<p>Findings — Construction — Reference to Evidence — Limitation. — The findings must be read as a whole, and not merely according to their numerical division; and if a fact found may be sustained by the evidence in the case, it must be referred to such evidence for its support, and not limited to the immediate connection in which it is placed in the findings, unless the language in which it is expressed compels such limitation.</p> <p>Id. — Ultimate Fact— Ouster of Heirs by Grantee of Administrator — Tenancy in Common — Entry and Olatm under Deed.—A finding that a grantee of an administrator entered into possession of land purporting to be conveyed to him by the-^administrator’s deed, in his own right, and as owner of the entire estate, and not as tenant in common with the plaintiffs, who are heirs of the decedent, or with any other person, and ousted and removed the plaintiffs and all other persons having or claiming any right, title, or interest in or to such tract of land, or any part thereof, from the possession of said land, and every part thereof, finds the ouster as a distinct arid ultimate fact, and does not limit it to the entry and claim under the deed.</p> <p>Ouster of Co-tenant — Notice of Hostile Intent. —The ouster of one co-tenant by another is produced by the wrongful dispossession or exclusion of the one by the other with hostile intent. Such intent is not manifested by the mere fact of possession, as in case of dispossession by a stranger, but must be established by actual or presumptive notice of the hostile intent with which the possession is held, directly or indirectly communicated to the co-tenant out of possession.</p> <p>¡Cd.—Presumptive Notice.—It is not necessary that actual notice be shown to have reached the co-tenant out of possession, in order to charge him with the effect of the ouster; but the hostile intent may be manifested by acts or declarations so open and notorious, and of such a nature, that it may be readily presumed that the co-tenant out of possession is informed thereby of the hostile intent.</p> <p>Id. — Adverse Possession — Entry under Ineffective Administrator's Deed —Facts Putting upon Inquiry —Notice to Heirs —Record of Deed Immaterial, — When a grantee takes exclusive possession, in his own right, óf a tract of land, under an administrator’s deed purporting to convey the whole, though actually ineffective to convey more than an undivided part of the property, his entry and possession is adverse to the heirs; and from knowledge of the fact of his entry and possession, they are chargeable with knowledge of the character and purpose of the possession, which could have been obtained from inquiry, and it is immaterial whether the deed was recorded or not.</p> <p>Id.—Purchase or Outstanding Title.—A party in the actual adverse possession of land by merely purchasing an outstanding legal title does not thereby impair the character of his adverse possession.</p> <p>Id. — Color or Title — Administrator’s Deed under Void Statute.— Notwithstanding an act of the legislature purporting to authorize an administrator, by name, to sell and convey all the lands of a decedent subject to the approval of the probate court was insufficient to confer authority therefor, yet a conveyance by the administrator, in pursuance of the legislative act, with the approval of the probate court, the ineffective operation of which conveyance was without the knowledge or consent of the purchaser, is sufficient to give color of title in support of his entry, and to make the possession under such entry the adverse holding of a stranger to the title, as against the heirs of the decedent.</p> <p>Id.—Ouster or Infants—Notice.—An infant can be ousted from his possession either by a stranger or by a co-tenant, in the same manner as an adult. The ouster does not depend upon the fact that notice of the entry with hostile intent was understood or comprehended by the disseised, and such notice may be either actual or presumptive.</p> <p>Id.—Effect of Ouster—Suspension—Statute of Limitations—Protection of Infants. — Ouster sets the statute of limitations running in favor of the disseisor, and the ouster and notice thereof is not suspended by the infancy of the disseised, though the effect of his knowledge thereof is suspended until his majority, and protection is given to the infant by the provision of the statute that the adverse holding must continue for five years after his majority.</p> <p>Appeal — Review of Evidence — Presumption — Support of Findings — Bill of Exceptions — Specifications.—It must be assumed upon appeal that all findings of fact against which the bill of exceptions contains no specification of insufficiency of the evidence to sustain them are sustained by the evidence presented at the trial, and the fact that the evidence incorporated in the record is not sufficient to support such findings cannot be considered.</p>

<p>Water Rights —Appropriation of Springs upon Public Land. —Water flowing from springs upon public land of the United States may be appropriated under the provisions of the Civil Code; and the fact that the ditch used to convey the water was constructed up to the mouth of the largest spring cannot affect the result. '</p> <p>Id. — Springs Appurtenant to Unsurveyed Public Land — Deed of Possessory Right — Obstruction of Flow—Injunction by Subsequent Patentee. — The fact that the land to which springs of water were conveyed by an appropriator was at the time unsurveyed public land did not prevent the water from becoming appurtenant thereto, so as to pass by a deed of the possessory right to the land with its appurtenances, it appearing that the appropriator was, at the time of the appropriation, a rightful occupant of the land, and not a trespasser thereupon; and his successor in interest, who has acquired a patent to the land, may enjoin an obstruction of the flow of the water thus made appurtenant to the land by the first possessor.</p>

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

The facts are stated in the opinions rendered upon the present appeal and upon the former appeal, reported in 78 Cal. 158.

<p>Principal and Surety — Maker of Collateral Note— Release of Indorser of Principal Note— Discharge of Surety. — The maker of a note given to secure the payment of the note of a corporation, indorsed by a third person, and secured by mortgage upon the property of the corporation, is, in law, a surety, and if such indorser is released from obligation to pay a deficiency judgment rendered against him and the corporation jointly, in a suit for foreclosure of the mortgage, and which became a lien upon the lands of the indorser, the maker of the collateral note is exonerated from liability.</p> <p>Action at Law — Jury Trial — Power of Court. — In an action at law, the defendant is entitled to have the issues made tried by a jury, and the court cannot enter a verdict contrary to the will of the jury, or substitute its judgment for theirs, and assume the power to decide issues of fact once submitted to the jury, or render a judgment contrary to the verdict.</p> <p>Id.—Waiver of Jury—Relinquishment of Special Verdict—Presumptions upon Appeal. — Where the record is silent upon the question whether the defendant waived his right to trial by jury, it will be presumed, upon appeal, that a jury was waived as to issues tried by the court in the first instance, but such presumption cannot be indulged where the record shows that a jury trial was bad, and a verdict rendered upon vital issues, neither can it be presumed from the fact that evidence was given before the court after a special verdict of the jury upon vital issues submitted to it, but which did not pass upon all of the issues joined in the case, that the verdict was voluntarily relinquished.</p> <p>Id.—Findings Contrary to Verdict — Vacation of Verdict — New Trial.—Where the court, upon hearing evidence after a jury has passed upon some of the vital issues, makes findings upon all of the issues, contrary to the verdict, such action is in effect a setting aside and vacating of the verdict, and it is -the duty of the court to order a new trial by jury, and it has no power to proceed to determine the cause without a jury.</p>

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

<p>Landlord and Tenant — Assignment of Lease—Rent—Liability of Assignee — Covenant ynrH Assignor — Privity of Contract — Privity of Estate. — A covenant by the assignee of a lessee with the ■ assignor in the assignment “to pay all rent that may fall due, from time to time, by virtue of the provisions of the lease ” is enforceable only by the assignor, and does not create a privity of contract between the assignee and the lessor; but the entry of the assignee into possession under the assignment creates the relation of landlord and tenant between him and the lessor by privity of estate, and he is liable for rent during bis ownership of the term, upon the covenant of the lease to pay rent, which runs with the land.</p> <p>Id. — Divesting Title and Liability of Assignee — Abandonment. — An assignee of a lessee who has taken possession of the leased premises cannot divest himself of the legal title and right of possession, or of his beneficial interest in the lease, or dissolve his privity of estate with the lessor, or terminate his liability for rent, by a mere abandonment of the premises without the consent of the lessor. '</p> <p>Id. —Liability of Lessee after Assignment. —The assignment of a lease by the lessee, and the acceptance by the lessor of the assignee as tenant, does not release the lessee from his covenant to pay the rent, but his liability thereon to the lessor continues until the termination of the lease.</p> <p>Id. — Conditional Surrender—Statute of Frauds.—The conditional surrender of the leased premises by the lessee does not operate as a dissolution of the tenancy, if the conditions of the surrender on the part of the lessee are not fulfilled, and the surrender is not in writing, as required by the statute of frauds.</p> <p>Id. — Rent — Liability of Tenant after Abandonment—Re-entry of Lessor. — Where leased premises are unlawfully abandoned by a tenant, and the tenancy is only terminated by the lessor’s notice to quit or pay the rent, and his re-entry under the terms of the lease for breach of its covenants, the tenant is liable, at lea^t for that part of the rent which had accrued up to the time of the re-entry.</p> <p>Id.—Limiting Recovery — Instructions—Duty of Defendant.—If a tenant sued for rent desires to limit the recovery in any event to the amount of rent accrued at the time of re-entry by the lessor, it is his duty to ask the court to submit to the jury proper instructions upon that matter.</p> <p>Id. —Nonsuit. —When the evidence for the plaintiff in an action for rent tends to show a right of recovery in him for any amount, a motion for nonsuit should be denied, and the sufficiency of the evidence should be left to the jury.</p>

<p>Mechanics’ Liens—Contractor’s Bond—Indemnity against Liens — Failure of Owner to Retain Special Fund—-Discharge of Sureties. — Where a contractor gave bond to the owner of a building to indemnify him against any claims or liens for material or labor, which bond referred to the original contract as the inducement or consideration for its execution, and by the terms of the building contract the -owner was authorized to retain one fourth of the contract price until final settlement between the parties as additional security against liens upon the building, the sureties on the contractor’s bond have a right to look to such additional security as a special fund for their indemnity, and it is the duty of the owner to apply it in payment of liens instead of paying it to the contractor; and i£ he discharges liens after having paid to the contractor the full contract price, the sureties on the contractor’s bond are discharged, and are not liable for the amount of such liens paid in excess of the contract price without their knowledge or consent.</p> <p>Principal and Surety — Discharge of Surety — Repayment of Fund to Principal. — Where a principal has left a sufficient fund in the hands of the obligee to meet the obl'gation, and instead of retaining it in his hands he pays it back to the principal, the surety is discharged from liability.</p>

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

<p>Claim and Delivery — Pleading — Ownership and Right or Possession — Pacts Constituting Title. — A complaint in an action of claim and delivery, which states the particular facts entitling the plaintiff to the immediate and exclusive possession of the property claimed, sufficiently pleads his title thereto, although it contains no general allegation that he is the owner and entitled to the possession of the property.</p> <p>Id. — Defendants’ Possession — Wrongful Detention — Refusal of • Warehouseman to Deliver Goods Stored — Presumptions—General Demurrer, —A complaint in an action of claim and delivery which alleges that the defendants, as warehousemen, executed a storage receipt and contract for the delivery of the property upon the return of the receipt and payment of charges, that the plaintiff demanded the delivery of the property, offering to surrender the receipt and pay the storage charges, and that the defendants refused to deliver it, without giving any excuse therefor, sufficiently alleges, as against a general demurrer, the defendants’ possession at the time of the commencement of the action, which follows as matter of legal presumption from the facts stated, and the wrongful detention thereof follows as a necessary conclusion from the refusal to deliver under such circumstances.</p>

<p>Criminal Law — Embezzlement — Evidence — Identity of Culprit — Hearsay. — Where other evidence as to the identity of the defendant with the person who committed an embezzlement charged is weak and unsatisfactory, the admission of hearsay testimony from an officer, as to the description of the culprit given him by the prosecuting witness before the arrest of the defendant, is prejudicial error.</p> <p>Id. — Money Taken by Explainer of Lottery — Larceny — Bailment — Finding against -Evidence. — Where the money charged to have been embezzled was taken by a professed agent of a lottery company, who proposed to explain to the prosecuting witness how the drawings were made, and induced him to make repeated deposits of money upon a table upon which was placed a paper covered with squares and figures, promising to return the money as soon as he had explained the drawings, and who took from the table the amount of each deposit when it was apparently lost, and fraudulently appropriated the amounts so lost, and refused to return the money, the crime committed is that of larceny, and not embezzlement.</p> <p>Id. — Larceny Distinguished from Embezzlement — Possession — Conversion in Presence of Owner. —If the owner puts his property into the hands of another to use or do some act in relation to it in his presence, he does not part with the possession, and the conversion of it animo furandi is larceny, and not embezzlement.</p>

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

<p>Vendor and Purchaser — Contract or Purchase — Rescission —Return or Deposit — Commissions or Vendors’ Agents. —Where agents acting under verbal authority agreed to sell land for the owners, and received a deposit upon the contract, which was paid to one of the owners and afterwards returned to the agents upon rescission of the contract, with notice to the intending purchaser to settle with them, the owners of the land are jointly liable to the proposed purchaser for the return of the whole amount of the deposit upon demand, and the purchaser is under no obligation to settle any claims for commissions which the agents may have against the owners of the land.</p> <p>Id. — Proposal to Purchase—Withdrawal or Orrer — Recovery or Db-POSIT. —When the owners of land are not legally bound to convey it, a proposed purchaser may withdraw his offer to purchase at any time before a lawful contract is consummated, and may recover the full amount of any deposit made by him on account of his proposed purchase, after his offer of purchase has been so withdrawn.</p> <p>Id.—Amendment of Complaint—Statute of Limitations — Change in Allegation of Partnership. — Where the first amended complaint in. an action to recover a deposit upon a rescinded contract of sale made the owners ‘of the land and their agents defendants, and alleged that the “ defendant is an association of two or more persons doing business ” under a common name, and in a second amended complaint only the agents of the owners were alleged to be an association doing business under the common name, and the owners are named separately as co-defendants, the agents and owners of the land being charged in both complaints with having received from the plaintiff, and to his use, the money sued for, and with a refusal to pay it to the plaintiff upon demand, the second amended complaint does not state an essentially different cause of action against the owners of the land from that alleged in the first amended complaint, for the purpose of the statute of limitations.</p>

<p>Deed—Delivery—Escrow—Title to be Settled.—The deposit of a deed with a third person, by one of the parties to a contract for the exchange of lands, to be delivered to the other party to the contract as soon as the question of title to the lands should be settled to the satisfaction of the contracting parties, does not constitute a delivery in escrow.</p> <p>Id. — Concluded Sale Essential to Escrow. — An actual contract of sale on the one side and of purchase on the other, definitely assented to by both parties, is essential to a delivery in escrow.</p> <p>Id__Deeds oe Exchange — Control oe Grantor — Depositaries.— Where deeds of exchange were left with a third party to be delivered by him to each grantee when “everything was all right and perfected,” and it is not shown that the matter was to be determined in any other manner than by the future agreement of the parties themselves, the delivery of the deeds to such third party is not absolute and beyond the control of the grantors, and he holds them, not in escrow, but as a mere depositary, each instrument being subject to the direction of the grantor named therein.</p>

<p>Chattel Mortgage — Hotel Furniture — “ Purchase-money ” — Mortgage to Lender. — A mortgage given upon hotel furniture by the purchasers thereof, to a lender of money, who advanced it expressly to enable the purchasers to buy the furniture from the vendors, is a mortgage given to secure the “purchase-money,” within the meaning of section 2955 of the Civil Code, and is valid.</p> <p>Id. — Construction of Code. — Section 2955 of the Civil Code, providing upon what articles chattel mortgages may be made, should be reasonably and liberally construed, with a view of executing the evident design of the legislature in enacting it.</p>

<p>Claim and Delivery—General Verdict — Special Finding of Value only — Return of Property — Alternative Judgment.—In an action of claim and delivery, where the defendant demands a return of the property, and the verdict of the jury, in favor of the defendant, is special as to the value of the property, and general upon all the other issues, it is sufficient to justify an alternative judgment for the return of the property, or for its value in case a delivery cannot be had, and is not rendered defective because not specially finding in the alternative “ for the return of the property.”</p> <p>Id.—Form of Alternative Judgment—Condition of Judgment for Value — Appeal — Setting aside Judgment — Direction to Lower Court.—A judgment for the return of the property or the value thereof, but which omits from the judgment for value the clause “in case a return cannot be had, ” is not sufficient in form or substance, under section 667 of the Code of Civil Procedure, and upon appeal therefrom the court below will be directed to set it aside and enter an alternative judgment in conformity with the statute, where the verdict is sufficient to authorize it.</p> <p>Id. — Sale of Milch Cows — Change of Possession — Control by Vendor — Instructions. — In an action to recover the possession of cattle taken by the defendant under a writ of attachment against the plaintiff’s vendor, where it appeared that the cattle alleged to have been sold consisted largely of milch cows, which were-in the actual possession of the vendor, who was milking the cows and peddling the milk as well after the sale as before, and the evidence tended to show that he bought the feed and managed the business as before, it is not error for the court to refuse to charge the jury that “for the purpose of a delivery it is not necessary that the property sold should pass into the actual possession of the buyer,” and that “ when property is so situated that the buyer is entitled to and can rightfully take possession of it at his pleasure, he is considered as having actually received it as the statute requires.”</p> <p>Id. — Employment of Vendor after Sale — Instructions—Oral Explanation. — Where the court had instructed the jury that itt determining whether there was an actual and continued change of possession of the property at the time of the alleged sale, while they were to consider the fact that the vendee employed the vendor after the sale, still they were not bound to regard that fact alone as conclusive of the question, it is not error for the court to give an oral explanation at the request of a juror, to the effect that a vendee can employ his vendor, but if he leaves the vendor in the entire charge of the property, or in such apparently entire charge that it appears to the world that there is no open and apparent change of possession, and no open and apparent means by which people about could take notice that there had been any change, then there is not such an actual change of possession as is required by law.</p> <p>Id.—Evidence — Cross-examination of Vendor — Acts and Declarations after Sale. — Testimony of the vendor, upon cross-examination, as to what he did and Said in regard tb the cattle, after he had executed the bill of sale of them to the plaintiff, is pertinent to the issue as to whether or not the sale had been accompanied by an immediate delivery and followed by an actual and continued change of possession, and the admission of it by the court is not error.</p> <p>Decisions — Construction of Opinions — Instructions. — The language of an opinion rendered in the decision of a case is to be taken concretely with its context, and in view of the facts of the case, and a portion of its language cannot properly be made the foundation of an abstract instruction to be applied to a different case to which it is not applicable.</p>

<p>Negligence — Duty of Owner of Property — Garb for Safety of Others. — One must so use and enjoy his property as to interfere with the comfort and safety of others as little as possible, consistently with its proper use; and a failure on the part of the owner to observe this rule is, in respect to those who have a right to invoke its protection, a breach of duty, and in a legal sense constitutes negligence.</p> <p>Id. — Maintenance of Dangerous Machinery — Question of Pact. — The question as to whether, in any given case, there has been negligence upon the part of the owner of property, in the maintenance thereon of dangerous machinery, is a question of fact for the jury, to be decided in view of the situation of the property and the attendant circumstances.</p> <p>Id. — Leaving Turn-table Unguarded near Public Street — Injury to Young Child. —Where a railroad company maintained a turntable upon its premises near a public street of a town, and not far from where several families with small children resided, and it was neither protected by any inclosure nor guarded by any employee of the company, the company is liable for injuries received by a child eight years old, through playing upon it with other children while it was revolving.</p> <p>Id. — Duty to Anticipate Injury to Children — Trespass — Contributory Negligence. —If the railroad company ought reasonably to have anticipated that because of tbe leaving of its turn-table unguarded and exposed, an injury to a child of immature years was likely to occur, it will be held to have anticipated it, and was guilty of negligence in maintaining it in its exposed condition; and the fact that a child injured thereby was a trespasser, and would not have been hurt if it had not intermeddled with the machinery, does not absolve the owner from liability therefor.</p> <p>Id. — Latching of Turn-table — Custom of Railroads. — The fact that the turn-table was latched, in the way such tables are usually fastened, or according to the usual custom of other railroads, although a matter for the jury to consider in passing upon the question as to whether the company exercised ordinary care in the way it maintained the table, was not, of itself, conclusive proof of the fact.</p> <p>Id. — Contributory Negligence of Other Children. — The fact that the turn-table was set in motion by the negligent act of other children does not affect the liability of the railroad company.</p> <p>Id. —Contributory Negligence of Mother of Child — Instructions — Ordinary Care —- Burden of Proof — Circumstances — Knowledge of Danger. —Where the evidence disclosed that the mother of the injured child had no family but herself and children, and that she had been accustomed to send him to gather coal around the round-house and turn-table of the defendant, though she directed him otherwise on the day of the accident, it is not error to charge the jury, upon the subject of her contributory negligence, to the effect that to sustain such defense they must find a want of ordinary care on her part as a parent, with respect to the cause of the injury; that her failure to use more than ordinary care in providing for the safety of her child would not defeat the action; that the burden of proof of her negligence was upon the defendant; that they might consider the evidence as to her condition and circumstances in determining the question as to her negligence; and that if she did not know, or have reason to know, or anticipate or fear, the danger of the turn-table, she was not negligent in not providing against it.</p>

The action was brought by eleven plaintiffs, comprising a “railroad committee,” appointed by residents along the line of the proposed railway of the San Bernardino Valley Railroad Company to procure funds to obtain a right of way and land for depot grounds and other buildings for the proper construction and operation, of the railway.

<p>Foreclosure of Mortgage — Undertaking on Appeal — Stay of Execution — Bond for Deficiency—Independent Obligation—Liability of Sureties. — An undertaking upon appeal from a judgment of foreclosure, given under section 945 of the Code of Civil Procedure, by a defendant in possession of the premises, to stay execution of the decree, and providing for the payment of any deficiency arising upon the sale of the premises, is an independent obligation founded upon the provisions of the statute, which apply to the appellant, whoever he may be, who desires to prevent a sale and enjoy the possession of the property during the pendency of the appeal; and the fact that the appellant was not the mortgagor in the foreclosure suit, and therefore not bound by the deficiency judgment, does not relieve the sureties upon the undertaking from liability for the payment of such deficiency.</p>

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

<p>Injunction — Restraining Execution — Alternative Judgment in Replevin— Return of Property Pendente Lite — Agreement to Satisfy Judgment. — An injnnction will be granted to enjoin the enforcement of an alternative judgment in replevin for the return or value of the property sued for, where it appears that.during the pendency of the action, and after issue joined therein, the property was all returned to the plaintiff in the replevin suit; that the defendant therein was prevented by the court from showing that fact under the pleadings; and that after the judgment, and within the time allowed to move for a new trial, it was agreed between the parties that upon the payment of a specified sum the judgment should be satisfied; and that relying upon the agreement, no such motion was made, and the tender of the amount agreed upon was rejected after the time for such motion had elapsed.</p> <p>Id,—Satisfaction of Alternative Judgment — Prior Voluntary Return of Property — Relief in Equity. — An alternative judgment in the form usual in actions of claim and delivery of personal property is satisfied by a voluntary return of the property prior to the entry of the .judgment. The party obtaining the judgment is not entitled to both property and value; and having received the property, equity, treating that as done which ought in justice to he done, will consider it as received in satisfaction of the judgment, and enjoin its further execution.</p> <p>Id. —Restraining Judgment for Fraud — Prevention of Defense — Loss of Right to Move for New Trial. —Fraudulent conduct and deceitful representations upon the part of a plaintiff in an action at law, by means of which a defendant having a meritorious defense is prevented from interposing it, or has lost the right to move for a new trial, is ground to restrain the enforcement of the judgment.</p> <p>Id. — Fraud of Attorney. —The fraudulent conduct of the attorney of a party recovering a judgment may afford sufficient ground for enjoining the judgment.</p> <p>Id,—Negligence of Losing Party — Verbal Agreement to Settle Judgment. —The failure of the losing party to move for a new trial after a verbal agreement for a settlement of the judgment with the attorney of the opposite party, under the circumstances of this case, held not to he such negligence as to deprive him of the right to appeal to a court of equity to restrain the enforcement of the judgment for a fraudulent violation of the agreement.</p> <p>Id. — Restraining Enforcement of Satisfied Judgment — Remedy by Motion. — The remedy by injunction to restrain the enforcement of a satisfied judgment is proper, notwithstanding the court in which the judgment was rendered might have the power to grant the same relief upon motion to stay the exeeution-</p>

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

<p>Municipal Corporations — Ordinance in Excess of Power — Electriorailway Franchise —• Quo Warranto — Confirmation Pending Appeal— Reversal of Judgment of Ouster. — Where a municipal corporation has exceeded its statutory power in enacting an ordinance granting a franchise to a railway company to lay railroad tracks through its streets, whereupon cars can be propelled by electricity, and pending an appeal from a judgment in an action of quo warranto ousting the railway company from such franchise, statutes are passed by the legislature, authorizing the grant of such franchise, and confirming and ratifying all municipal ordinances theretofore passed granting the same, the judgment of ouster will be reversed.</p> <p>Id.—Constitutional Law — Corporations — Extension of Charter — Remission of Forfeiture— Waiver. —The act ratifying and confirming such previous municipal ordinances is not repugnant to section 7, article XII., of the constitution, which prohibits the legislature to extend or remit the forfeiture of any franchise or charter of any corporation, though it shows an intention on the part of the state that the franchise shall continue in existence, notwithstanding a previous forfeiture, and operates as a waiver of the right to enforce a forfeiture, which waiver the constitution does not prohibit.</p> <p>Corporations — Forfeiture of Franchise— Adjudication. — Acts sufficient to cause a forfeiture of a franchise conferred upon a corporation do not per se produce a forfeiture; but the corporation continues to exist until the sovereignty which created it shall, by proper proceedings in a proper court, procure an adjudication of forfeiture, and enforce it.</p> <p>Id. —Time for Completion of Street-railway — Abandonment of Uncompleted Portion — Construction of Statute.— Under section 502 of the Civil Code, the period of three years within which a street-railway must be completed .begins from the date of the commencement of tile work, and not from the date of the ordinance granting the right of way; and at any time before the expiration of that time the grantee of the franchise may, with the consent of the authorities granting the right of way, abandon the uncompleted portion.</p>

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

Motion to dismiss an appeal from an order of the Superior Court of San Bernardino County approving a receiver’s account. The facts are stated in the opinion of the court.

Exhibits A and B, referred to in the opinion of the court, consist of two several conveyances under which plaintiffs deraigned title to their mill and to the water right aúd ditches in controversy, and each of which was objected to as immaterial, irrelevant, and incompetent, and upon the grounds that the complaint states no cause of action, and does not sufficiently describe the right of way.

<p>Appeals from judgments of the Superior Court of Los Angeles County, and from orders denying a new trial.</p> <p>The facts are stated in the opinion of the court.</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>Pleadings — Insufficiency of Complaint — Motion foe Judgment after Answer. — If a complaint fails to state a cause of action, and the defendants have answered, the defect may be taken advantage of by a motion of the defendants for judgment upon the pleadings, which, like a demurrer, admits for its purposes all the facts alleged in the complaint, and tests their sufficiency to show a cause of action.</p> <p>Trust — Mexican Grant —Fraud in Extending Boundaries — Injury to Plaintiff’s Bight—Pleading.—In an action to enforce a trust against the holder of a legal title under a confirmed and patented Mexican grant, where the right of the plaintiff depends upon the equitable ownership of one of three contiguous tracts, the title to which had not been separately confirmed or patented, a complaint alleging that juridical possession of the three tracts had been given to plaintiff’s predecessor in interest; that their exterior boundaries contained more than seventeen leagues; that two of the tracts, containing sixteen leagues, were sold and confirmed to the assignee by the land commissioners; and that the United States survey and patent thereof were fraudulently made to embrace more than seventeen leagues, — but failing to allege that the boundaries of' the two tracts as surveyed and patented embraced any part of the third tract, — fails to state a cause of action.</p> <p>Id.—Want of Equity — Failure to Present Mexican Grant to Land Commissioners — Public Land. — The complaint in such action shows no equity for the enforcement of any trust, since it alleges that the Mexican grant under which the plaintiffs claim their equity was never presented for confirmation to the land commission appointed under the act of Congress of March 3, 1851, section 13 of which provides that all such lands the claim to which shall not have been presented to the commissioners within two years after the date of the act shall be deemed public land of the United States.</p> <p>Id.—Perfect Grant — Juridical Possession — Cessation of Right.— The fact that the grant was perfect, or that juridical possession was delivered thereunder, does not take the case out of the operation of section 13 of the act of Congress of March 3, 1851, which applies to all Mexican grants, whether perfect or inchoate. The rights of the plaintiff's ceased under the unpresented grant after the expiration of the two years specified in the act, and they could not thereafter maintain any action to recover the land from one claiming title thereto under a patent from the United States.</p> <p>Id. — Fraud upon Government — Inclusion of Forfeited Grant. — Fraud in extending the boundaries of a Mexican grant so as to include land in another Mexican grant claimed by third parties, which had become part of the public land of the United States because of the failure of the claim, ants to present it for confirmation under the act of Congress of March 3, 1851, is fraud against the United States alone, and the parties claiming under the forfeited grant cannot charge the patentees of the land so fraudulently surveyed and included in the patent as their trustees.</p>

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

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

<p>Order Granting New Trial—Immaterial Ground — Admissions or Pleadings — Findings — Appeal — Reversal. —When undenied averments of the complaint and findings not excepted to render the ground upon which a new trial was granted immaterial, and it can he justified upon no other ground, the order granting the new trial will he reversed.</p> <p>Id. — Enjoining Diversion or Water—Ownership or Ditch — Agreement for Enlargement — Finding against Agreement—Enlargement Immaterial. — In an action to enjoin the diversion of water, where the pleadings admit the defendants’ construction of the ditch in controversy, and the plaintiffs’ title therein depends upon an alleged . agreement that they should become tenants in common with the defendants in consideration of their extending and enlarging the ditch, and a finding that there is no such agreement is not excepted to, the question whether the ditch was materially enlarged by the plaintiffs is not material, and an order granting the plaintiffs a new trial upon the sole ground that a finding against them unon that question was not sustained by the evidence will be reversed.</p> <p>Id.—Acquisition or Water Right — Pleading—Variance — Enlargement or Ditch — New Ditch. —Where the complaint alleged that the plaintiffs became tenants in common with the defendants in the ditch and water rights in controversy by express agreement with the defendants, who were the then owners, in consideration of the plaintiffs’ labor, the plaintiffs cannot recover upon an unpleaded theory, inconsistent with their allegation, that the labor done by them and the defendants in enlarging the ditch destroyed the identity of the original ditch and created a new one, in which the plaintiffs were entitled to share as tenants in common with the defendants.</p> <p>Water Rights — Tenancy in Common—Real Property — Statute or Frauds — Evidence. — An absolute interest as tenants in common in a ditch and water right is an estate in real property; and an agreement by which such interest is to he acquired is within the statute of frauds, and cannot be proved, except by some note or memorandum thereof in writing.</p>

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

<p>Express Trust—Employment oe Attorney to Procure Patent — Undivided Interest — Equitable Estate.—A contract between the equitable owner of an interest in a tract of land and an attorney at law, by the terms of which the attorney agreed to procure a patent to the land for such equitable owner, in consideration of which the latter is to convey to the attorney an undivided interest in the land patented, is a valid contract, and creates an express trust in the land, establishing the relation of trustee and cestui que trust between the patentee and the attorney, and upon full performance of the contract by the attorney, vests in him an indefeasible equitable estate of an undivided interest in the land, and the right to a conveyance of such interest from the patentee.</p> <p>Id.—Performance of Contract by Attorney — Findings.—Upon an issue as to the performance of such contract on the part of the attorney, the finding should be clear and unequivocal, and should conform to the evidence.</p> <p>Id.—Employment of Additional Attorney — Substantial Performance of Contract. — The fact that the owner of the land employed another attorney to assist in procuring the patent, and that such attorney rendered valuable services in that connection at the instance of the owner, does not affect or defeat the rights of the first attorney, or of his assignee under the contract, after substantial performance on his part of all that was necessary to be done in order that the patent might issue for the quantity of land finally granted.</p> <p>Id.—Statute of Limitations — Open and Unequivocal Repudiation of Trust — Notice to Beneficiary. —The statute of limitations begins to run against the trust established hy such contract only from the time it is openly disavowed by the trustee insisting upon an adverse right and i interest which is clearly and unequivocally made known to the cestui que trust.</p> <p>Id. —Refusal of Executor to Convey — Notice of Disavowal of Trust Relations — Insufficient Findings.—Findings that the executor of the patentee refused upon demand to convey to the assignee of the attorney as tenant in common the interest due the attorney under the terms of the contract, without stating any reason for the refusal, and that the patentee in his lifetime, and his representative after his death, repudiated any obligation under the contract to the attorney or his assignee, anil claimed to have and hold the whole interest to which the patentee held the legal title when he died, adversely to the attorney or his assignee, free from any claim on the part of either under the contract, do not sufficiently show notice to the beneficiary of a disavowal of the trust relations created by the contract. There may be a disavowal and repudiation of the trust without knowledge or notice of the same being brought home to the beneficiary..</p> <p>Id. — Conveyance by Executor of Patentee — Order of Probate Court —Effect ob Refusal. — An executor of a patentee is under no obligation and has no authority to make a conveyance to one for whom the ® patentee was a trustee, without an order of the probate court; and the mere fact of refusal of the executor to make such conveyance upon demand, without denying the existence of the trust relation, or informing the cestui qne trust oí such denial, does nob constitute a repudiation of the trust relation.</p> <p>Id. —Notice to Assignee of Beneficiary. —After the contract creating the trust relation has been assigned by the beneficiary, to the knowledge of the trustee, no repudiation of the trust by the trustee ears affect the rights of the assignee, unless the latter has notice thereof.</p> <p>Id. — Creation of Express Trust — Intention of Parties. — It is not necessary in the creation of an express trust to use any particular form of words. The relation of trustee and cestui que trust is established, and an express trust created, if the language used in the instrument creating the trust expresses the intention that one party shall hold the legal title and the other shall have the beneficial interest.</p> <p>Id.—Estate of Vendee after Performance—Tenancy in Common — Ouster — Presumption as to Possession— Statute of Limr'ations. — The relations existing between vendor and vendee after full performance by the vendee, and the vesting in him of an indefeasible estate in equity, are governed by the same rules as those which exist between ordinary tenants in common, so far as repudiation of title and ouster are concerned. The possession of the vendor is presumed to be the possession of his cestui que trust, the vendee, and the statute cannot run against one’s own possession, while there is no ouster.</p> <p>Id. —Actual Possession of Beneficiary — Implied Trust. —In the" case of an express trust, although the actual possession of the vendor or non-possession of the vendee is a eircumstance to be considered in determining whether there has been a repudiation of the trust and notice thereof to the vendee, yet such possession is not conclusive thereof, and the mere fact that the vendee is out of possession will not set the statute of limita» tions running. It is only in cases of implied trusts that actual possession by the beneficiary is necessary to prevent the running of the statute.</p> <p>Statute of Limitations — Findings. — A finding that the cause of action is barred by certain sections of the statute of limitations, by reference to their number as pleaded in the answer, is a finding of an ultimate fact, and not of a conclusion of law.</p> <p>Partition — Equitable Title — Statute of Limitations — Specific Performance. — In an action of partition, the parties may assert any title that they may have, legal or equitable; and a full equitable title is a perfect title, which may be enforced in such an action, although limitation may have run against an action for specific performance of the contract to compel a conveyance.</p>

<p>Appeal from an order of the Superior Court of Siski- ■ you County directing the payment of alimony, and from an order directing the payment of costs.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Hoad Tax — Action by County — Parties. — A county may sue in its own name to recover taxes levied upon a road district.</p> <p>Id. —Special Tax for Construction of Bridse —Election Proclamation —Neglect of Clerk—Absence of Official Seal.—When the "board of supervisors of a county have made an order, duly entered upon the minutes of the board, that the proposition to levy a special tax upon a road district for the construction of a bridge therein should be voted upon at a special election to be held therein for that purpose at a time specified, in conformity with the general election laws of the state, and that the clerk of the board should issue an election proclamation to that effect, under his hand and the seal of the board, and made an order, not entered upon the minutes, that it should be published in a specified paper, the fact that the clerk, in signing the proclamation to be published, instead of affixing the seal of the board, made a scroll for a seal, in presence of the supervisors, and sent it thus to the required paper for publication, will not defeat the proclamation or vitiate the special election for the tax.</p> <p>Id. — Authentication of Official Acts of Supervisors — Power of Board. —The failure of the clerk properly to authenticate or record the official acts of the board of supervisors does not affect their validity. The power of the board to act exists independently of any action of the clerk, and the validity of an exercise of it does not depend upon the diligence of the clerk.</p> <p>Id. — Order of Publication — Parol Evidence. — The action of the supervisors in ordering the publication of an election proclamation may be proved by oral evidence, if the clerk has neglected to record such action.</p> <p>Id. — Evidence — Contents of Proclamation — Printed Copt— Secondary Evidence — Limiting Evidence.—Although the printed copy of an election proclamation with the affidavit of publication is not primary-evidence of the contents of the original proclamation, yet, since it is admissible to prove the publication of the proclamation, an objection to its admission, upon the ground that absence of the original was not sufficiently accounted for, is properly overruled, if the court is not requested to limit the evidence to the purpose for which it is admissible.</p> <p>Id. — Parol Evidence — Original Proclamation — Failure to Object. — The contents of the original proclamation are sufficiently proved by the testimony of the clerk of the hoard of supervisors that he drafted the original of which the printed advertisement held in his hand, which was afterward introduced in evidence, is a copy, if such testimony was received without objection.</p> <p>Id. —Posting of Election Proclamation—Discretion of Supervisors.— It is discretionary with the supervisors to publish the proclamation for a special election for a road tax, or to post the same for a period of not less than five days before the election.</p> <p>Id. — Assessment — Separation of Dollars from Cents — Subdivisional Lines. — In the assessment of a road tax, the separation of dollars from cents is sufficiently indicated by the usual subdivisional account-hook lines between the decimal parts of the dollars and the units and tens of dollars.</p> <p>Id. — Special Bridge Tax Omitted from Total Tax — Supply of Omission. — Where, in the original assessment roll, a special bridge tax in a road district was not carried to nor entered in the column headed “ Total Tax,” but the assessment roll showed clearly what the omitted total tax was, the omission may be supplied by the assessor, upon consent in w'riting of the district attorney, at any time prior to a sale for delinquent taxes.</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>Vendor and Purchaser—Contract of Sale — Subscription by Purchaser— Agency — Sale Subject to Approval of Vendor — Ratification. — Although it is not necessary for the vendor of real property to subscribe the agreement for its sale, in order to make the agreement binding upon the purchaser, yet where the agreement is made through agents acting under verbal authority, “subject to the approval of the owner,” it is necessary that the vendor should know its contents and approve and ratify it before it can become binding upon either party.</p> <p>Id. —Misinformation of Vendor by Agent — Insufficient Ratification. —Where the agents of an owner of real property, acting under verbal authority, entered into a written agreement of sale of the property with an intending purchaser, “subject to the approval of the owner,” but the owner of the property neither saw the written agreement nor learned its terms, except from a letter of the agents, which stated that the property was sold for a price and upon payments which materially differed from those named in the written agreement of purchase, a letter from the owner confirming the sale as reported to Mm, and his execution and tendering of a deed to the purchaser, expressing the consideration reported, does not constitute an approval and ratification of the sale upon the terms stated in the agreement of purchase.</p> <p>Id.—Contracts — Completion — Misunderstanding as to Terms — Uncertainty. — In order to constitute a valid contract, the minds of the contracting parties must meet and agree to the same thing. Where there is a misunderstanding as to the terms of the contract, neither party is liable either in law or equity. . Where a contract is a unit, and left uncertain in one particular, the whole will be regarded as only inchoate, because the parties have not been ad idem, and therefore neither is bound.</p> <p>Id.—Proposal — Acceptance — Rejection of Offer..— A proposal to . «accept or an acceptance upon terms varying from those offered is a rejection of the offer.</p>

<p>Writ of prohibition to the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.</p>

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

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

<p>Criminal Law—Pleading — Statement of Offense—Particular Circumstances. — Although an information or indictment will generally be held to be sufficient if it charges the offense in the language of the statute, yet where the particular circumstances of the offense are necessary to constitute a complete offense, they should be stated and averred, and a failure to do so will vitiate the information or indictment.</p> <p>Id.—Fraudulent Voting—Facts Constituting Fraud — Disqualification to Vote. —An information which merely alleges that the defend-XCL Cal.—80 ant fraudulently voted at an election, when he was not entitled to vote, is insufficient, in the absence of an averment of the particular facts relied upon, to show the fraud and to show the disqualification of the defendant to vote, notwithstanding section 45 of the Penal Code declares that “every person not entitled to vote who fraudulently voles at any election .... is guilty of a felouy.”</p> <p>Id. — Conclusions of Law — Fraud — Disqualification to Vote. —Allegations of fraud in general terms, and that a defendant is not entitled to vote, are conclusions of law, and present no issuable fact.</p> <p>Id.—Facts Showing Disqualification to Vote.—The material facts necessary to be charged to show a disqualification to vote are those facts prescribed by the constitution and the code as constituting the qualifications and creating the disabilities of electors.</p>

<p>Criminal Law — Forgery — Order for Requisition fob School-warrant. ■—The forging of an order of the trustees of a school district upon the county superintendent of schools for a requisition upon the eounty auditor for a warrant against the county school fund, is an offense within the meaning of section 470 of the Penal Code, defining the crime of forgery.</p> <p>Id. — Instrument Susceptible of Fraudulent Use. — An instrument which appears to be valid upon its face, and which, if genuine, has a value, and may he used to consummate a fraud, may be the subject of a forgery, although other steps must be taken or other proceedings had upon the basis of it before it can have effect.</p> <p>Id. — Pleading — Bill of Items Accompanying Order. — A bill of items is no part of an order of the trustees of a school district upon a county superintendent for a requisition upon the auditor for a warrant, and is only required to accompany the order when a requisition is demanded from the county superintendent; and an information charging the forgery of such an order need not allege that the order was accompanied by a bill of items.</p> <p>Ad. — Facts Assumed in Forged Order — Existence of School District — Official Character of Trustees. — The order charged to have been forged being valid upon its face, it was not necessary to allege the facts assumed in the forged order, such as the existence of the school district or the fact that the trustees whose names were signed to the order were trustees of such district.</p> <p>Id.—Evidence—Other Orders Signed by Defendant—Comparison of Handwriting. — Upon the trial of a defendant charged with the forgery of an order upon a county superintendent of schools, other orders of the same general character, proved to be in the handwriting of the defendant, are admissible in evidence for the purpose of determining by comparison whether defendant was the forger of the order recited in the information.</p> <p>Id._Forgery of Other Orders — Guilty Knowledge.— It seems that evidence of the forgery of other orders of the same character, and ab about the same time, by the accused, in the line of a systematic course of conduct, would he admissible for the purpose of showing the guilty knowledge of the accused when he passed the forged order relied upon.</p>

<p>Action for Diversion of Water — Pleading — Answer — Denial of Plaintiff’s Right — Evidence of Defendant’s Prior Right.—It seems that where the answer in an action for the diversion of the waters of a ravine contains a specific denial of plaintiff’s right to the waters the defendant may prove any prior right in himself or in bis grantors by virtue of such denial.</p> <p>Id. — Qualified Denial — Particular Prior Right — Evidence of Right . not Pleaded.—But when the answer raises no general issue, and admits plaintiff’s right to the waters of the ravine, subject to a particular prior right of defendant, claimed under an appropriation alleged to have been made by him personally at a specified date, he cannot, under such pleading, prove a distinct prior right acquired by his grantors nnder a different appropriation made at a prior date, and by them made appurtenant to the ranch subsequently purchased by the defendant.</p> <p>Id.—Evidence Outside of Issues — Findings.— Estoppel. — The reception, without objection, of some evidence of a prior right of defendant which is without the issues made by the pleadings, where the court, upon objection of the plaintiff, expressly denied the right of the defendant to amend so that that evidence might become germane to the issues, and where the issue not made was not actually and intentionally tried by acquiescence of the plaintiff, does not estop the plaintiff from urging that the evidence received was without the issues, and that the court did not err in not finding upon the issue not pleaded.</p> <p>Id.—Amendment of Answer — Grounds for Disallowance. — A ruling of the trial court disallowing a proposed amendment to the answer, so as to plead a particular prior right sought to be proved outside of the issues, is sufficiently supported, where it appears that the taking of evidence at the trial had almost concluded at the time of the proposed amendment; that eight years before, the same attorneys, in a former suit between some of the same parties, involving some of the same rights, pleaded similar facts as a defense; that defendant could not have been misled by supposing the evidence admissible under the answer as framed; that the proposed amendment would contradict an admission of the answer; and that the matter of the proposed evidence would contradict principles of law settled by decisions in the same case upon former appeals, and would be too weak to support the proposed amendment.</p> <p>Amendment of Pleadings — Discretion — Review upon Appeal. — While the power of the court in granting amendments to pleadings should be freely and liberally exercised, in order that all the snbstantial merits of a cause may be reached and determined without unnecessary delay, and in one suit, yet when the court has exercised that power by granting or refusing an amendment to a pleading, such ruling is only subject to review by this court when it is apparent that an abuse of discretion has occurred.</p>

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

Writ of certiorari to annul a judgment of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

Application to the Supreme Court for a writ of mandamus to the judge of the Superior Court of San Joaquin County. The fa'cts are stated in the opinion of the court.

<p>Cancellation of Deed of Trust — Annulling Judgment for Fraud — Action by Creditor — Pleading— Statute of. Limitations — Discovery of Fraud. —In an action by a creditor who is assignee of a note secured by a deed of trust, seeking to annul a judgment obtained by assignees of the trustor for the benefit of creditors canceling the deed of trust in a former suit brought by such assignees against the trustor aud trustee and original payee of the notes, upon the ground of fraudulent default of the trustee and payee, and further seeking to enforce the canceled deed of trust, a complaint which shows that the judgment was obtained more than three years before the commencement of the action, and merely avers that plaintiff “had no notice or knowledge, either of said suit or the decree therein, until after the rendition of said decree,” hut does not aver that the fraud was first discovered within three years next before the commencement of the action, does not state a cause of action.</p> <p>Id.— Validity of Judgment of Cancellation — Parties — Representation of Creditor by Trustee — Holders of Negotiable Paper.— The judgment canceling the deed of trust is not void as against holders of negotiable paper secured thereby who were not named or described in the deed of trust, and were not parties to the action to set it aside, such creditors being represented by the trustee, who was made a party defendant. An action to set aside or annul a deed of trust may be maintained against a trustee without the presence of the beneficiaries, aud especially so when the beneficiaries consist of many creditors who are holders of negotiable paper executed and delivered to a payee named in the deed, and negotiated by him before maturity to persons not described in the deed by name or by any classification.</p> <p>Id.— Relief against Defaulting Parties. — When a deed of trust has been canceled, and no ground is shown by the complaint for setting aside the judgment of cancellation, a creditor suing to set it aside and to enforce the trust is not entitled to any judgment against defaulting parties to the deed of trust against whom no personal judgment is asked.</p>

<p>Vendor and Purchaser — Contract for Exchangf. of Land — Conveyance by Co-owners — Repudiation by Owner not Bound — Specific Performance. —■ A contract for the exchange of land by the terms of which the. party of the first part is to convey a tract of land owned by him, and pay a money consideration to two persons named as parties of the second part, who are to convey in exchange therefor a city lot owned by them as co-tenants, but which is signed only hy one of the parties of the second part, the name of the other having been signed by his co-owner without authority, cannot he specifically enforced hy the party of the first part against the co-owner signing the contract, if the other co-owner has repudiated the contract and reiused to comply with its terms.</p> <p>Id. — Damages for Breach of Contract—Fraud. —The co-owner signing the contract, not being liable for a breach of the contract, is not liable for damages therefor, upon his refusal to convey his interest in the land, and cannot be held liable in damages, unless it be for fraud or deceit.</p>

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

<p>Vendor and Purchaser — Contract of Sale — Imperfect Title — Remedy of Purchaser—Payment — Rescission — Ejectment by Vendor. — A purchaser of land in possession thereof under a contract of sale, by the terms of which the vendor is to give a warranty deed of the property, conveying a good and perfect title thereto, cannot, upon the vendor’s failure and inability to convey a good and perfect title, retain both the land and the purchase-money until a perfect title shall be offered him, but he must pay the purchase price according to the contract, and receive such title as the vendor is able to give, if he chooses to retain the possession of the land, or he may rescind the contract, restore the possession to the vendor, and recover the purchase-money paid, together with the value of his improvements, after deducting therefrom the fair rental value of the premises; and if he fails and refuses to adopt either course, he is liable to an action of ejectment by the vendor.</p>

<p>Judgment upon Pleadings — Notice of Motion—Judgment Roll —Bill of Exceptions — Transcript upon Appeal. — A notice of motion for judgment on the pleadings constitutes no part of the judgment roll; and where there is no bill of exceptions, there is no authority for inserting such notice in the transcript upon appeal.</p> <p>Id. — Notice of Motion upon Holiday — Hearing at Later Date — Appeal— Presumption. — Where a notice of motion for judgment upon the pleadings, inserted in the transcript upon appeal, notices the hearing of the motion for a legal holiday, and the judgment recites that the motion was heard upon a date some twenty days later, and there is no bill of exceptions, it will not he presumed upon appeal that the notice set out in the transcript is the notice in pursuance of which the motion was finally heard.</p> <p>Id. —Demand Note — Stipulation for Attorneys’ Fees and Expenses of Suit — Breach of Contract — Pleading — Issue as to Demand. — The maker of a demand note, which contains a stipulation for payment of a reasonable attorney’s fee and all legal expenses in case the note is collected by suit, is not in default, as respects the liability for such special damage, until there has been a breach of the contract according to its terms, by failure to pay upon demand; and a denial that payment of the note was ever demanded raises a material issue as to such liability, which will preclude a judgment upon the pleadings for an attorney’s fee.</p> <p>Id. — Issue as to Amount of Attorney’s Fee. — In an action upon such note, an answer denying that the amount demanded in the complaint as an attorney’s fee or any other sum is a reasonable attorney’s fee raises a material issue, under which the defendant may either show that the plaintiff is not entitled to any fee, or be heard as to what is a reasonable fee; and a judgment cannot properly be rendered in favor of the plaintiff upon the pleadings.</p> <p>Id. — Pleading — Stipulation for Attorneys’ Fees — Special Damage — Defense. —The attorney’s fees, being in the nature of special damage authorized by the contract to be recovered in addition to general damages, must be specially averred; and a defendant may admit the breach of contract, and still defend as to the amount of the damage.</p>

<p>Swamp-land — Vold Survey — County Surveyor — Insufficient Appointment of Deputy — Void Application.—An appointment of a person as a deputy by a county surveyor, by a certificate signed by the surveyor as a private individual, and not in his official capacity, and which purports to appoint the deputy as a deputy to survey a certain tract of swampland, instead of appointing him as the deputy surveyor of the county, and which is not filed until after the survey by such deputy, is void, and does not tend to prove that the survey was made by a deputy surveyor ■ de facto; and an application for the purchase of swamp-land from the state, founded upon such survey, is also void.</p> <p>Id. — Official Survey—Record of Survey Made for Another —Insufficient Application. — Under section 3445 of the Political Code, the survey of swamp-lands which have been segregated as such, hut not sectionized, in order to be an official act by the county surveyor, acting as an officer of the state land-office,'must he made by the county surveyor for one desiring to purchase, and for that purpose; and the certified copy of the record of a survey, made by the county surveyor upon the application of another person, cannot he used as the basis of an application, in lieu of a certificate of a survey made at the applicant’s request, as required by section 3445 of the Political Code.</p> <p>Id. — Actual Settlement— Temporary Removal — Evidence. —The fact that an applicant who testified that he was living upon swamp-land suitable for cultivation removed his family therefrom temporarily, because of the ill health of a member of the family, does not show nor tend to show that he was not an actual settler upon the land.</p>

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

The affidavit for the writ showed, in substance, as follows: The respondent, as the presiding judge of the superior court of the city and county of San Francisco, made an order that twenty-five names be drawn in the usual way from the “grand-jury box” (which contained the names of one hundred and forty-four persons selected by the twelve judges of the superior court), for the purpose of procuring a grand jury.

Motion to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.

<p>Ejectment — Pleading — Fraudulent Entry in Land-offioe —Insufficient Defense — Striking Out.—In an action of ejectment, where the defendant alleges as a defense that the only right or title under which the plaintiffs claim arises from a pretended entry of the land at the United States land-office as a placer mining claim, which entry was founded upon fraudulent proceedings and false testimony and affidavits, and that the defendant had filed a protest against the allowance of the entry by plaintiffs, and that he believes a hearing will be granted and the entry canceled, but the answer fails to state the pendency of any question in the land-office as to the validity of plaintiffs’ certificate of purchase, admitted to have been issued to the plaintiffs, nor facts from which the pendency of such question must be necessarily inferred, the action of the trial court in striking out such defense from the answer is not error.</p> <p>Id. — Suspension of Entry after Trial.—The action of the court in striking such matter from the answer is not rendered erroneous because of the fact that after the trial of the action of ejectment the Secretary of the Interior rendered a decision directing a hearing and determination of the matter of the defendant’s protest against the entry under which the plaintiffs claimed, suspending the entry pending the investigation, and directing, in a certain contingency, a readjudication of the matter of the cancellation of the entry under which the defendant claimed, and a reinstatement of it, as such a decision could not have been anticipated by the trial court.</p> <p>Id. —Entry of Placer Mining Claim — Adverse Possession—Prescription — Statute of Limitations. — Where the plaintiffs entered the land in dispute in the United States land-office as a placer mining claim, less than two years before the commencement of their action of ejectment, the defendant’s adverse possession of the land before the entry by the plaintiffs is immaterial for the purpose of proving title in the defendant by prescription, as the statute of limitations could not run against the government; and a finding that the defendant acquired no title by adverse possession is not error.</p> <p>Id. — Certificate of Sale of Mineral Lands —Prima Facie Evidence — Adverse Possession — Construction of Code. — Section 1925 of the Code of Civil Procedure, making certificates of the sale of public lands prima fade evidence of ownership, and providing that such evidence may be overcome by proof that at the time of the location of the land upon which the certificate issued the land was in the adverse possession of the other party, applies to a certificate of sale of mineral land.</p> <p>Id. — Material Issue as to Adverse Possession — Failure to Find — Decision against Law. —Where the answer in an action of ejectment in which judgment was rendered for the plaintiffs raised an issue as to the defendant’s adverse possession of the land at the time of its location as a mining claim by the plaintiffs, upon which the plaintiffs’ certificate of purchase was issued, and there was evidence tending to prove such adverse possession at that date, such issue is material upon the question of overcoming plaintiffs’ certificate of purchase, and a finding that defendant had no title by adverse possession is not a finding upon such issue, and a failure to find thereupon is a decision against law, entitling the defendant to a new trial.</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>Corporations—Liability op Stockholders—Obligation Arising upon Contract — Construction of Code — Jurisdiction of Justice’s Court.— The personal liability of the stockholder of a corporation for his proportion of the indebtedness of the corporation is an obligation arising upon contract, within the meaning of section 112 of the Code of Civil Procedure, giving original jurisdiction toa justice’s court in actions arising upon contract for the recovery of money, when the amount claimed is less than three hundred dollars.</p>

Application, to the Supreme Court for a writ of mandamus to require .the defendant, as treasurer of the city of San Luis Obispo, to issue bonds. The facts are stated in the opinion of the court.

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

The action is for damages for breach of a contract between the plaintiff and defendant for the exchange of lands, executed January 13, 1887, the body of which was in the following words: — “Vineland, Cal., Jan. 13, 1887. “This agreement, made this day between G. L. Dennison of Los Angeles, and J. U. Marriner of Vineland, California, is as follows: Said Dennison agrees to convey to said Marriner lots 1, 2, 33, 35, 60, and 59, in his subdivision of the McGee tract, and for…

<p>Mechanics’ Liens —Action by Contractor — Unrecorded Contract — Assumpsit for Reasonable Value—Set-off — Liens of Material^ men — Attorney’s Fees and Costs. — The owner of a building who is sued by a contractor who erected the building under an unrecorded contract, for the reasonable value of the work and labor performed and materials furnished, may set off the amount paid by him upon foreclosure of liens of material-men for materials furnished to the contractor, including the amount allowed and paid for attorney’s fees and costs, as well as for principal and interest of the liens.</p> <p>Id. — Liability of Owner — Payment of Material-men — Foreclosure Defense of Contractor. — The owner of a building is not personally liable for the debts of the contractor to persons furnishing materials to him, and is not under obligation to the contractor to pay his debts to the material-men, without suit, or to anticipate that the contractor will have no defense against them in a suit brought by them to enforce and foreclose their liens.</p>

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

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

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

<p>Trial — Notice of Setting Cause. —In the absence of a rule of court requiring notice by the moving party of the setting of a cause for trial, no notice is necessary.</p> <p>Id. — Construction of Code — Service of Notice by Mail — Time for Trial. — Section 1013 of the Code of Civil Procedure, respecting the time in which the other party may act where notice is served by mail, has no application where notice that a canse has been set for trial has been given by mail; and the party so notified cannot claim the time given by that section after the mailing of such notice, before a legal trial can he had.</p> <p>Id. —Duty of Non-resident Party — Proceedings during Absence. —A party to a cause must either personally or by his attorneys, whether they reside in the county where the case is to be tried or elsewhere, watch its progress, and cannot object that a proceeding is taken against him in his absence, unless it is taken through his mistake, inadvertence, surprise, or excusable neglect. \</p> <p>Id. — Special Appearance — Motion for Coi Wuance — Non-appearance ’ at Trial — Waiver of Findings.—Wh V upon the day set for the trial of a cause, an attorney appeared for th 'defendant only for the special purpose of moving for a continuance, t 'd then withdrew from the case, and the judgment recites that the cause ame on regularly for trial, the plaintiff appearing by his attorney, and th '¡defendant not appearing, either in person or by his attorney, and there t waiving findings in the cause, the judgment will not be reversed be use of the failure of the court to make findings. \</p> <p>Id.—Continuance — Illness of Attorney—Co \ition — Payment of Costs. — Although a reasonable continuance of a Vise should he granted by the trial court upon motion, where an atto: W is prevented from being present at the time set for trial because 'sudden illness, yet where the court, in the exercise of its discretion, m Ves the payment of costs occasioned by the postponement a condition of granting the same, and the party asking the continuance does not accept the condition, and states that he is not prepared to pay the costs of the continuance, the refusal of the court to grant the motion is not ground for reversal of a judgment against him.</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. , . r

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco denying a new trial, from an order made after final judgment refusing to vacate and set aside the judgment, from an order made after final judgment refusing to restore the defendant to possession of the premises in controversy, and from an order made after final judgment refusing to strike out the plaintiff’s cost-bill.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insolvency — Action by Assignee of Insolvent—Claim and Delivery — Pleading — Admission. — In an action of claim and delivery by the assignee of an insolvent to recover goods claimed by the defendant by virtue of purchase from the insolvent made within thirty days next preceding his adjudication in insolvency, an undenied allegation of the complaint that at the time of the attempted sale, and for a long time prior thereto, the insolvent was and ever since has been indebted to various persons in large sums, and during all said times was and still is unable to pay bis debts from his own means as said debts became due, and then was and still is an insolvent debtor, is sufficient to establish the insolvency of the vendor at the time of the alleged sale to the defendant.</p> <p>Id.—Purchaser’s Knowledge of Vendor’s Insolvency — Conflicting Evidence — Fraudulent Transfer. —Where there is evidence to sustain a finding that the purchaser had knowledge of the vendor’s insolvency at the date of the sale, and the evidence is substantially conflicting, such finding will not be disturbed; and if there is sufficient evidence to show that the transfer was in violation of section 55 of the Insolvent Act of 1880, a recovery by the assignee in insolvency of the vendor will be sustained.</p> <p>Id.—Authority of Assignee to Sue — Evidence — Certified Copy of Assignment — Power of Legislature. — The legislature had power to make the rule of evidence prescribed by section 18 of the Insolvent Act, that a certified copy of the assignment made to an assignee shall be conclusive evidence of his authority to sue; and where he presents such copy in evidence in a suit prosecuted by him, his authority cannot be collaterally attacked.</p> <p>Id. — Sufficiency of Bond — Evidence — Objection by Purchaser from Insolvent. — The creditors and debtor are alone interested in the sufficiency of the bond of the assignee, and the admission in evidence of a bond which was signed by the sureties only, and not by the assignee, in an action by the assignee against a purchaser from the insolvent, in which the certified copy of the assignment was introduced in evidence, cannot be objected to by such purchaser.</p> <p>Pleadings — Amendment — Motion for Judgment — Discretion.—The action of the trial court in denying a motion for judgment upon the pleadings in a cause, and allowing the plaintiff to amend his complaint, will be sustained upon appeal, unless there is a gross abuse of discretion.</p>

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

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

<p>Arbitration — Partnership Matters and Accounts — Sufficiency of Award. — Under an agreement submitting to arbitration all differences existing between partners in relation to partnership matters and aecounts, an award containing an itemized statement of the partnership accounts, showing a balance in favor of one of the partners and against the other, to secure which it is found that the former has a lien by pledge upon the latter’s interest in_a specified portion of the partnership property, and containing a complete schedule of the existing partnership property, in which it is awarded that the partners have an equal interest subject to said lien upon the interest of one partner in favor of the other in said specified portion, is sufficiently definite to be enforced.</p> <p>3d. —Determination of Matters Submitted — Completeness of Award. — An award which appears to determine all matters submitted to arbitration, and which shows upon its faee that no further inquiry is necessary to ascertain the sum of money to be paid or any act to be done by either party in relation to the matters submitted, is sufficiently complete.</p> <p>Id. — Definiteness of Award — Provision for Recovery of Sum Awarded. —The fact that the award does not provide that either party shall have or recover any sum or anything from the other party is not a valid objection to the definiteness of an award finding a balance due from one partner to another, and definitely settling the rights of the parties in the partnership property.</p> <p>Id. — Disposition of Partnership Property.—An omission to provide that any disposition, sale, or division of the existing partnership property shall be made does not render the award void for indefiniteness, it not appearing that any differences between the partners existed or were submitted to the arbitrators in reference to a disposition of the partnership property.</p> <p>Id. — Appeal — Concluriveness op Award — Contradictory Affidavits as to Evidence. —The award of the arbitrators is conclusive upon appeal therefrom, as to all items or matters submitted to them, where it does not appear from the record upon what evidence the findings as to such items or matters were based by the arbitrators; and contradictory affidavits by the parties, as to what the evidence was, will not be considered upon appeal.</p> <p>Id. —Submission of Partnership Matters and Accounts — Province of Arbitrators — Bill of Sale to Copartner — Pledge.—The determination by the arbitrators as to whether or not certain written instruments between the partners constituted a bill of sale of the interest of one of the partners in a portion of the partnership property, or a mere pledge to secure a debt, is properly within the power of the arbitrators, under a submission by the parties of “ partnership matters and accounts.” Id. •— Distinction of Individual from Partnership Property — Partner, ship Matter. — The determination of a difference between partners as to what is partnership property as distinguished from the individual property of one of the partners is the settlement of a partnership matter, and is necessary in order properly to adjust the partnership accounts.</p>

Motion in the Supreme Court to set aside a sale of property made under a judgment. The facts are stated in the opinion of the court.

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

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

<p>Chattel Mortgage — Growing Oboes — Record without Certificate of Acknowledgment—Subsequent Mortgage — Notice.—A subsequent mortgagee of growing crops, who takes his mortgage with full knowledge of a prior mortgage thereupon, is not an encumbrancer in good faith, so as to render the prior mortgage void as to him, although the prior mortgage is recorded without a certifícate of acknowledgment, if it substantially complies with the prescribed statutory form, and was duly executed.</p> <p>Id. — Construction of Code — Unrecorded Chattel Mortgage — Subsequent Purchasers and Encumbrancers. — The code provisions, as to those chattels on which a mortgage is permitted, puts them, except as to certain specified conditions, on the same basis as mortgages upon real estate; and the fact that the mortgage, in the absence of a proper record, » is expressly made void as to purchasers and encumbrancers in good faith and for value implies that it is valid as to all others without such record.</p> <p>Id. — Creditors of Mortgagor—Claim and Delivery—Action by Subsequent Mortgagee. — Though the code makes an unrecorded chattel mortgage void as against the creditors of the mortgagor, a creditor who sues as a subsequent encumbrancer only, to recover the mortgaged crop or its value, against the holder of a prior unrecorded mortgage who has taken possession of the harvested crop, has no rights in the case, unless he acquired them by his mortgage, and it matters not that he was a creditor of the mortgagor at the time of the prior mortgage-</p>

<p>Criminal Law.— Grand Larceny— Embezzlement —Information —Dismissal— Change of Accusation — Preliminary Examination — Habeas Corpus. — Where an information for grand larceny was dismissed by direction of the superior court after a trial by jury resulting in a disagreement of the jurors and their discharge, and the defendant was charged in a new information with the crime of embezzlement, which was filed without bringing the defendant again before a committing magistrate for examination, he is not entitled to be discharged upon habeas corpus, upon the ground that the court denied his motion to set aside the new information because it was filed without any previous examination and commitment upon the charge set forth in the information.</p> <p>Id. —Refusal to Set Aside Information — Error within Jurisdiction — Legality of Imprisonment.—The superior court has jurisdiction to hear and determine whatever questions of law or fact are involved in a motion to set aside an information, and its decision refusing to set it aside, although it may be erroneous, is not void, but valid and binding until reversed upon appeal; and the error in denying the motion does not make the imprisonment of the defendant illegal in a sense which will entitle him to be discharged, or to raise the question upon habeas corpus.</p> <p>Id.—Commitment by Magistrate — Designation of Offense — Power of District Attorney —Amended Information. — If the committiug magistrate should give the offense shown by the depositions a wrong designation in his order of commitment, the district attorney may charge it correctly in the information; and if he should fail to discover and correct the mistake before filing an information, he may, by leave of court, correct it subsequently by withdrawing the first information and filing an amended one, without being first required to go through the vain form of a trial and acquittal before making the amendment.</p> <p>Id. —Variance — Acquittal — New Information — Power of Court — Mistrial. — The superior court having the power, upon an acquittal of the defendant upon the ground of variance, to order the filing of a new information, it may make such order at an earlier stage of the proceeding when the necessity for it becomes apparent, as in case of a mistrial by a failure of the jury to agree.</p> <p>Id. —Preliminary Examination — Decision of Trial Court —Presumption. — The decision of the trial court upon a motion by the defendant to set aside the information for embezzlement, that the depositions taken at the examination of the defendant upon the charge of grand larceny justify an information for embezzlement, will, in the absence of a showing to the contrary, be presumed to be correct, and not in excess of its jurisdiction.</p>

<p>Constitutional Law — Gift by Legislature — Act for Relief of Claimant. — The act of March 31, 1891, appropriating money fpr the relief of Jonathan D. Stevenson, in payment and satisfaction of his claims against the state for services or otherwise, not showing upon its face the nature of the claims made against the state, or that the appropriation thereby made is a gift, is not in conflict with sections 31 and 32 of the constitution, providing that the legislature shall have no power to make any gift of any public money to any individual, or grant any extra compensation to any public officer, agent, servant, or contractor after his performance of the service.</p> <p>Id__Payment of Monthly Installments to Cease at Death. — The fact that such act provides that the state shall discharge by monthly installments the indebtedness which the act admits, and, in the event of the beneficiary’s death before it is fully paid, shall he released from the payment of any balance then due, does not affect the power of the legislature to so provide, nor authorize the court to declare the act unconstitutional.</p> <p>Id. — Assailing Statute — Evidence Aliunde,—In passing upon the constitutionality of a statute, the court must confine itself to the facts appearing on the face of the law and the facts of which it can take judicial notice, and if the law, as thus considered, does not appear to be unconstitutional, the court will not go behind it and receive evidence aliunde to establish facts which would tend to impeach and overthrow the law.</p> <p>Id.—Power of Judiciary—Question of Law.—While the courts have power to declare a statute invalid, when it appears to them in the course of judicial action to be in conflict with the constitution, yet they can only do so when the question arises as a pure question of law unmixed with matters of fact.</p>

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

<p>Evidence —Opinions of Medical Witnesses — Extracts from Medical Works —Improper Examination. —It is not competent upon the examination of medical witnesses, either in direct or cross examination, to read to them extracts from medical works, and ask them whether what is so read corresponds with their own judgment, when it is apparent that the sole object of so doing is to place before the jury the opinion of the author of the books referred to.</p>

<p>Appeal from an order of the Superior Court of Stanislaus County refusing to grant a change of venue.</p> <p>The facts are stated in the opinion.</p>

<p>Will — Direction to Convert Land into Monet — Conversion — Devise to Executrix — Ejectment be Heir. — A direction, to the executrix of a will, to convert all the testator’s property, real, personal, or mixed, into money, operates as a conversion of the land into money from the death of the testator only for the benefit of those for whose use the conversion is intended to be made, and does not operate as a devise of land to the executrix, or deprive the heir of the right to maintain an action of ejectment for the possession of the land and for recovery of the rents, issues, and profits thereof as against any person other than the executrix.</p> <p>Id. —Common Law— Construction of Code. — The provision of the code in regard to the conversion of real property into money from the death of the testator, where a will directs the conversion, is simply declaratory of the common law, and has not changed the rule that such direction does not vest title in the executor, or cut off the heir at law, in the ab- ' sence of any devise of the land.</p> <p>Id. — Bights of Heir — Bents and Profits of Land •— Ejectment — Evidence—Value of Bents.—The heir at law is entitled to the rents, issues, and profits of land not specifically devised, so long as wrongfully kept out of the possession thereof; and it is error to exclude evidence of the value of the rents of the demanded premises, in an action of ejectment by the heir against a co-tenant.</p> <p>Findings — Conflict —Appeal — Beversal. — Where the findings are conflicting as to a material issue, it is sufficient ground for a reversal of the judgment.</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.</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>