Volume 92 — California Reports

.Appeal from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. The specifications of insufficiency of the evidence to justify the decision referred to in the opinion were as follows: “The evidence did not show, and does not show, that the plaintiff, Joseph Tromans, is not the owner of the tract of land mentioned and described in the complaint in said action; or in any part thereof, either in fee-simple absolute, or at all.

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

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, 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>Vendor, and Purchaser —Contract of Sale — Rescission — Return of Deposit — Equity of Vendor — Delay in Procuring Title. — Where at the date of a contract of purchase which provides that ten days are allowed for examination of title and completion of purchase, and that the title is to prove satisfactory or a deposit made is to he refunded, it appears that the legal title to the property is in another, from whom the vendor is entitled to receive a conveyance upon payment of a balance of purchase-money, and such .fact is known to the purchaser, he cannot rescind the contract and recover the deposit merely because the vendor did not acquire the title until more than ten days after the date of the contract of purchase.</p> <p>Id.—Notice from Purchaser'—Offer to Perform — Reasonable Time to Complete Title. — In such case, the purchaser must give notice of his approval of the title if satisfactory, or of his objections to the title if not approved; and the vendor is entitled to a reasonable time after such notice in which to perfect his title, or to remedy any defects therein, and not until the giving of such notice, and an offer to perform the contract on the purchaser’s part upon receiving a perfect title, and the refusal of the defendant thereafter to convey as agreed, would the purchaser have a right to rescind the agreement, and recover the amount paid thereon.</p>

<p>Criminal Law—Obtaining Money under False Pretenses — Evidence — Inducement of Prosecutor. — Upon the trial of a defendant charged • with the crime of obtaining money under false pretenses, while the testimony of the prosecutor is, ordinarily, the best evidence of the effect which the alleged statements had upon him, it is not essential to a conviction that he should testify expressly that the false pretenses induced him to act as he did; but the jury may be satisfied on the testimony of others, and from all the circumstances in the case, that the representations did induce the prosecutor to turn over the property to the defendant.</p> <p>Id. — Appeal — Review of Evidence — Conflict — Preponderance.— Where there is a substantial conflict in the evidence, it cannot be held, upon appeal, that the evidence is insufficient to support a verdict of conviction, although the evidence seems to preponderate in favor of the defendant.</p> <p>Id. —New Trial — Newly Discovered Evidence — Cumulative Proof — Statements of Prosecuting Witness.—It is not error to refuse the defendant a new trial on the ground of newly discovered evidence, where the witnesses for the defendant testified at the trial to substantially the same matters set forth in the affidavit on motion for new trial, the only difference being that statements of the prosecuting witness were made since the trial, of the same character as those testified to at the trial as having been previously made.</p>

The action was brought to recover the possession of an improved lot in the city of San Diego, the possession of which was given by plaintiff to her son, Frank B. Shirley, who resided thereon from the erection of a house in the spring of 1888, until his death, August 9, 1888. The Silver Terrace property referred to in the opinion is not identified in the transcript.

Writ of review to annul proceedings and judgment of the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.

Application to the Supreme Court for writ of mandate to the state controller. The facts are stated in the opinion of the court.

Application to Supreme Court for writ of mandate to the judge of the Superior Court of San Joaquin County. The facts are stated in the opinion of the court.

<p>Appeal — Dismissal — Defective Transcript — Curing Defects after Notice of Motion. —A motion to dismiss an appeal from a judgment, on the ground that the transcript does not contain a complete judgment roll, as required by the statute, will be denied where the defects in the judgment roll are remedied after the motion is noticed for hearing and before it is heard.</p> <p>Id. —Notice of Motion for New Trial.—A notice of motion for new trial forms no part of the record on appeal; and a motion tó dismiss an appeal from an order denying a new trial, upon the ground that the transcript does not show that any notice of intention to move for a new trial was ever served or filed, and that it does not appear therefrom that the appellant ever moved for a new trial, will be denied.</p> <p>Id. — Defects in Statement of Case. — Any defects alleged to exist in the statement of a case embodied in a transcript on appeal from an order denying a new trial will be considered only upon the hearing of the appeal upon its merits, and are not ground for a motion to dismiss the appeal.</p>

<p>Negligence—Unavoidable Accident—Instruction.—In an action for damages for personal injuries alleged to have been caused by the negligence of the defendant’s employee, where the evidence tends to prove that "the injury sustained by the plaintiff was the result of unavoidable accident, and not of negligence or carelessness, it is proper to instruct the jury that if they believe that the injury sustained by the plaintiff was occasioned by an unavoidable accident on the part of the agents of the defendant, without negligence on their part, they should render a verdict for the defendant. , '</p>

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

<p>Appeal — Dismissal — Failure to File Transcript—Death oe Respondent — Authority oe Attorney — Substitution oe Executor. — Where the respondent dies pending an appeal, the attorney who acted as his attorney during his lifetime, and who also acts as attorney for his executors, is not deprived of authority to move to dismiss the appeal for failure of the appellant to file the transcript within proper time, because no order of substitution of the executors pro forma as respondents was made at the time of notice of the motion, or until the hearing of the motion.</p>

<p>Mechanic’s Lien — Contract—Erection of Building—Removal and Repair of Two Buildings—Notice of Lien — Pleading — Evidence — Variance. — Where the complaint in an action to enforce a mechanic’s lien alleges a contract to furnish the material and erect a certain specified building for the defendant, and the notice of lien leaves it uncertain whether the contract was to erect and furnish materials for one building or two, and the evidence shows that the real contract and the work actually performed was to raise up, move back, and repair two houses, and furnish material therefor, there is a material variance between the proof and the pleading and notice of lien, in reference to the contract, and a decision sustaining the lien is not supported by the evidence.</p>

<p>Deed — Security for Indebtedness — Mortgage — Title. — A deed absolute on its face, but intended merely to secure an indebtedness of the grantor to the grantee, is a mortgage, and does not convey the title to the land.</p> <p>Id. — Lien of Mortgage — Severance and Removal of Bark—'Personal Property — Title of Mortgagee. — The severance of bark from trees growing on mortgaged premises, and its removal from the mortgaged land, changes the character of the bark from real to personal property, and frees it from the lien of the mortgage; and the fact that the mort- , gage was by deed absolute upon its face confers no title or right of possession upon the mortgagee to the bark so severed and removed by the mortgagor.</p> <p>Id. — Contract for Removal and Sale of Bark — Application of Proceeds— Lien of Mortgagee—Undelivered Bark.—A contract between a mortagor and mortgagee, by the terms of which the mortgagor is to cut bark from trees upon the mortgaged land, and the mortgagee is to advance the expenses of cutting and removing the bark, and to sell it and apply the proceeds in paying the advances and the mortgage debt, and turn over any surplus to the mortgagor, does not create a lien upon the bark in favor of the mortgagee while remaining in the mortgagor’s possession after it has been severed from the trees and removed from the property, without delivery to the mortgagee.</p> <p>Id. — Creation op Lien upon Bark—Possession—Bona Fide Purchaser — Conversion by Mortgagee. — A lien upon the bark so severed and removed by the mortgagor can only be created in favor of the mortgagee by contract or by operation of law; and if possession thereof is not taken by the mortgagee, any lien which he may have by contract or otherwise is void as against a bona fide purchaser from the mortgagor for value, and he is liable to such purchaser for conversion, if he takes possession of the bark after a sale and delivery thereof by the mortgagor to the purchaser.</p>

<p>Mortgage —Deed Absolute in Form—Contemporaneous Memorandum — Foreclosure — Evidence. — An absolute deed is sufficiently shown to have been intended as a mortgage by a written memorandum signed by the parties contemporaneously with the execution of the deed, showing that the grantee is to borrow money on the laud and use it for the grantor in paying his indebtedness to various persons, and taxes on the land, and that the grantor is to have the land again by deed when he pays the amount borrowed, and any other debts due the grantee, with interest at one per cent on each item; and such memorandum is admissible in evidence, in an action by the grantee to foreclose the alleged mortgage.</p> <p>Id.—Agreement for Interest— Time not Specified—RatSs per Annum. — Where the written memorandum specifies the rate of interest on each item of expenditure for the grantor by the grantee simply as “ one per cent interest,” without specifying time, the contract, interpreted by the rule prescribed in section 1916 of the Civil Code, means only one per cent per annum.</p>

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

<p>Joint Action — Pleadings — Denial of Joint Liability — Admission of Individual Liability — Findings. — In an action against two defendants jointly, to recover for moneys loaned and advanced to them, where one of the defendants, answering separately, denies specifically each allegation of the complaint, so far as applying to such defendant, individually or jointly with the co-defendant, and the co-defendant in a separate answer admits his individual indebtedness to the plaintiff, and denies each allegation so far as applicable to the defendants, findings to the effect that the defendants were not indebted to the plaintiff for moneys loaned and advanced by the plaintiff to the defendants must be con- . strued to mean merely that the defendants were not jointly indebted, and not as negativing the individual liability conclusively admitted by the pleadings.</p> <p>Id. — Misjoinder of Parties — Waiver — Separate Judgment on Pleadings. — Where no misjoinder of parties is specially pleaded in a joint action against two defendants it is waived; and it is error to give judgment in favor of both defendants, when the plaintiff is entitled to a separate judgment on the pleadings against a defendant whose answer admits his individual liability to the plaintiff for the amount claimed, and denies only the joint liability of the defendants.</p> <p>Findings — Admission of Pleadings — New Trial. — There is no necessity for any finding upon a fact admitted by the pleadings; and the'failure to find thereupon is not ground for a new trial.</p>

<p>Negligence — Turn-table—Injury to Child — Trespass — Contributory Negligence. —A railroad company is liable in damages for injuries received by a young child while playing on a turn-table belonging to it, which was not guarded at the time by any one, or protected by any inclosure, and its liability is not affected by the fact that the table was latched by the customary fastening of an iron latch dropped in a slot, or by the fact that the table was set in motion by the negligent act of other boys.</p>

The action was brought to recover damages for alleged breach of contract by the North Pacific Coast Railroad Company to continue to operate its road over the land of plaintiff. Further facts are stated, in the opinion.

<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 Butte County 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 Frau cisco, 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 opinion of the court in the present case, and also in the opinion reported in Arguello v. Bours, 67 Cal. 447.

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

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

<p>Elections — Ballots — Heading of Ticket — Vignette Law — Construction of Code. — The words “ Regular Prohibition Ticket, ” printed at the head of a ballot, on its face, though not adopted legally as a caption under the vignette law, do not constitute a part o£ the ticket, and do not make the ticket illegal, under section 1191 oí the Political Code, providing that the word “for ” shall constitute the top line of the ticket, where the rest of the ticket consists of the words showing for whom and for what offices the ballot was cast.</p> <p>Id. — Illegal Marking — Design to Distinguish Ballots. —It being evident that such words were not designed for the purpose of distinguishing the ballots from others, and thus destroying their secrecy, they are not thereby rendered illegal, as being illegally marked, and calculated to distinguish the persons or class of persons voting them. The fact that the device might have been used with that intention does not justify their rejection.</p>

<p>Irrigating Ditch—Laying of Pipes—Easement—-Benefit to Servient Estate — Injunction — Judgment upon Pleadings. — Where the answer in an action to restrain the laying of pipes permanently in a ditch across the plaintiffs’ land admits the plaintiffs’ ownership of the land, and the intention to lay the pipes, and claims the right so to do by-reason of defendants’ alleged ownership of the ditch, and their alleged prescriptive right to use it across plaintiffs’ land for purposes of irriga- • tion, and avers that the pipes are of no greater carrying capacity than the ditch, and will render the use of the easement less burdensome to plaintiffs’ servient estate, and more convenient to defendants, and that the laying of them will be without damage to plaintiffs, no defense is ' stated, and the plaintiffs are entitled to judgment, upon the pleadings, perpetually enjoining the laying of the pipes.</p> <p>Id.—Change in Use of Easement — New Servitude — Benefit Immaterial. — Where an alteration in the mode and manner of using an easement is so substantial as to result in the creation and substitution of a different servitude from that which previously existed, it is immaterial that the alteration will benefit the servient estate and convenience the dominant estate.</p> <p>Id. — Change from Open Ditch to Covered Pipe Line— Substantial Alteration. — The change of an easement to conduct water for irrigation in an open ditch, by placing a covered pipe line in the ground in lieu thereof, is a substantial alteration which would result in the extinction of the easement, and the creation of a new and different servitude.</p>

<p>Agency—Power not Oo.upled with Interest — Termination — Death of Prikoipal. — Power granted to an agent to carry on the principal’s business, not vesting in the agent any interest in the subject-matter of the agency, is terminated by the death of the principal.</p> <p>Id.—Purchase with Notice of Principal’s Death — Replevin by Executrix. — A purchaser of personal property of the principal from such agent, after notice of the principal’s death, takes no title, and the executrix of the deceased principal may maintain an action of claim and delivery for the property against the purchaser.</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—Review op Nonsuit — Error of Law — Exception — Insufficiency of Evidence. — An error in granting a nonsuit is an error in law, and must be excepted to, or it will not be reviewed on appeal; and it cannot be reviewed on the ground that the evidence is insufficient to - sustain the decision.</p> <p>Id. —Presumption — Exception to Order. — In the absence of any showing in the record that an order granting a nonsuit was excepted to, it ■ must be presumed upon appeal that no exception was taken.</p>

<p>Insolvency — Fraudulent Discharge — Action by Assignee oe Creditors — Construction oe Insolvent Act. — One to whom claims against an insolvent have been assigned after the insolvent's discharge, and who was not a creditor himself at the date of the discharge, cannot maintain an action to set aside the decree of discharge upon the ground that the decree was fraudulently obtained. Such assignee not being within the terms of section 53 of the Insolvent Act of 1880, can derive no authority from it to maintain the action.</p> <p>Id. —Setting Aside Discharge — Fraud — Assignment oe Right oe Action. — The right of creditors to set aside a decree discharging an insolvent upon the ground of fraud in its procurement is not the subject of transfer, either by direct assignment or as an incident to the assignment of the claims which were affected by the discharge. A right to complain of fraud is not assignable.</p>

Motion to dismiss an appeal from an order of the Superior Court of Stanislaus County denying a new trial. The facts are stated in the opinion of the court.

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

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

<p>Real Estate Brokers — Action for Commissions — Sale by Owners — Mutual Mistake in Contract—Trial. —In an action by the assignee of real estate brokers to recover commissions from the owners of land intrusted to them for sale, where the right of action is based solely upon a provision in the contract that if the owners withdrew the property from sale, or effected a sale in any manner during the year, the same commissions should be paid as if the sale had.been made by the brokers, and an issue is presented by the answer as to whether that clause of the contract was left therein by mutual mistake, the court should first dispose of that issue before submitting the other issues to a jury.</p> <p>Id. — Proof of Mutual Mistake — Knowledge of Brokers — Uncommunicated Intent of Owners. —There is no proof of mutual mistake entitling the owners of the land to reform the contract or defeat the action for commissions, without evidence that the brokers knew or had reason to know that the owners had made such mistake. The mere intent of the owners, not communicated to the brokers, cannot control the plain provision of the contract, there being no special relation of trust and confidence between them, and the means of knowledge as to the terms and conditions of the contract being equally open to all parties.</p> <p>Id. — Evidence — Conversations between Owners — Hearsay. — Testimony as to conversations between the owners as to their intention to erase the clause referred to from the contract, held in the absence of the brokers, is hearsay, and incompetent upon the issue as to mutual mistake.</p> <p>Id. — Striking out Similar Clause in Different Contract. — The fact that one of the owners of the land had struck out a similar clause in, another contract between himself and the brokers, for the sale of other land belonging to himself alone, is not sufficient to show that he would have modified the contract in suit in the same way if he had not forgotten it, but would rather tend to show that he intended to leave the clause in the latter contract which he had stricken from the former.</p> <p>Id.—Commissions upon Sale or Exchange by Owner—Production of Purchaser — Evidence.—Where, by the terms of a contract for the sale of real estate through brokers, they are authorized to sell the property for the owners at any time within one year, and it is agreed that the commissions shall be paid if the owners should withdraw the prop-, erty from sale or effect a sale in any way during the year, the brokers; are entitled to commissions upon a sale or exchange of the land by the, owners themselves, and need.not show that they had produced or could; have produced a purchaser within the time fixed in the contract.</p> <p>Id. —Right of Recovery upon Contract.—A real estate agent’s rights of recovery depends entirely upon his contract with the owner of, the; land.</p>

<p>Estates of Decedents—Devise to Executor in Trust —■ Power to Sell and Convey — Confirmation of Sale — Construction of Code. — Section 1561 of the Code of Civil Procedure, providing that where property is sold by an executor under a direction or authority in the will, no title shall pass unless the sale is confirmed by the court, does not apply where the property is devised to the testator, in trust, with power to sell and convey to pay claims against the estate without any order of court,, and such sale need not be confirmed before conveyance by the executoi? to the purchaser.</p> <p>Id.—Dismissal of Proceeding for Confirmation — Directing ConveyAnce to Higher Bidder. — Where an executor, empowered by will, as a trustee, to make a conveyance to a purchaser, has petitioned the court for a confirmation of the sale, and thereafter moves the court to dismiss the petition before the hearing, upon a satisfactory showing that the sale had been made in his character of devisee in trust, if no creditor of the estate or distributee objects, the court should dismiss the proceeding, and leave the sale to stand upon the same footing as other sales made by the trustee as such; and it is error to refuse such motion, and to make and confirm a sale to a higher bidder, and direct a conveyance to be made to such higher bidder.</p>

Application to the Supreme Court for a writ of habeas corpus for the purpose of giving bail. The facts are stated in the opinion of the chief justice.

<p>Appeal from an order of the Superior Court of Sonoma County decreeing the final distribution of an estate.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Motion to .dismiss an appeal from the Superior Court .of San Luis Obispo County. The facts are stated in the .opinion of the .court.</p>

<p>Parent and Child — Abandonment of Children — Custody of Grandmother. — Where a father has left his children under fourteen years of age to be supported and cared for by their grandmother, recognizing her right to their custody, and at various times declared his intention never to reclaim them, his abandonment of the children is sufficiently shown, and the grandmother is entitled to their custody and guardianship as against the father.</p> <p>Id. — Forfeiture of Guardianship. — The father forfeits his guardianship of his child under the age of fourteen years, whom he has abandoned, and can no longer claim its custody.</p> <p>Id. — Residence of Abandoned Child — Jurisdiction of Guardianship. — The general rule that the residence of the father during his life is the residence of his unmarried minor child does not apply when the child is under fourteen years of age, and has been abandoned by the father; and the superior court of the county in which such abandoned child resides in the custody of its grandmother has jurisdiction -to appoint her as guardian for the child, though the father resides in a different county.</p> <p>Id, — Surreptitious Removal by Father — Change of Residence.— The residence of such abandoned child with its grandmother is not changed by its surreptitious removal by the father to another county.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco granting a change of venue.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Replevin — Verdict — Judgment — Amendment.— In an action to recover the possession of personal property, where there is nothing in the record that shows that a delivery cannot be had, and the verdict implies that the property is susceptible of delivery by the defendants, and finds for its return or value in a specified sum, a judgment for the plaintiffs merely for the value of the property, and not for the possession or the value thereof in case a delivery thereof cannot be had, is not in conformity with the statute; but the error can be corrected by an amendment of the judgment to correspond with the verdict.</p> <p>Id.—Verdict for Return or Value—Insufficiency of Evidence — Specifications. — An objection that the verdict for the return of all of the property is erroneous because not justified by the evidence will not be considered on appeal, where the only specification of insufficiency of evidence contained in the statement is as to the amount found by the verdict.</p> <p>Sale of Personal Property — Statute of Frauds—Delivery and Change of Possession —Question of Fact.—The question as to whether the sale of personal property is accompanied by an immediate delivery thereof, and followed by an actual and continued change of possession, is a question of fact for the jury.</p> <p>Certificate of Partnership—Initials of Names — Construction of Code, — The object of section 2466 of the Civil Code, requiring the filing</p> <p>and publishing of a certificate by partnerships doing business under a fictitious name, and that the certificate shall state their names in full, is that public notice shall be given and a public record made of the individual members of such partnerships, with such definiteness and particularity that those dealing with them may know with whom they are dealing; and a certificate which states the names of each of the partners with the initials by which they are generally known is sufficient.</p> <p>Id. —Publication of Certificate. — The provision of the statute requiring the publication of partnership certificates “ once a week for four successive weeks” is satisfied by one publication in each of four successive weeks, and any act depending upon such publication may be performed at any time after the expiration of four weeks from the first of such publications.</p>

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

the Superior Coúrt of Placer County, and from an order denying a new trial. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial.</p>

<p>Grand Jury — Appointment of Elisor— Power of Judse — Construction of Code. — Under section 226 of the Code of Civil Procedure, the power of a judge to appoint a private person as an elisor to summon a grand jury is not unlimited and unqualified; but the term “ elisor ” is employed in that section to designate a person to he appointed when the sheriff has been challenged as incompetent; and in the absence of such challenge, the judge or court has no power to appoint an elisor to summon the grand jury.</p> <p>Id. —Harmony of Codes — Use of Word “Elisor.”—The word “elisor,” as used in the Code of Civil Procedure, must be deemed to have been used with reference to its definition given in the Political Code.</p> <p>Id.—Legal Meaning of “Elisor”—Substituted Officer. — The word “ elisor ” has a peculiar and appropriate meaning inlaw, and the statutory definition and description of an “elisor” given in the Political Code is in full accord with the meaning that has always been given to it in the general law, viz., to denote a person appointed to serve process or return a jury when the sheriff and coroner have been challenged as incompetent.</p> <p>Id.—Omission to Mention Coroner — Essence of Definition.—The omission to mention the coroner, in section 266 of the Code of Civil Procedure, does not change the meaning of “elisor,” who is essentially one who is a substitute for some disqualified officer.</p> <p>Id. — Jurisdiction to Impanel Grand Jury — Lawful Drawing — Unlawful Appointment of Elisor — Illegality of Body. — The jurisdiction to impanel a grand jury comes from the law, and not from any order of the court; and although a portion of a grand jury may have been lawfully drawn, the body is illegal if an invalid order is made for the summoning of the remainder of the jury by an elisor, where the sheriff has not first been properly challenged as incompetent.</p> <p>Id. — Quo Warranto — Prohibition, — Quo warranto does not lie against a mere temporary employment like that of a jury; and the illegality of a grand jury may be remedied by a writ of prohibition against the trial of an indictment purporting to have been found by it, the court having no jurisdiction to hear and determine it, and there being no other plain, speedy, and adequate remedy at law.</p>

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

<p>Criminal Law — Homicide — Trial — Comments of Counsel upon Facts not in Evidence — New Trial. —Upon the trial of defendants charged with murder, the statement by the counsel for the prosecution, in presence of the jury, of facts not introduced in evidence, tending to impute to the defendants a violent character, in making private threats in the court-room against an assistant in the prosecution, and the comment by counsel upon such threats, to the prejudice of the defendants, in his argument to the jury, is a violation of the right of the accused to have a fair trial upon relevant and competent facts regularly submitted to the jury, and entitles the defendants to a new trial.</p> <p>Id. — Interference of Court — Instructions — Prejudicial Action of Counsel. — The fact that the counsel for the prosecution was prevented by the court from commenting at length upon such threats, and that the court instructed the jury to disregard his statement and comments as to any matter- not in evidence, though to the credit of the court, does not render the conduct of the counsel unprejudicial error, and should not preclude the granting of a new trial therefor.</p>

<p>Negligence—Contributory Negligence—Province of Jury — Non-suit. — In an action for damages for a death caused by negligence of the defendant, where the evidence introduced by the plaintiff proves or tends to prove facts from which the inference of fact might be drawn for or against the negligence of the defendant, and for or against the contributory negligence of the deceased, and neither inference can be held as a legal conclusion from the facts proved, it is for the jury to determine from the evidence whether, as matter of fact, there was negligence on the part of the defendant, or contributory negligence on the part of the deceased, and it is error for the court to grant a nonsuit.</p>

<p>Appeal — Argument op Counsel — Review op Errors Assigned. — The appellate court will not do the work of counsel, and elaborately hunt up and consider what the counsel has not argued; and where the brief of counsel for appellant is substantially a mere recapitulation of the general assignments of error as they appear in the bill of exceptions, giving no reasons why the court erred, and citing no authorities, and upon a cursory view of the record no material error is noticed, the judgment will be affirmed.</p>

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

<p>Constitutional Law—Wright Act—Irrigation Districts.—The act of March 7, 1887, to provide for the organization and government of irrigation districts, etc., commonly known as the Wright Act, is within the power of the legislature to enact; and its provisions for the organization of such districts, and regulating the mode for assessments upon the lands therein with which to meet the bonds authorized by the act, are constitutional and valid.</p> <p>Id.—Presumption as to Legislative Power. — The presumption which attends every act of the legislature is, that it is within its power; and he who would except it from the power must point out the particular provision of the constitution by which the exception is made, or demonstrate that it is palpably excluded from any consideration whatever by that body.</p> <p>Id. — Extent of Legislative Power. — The legislature is vested with the whole of the legislative power of the state, and may deal with any subject within the scope of civil government, except so far as it is restrained by the provisions of the constitution, and is the sole tribunal to determine as well the expediency as the details of all legislation within its power.</p> <p>Id.—Power of Judiciary — Doubtful Legislation — Public Welfare. — Though the courts may investigate whether an act is palpably for private rather than for public benefit, yet if the subject-matter of the legislation be of such a nature that there is any doubt of its character, or if by any possibility the legislation may be for the welfare of the public, the will of the legislature must prevail over the doubts of the court.</p> <p>Id. — Incidental Advantages to Individuals. — Whenever it appears from the scope of an act that its object is for the benefit of the public, and that the means by which the benefit is to be attained are of a public character, the act will be upheld, notwithstanding incidental advantages may accrue to individuals beyond those enjoyed by the general public.</p> <p>Id.—Local Public Improvement — Local Taxation.—The legislature may provide for a local public improvement for the benefit of a portion of the state, and may tax all land within a limited district to be benefited by such .mprovements, notwithstanding some of the property within the district will not receive any benefit, and notwithstanding some property taxed outside of the district may be incidentally benefited.</p> <p>Id.—Public Corporations — General Laws.—The legislature may by general laws authorize the inhabitants of any district, under such restrictions and with such preliminary steps as it may deem proper, to organize themselves into a public corporation for governmental purposes, and such public corporations need not be required to be formed in the same manner or provided with the same powers as municipal corporations of a different class.</p> <p>Id. — Classification pf Municipal Corporations. —The municipal corporations which may be created under the constitution are not limited to cities and towns; but the legislature may by general laws classify and provide for as many species of municipal corporations as, in its judgment, are demanded by the welfare of the state, and commit to each class such powers only as are peculiarly appropriate thereto.</p> <p>Id. — Irrigation District—Public Corporation.—An irrigation district organized under the Wright Act becomes a public corporation, and its officers become public officers of the state.</p> <p>Id.—Discretion of Legislature — Mode of Forming Irrigation District— Rights of Land-owners.—It is within the discretion of the legislature to determine the mode in which an irrigation district shall be formed, and the judiciary cannot question the policy or prudence of the law as it has been enacted; and it is no valid objection that the organization may be compelled by persons not interested in the lands affected thereby, or that the act makes no provision for a hearing from the owners of the land prior to the organization of the district.</p> <p>Id. — Due Process of Law—Lien of Assessment.—The property of a land-owner within an irrigation district is not taken from him without due process of law, if he is allowed a hearing at any time before the lien of an assessment for taxes levied thereon becomes final.</p> <p>Id.—Power of Taxation.—The power of the legislature in matters of taxation is unlimited, except as restricted by constitutional provisions, and extends to the providing of assessments for local improvements, upon any basis of apportionment which the legislature may select; and the apportionment does not depend upon the fact of any special local benefit to the tax-payer.</p> <p>Id. — Indebtedness of Public Corporations. — The provision of article XI., section 18, of the constitution, prohibiting certain public corporations from incurring indebtedness without the assent of two thirds of the qualified electors thereof voting at an election to be held for that purpose, is limited to the corporations specified in that section, and does not apply to irrigation districts, nor render the Wright Act unconstitutional. With respect to such other corporations as under the provisions of section 6 the legislature may by general laws authorize to be incorporated, the constitution has left to the legislature power to provide the terms and conditions upon which an indebtedness may be created, as well as its amount.</p> <p>Id.—Inclusion of Municipal Corporation in Irrigation District.—» The fact that a town or city which has been incorporated may be included within the boundaries of an irrigation district organized under the Wright Act neither renders the act unconstitutional nor invalidates the organization of the district.</p> <p>Organization of Irrigation District — Defective Bond.— Where an informal bond presented with the petition for organization of an irrigation district is not invalid, and binds those who signed it, the determination of its sufficiency by the board of supervisors is conclusive.</p> <p>Id. — Petition — Description of Boundaries. — The provision in the statute that the petition for organization of an irrigation district shall particularly set forth and describe the boundaries does not require them to be set forth with more particularity than would be necessary in an act of the legislature creating a political district or a municipal corporation; and where it does not appear that the boundaries given in the petition are so indefinite that the district cannot be definitely located, or that they fail to embrace a distinct and definite territory, the supervisors are not prevented from acquiring jurisdiction to authorise the organization of the district.</p> <p>Id. — Confirmation Proceeding — Evidence — Execution of Petition — Recital in Records of Supervisors. — In a proceeding for confirma- ■ tion of the organization of an irrigation district and of an order for the issue and sale of its bonds, where the organization is controverted by the answer, it is necessary for the directors of the district to make proof to the court, under the ordinary rules of evidence, that a petition was presented to the supervisors, signed by fifty or a majority of freeholders owning lands within the proposed district; and the execution of such petition cannot be proved by recital in the records of the board of supervisors, nor can the petition itself be properly received in evidence without proof of its execution, and that the signers were freeholders of the district.</p> <p>Id. —• Form of Bonds — Order for Issuance. — The bonds to be issued by an irrigation district should be in such form that each bond will be payable in installments of such percentage in each year as is designated in the statute; and an order for their issuance making that percentage of the entire issue of the bonds payable in the designated years is not in compliance with the statute, though it does not invalidate the pro" ceedings had for the issuance of the bonds, which should be issued in the form prescribed by the statute.</p> <p>Id.—Judgment of Confirmation — Injunction.—The judgment of confirmation cannot properly include an injunction debarring all persons interested in the organization of the district from disputing, denying, or disclaiming any facts which might have been disputed in the proceeding.</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 Sacramento County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of Alameda County setting apart a homestead.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Homestead—Settlement — Improved Public Land — Entry upon Another’s Possession. — A settlement cannot rightfully be made upon improved land in the actual possession of another, for the purpose of making a homestead entry, even though the land is public 'land, open to homestead entry, and the party entering thereon possesses all the requisite qualifications to make the entry.</p> <p>Id.—Possession Obtained as Tenant — Fraud upon Occupant.—One who obtains possession under permission of an occupant of public land to enter thereon as a tenant, while secretly intending to obtain possession of the land adverse to the occupant, for the purpose of claiming the land as a settler under the homestead laws, is entitled to no advantage to the prejudice of such former occupant, obtained by his fraudulent deception.</p> <p>Id.—Estoppel op Tenant — Ejectment by Lessob. — One who enters into possession of public land as a tenant of an occupant thereof, under a lease from such occupant, and who afterwards conceives the intention to claim the land as a homestead adversely to his landlord at some future time, but fails to connect himself with the government title by filing a homestead claim, is estopped by the lease from denying the title of the lessor, in an action of ejectment brought by the lessor.</p>

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

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

<p>Master and Servant—Negligence — Selection of Servants—Carelessness of Fellow-servant — Presumptions. —A master is presumed to have done his duty in the selection of competent servants, and there is no presumption that a fellow-servant is incompetent or careless.</p> <p>Id. —Burden of Proof — Knowledge of Master. — It is incumbent upon a servant, who seeks to recover from the master for the carelessness of a fellow-servant, to prove not only that the fellow-servant was in fact careless, hut also that the master had knowledge of such carelessness, or was negligent, either in the selection or retention of such servant.</p> <p>Id. — Previous Accident in Different Employment. — The fact that upon a single occasion an accident had previously occurred while the fellow-servant was in the service of the defendant in a different employment does not show his incapacity for another employment in the same service; and if it is not shown by any competent evidence that he was in fact careless in his new employment, or that he was either known or reputed to be a careless man prior to the accident complained of, the master cannot he charged with the result of that accident.</p> <p>Id Evidence — Declaration of Foreman after Accident. — In an action by a servant for damages for personal injuries sustained through the negligence of a fellow-employee, where the plaintiff charges the defendant with negligence in selecting and retaining in its service a fellow-servant, through whose carelessness the accident occurred, it is error to admit testimony that the foreman of the defendant had said to the plaintiff on the evening after the accident, that the fellow-servant was careless, and that his carelessness was known to the defendant some time before the accident occurred.</p> <p>Id. —Admissions of Agent. —The admissions of an agent, not connected with the transaction to which they refer, cannot bind his principal, even though made in explanation of an act previously done by him while in the exercise of his agency; neither can his opinion bind his principal with reference to a transaction with which he was not connected. The declarations of an agent are admissible only when made in regard to a transaction, in the course of his agency, depending at the very time of the declarations.</p>

<p>Appeal from an order of the Superior Court of Monterey County recalling a writ of execution.</p> <p>The facts are stated in the opinion.</p>

<p>Railroad Grants—Rights of Atlantic and Pacific and Southern Pacific Companies. — The Atlantic and Pacific Railroad Company, not having constructed any railroad in the state of California, never had either a present or prospective right to any indemnity or lieu lands within the state of California; and land in said state within the primary limits and terms of the grant of March 3, 1871, to the Southern Pacific Company, which constructed a branch line of road from Tehachapi Pass, by way of Los Angeles, to the Texas Pacific railroad, at or near the Colorado River, and performed all the conditions of said grant necessary to entitle it to a patent, passed by a perfect title to the Southern Pacific Company, which attached to specific land at the date when the map of the definite location of the road was filed in the office of the commissioner of the general land-office, notwithstanding said land may have been within the indemnity limits of the prior grant to the Atlantic and Pacific company.</p>

The action was brought to recover the sum of eighteen thousand dollars for the conversion by the defendants of mining stocks belonging to the plaintiffs valued at that sum, which the defendants refused to deliver to the plaintiffs upon demand made upon them on the second day of December, 1886.

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

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

<p>Appeal 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>Trial by Jury—Action to Determine Adverse Claim — Promissory Note — Cross-complaint — Answer — Defenses to Note — Common-law Issues. — In an action under section 1050 of the Code of Civil Procedure to have determined an adverse claim which the defendant asserted against the plaintiff upon a promissory note, where the defendant filed an “answer and cross-complaint” which was in form and substance a complaint upon the note, with a prayer for judgment against, the plaintiff for the amount due thereon, and the plaintiff answered the cross-complaint, setting up want of consideration and other defenses, the issues thus joined are triable by jury in the ordinary course of law, and it is error for the court to refuse to allow the plaintiff a jury trial, upon demand thereof by him, without previous waiver of his right.</p>

<p>Criminal Law — Assisting Prisoner to Escape — Unlawful Imprisonment. — A departure from an unlawful imprisonment or custody is not an escape, within the meaning of the law; and one who, without violence, assists a person who is confined without authority or process of law to depart from his place of confinement, is not guilty of the crime of assisting a prisoner to escape.</p> <p>Id.—Imprisonment op Chinese Laborer — Authority op Marshal— Assisting Escape. — Where a person, charged with having unlawfully come within the United States as a Chinese laborer, was examined by a United States circuit court commissioner for the southern district of California, and found to have unlawfully entered from Mexico, such finding, without any formal judgment made or given thereupon, is not the equivalent of an order or direction given by the commissioner or by a court of the southern district that the Chinaman should be removed from the district and held in custody elsewhere for the purpose of returning him to the country whence he came; and in the absence of such order, the marshal of the northern district of California has no authority to imprison him; and any person assisting him to escape from such imprisonment is not guilty of a crime.</p>

<p>Ejectment — Vendor against Vendee—Notice to Quit — Pleading — Demand and Refusal. — A vendee in the possession of land who entered under a contract of sale, agreeing to pay interest on the purchase price in place of rent, and expressly agreeing that the vendor could reenter in case of a failure to pay, but who afterwards repudiated the contract, refusing to pay the interest due, and claimed title adversely to the vendor, is not entitled to a notice to quit, and the complaint in an action by the vendor to recover the possession of the property need not aver a demand and refusal.</p> <p>Id. — Estoppel of Vendee. —A vendee of land who enters into its possession under a contract of purchase from the vendor, and afterwards repudiates the contract, is estopped from denying his vendor’s title in an action of ejectment against him by the vendor.</p> <p>Id. — Outstanding Claim. — The fact that there was an outstanding claim to an undivided interest in the property purchased by the defendants, which was known to them at the time of the agreement to purchase, and that the plaintiff agreed to purchase it and failed to do so, cannot be considered in an action of ejectment brought against the vendee after he has repudiated the contract and claimed title adversely to the plaintiff.</p> <p>Id.—Evidence—Bond for Deed. — In an action of ejectment it is not error to admit in evidence a bond for a deed under which the defendants entered into the possession of the land in controversy, and which was duly executed by the plaintiff, the vendor of the land, and accepted by the defendants, and admitted to be genuine by the defendants upon the trial.</p> <p>Id. —Finding—Ownership. —A finding in an action of ejectment, that the plaintiff is the owner of the land in controversy, is a sufficient finding that the defendants are not the owners.</p>

. Application to the Supreme Court for a writ of mandate to a justice of the peace for San José township, Santa Clara County. The facts are stated in the opinion of the court.

Separate appeals from an order of the Superior Court of the city and county of San Francisco settling an executor’s account, and from an order of partial distribution. The facts are stated in the opinion.

<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 — Review op Evidence — Findings — New Trial. — When a material finding of fact is unsupported by the evidence, and is contradictory of other findings, the failure to make the finding in accordance with the evidence necessitates a new trial.</p> <p>Id. — Construction op Findings — Support op Judgment. — When a finding of fact is susceptible of two constructions, one of which is supported by the evidence and the other not, only that construction which is supported by the evidence will be considered; yet if the findings, when construed in harmony with the evidence, do not support the judgment, it must be reversed.</p> <p>Trust Deed as Security — Foreclosure — Auction Sale —Purchase by Trustee — Permission op Court — Discharge op Trusts. — When a deed of trust of real and personal property is given to a debtor as security for advances made and to be made, with power to sell and dispose of the property, and all of the parties to the deed are made parties to a foreclosure suit, in which a full accounting of the trust is had, and a sale is made under the decree therein, at which the trustee purchases the property at public auction, by express leave of the court, the trustee becomes thereby vested with absolute title freed and discharged of the lien and trusts created by the original deed.</p> <p>Id. —Mortgage with Power of Sale — Foreclosure. —An absolute conveyance of property by a debtor to his creditor, in trust, that he may sell the same, and out of the proceeds discharge the debt, is, in effect, only a mortgage with a power of sale, which the grantee may treat as such; and if he proceeds by foreclosure, his relation to the property is the same as that of a mortgagee in the foreclosure of an ordinary mortgage.</p> <p>Id. — Sale by Order of Court — Right of Trustee to Purchase.— When a sale is made under the direction of a court of equity, by officers appointed by the court, it is not a sale by the trustee, and the rule forbidding a trustee to purchase at his own sale does not apply.</p> <p>Id.—Purchase by Beneficiary.—A beneficiary under a deed of trust may purchase at a sale in pursuance of the trust as effectually as any creditor may purchase the property of his debtor at a judicial sale, and the trustee may bid for the beneficiary, at his instance, without impairing the validity of the sale.</p> <p>Id. — Trust for Attorney not Named — Foreclosure — Parties — Estoppel. — Where the grantee of a deed of trust held it in part as security for the fees of an attorney of the grantor, subject to his own advances to the grantor, but without including the name of the attorney in the deed, and including such fees in the amount recited in the deed as due to himself, and such attorney was employed to foreclose the deed of trust, and advised the trustee that he could purchase the property at a sale under the foreclosure, and hold it discharged of the trust, the attorney and his representatives are estopped to claim that the result of the proceedings is contrary to what he advised, upon the ground that the attorney was not made a party defendant to the foreclosure suit.</p> <p>Id. — Attorney and Client—Double Trust — Failure to Advise Client. — Where it appears that, by the act and inducement of the attorney, the grantee in the trust deed was induced to permit the attorney’s fees to be included in the sum due him, it cannot be claimed that the trustee held the property under a double trust, where it does not appear affirmatively that the attorney who acted for the grantee, both in the execution of the instrument and in the foreclosure suit, advised him of the legal effect and consequences of so including it, or that any possible detriment could occur from assuming such relation of double trust in reference to the property.</p> <p>Id.—Transactions between Attorney and Client — Performance of Duties of Attorney — Burden of Proof. —In any attempt by an attorney to enforce an agreement on the part of his client growing out of transactions between them connected with the very business in reference to which the relation of attorney and client exists, the burden of proof is always upon the attorney to show that the dealing was fair and just, and that the client was fully advised by him; and a failure to prove that the attorney had performed his duties to his client imposes upon the court the necessity of adjudging the invalidity of the transaction between them, without requiring the client to show a failure in such performance.</p>

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

The action was brought by J. J. Coffey against L. Quint and J. Diemer, to recover the sum of four thousand dollars, alleged to be the value of a written assignment of the interest of William Corcoran in a claim previously assigned to James McCloskey as security to indemnify him against liability upon an undertaking to pay a judgment in an attachment suit against Corcoran.

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

Prohibition from the Supreme Court to the Superior Court of Solano County. The facts are stated in the opinion of the court, rendered in the case of Ex parte Gordan, ante, p. 478.

<p>Criminal Law—Testimony of Convict — Construction of Penal Code — Habeas Corpus ad Testificandum. — Although under section 1567 o£ the Penal Code a defendant in a criminal case is allowed the right to have the process of the court to compel the attendance of a convicted prisoner as a witness in his behalf, whether such prisoner is in the state prison or the county jail, yet the power conferred by that section should be exercised under the same circumstances and with the same restrictions under which the common-law courts were accustomed to issue the writ of habeas corpus ad testificandum.</p> <p>Id.—Showing Required — Discretion.—The order for process to compel the attendance of a convicted prisoner as a witness should not be made, except upon a very strict showing of the materiality of the testimony, and the necessity of securing the attendance of the prisoner as a witness, and upon previous notice to the state of the application; but when such notice has been given, and a case of materiality of the evidence and apparent necessity is made out, and the'good faith of the applicant also appears, the court ought, in the exercise of its discretion, to make the order for the attendance of the prisoner as a witness.</p> <p>Id.—Receiving Stolen Goods — Evidence—Subsequent Distinct Offenses. — Where an information for receiving stolen goods alleged that the property was received by the defendant on or about a certain date, and it is proved to have been stolen a few days after that date, the prosecution cannot, for the purpose of showing that the property was received by the defendant with a guilty knowledge that it had been stolen, introduce evidence that a large number of other articles, found in the house occupied by the defendant and the thief some three months thereafter, had been stolen by means of burglaries committed subsequent to the date complained of, and relied upon in evidence.</p> <p>Id.—Bormer Acquittal—Goods Received at Same Time.—If goods stolen from different persons are received at the same time, the offense is single, and a plea of former acquittal of a charge of receiving goods stolen from one of such persons is a good plea to a charge of receiving any other stolen goods at the same time.</p> <p>Id.—Evidence—Marriage of Defendant with Thief—Former Marriage. —Where the defendant claimed to be the wife of the thief, and therefore not guilty of receiving the stolen goods from him, her admission of a former marriage, and refusal to disclose the name of her former husband, and her failure to show a dissolution of the former marr.age by death, divorce, or disappearance, are sufficient to discredit her naked statement that she was a single woman at the date she claimed to have been married to the thief, and are sufficient to sustain an implied finding of the jury against a lawful marriage between her and the thief.</p> <p>Id.—Trial—Prejudicial Remarks of Court—Self-contradiction of Defendant — Province of Jury. —It is prejudicial error for the court, in the presence and hearing of the jury, when ruling upon an objection to the admission in evidence of a letter written by the thief to the defendant, in commenting upon the testimony of the defendant in relation to it, to remark that “she had contradicted herself several times in the record,” and to reiterate such remark, after an exception by the defendant, with the additional remark that “that is the chief reason why I admit those letters in evidence.” Such remarks, being unretracted and unexplained, amounted to a statement of the opinion of the court that the witness had sworn falsely, and was, in effect, charging the jury as to matters of fact.</p> <p>Id.—Consistency of Prosecution.—The prosecution cannot go upon one theory to make out its case, and upon a wholly inconsistent theory to meet a special defense.</p>

Application to the Supreme Court for a discharge upon a writ of habeas corpus. The petitioner was convicted in the police court of the city and county of San Francisco for peddling meat from a vehicle without a license, in violation of ordinance 1589 of the city and county of San Francisco, as amended by ordinance 2216.

<p>Priority of Liens — Judgment Lien — Cancellation of First Mortgage by Second Mortgagee — Purchase under Execution — Notice. — Where a second mortgage is given to secure the payment of a note for money advanced to the mortgagor upon the express agreement that the first mortgage should be satisfied and discharged out of the sum so advanced, and the first mortgage is thereupon canceled, a judgment creditor of the mortgagor, whose judgment had been docketed before the canceling of the first mortgage, and before the recording of the second mortgage, and who thereafter purchases the property at an execution sale under such judgment without notice of the agreement between the second mortgagee and the mortgagor, or of the fact that the second mortgage was paid off with the money lent to the mortgagor, has a lien superior to the lien of the second mortgagee.</p> <p>Id. — Subrogation — Latent Equity — Bona Fide Purchaser.—Although a lien will be kept alive, under some circumstances, by subrogation, in favor of one who has paid the lien-holder, even when the latter has satisfied and discharged it of record, yet where the equity is a latent one, the lien will not be kept alive to the prejudice of a subsequent bona fide purchaser.</p>

<p>New Trial—Insveeioienoy op Evidence — Discretion — Appeal. — An order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict will not be reversed on appeal, unless there has been a manifest abuse of discretion on the part of the trial judge in making the order.</p> <p>Landlord and Tenant — Title to Crops — Attachment — Replevin.— In an action by the assignee of a lessor against a constable, claiming under a writ of attachment against the lessees, to recover hay on the farm leased, where the rights of the assignee depend upon a provision in the lease that the title and right of possession of all crops should remain in the lessor until the rent should be paid, if it appears that the assignee of the 'lessor 'had m his possession more than enough hay delivered to him by the lessees to pay all rent due, he can claim no ownership or lien upon the hay remaining on the farm, and cannot recover, regardless of whether the constable had a valid writ of attachment or was a mere trespasser.</p>

<p>New Trial — Conflicting Evidence — Verdict Contrary to Weight of Evidence.—Though the evidence is conflicting, yet if the judge of the trial court is satisfied that the verdict is contrary to the weight of the evidence, it is his duty to grant a new trial.</p> <p>Id. — Discretion —Review toon Appeal. — A motion for a new trial on the ground of the insufficiency of the evidence to justify the verdict or decision is addressed to the sound legal discretion of the court, and an order granting a new trial upon such ground will not he reversed on appeal, unless it appears that there was a manifest abuse of such discretion.</p>

<p>Estates of Decedents—Presentation of Claims — Foreclosure of Mortgage — Waiver of Recourse.—An action may be maintained against the executors of the will of a decedent to foreclose a mortgage upon the property of the estate, where all recourse against other property is waived in the complaint, although the mortgage was not presented to the executor for allowance; and the fact that the action was not commenced until after the expiration of the time for the presentation of claims against the estate does not bar the right of action.</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 Amador County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Homestead — Equitable Title—Cos tract of Sale — Relative Rights — Conveyance. — An equitable title to land acquired under a contract o£ sale is an estate in the land subject to be impressed with the lien of a homestead as fully as an estate in fee, though it is subordinate to the rights or claim of the vendor; but upon the ripening of the equitable estate into a fee by a conveyance to the purchaser, the homestead claim would be superior to any claim to the land which accrued after the declaration of homestead was filed for record.</p> <p>Id. —Inuring of Subsequent Title. —Whatever be the character of the title or interest in the land held at the time of the filing of the declaration, the claim will attach to that title or interest, and whatever may inure to or grow out of that title will he impressed with the lien equally with the original title.</p> <p>Id. — Transfer of Equitable Title by Husband. — After a declaration of homestead has been filed by the wife upon land held as community property under an equitable title, the husband cannot, by any act in which she does not join, transfer the contract of sale by which the equitable estate was created, so as to defeat the homestead claim.</p> <p>Id. — Trust — Notice to Purchaser. —The husband, after the homestead claim has been filed by the wife, holds the contract of sale in trust for the community for the purpose of perfecting the title, and if he transfers it, or agrees to sell the dwelling-house and improvements to a purchaser with notice of the homestead claim, the purchaser takes it subject to the same trust, and if he obtains a conveyance under the contract of sale, will hold the legal title in trust for the owner of the homestead and subject to the homestead claim.</p> <p>Id. — Subjection of Homestead to Unpaid Purchase-money. — Although the purchaser from the husband holds the land in trust for the husband and wife as owners of the homestead, yet it is subject in his hands to the amount of purchase-money unpaid by the husband to the original vendor, and until that amount has been satisfied, the wife cannot demand a conveyance from the purchaser.</p> <p>Id,—Notice by Purchaser—Default of Homestead Claimant—Repudiation of Title. —It is incumbent on such purchaser, in order to put the wife in default for non-payment of purchase-money due from the husband, to inform the wife of his relation to the property and of his right to receive the unpaid purchase-money; and if he merely demands possession of the premises without giving notice of a forfeiture for non-payment of purchase-money, and she repudiates his title, his failure to give such notice takes from her repudiation of his claim all significance.</p> <p>Vendor and Purchaser—Contract of Sale — Deed—Waiver of For. feiture. — The provision in a contract of sale for a forfeiture at the maturing of the time fixed for payment is waived by the execution of a deed under the contract.</p> <p>Id. —Construction against Forfeiture — Demand and Notice. —A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it was created; and when time is not of the essence of a contract of sale, mere failure to make payment at maturity does not ipso facto make the agreement void, and an option to avoid it and forfeit the payment made must be expressed by proper notice after demand and refusal to make the required payment.</p>

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

<p>Landlord and Tenant — Covenant not to Assign Lease—Forfeiture —Execution Sale.—A covenant by a lessee not to assign the lease without the consent of the lessor does not apply to an involuntary assignment by sale under execution, and such sale is not a violation of the covenant, and does not work a forfeiture.</p> <p>Id. —Assignment not Delivered. —There is no breach of the condition against assigning a lease without the consent of the lessor, when a voluntary assignment presented to the lessor for his consent is not consented to, but is retained by the lessor, and is never delivered to the assignee named therein, or to any one for him.</p>

<p>Negotiable Paper — Joint Note — Accommodation Maker—Want of Consideration. — A promissory note executed by two persons as makers, and by its terms made payable at a date subsequent to its execution, although given for a pre-existing indebtedness due at the date of its execution from only one of the makers, is not void for want of consideration as to the other maker.</p> <p>Id. — Consideration — Extension op Time. —The detriment to the payee of the note, in giving time to the maker from whom the indebtedness was due within which to make the payment, is a sufficient consideration to support the promise of the other maker to pay the note.</p>

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

<p>Ejectment — Judgment for Plaintiff—Undertaking on Appeal — Right of Possession. — An undertaking on appeal by a defendant in an action of ejectment against whom judgment was recovered, that he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, deprives the plaintiff in ejectment of all right of possession pending the appeal, and operates, by virtue of the statute, to give the defendant a lease of the land during the period specified.</p> <p>Id.—Value of Use and Occupation — Personal Obligation of Appellant — Estate of Decedent. —The obligation of the appealing defendant to pay the value of the use and occupation of the land pending the appeal is a personal obligation, which upon his death survives against his estate, to be collected as any other claim against it; and the rents collected, and the term of the statutory lease, belong to his estate.</p> <p>Id. — Liability of Administrator — Collection of Rents — Claim against Estate. —The administrator of a deceased appellant in an action of ejectment, who has stayed execution pending the appeal, incurs no personal liability by collecting rent during the period that the statute authorizes him to retain possession of the land. The remedy of the respondent must be sought in the ordinary mode of prosecuting claims against the estate, or from the sureties upon the undertaking.</p>

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

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

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

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

The defendants were convicted of the crime of robbery, committed on the twelfth day of August, 1890, in taking twenty dollars from the pocket of one Loo Goon, a China-man. Loo Goon testified in chief that the robbery was committed about half-past twelve o’clock, at noon, on the sidewalk of Mission Street, near Eighth Street, while on his way with a basket to 129 Eighth Street, where he kept a wash-house.

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

Application to the Supreme Court for an order directing a stay of proceedings. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</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>

The information accused the defendants of a burglary committed in the city and county of San Francisco, at No. 929 Folsom Street. At the conclusion of the statement by the district attorney of what the prosecution intended to prove, defendant’s counsel moved to dismiss the information, upon the ground that the facts stated, if proved, would not justify a conviction, and also moved the court to instruct the jury to acquit the defendant upon the same ground.

<p>Assumpsit—Pleading — Denial of Non-payment — Evidence of Payment. —In an action of assumpsit, payment may be proved under an answer denying that the defendant has not paid the plaintiff in full, or that there is now due from the defendant to the plaintiff any sum whatever, although the payment is not affirmatively averred.</p> <p>Id. — Payment for Services out of Business—Evidence—Admission of Plaintiff — Taking Goods not Charged.—Where the plaintiff testified that he had carried on business as the defendant’s agent, having entire charge of the business, and keeping the books, and was in the habit of paying himself from the business, and that at the end of the year he either charged or credited himself on the books with the difference between what he had drawn out and his salary, the plaintiff’s admission, on cross-examination, that he had taken goods for his own use, which had been paid for out of the business, but which he had not charged himself with or settled for in any way, tends to prove payment by the defendant, and it is error to strike it out on the ground that the answer denying non-payment did not plead a counterclaim or payment.</p>

<p>Lateral Support — Excavation op Adjacent Lot — Negligence — Evidence— Absence op Malice. —In an action to recover damages to the plaintiff’s land, alleged to have been caused by the defendant’s careless, negligent, and malicious excavation of an adjacent lot, the refusal of the trial court to allow the defendant, for the purpose of showing absence" of malice, to testify as to whether he knew of any use his lot could have been put to if it had not been excavated, is not prejudicial error, it having been proved without conflict that he made the excavation for building purposes, and that his motive was proper, and not malicious, and it not appearing that the jury awarded any exemplary damages.</p> <p>Id. —Damages — Question op Pact. —The question as to what damage is done to a lot by the careless excavation of an adjoining lot is one of fact for the jury, and their verdict will not be disturbed if there is any evidence to sustain it.</p> <p>Id.—Injury to Land—Weight op House —Notice op Excavation — Reasonable Precaution. — Where land has been damaged by the excavations of a coterminous owner, and it is agreed that the damage was in no way caused by the weight of a house built upon the damaged land, it is immaterial whether or not the owner of the land excavated gave the coterminous owner previous reasonable notice of his intention to do the excavating, but the only question to be considered is, whether or not the former took reasonable precautions to sustain the land of the latter. Id. — Object op Notice — Duty op Excavating Party. —The object of the notice required by section 832 of the Code of Civil Procedure to be given by the owner of land to a coterminous owner, of the intention of the former to make an excavation upon his land for the purposes of construction, is, that the latter may have his attention called to the work, and, if necessary, shore up his wall or strengthen his foundation; and the fact that the notice was given does not relieve the excavating party from using ordinary care and skill, and taking necessary precautions to sustain the land of the coterminous owner.</p> <p>Id. —Negligence —Lack op Reasonable Precaution. ■— Where an owner of land excavated his land to a depth of forty feet below the surface, at a season of the year when heavy rains might be expected, leaving the bank with a steep slope, and the earth at the top twelve or fourteen feet deep, and stopping his excavation only four feet from the division line, no such reasonable precaution to sustain the adjacent land is shown as will relieve the excavating owner from liability for damage to the adjacent land, caused by a sliding of the land.</p>

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

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

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

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

<p>Boundaries—Monuments Referred to in Deed — Evidence — Contract of Sale —Agreed Survey — Parol Proof. — Where a deed, in describing the boundaries of the land surveyed, refers to artificial monuments, it is not error for the court, in an action of ejectment by a successor to the title of the grantees, to admit in evidence, for the purpose of identifying and locating the monuments, a written contract by a former owner of the land with one of the grantees to convey the land as soon as a proper survey could be made; together with parol evidence that a surveyor was selected by the parties, to make the survey; that he located on the ground the stakes referred to in the deed; that the description given in the deed was made from the report of his survey; and that the deed was executed in performance of the agreement to convey; and further evidence to identify the location of the stakes set in making the survey.</p> <p>Id. — Monuments Controlling Courses and Distances — Sight of Monuments. —Monuments mentioned in a deed, in describing the boundaries of the land granted, control both the courses and distances given in the deed, if there is any conflict, without regard to whether, in fact, the monuments were seen by the parties to the deed or not.</p>

<p>Taxes — Lien upon Realty — Statute op Limitations. — A lien upon real property for a delinquent personal property tax against the owner cannot he extinguished without paying the taxes or selling the property for the payment thereof, and is not barred by the statute of limitations.</p> <p>Id.—Vendor and Purchaser—Contract op Sale — Non-payment op Tax Lien — Recovery op Deposit.—Under a contract for the purchase of land by the terms of which the vendor was to return, to the vendee a deposit made upon the purchase price if any valid liens should be found to exist upon the premises, unless such liens were removed within a stipulated time after notice to the vendor of the extistence thereof, liens upon the property for taxes remaining unpaid at the date of the said agreement, although payable more than four years before the date of the agreement, were subsisting liens at that date, and upon the refusal of the vendor to remove them, the vendee is entitled to recover the deposit paid.</p>

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

<p>Confidential Relations — Presumption of Undue Influence. —One-who holds a confidential relation towards another will not be permitted to take advantage of that relation in favor of himself, or deal with the other upon terms of his own making, and in every such transaction the law will presume that he who held an influence over the other exercised it unduly to his own advantage, and the transaction will not be upheld, unless it is shown that such other had independent advice, and that his act was not only the result of his own volition, but that he both understood the act he was doing, and comprehended its effect.</p> <p>Id.—Influence of Spiritual Adviser of Dying Person—Benefit to Adviser. — The influence which the spiritual adviser of one who is about to die has over such person being one of the most powerful that can be exercised upon the human mind, especially if such mind is impaired by physical weakness, in any transaction between them wherein the adviser receives any advantage, a court of equity will not enter into an investigation of the extent to which such influence has been exercised, but will set aside any such transaction, whether the benefit accrue to the adviser or to some other recipient who, through such influence, may have been made the beneficiary thereof.</p> <p>Id. — Cancellation of Deeds of Trust — Undue Influence by Catholic Priest. — In an action brought by the heirs of a decedent .to cancel and annul certain deeds of trust executed by the decedent when she was about to die, on the ground that at the time of their execution the decedent was weak in body and mind, and that the grantee, who was the pastor of a Roman Catholic church of which she had been for many years a member, and who was also her spiritual adviser, unduly influenced her to execute the deeds for the benefit of himself and the church, a finding that the decedent had no independent advice upon the subject of making the deeds is fully sustained by the evidence, where it shows that the attorney who prepared the deeds was introduced by the priest, and that the only persons with whom she had any interview, or from whom she could receive, any advice respecting the same, were the said attorney and the priest, the latter remaining in her presence during the interview with the attorney.</p> <p>Id. — Sole Presence of Priest and his Attorney—Absence of Indepen- ■ dent Advice. — Assuming that the priest, by virtue of his relation to the decedent, had acquired an influence over her, his act in not insisting that she should have independent advice, and in continuing to remain in her presence during the interview with the attorney whom he had introduced to her, and who was the only other person he permitted her to see, was an undue exercise of such influence.</p>

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

<p>Criminal Law — Perjury — Information — Use of Chinese Language — Arrest of Judgment.—An information charging a defendant with perjury in testifying falsely upon the trial of an action wherein he was the defendant, as to whether he sold or transferred a certain lottery ticket, set out in liosa verba in Chinese characters, without any allegation of the meaning of the characters in English, or translation thereof, is defective in substance, and upon conviction of the defendant, a motion in arrest of judgment, based upon all the statutory grounds, should be granted.</p> <p>Id. —Use of English Language in Judicial Proceedings. — All judicial proceedings in this state must be conducted, preserved, and published in no other than the English language.</p>

Petition to .the Supreme Court for the settlement of a statement on motion for a new trial. The facts are stated in the opinion of the court.

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

<p>Appeal —Uncertified Statement — Affirmance of Order Denying New Trial. — Where a transcript upon appeal contains what is designated as a “proposed statement on motion for a new trial,” but which is not signed and certified by the judge, as required by subdivision 3 of section 659 of the Code of Civil Procedure, it will be disregarded, and the order denying the motion for new trial will be affirmed.</p> <p>Manufactured Articles — Railroad Ties and Shakes — Lien for Price of Manufacture — Possession — Claim and Delivery. — Where a party entered upon the land of another, under a contract with the owner, for the purpose of manufacturing railroad ties and shakes for the owner, who agreed to pay therefor a fixed sum upon a specified date, and, after manufacturing them, piled them up on the land in piles of a certain number each, and marked each pile, and remained in the possession thereof, he has alien upon the property for the amount due for manufacturing them, and the right to retain possession thereof until the lien is discharged by the payment of the amount due him, and may maintain an action of claim and delivery therefor as.against a sheriff who seizes them under a writ of execution issued against the owner of the land.</p>

<p>Constitutional Law—Duty on Tonnage—Charge for Use of Wharves and Landings. — For the use of wharves, landings, and other artificial means for facilitating the loading of merchandise a charge proportioned to the tonnage of the vessels using such accommodations may be exacted by individuals or municipal corporations authorized by the state; and such charge is not a duty on tonnage within the meaning of section 10 of article I. of the constitution of the United States, which forbids the states to lay any duty on tonnage without the consent of Congress.</p> <p>Id.—Regulations of Harbor Commissioners — Dockage. — A charge against a lighter and barge for the privilege of using wharves, docks, and slips within the jurisdiction of the state board of harbor commissioners, under regulations of the board fixing the rates of dockage for such privilege in proportion to the tonnage of the vessels using the accommodations, it appearing that the board kept the wharves in repair and the slips dredged, and that but for the dredging the vessels could not have used the slips, is not a duty on tonnage.</p> <p>Id. —Distinction between “ Dockage ” and “ Wharfage.”— Such charge for “ dockage ” is not a violation of section 5 of the act of the legislature of March 17,1880, which provides that no “ wharfage ” is to be collected upon commerce within the state. “ Wharfage ” is the charge against merchandise for the use of a wharf, while “dockage ”is a charge against vessels for the privilege of mooring to the wharves or in the slips.</p>

<p>Quieting Title — Prescriptive Title — Evidence op Adverse Possession — Entry under Tax Deed. — In an action to quiet title to a city lot, where the defendants claimed title by prescription, and the evidence showed that defendants’ grantor entered into possession of the lot under a tax sale and deed, and inclosed it by a fence, except a gateway about four feet wide, claiming to own the lot by as good a title as could be acquired by a tax deed, and that the property was improved and resided upon by his successors in interest, and a continuous possession maintained under claim of title by defendants and their grantors for a period of more than five years prior to the commencement of the action, a prima facie case of adverse possession under sections 322 and 323 of the Code of Civil Procedure is sufficiently shown, and in the absence of countervailing evidence, a finding of adverse possession is justified by the evidence.</p> <p>Id. —Uninclosed Gateway. —The lot having been used “for the ordinary use of the occupant,”— as a city residence, —the fact that the gateway in the fence was not inclosed was immaterial.</p>

<p>Negligence — Defective Railroad Crossing — Contributory Negligence — Question of Fact. — In an action against a railroad company for damages for injuries received while driving across the track, where the evidence showed that the railroad crossed the road at an oblique angle on a level with the highway; that the crossing was filled in with planks between the rails, except that the company had, unknown to the plaintiffs, removed one plank along the side of one of the rails, and had neglected to restore it, and that the rails projected above the planking about an inch or an inch and a half; that the plaintiffs were driving a steady horse at the rate of five or six miles an hour, and did not slacken speed at the crossing; and that when crossing the track the wheel of their cart caught in the space left between the planking and the rail, and they were upset and injured, —the fact that the plaintiffs failed to slacken speed at the crossing does not, as matter of law, show negligence on their part, but the question is one of fact for the jury, and a verdict for the plaintiffs will not be disturbed.</p> <p>Id. — Performance of Duty Assumed — Ordinary Prudence — Province of Jury. — So far as affects the liability of defendant, the plaintiffs had a right to assume that it had performed its duty and maintained the crossing in good condition; and conceding that the plaintiffs crossed the track at a different angle from what travelers generally did, it cannot be said, as matter of law, that a person of ordinary prudence would not have crossed as plaintiffs did, but it was for the jury to say whether it was culpable negligence on their part, and whether it contributed proximately to the injury.</p>

<p>Mortgage — Foreclosure — Note Payable in Installments — Installments not Due — Construction of Note and Mortgage. — Where a note secured by mortgage provides for the payment of the principal in installments, payable on the fifteenth day of each month, and the mortgage, hearing even date with the note, provides that if the mortgagor shall fail to make any payment as in the note provided, the mortgaged property may be sold, and the proceeds of the sale applied to pay the whole amount in the note specified, the note and mortgage will be read and construed together, and the mortgagee will be entitled to foreclose for the full amount of the unpaid installments upon default in the payment of any of the installments, although by the terms of the note some of the installments are not due.</p> <p>Id. — Demand for Installment Due. — In such case it is not necessary to make a demand for the payment of an installment due, before commencing an action of foreclosure, in order to put the mortgagor in default.</p> <p>Id.—"Value of Property — Immaterial Issue — Findings — Insufficiency of Evidence. — In an action to foreclose a mortgage, an issue as to the value of the property is immaterial; and the question as to whether the finding such issue is justified by the evidence is of no consequence.</p>