Volume 93 — California Reports

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing to vacate an order allowing a writ of restitution on a judgment, and an order adjudging certain defendants to be in contempt and awarding an alias writ.</p> <p>The facts are stated in the opinion.</p>

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

The respondents were creditors of the estate of the decedent, and their claim having been rejected, they brought suit and recovered judgment, and filed a transcript thereof, properly certified, among the papers of the estate.

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

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

The action was brought for the purpose of determining the right of the defendant to be a director in the Bank of San Luis Obispo. The facts are stated in the opinion of the court in this case and in the case of Wickersham v. Brittan, ante, p. 34.

<p>Dedication— Streets—Public Park — Recorded Map— Sales of Lots. — Where the owner of property within the limits of an incorporated city makes and records a map of such property, by which he subdivides the same into blocks and lots bounded by streets, which are continuations of existing streets, and designates a space or block thereon as a park, and circulates copies of the map, and states in an advertisement of an auction sale thereof, and the auctioneer represents to the purchasers at the sale, that the block is reserved for a park, and lots are sold upon the streets bounding upon the park, he thereby dedicates the streets and park to the public use.</p> <p>Id.—Meaning of “Park.” — The word “park,” written upon a block of land designated upon a map of property within the limits of an incorporated city or town, signifies an open space intended for the recreation and enjoyment of the public, and this signification is the same whether the word be used alone or with some qualifying term, as “ Central Park.”</p> <p>Id.—Dedication an Ultimate Fact. —Dedication is an ultimate fact dependent upon the establishment of other facts, and is to be found from the evidence presented to the court.</p> <p>Id. — Express and Implied Dedication. — Dedication may he express, and completed by a single act or deed, or it may be implied from a series of acts.</p> <p>Id. — Conclusiveness of Dedication. —Whenever a dedication is complete, the property thereby becomes public property, and the owner loses all control over it or right to its use, and the effect of the dedication can, not be qualified by any act or declaration thereafter made on his part.</p> <p>Id.—Diversion from Public Use — Adverse Possession —Delay in User. — Property dedicated to the public cannot be diverted by the public from the use for which it was dedicated, nor can it be lost by adverse possession, nor is the effect of the dedication impaired by any delay in the use of the land for which it was set apart. A failure of the public to make use of the land does not authorize the owner to resume possession.</p> <p>Id. —Offer — Acceptance—Actual Dedication—Presumption — Public Obligation. — Though an offer to dedicate is not complete until accepted on the part of the public, yet when an actual dedication has taken place, an acceptance is presumed from the benefit arising from such dedication, even though there may not he imposed upon the public an obligation to make expenditures upon the streets.</p> <p>Id. — Mortgage Prior to Dedication — Subsequent Deed to Mortgagee. — Although the security of a mortgage given prior to a dedication cannot be impaired by the dedication, and the purchaser at a foreclosure sale would acquire a title freed from the encumbrance of the dedication, yet the acceptance by the mortgagee of a deed in satisfaction of the debt gives to him only such title as the mortgagor had at the time of the execution of the deed, and the title is subject to the dedication made by the mortgagor.</p>

The contract referred to in the opinion provided that the plaintiffs should operate certain saw-mill property therein described, as trustees for the owner and his creditors, and should advance sufficient money to carry on and conduct the mill business and to settle up claims against the mill, and that the defendants would reimburse the plaintiffs for all sums so advanced, if the proceeds of the property should prove insufficient for that purpose.

The jury found in favor of the plaintiff, assessing the damages at five thousand dollars. Further facts are stated in the opinion of the court.

<p>Appeal — Equal Division of Opinion — Affirmance of Judsment.— Where one of the judges of the supreme court is disqualified from participating in the decision of a case submitted to them, and the rest of the judges, after repeated consultations, are equally divided in their opinion as to whether or not the case should be reversed, and there is no probability of an immediate change in the personnel of the court, the judgment will be affirmed.</p>

<p>Criminal Law — Seduction under Promise of Marriaqe — Elements of Offense — Proof Required. — In order to convict a defendant charged with the crime of seducing an unmarried female of previously chaste character under promise of marriage, it is necessary for the prosecution to prove that the person seduced was an “unmarried female of previous chaste character,” and that she consented to sexual intercourse with the defendant upon the sole consideration of his promise to marry her; and unless all of these elements are established by competent evidence, the crime is not proved.</p> <p>Id. — “Unmarried Female”—Failure of Proof.—Upon the prosecution of a defendant charged with such offense, the fact that the prosecutrix was an “ unmarried female ” is an essential element of the crime, and, being a fact peculiarly within her own knowledge, must be proven directly and affirmatively, else a conviction of the defendant is unauthorized; and the fact that some of the witnesses in their testimony referred to her as “girl,” “young lady,” and “ Miss,” and that she stated that the defendant promised to marry her, or that he made arrangements to marry her, furnishes no evidence to justify a finding that she was unmarried.</p> <p>Id.—Previous Chaste Character — Question of Fact—Association with Reputable People — Presumption—Instruction—Province of Jury. — An instruction to the jury to the effect that the prosecutrix, hy testifying that she lived and associated with certain people, whose names she stated, thereby “established ” her previous chaste character, because the presumption of law is that those persons were respectable and reputable people, is erroneous. Her previous chaste character is a fact to be determined by the jury from all the evidence before it, and the effect of such an instruction is to take from the jury all consideration of any other evidence than that referred to in it; and even if it were, proved that she lived and associated with reputable people, it would only be evidence from which the jury might infer her character, but would not “ establish ” it.</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>Dupont Street Fund—Money Collected to Pay Coupons — Payment of Damages. —Under the act of the legislature providing for the widening of Dupont Street in the city and county of San Francisco (Stats. 1875-76, p. 439), money collected from taxation, for the specific purpose of paying coupons attached to the bonds, is payable only for their redemption, and cannot be used to pay damages awarded to property-owners.</p> <p>Id.—Misappropriation of Damage Fund — Replacement.—The fact that part of the money collected from the sale of bonds which should have been used in the payment of damages to property-owners was illegally used to pay the interest on the bonds, and that part of the money collected from taxes to pay interest was used to redeem some of the bonds, does not, by operation of law, pass the money collected from taxation for the payment of coupons, to the damage fund, to replace that illegally taken therefrom.</p> <p>Id. — Mandamus. — In this state the writ of mandate is issued only to enforce an act especially enjoined by law as a duty resulting from an office, trust, or station. It will not lie to compel the payment of money out of a fund which the law does not allow to be applied to the use sought.</p>

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

<p>Ejectment — Oross-complaint — Reformation of Deed — Agreement to Convey—Mutual Mistake — Conveyance without Consideration. — A oross-complaint in an action of ejectment which prays for a reformation of a deed from the plaintiff’s grantor to the defendant, relied upon for recovery in the action so as to make it include the land sued for, and which alleges, substantially, that it was the mutual understanding and intention of the parties to the deed that the land in controversy should be described in and conveyed by the deed set out, and that the property was conveyed to the plaintiff with knowledge on his part of the defendant’s possession, sufficiently avers, as against a general demurrer, an agreement to convey, and that the failure to describe the land in the deed was through a mutual mistake, and is sufficient to support a judgment reforming the deed, and decreeing a conveyance from the plaintiff to the defendant of the land sued for, there being no allegation or proof that there was any consideration for the deed to plaintiff.</p> <p>Id. — Evidence — Declarations and Acts of Grantor. — Evidence of the declarations and acts of plaintiff’s grantor in relation to the land in controversy before he conveyed to the plaintiff is admissible against the plaintiff.</p>

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

<p>Action upon Judgment of Superior Court — Pleading — Recovery of Judgment. —A complaint in an action based upon a judgment rendered by a court of general jurisdiction, which 'alleges that the “plaintiff recovered a judgment ” in such court, sufficiently pleads the judgment. It is not necessary, in such case, either to set out the jurisdictional facts or to allege that the judgment was duly given and made.</p> <p>Id. —Construction of Code — Judgment Duly Given and Made. —Section 456 of the Code of Civil Procedure, providing that a judgment of a court may be pleaded by stating that such judgment “was duly given and made,” has no reference to judgments of courts of general jurisdiction, but only to judgments of courts of special jurisdiction.</p>

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

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

<p>Execution Void after Five Years — Foreclosure of Street Assessment — Restraint of Execution — Power of Court — Void Sale. — The trial court has no power to order the issuing of an execution under a judgment foreclosing a lien for a street assessment after the expiration •of five years from the entry of the judgment, even though the plaintiff has been restrained by an order of tlfe court from executing the judgment; and an order for the issuance of execution after that time, an-execution thereunder, and a sheriff’s sale under the execution, are void.</p> <p>Setting aside Void Sale — Motion by Purchaser___A purchaser from the defendant, who purchased after rendition of the judgment foreclosing the lien, and before the levying of an execution thereunder, has the right to move the court to vacate a void order for the issuance of execution, and to set aside a void sheriff’s sale thereunder, though not a party to the action.</p> <p>Id.—Ex Parte Order—Waiver by Judgment Debtor — Rights of Vendee — Void Execution.—A judgment debtor who received no notice of • application for an order for the issuance of execution after five years cannot be presumed to have waived objection thereto by failure to complain of the order; nor can he waive the right of his ven» dee to object to a sale of his property under a void execution.</p> <p>Id.—Notice of Motion — Service—Purchase by Attorney — Appearance — Appeal. — Where the plaintiff’s attorney became the purchaser at a sale under a void execution, and was afterwards served with written notice, addressed to the plaintiff and her attorney, of an application by the vendee of the judgment debtor to set aside the execution and sale ” thereunder, and appeared and resisted the motion on his own behalf, he cannot object, upon appeal taken by himself only, that the order granting the motion was erroneous because no notice of the application for it was served upon the plaintiff, with whom his relation as attorney had ceased upon the sale of the property to himself, and payment of the purchase-money by him, and that therefore notice to him was not notice to the plaintiff.</p>

<p>Appeal from Judgment —Recitals — Trial of Issues—Presumption in Support of Judgment. — Upon an appeal from a judgment on the judgment roll alone, where the record shows that the cause was tried hy the court upon issues joined, and the recitals in the judgment show that the cause was tried upon the papers and records on file, together with the statements made by the respective parties, it will be presumed that the judgment was sustained by the statements and admissions of the parties, and the fact that it further recites that there was no evidence offered is not sufficient to overcome such presumption.</p> <p>Id. — Construction of Recitals. — Where the recitals in a judgment, read together, are as susceptible of a construction which will sustain the judgment, as of a construction which will defeat it, the presumption in favor of the judgment requires that the former construction be adopted.</p> <p>Id. — Insufficiency of Evidence — Review upon Appeal. — The insufficiency of the evidence to justify the findings implied in a judgment where findings are waived cannot be considered upon appeal from the judgment, in the absence of a statement on motion for new trial, or bill of exceptions containing a statement of the evidence or want of evidence.</p>

<p>Road—Boundary — Actual Location — Public User — Change by Road Overseer — Correction of Mistake — Removal of Fence .—Trespass. — Where a road was opened by the proper authorities of the county, and laid out on the ground so as to exhibit its actual locality as used by the public, and was allowed to be so used for more than ten years, an owner of land who built his fence upon the line of the road as thus actually laid out and used may maintain an action of trespass against the road overseer for an attempt to change the line of the road by the removal of his fence to correct an alleged mistake in the location.</p> <p>Id.—Acquiescence of Owner of Land — Presumption—Abandonment — Public Highway. — Where a road has been used and traveled by the public for more than ten years without objection by the owners of the land over which the road runs, the legal presumption is, that the owners have abandoned possession of the land for the road, and that the road so established upon the land is a public highway.</p> <p>Id. — Continuance of Highway. — A highway thus created continues to exist until it is vacated or abandoned by order of the board of supervisors of the county in which it is situated, or by operation of law or judgment of a court of competent jurisdiction.</p> <p>Id.—Establishment of Boundary — True Public Road — Power of Road Authorities — Correction of Mistake. — Where the line of a road is once established, even through mistake, and the road so located is abandoned to and used by the public until it becomes the true public road, neither the board of supervisors nor the road overseer of the county in which it is situated have authority to correct such mistake by having the road relocated upon another boundary line.</p> <p>Id.—Estoppel — Receipt of Damages — Intent of Supervisors — Location of Fence upon Actual Road. — The owner of land adjacent to a public road actually laid out and used by the public for many years is not estopped from denying the boundaries of the road as originally intended by the board of supervisors merely because he received damages for the opening of the road; but he has a right to consider the road as actually located and used the true public road, and to establish his fence accordingly, and hold the land inside it.</p>

<p>Money had and Received — Deposit as Security — Release of Attachment — Return of Deposit — Evidence. — In an action for money had and received, brought by the administrator of a depositor against the administrator of the receiver of the deposit, where the evidence showed that the money was deposited in pursuance of an agreement between the depositor and a third party, who had sued him and attached some of his property, and that the property was released in pursuance of such agreement, the receiver of the deposit agreeing to hold the money and other property as security for any judgment such third party might recover, further evidence tending to show an immediate repayment of the money to the depositor is properly admissible, it appearing that the judgment was satisfied out of other property of the depositor.</p> <p>Id.—Revocation of Trust — Obligation of Trustee to Creditor — Violation of Trust. — Assuming such transaction to be a trust, the depositor is both trustor and beneficiary, and with the consent of his trustee could end the trust at any time, so far as the trustee is under obligations to him, leaving the trustee still responsible to the attaching creditor, and by so doing the trustee, would violate no trust of which the depositor could complain.</p>

<p>Conversion — Fraudulent Bill oe Sale—Trust —Pleading.—A complaint alleging that on a day specified the plaintiff was the owner of a saloon, and indebted to various persons; that one of the defendants, by representing that he would sell it for a sum largely in excess of the plaintiff's indebtedness and out of the proceeds pay the indebtedness, and turn over the balance to the plaintiff, induced him to execute a bill of sale of the saloon, and caused the name of another defendant and a money consideration to be inserted in the bill of sale without the plaintiff’s knowledge or consent; that the plaintiff was then financially embarrassed, sick, and in such a condition mentally as to be unable to attend to business, and relied wholly upon the representations made, without reading the bill of sale or knowing its contents; that he never intended to transfer the property to the defendant named in the bill of sale, who paid no money therefor and never owned or claimed any interest therein except as the tool of the other defendant, who converted it to his own use, and refused, and still refuses, to account or make payment therefor; and that at the time of the transfer the saloon contained merchandise, fixtures, and furniture of a specified value, — states a cause of action for a conversion, and not for the enforcement of a trust.</p> <p>Id. — Judgment Favorable to Appellant. — Where it appears that the defendant guilty of the conversion was one of the creditors of the plaintiff who were proposed to be secured by the bill of sale, and that judgment was rendered only for the difference between such indebtedness and the value of the property, together with the money received by such defendant from the business after the transfer was made, the judgment is more favorable to the defendant than he is entitled to, and he cannot complain thereof upon appeal.</p>

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

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

<p>Office—Fire Commissioner — Appointment by Governor — Abolition of Appointing Power — Right to Hold over. — Under the act of March 28, 1878, if still in force, the governor has no power to appoint a fire commissioner to succeed one whose term has expired under appointment of the judge of the county court or of the municipal criminal court, whose appointing functions were superseded by the constitution of 1879, and not vested in any other person or tribunal, but the officer so appointed holds over, under the terms of the act, until his successor is appointed and qualified.</p> <p>Id. — Fixed Term — Holding over — Defeasible Term — Power of Governor to Appoint. — Where the term of an office is fixed and determinate, a provision requiring the officer to continue “to discharge the duties of his office, although his term has expired, until his successor has qualified,” adds an additional, contingent, and defeasible term to the original fixed term, and excludes the possibility of a vacancy, within the appointing power of the governor, except in case of death, resignation, ineligibility, or the like; and the office is held by the same title, or by as high and lawful tenure, after the prescribed term, until the title of a duly elected and qualified successor, at least, as before and during the term.</p> <p>Id. — Construction of Constitution — Vacancy. — Under section 8 of article V. of the constitution, providing that “when any office shall from any cause become vacant,” the governor shall have power to fill the vacancy if no other mode is provided for, the office must have become vacant by the resignation or death of the incumbent, or some other event by which the duties of the office were no longer discharged, before the executive function of appointment can be called into existence.</p> <p>Id. —Holding after Term — Appointment without Consent of Senate. — Where an officer continues to discharge the duties of the office after the expiration of his term, and before the qualification of his successor, there is no vacancy in the office, in the absolute sense, nor in any sense, which would authorize the governor to fill it without the consent of the senate first had.</p> <p>Id.—Limitation of Tenure — Intention of Legislature — Right to Hold over. — A statute or constitution may show an intention to fix and limit precisely the tenure of an officer, so that at a particular time his authority will cease, although an absolute vacancy and absence of authority result therefrom; yet, unless such intention appears, the officer is entitled to exercise the functions of his office until another person is qualified to assume them.</p> <p>Id. — Constitutional Limitation of Term. — Section 16 of article XX. of the constitution, providing that the term of an officer not provided for in the constitution may be declared by law, but that in no case shall the term exceed four years, does not forbid a holding over until a successor has been chosen and has qualified, but merely limits the incumbent’s term by election or appointment,</p> <p>Id. — Re-enactment of Constitutional Provision — Construction. — Section 16 of article XX. of the constitution being a re-enactment of section 7 of article XL of the old constitution, and being substantially the same as it was in the former constitution, must be construed in the same way.</p>

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing to dissolve an attachment.</p> <p>The facts are stated in the opinion.</p>

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

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

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

<p>Street Assessment — Recommendation of Work by Street Superintendent — Evidence. — The warrant, assessment, and diagram which are made by section 12 of the act of April 1, 1872, prima facia evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent, etc., are prima fade evidence that there was a recommendation of the street superintendent to the board of supervisors that the work should be done.</p> <p>Id. — Improper Grading of Street — Work not Authorized — Appeal to Supervisors. — An objection that the street was not properly graded, or that the assessment and demand included a charge for work not authorized to be done under the contract, can only be taken on appeal to the board of supervisors.</p> <p>Id. — Taxation of Costs —■ Conflicting Affidavits — Knowledge of Court. — Where the affidavits relating to the taxation of costs are conflicting, and some of the items relate to facts of which the court has actual knowledge, its ruling will not be disturbed.</p> <p>Id.—Percentage.—The act of February 9, 1866, allowing the prevailing party five per cent on the amount recovered is still in force, and is applicable to actions to enforce a street assessment.</p>

<p>Deed from Aged Mother to Daughter—Consideration—Personal Care — Specific Performance — Cancellation. — The validity of a deed from an aged mother to her daughter, in consideration of the daughter’s verbal agreement to support and give personal care and attention to the mother during the remainder of her life, depends upon the power to enforce a specific performance of the daughter’s mutual and dependent contract, and as that cannot be specifically enforced, the deed will be canceled at the suit of the mother, as without consideration.</p>

<p>Joint Tort-feasors—Joint Action—New Trial as to One Defendant — Several Judgments. —Where joint tort-feasors are sued jointly, and a judgment recovered against both, and a new trial is granted to one of them only, resulting in a judgment against him for a smaller amount than that of the first judgment still standing against the other defendant, the last judgment cannot be reversed upon the ground that there can be but one verdict or judgment in the joint action, there being no pretense that any part of the first judgment had been paid or satisfied.</p> <p>Id.—Several Liability — Satisfaction the Only Bar.—A party injured by joint tort-feasors may bring separate suits against them, and proceed to judgment in each, and no bar arises to any of them until satisfaction is received.</p> <p>Id.—Form of Proceeding Immaterial.—Where the bar accrues in favor of some of the wrong-doers by reason of what has been received from or done in respect to one or more others, it arises, not from any particular form the proceeding assumes, hut from the fact that the injured party has actually received satisfaction.</p> <p>Malicious Prosecution —New Trial — Specifications — Insufficiency of Evidence — Appeal. — Upon an appeal by a defendant from an order denying a new trial in an action for a malicious prosecution, where the statement on motion for ^new trial contains no specification as to the insufficiency of the evidence to justify the verdict in the particulars that the prosecution was malicious, and that it was without probable cause, such points will not be considered.</p> <p>Id. — Prosecution upon Advice of Counsel—Burden of Proof—Knowledge of. Counsel — Good Faith. —In an action for a malicious prosecution upon a criminal charge, in order that the defendant may escape responsibility for the prosecution upon the ground that he acted in good faith upon the advice of counsel that there was probable cause for believing the plaintiff guilty of the crime charged, he must prove that before receiving the advice he fairly and fully stated to his counsel, or at least that his counsel knew, all the facts within defendant’s knowledge tending to prove or disprove probable cause for the prosecution; and also, that at the time of commencing the prosecution he believed the plaintiff to be guilty as charged.</p> <p>Id.—Evidence — Charge of Perjury — Source of Attorney’s Knowledge— Statement of Opposite Attorney. —Where the malicious prosecution is alleged to have been for a charge of perjury in an answer to a former action, and it is claimed upon the trial of the action for malicious prosecution that the attorney’s advice to the defendant, as to probable cause for the prosecution, was grounded in part upon knowledge derived from others than the defendant, evidence of such attorney, as to what the attorney for the plaintiff had said while representing him in the original action in regard to the answer therein, is properly excluded.</p> <p>Id. — Perjury as to Payment of Rent — Instruction—Non-payment — Good Faith — Knowledge.—Where the charge of perjury related to an answer under oath in an action that the rent of premises in controversy had been paid by the defendant, in an action against the accuser for malicious prosecution it is not error for the court to refuse to charge the jury that if they believed “that a demand for rent ” had been made upon him, and “ that the rent had not been paid at the time the answer in said suit was sworn to and filed, there was ‘ probable cause,’ ” etc., as such instruction entirely ignored the evidence, on the part of the plaintiff, tending to prove that he had good reasons to believe, and did believe, that he had paid the rent, and that the defendant so understood at the time he commenced the prosecution of plaintiff for perjury.</p> <p>Review upon Appeal — Instructions Asked by Appellant — Exceptions Disregarded.—Where the record upon appeal shows that all the instructions given to the jury were given at the request of the appellant, and nothing to the contrary is shown, other than an exception to the instructions by the appellant’s counsel, the record must he taken as decisive of the question, and the exceptions to the instructions given must be disregarded.</p> <p>New Trial — Statement—Specification as to What Evidence Shows.— An allegation in a statement upon motion for new trial, under the head of “ Specifications of particulars in which the evidence is insufficient to justify the verdict,” as to “what the evidence shows” is unnecessary and out of place in the specifications required hy section 659 of the Code of Civil Procedure, and is insufficient as a specification.</p> <p>Id. — General Specification. — A general specification that “ there is no evidence to support the verdict ” is insufficient, where there are several facts involved in and affirmed by the verdict.</p> <p>Id. — Specification of Particulars. — The specification should distinguish each particular proposition of fact excepted to from all others involved in the findings of the court or in the verdict of the jury.</p> <p>Id.—New Trial — Evidence — Questions upon Former Testimony.— Where one of two defendants in an action of malicious prosecution was granted a new trial, and the other defendant was called as a witness for the plaintiff upon the new trial, and a portion of his former testimony was read to him for the purpose of refreshing his memory, and he was asked, against the objection of the defendant, if he had so testified, but he did not answer, and what was read as his former testimony was afterward stricken out by the court, and it also appeared that such testimony contained nothing prejudicial to the defendant which the defendant had not admitted in his own testimony, no prejudicial error was thereby committed.</p>

The diagram on the following page shows the situation of the property in question. The facts are stated in the opinion of the court.

<p>Constitutional Law — Obligation of Contracts — Power of State — Insolvent Law Elsewhere. — A state is denied the power or authority to enact an insolvent law having the effect to discharge the obligations of contracts made elsewhere, by section 10 of article I. of the constitution of the United States.</p> <p>,d. — Construction of Insolvent Act — Effect of Discharge — Judgment Recovered out of State — The general terms of section 53 of the Insolvent Act of this state, declaring that a discharge granted thereunder shall “release the debtor from all claims, debts, liabilities, and demands set forth in his schedule,” etc., must be restricted, and the act construed as not intended to apply to a judgment recovered out of this state, based upon a contract made and to be performed there, when the creditor in no wise participates in the proceedings in which the discharge is entered, although he may have been a resident of this state at the time of the insolvency proceedings.</p>

<p>Malicious Prosecution—Malice —Want of Probable Cause — Burden of Proof—Questions of Fact and Law.—In an action for malicious prosecution, the plaintiff, in order to recover, must establish both malice on the part of the defendant, and a want of probable cause. The question as to whether or not the facts establish malice is a question of fact for the jury, but whether the defendant had or had not probable cause for instituting the prosecution is always a question of law to be determined by the court, and it is error to submit it to the jury.</p> <p>Id.—Want of Probable Cause—Admitted Facts — Application- of Law to Disputed Facts. — When the facts in reference to the alleged want of probable cause are admitted or established beyond controversy, the determination of the question as to whether or not they establish probable cause is for the court, and the jury should he instructed that there was or was not probable cause, as the case may be; but when the facts are controverted, and the evidence is conflicting, the jury should • he instructed that if they find the facts in a designated way, such facts, when so found, do or do not amount to probable cause; but in neither case are the jury to determine whether or not the established facts do or do not amount to probable cause.</p> <p>Id. — Instructions —Definition of Probable Cause — Abstract Propositions— Province of Court and Jury.—The question of probable cause being always to be determined by the court from the facts in each particular case, it is unnecessary and improper to give to the jury any definition of the term, or any instruction upon abstract propositions relating to the subject; but the instructions should always be in the concrete, and never leave to the jury the office of determining the question.</p> <p>Id. — Action not Favored — Public Policy — Good Faith of Party Causing Arrest. — Malicious prosecutions have never been favored in law, though upheld when the proper elements of malice and want of probable cause are shown. It is for the best interests of society that any citizen who has reason to believe the law has been violated shall have the right to cause the arrest of the offender, and it is matter of public policy that he should be protected, if he had reasonable ground for his belief, and acted in good faith.</p> <p>Id. — Justification of Arrest — Reasonable Ground — Belief of Guilt — Instruction.— While it is not necessary, in order to justify an arrest on a criminal charge, to show that the crime has in fact been committed, it is necessary to show not only that the defendant had reasonable ground to believe, but also that he did in fact believe, that the crime had been committed, and that the plaintiff had committed it; and an instruction omitting the element of such belief is erroneous.</p> <p>Id.—Submission of Facts to Jury—Belief of Defendant.—The belief of the defendant in a state of facts is itself a fact which should he submitted to the jury; and whenever the good faith of the defendant, or his knowledge or belief in an existing state of facts, is an element in determining whether there was probable cause, the court should submit that question to the jury, as well as other facts bearing upon that issue.</p> <p>Id.—Reasonable and Probable Cause — Deduction of Law —Existence in Defendant’s Mind. —The reasonable and probable cause must appear to be not only deducible in point of law from the facts, but to have existed in the defendant’s mind at the time of the proceeding.</p> <p>Id. —Advice of Justice of Peace — Good Faith in Arrest.— The advice of a justice of the peace upon the facts stated to him by the complainant, that a crime had been committed, and upon which he issued a warrant of arrest, is sufficient to exonerate the complainant from liability for the arrest, if he honestly and in good faith acted under such advice.</p> <p>Id. — Evidence — Lease to Third Party — Motive of Arrest. — In an action for a malicious arrest, a lease from the defendant to a third party is not admissible to determine the motive of defendant in arresting the plaintiff, nor is evidence admissible to show that defendant was anxious to have the lease annulled and forfeited, as it would only raise a conjecture that he instituted the arrest for the purpose of ascertaining whether there were any grounds upon which the forfeiture could be shown.</p> <p>Slander — Injury to Character—Privileged Communication — Complaint for Arrest — Perjury — Action for Damages. — Under section 47 of the Civil Code, a complaint in a court of justice which has jurisdiction of the offense charged is a privileged communication, for which the complainant is not liable in a civil action. If the complainant in such proceeding makes a false accusation, the proper remedy therefor is an indictment for perjury; but he cannot be made liable for damages in a civil action on account thereof.</p>

The action was brought to foreclose the mortgage referred to in the opinion. The respondent moved to dismiss the appeal on the ground that the notice of appeal was not served upon Durst, one of the defendants in the trial court. Further facts are stated in the opinion of the court.

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

Petition to the Supreme Court for a writ of mandate to the Superior Court of the city and county of San Francisco, and John Hunt, judge thereof. The facts are stated in the opinion of the court.

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

<p>Dedication of Highway—Public User—Abandonment of Part not Used — Acceptance by Public. —Where the owner of land, by a map duly recorded, offered certain portions of the land for dedication as a public road, and grantees of the land conformed their fences and hedges to the line of the proposed highway, and a deed to a grantee of part of the land specially excepted therefrom a strip of land in front thereof, as laid down upon the map, as being reserved for a public road, and the road, according to the plan agreed upon for its location and as actually laid out, had a zanja, or water-ditch, running through the middle of it lengthwise, and a double row of trees on each side of the zanja, the fact that the travel along the road was almost exclusively, if not entirely, upon one side of the road, and on the strip of it on the opposite side of the zanja from the land of such grantee, does not show an abandonment of the use of his side of the road by the public, nor a failure of the public to accept and use the road as dedicated.</p> <p>Id. — Railroad in Highway — Tearing up of Track — Injunction. — The whole of the road as laid out having been dedicated as a highway, a railroad corporation has a right to construct its railroad therein, and may enjoin a grantee, whose land is adjacent to the part of the road not actually used by the public, from tearing up its track.</p>

Appeals from two judgments of the Superior Court of the city and county of San Francisco, and from an order of the Superior Court of Alameda County denying a motion for judgment against sureties on an undertaking on appeal. The facts are stated in the opinion.

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

<p>Criminal Law — Burglary—Intent to Commit Larceny — Instruction — Error without Prejudice. — On the trial of a defendant charged with burglary, although a charge to the jury that “in every crime or public offense there must exist a union or joint operation of act or intent, or criminal negligence,” is erroneous in the use of the word “or,” instead of “and,” before the word “intent,” yet where it appears that the court further charged that before they could convict the defendant they must believe from the evidence, beyond a reasonable doubt, that the defendant entered the house with intent to commit larceny, the error could not have misled the jury to his prejudice.</p> <p>Id. — Reasonable Doubt — Explanation of Defendant’s Conduct — Instruction.— A charge to the jury that “if there be any reasonable hypothesis, —not a mere possible one, —any reasonable hypothesis upon which the conduct of the defendant (in entering the house) can be explained consistently with his innocence, then the testimony is such as ought to leave a reasonable doubt upon your minds,” does not assume guilt and import that it devolved on the defendant to explain his'conduct, but means that if the jury, after a full consideration of all the facts of the case, could reasonably explain or account for his conduct on any reasonable hypothesis consistent with his innocence, they should acquit him.</p> <p>Id. — Definition of Reasonable Doubt. — A charge to the jury defining a reasonable doubt, which conforms substantially to the definition repeatedly approved by the appellate court, will not be held to be erroneous upon appeal, where the defendant has not asked for a more satisfactory definition.</p> <p>Id.—Intent of Defendant — Question of Fact.—The question of the intent with which a defendant charged with burglary entered the house is a question of fact to be determined by the jury; and where the evidence is sufficient to sustain a finding that the defendant entered with the intent to commit larceny, the verdict will not be disturbed.</p> <p>Id. —Cross-examination of Defendant — Error without Prejudice. — The cross-examination of a defendant in a criminal action, as to matters about which he was not examined in chief, is not prejudicial error, where the matters were such as could not by any conceivable possibility have prejudiced the defendant.</p>

<p>Appeal from a judgment of the Superior Court of the eity 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>Vendor and Purchaser — Contract of Sale — Covenant for Perfect Title. — In order to fully satisfy a covenant for a perfect title, the title must be good and valid beyond all reasonable doubt, and should be free from litigation, palpable defects, and grave doubts, should consist of both legal and equitable titles, and should be fairly dedueible of record.</p> <p>Id. — Evidence Aliunde the Record. —A purchaser of land under a contract for a perfect title is not required to examine into evidence aliunde the record, or to rely upon the oral statement of the vendor that he has a good title to the land.</p> <p>Id. — Recitals in Record of Homestead — Existence of Community Property—Probate Homestead — Claims of Minors. — Where the validity of the title to land depends on the question as to whether or not a homestead confers absolute title upon the survivor by reason of having been declared upon community property, and all the purchaser knows about the status of the title is from the recorded homestead, the recitals in which are not binding upon third parties, he need not accept the title, where it is conceded that if the homestead was not upon community property, or was defective, an undivided part of the land belongs to minor children.</p> <p>Homestead — Construction of Code — Amendment of 1880 —Rights of Widow and Children — Tenancy in Common. —Under section 1468 of the Code of Civil Procedure as amended in April, 1880, providing that property set apart for the use of the family shall be for the benefit of the several parties, as provided in section 1465 of the same code, the widow and minor children of a decedent took equal shares in the prop* erty as tenants in common.</p> <p>Id.—Probate Homestead — Effect of Order — Vested Rights. — A probate homestead is to be set apart in pursuance of the statute in force at the time the order setting it apart is made, and the interest therein which the widow and the surviving children will take is to be determined by the same statute; and an order of the probate court made in November, 1882, setting aside property as a homestead, under section 1468 of the Code of Civil Procedure as it existed in 1880, is not retroactive, and does not deprive the widow of any prior vested rights.</p> <p>Id.—Homestead upon Community Property — Right of Survivor — Power of Probate Court.—Upon the death of a spouse, the community property upon which a homestead exists vests absolutely in the survivor, and the probate court has no power to make a decree setting apart the property for the use of the family; and the effect of such a decree, no matter how broad its language, is simply to take the property-out of administration.</p>

<p>Corporations—Notes and Mortgages — Consideration—Future Advances— Fictitious Indebtedness.—An indebtedness of a corporation is not fictitious in any sense of the word, where it consists of notes and mortgages executed by the corporation in consideration of money advanced to and paid for the corporation, and property sold and delivered to it by the mortgagee, though but a part of the consideration for each note had been received by the corporation at the date of the note, if the full consideration of the notes was afterward received by the corporation, and that there was no fraud upon the part of the mortgagee.</p> <p>Id. —Constitutional Law—“Bonded Indebtedness”—Non-negotiable Notes. —Non-negotiable notes secured by mortgages executed by a corporation do not constitute “ bonded indebtedness ” within the meaning of section 11 of article XII. of the constitution, forbidding the increase of the bonded indebtedness of a corporation without sanction of a general law, and consent of a majority of the stockholders called for that purpose on sixty days’ notice.</p> <p>Id.—Indebtedness in Excess of Capital Stock—Validity of Notes and Mortgages. — The fact that notes and mortgages were executed by a corporation for indebtedness beyond the subscribed capital stock of the corporation, contrary to the provisions of section 309 of the Civil Code, does not render such notes and mortgages void.</p> <p>Id.—Construction of Code — Validity of Contracts — Power of Corporation — Remedy against Directors. —Section 309 of the Civil Code, providing that directors of corporations must not create debts beyond their subscribed capital stock, and making the directors liable for a violation thereof, does not declare that the contracts creating such debts are void, nor deprive the corporation itself of the power to create debts beyond its subscribed capital stock, but merely provides a remedy in favor of the corporation and its creditors against the members of the hoard of directors, by whose improvident or fraudulent exercise of the powers of the corporation debts are created disproportionately to the subscribed stock, and beyond the ability of the corporation to pay.</p> <p>Id By-law—Prohibition against Indebtedness — Repeal—Waiver. — A by-law of a corporation providing that the directors shall not incur any indebtedness beyond the amount of capital stock actually subscribed is a creature of the corporation acting through and by its stockholders, and generally for their benefit alone; and the same authority that enacted it may repeal it, or waive its operation.</p> <p>Id.—Violation of By-law — Acquiescence of Share-holders — Rights of Third Persons —Good Faith — Notice—If a course of action contrary to a by-law of a private corporation is acquiesced in by the share-holders, the by-law is thereby waived, and will not affect the rights of persons dealing with the corporation in good faith, even though such persons may be share-holders, if they did not have actual notice of the by-law.</p> <p>Id.—Notice to Share-holders and Agents oe Corporations — Presumption oe Law. •—Where actual notice is necessary, it must be proved against shareholders and agents, as well as against strangers, by direct or presumptive evidence, and cannot be imputed by an arbitrary rule of law.</p> <p>Id. — Ratification of Acts of Directors — Meeting of Share-holders — Acquiescence ■— Presumption. — Acts of the directors of a corpora, tion in violation of a by-law may be ratified by the share-holders, and generally by the same number of share-holders that would be necessary to enact them; and such ratification need not be formally made in a meeting of the stockholders, but may be presumed from the circumstances of the case, such as long acquiescence in acts beneficial to the corporation, with knowledge of all the material facts, and may even be presumed without evidence.</p> <p>Id.—Inquiry by Share-holders — Reaping of Benefit.—The shareholders of a corporation cannot avoid responsibility for the unauthorized acts of the directors by abstaining from inquiry into the affairs of the company, or by absenting themselves from the company’s meetings, and at the same time reap the benefit of their acts in case of success.</p> <p>Id. — Authority from Share-holders—Finding—Pleading — Evidence of Ratification. — Evidence tending to prove a ratification by the shareholders of a corporation of the violation of a by-law by the directors, in executing notes and mortgages beyond the subscribed capital stock, is equivalent to evidence of an original authority, and justifies a finding of original authority, under pleadings tendering an issue as to such authority, and raising no issue as to the probative fact of ratification.</p> <p>Id.—Execution of Notes and Mortgages — Immaterial Misnomer of Corporation — Correction by Body of Instrument — Corporate Seal.—The fact that the officers of the corporation in executing the note and mortgage described themselves as the officers of the “ Santa Barbara Land and Improvement Company,” omitting from the name of the corporation the word “Building,” does not invalidate the instruments, where it further appears that they attested the execution by the seal of the corporation; that the body of the note expressed the promise of the corporation, properly and fully named, to pay, and the mortgage expressly purported to be the mortgage of the “Santa Barbara Land, Building, and Improvement Company.”</p> <p>Id.—Authority of Secretary—Burden of Proof —Effect of Corporate Seal. — The secretary of a corporation is the proper party to affix the corporate seal, and it devolves upon the party denying the execution of the instrument to prove that he had no authority to affix it. The seal itself is prima facie evidence that it was affixed by proper authority.</p> <p>Id.—Subjection of Subsequent Mortgage — Validity of Prior Mortgage— Notice — Similarity of Objections.—Where a subsequent mortgage of a corporation is taken with notice of a prior mortgage, and is subject to all objections urged against the validity of the prior mortgage, it is properly adjudged to be subject thereto.</p>

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

Petition to the Supreme Court for a writ of mandamus to the state board of examiners. The facts are stated in the opinion of the court.

<p>Findings — Construction of. —Findings should be reconciled and harmonized wherever possible, and should not be declared contradictory except where absolutely necessary.</p> <p>Id. — Misrepresentations by Agent of Grantors — Special Agency for Grantee—Ratification — Innocent Purchaser. — Where it appears that the trusted attorney and agent of the grantors made to them intentionally false representations as to the intention of the grantee in accepting the conveyance, in his capacity as their agent, and not as agent of the grantee, and that they so understood the fact, and, by means of such representations, parted with the title, the fact of a special and limited agency for the grantee, not including within its scope authority to make such representations, does not render the grantee subject to the principles of ostensible agency, or ratification of the fraudulent acts of the agent by accepting the fruits thereof; but the loss must fall upon the grantors whose accredited agent caused the loss, and not upon the innocent purchaser, who was personally without taint of fraud.</p> <p>Id.—Protection of Bona Fide Purchaser — Jurisdiction of Equity. — The riile is fundamental and inflexible that a court of equity will not allow a purchaser in good faith and for value, and without notice of fraud, to be assailed. A court of equity acts only on the conscience of the party, and if he has done nothing that taints it, no demand can attach upon it so as to give jurisdiction.</p> <p>Id.—Loss to One of Innocent Persons.—When a loss must fall upon one of two innocent persons, it must be borne by him who is the occasion of the loss, especially if there be any carelessness on his part which contributed to the misfortune.</p> <p>Id. — Fraud or Negligence of Third Party. — Where the loss to one of two innocent persons is caused by the fraud or negligence of a third person, the one who accredited him, or by whose negligence it happened, must be the sufferer.</p> <p>Id. — Fraud of Third Person upon Grantor — Agency — Innocent Grantee. — The rule that a grantor cannot question his own conveyance, upon the ground that a third party practiced a fraud upon him, not known to or participated in by the grantee, applies with equal force when the fraud is practiced by the agent of the grantor.</p> <p>Id.—Agency for Grantee — False Representation as to Agreement — Ratification of Agreement — Enforcement — Rescission. — If an agent of a grantee has made unauthorized false representations to the grantor as to an agreement of the grantee to hold the conveyance, in trust, as security, a ratification by the principal of the acts of the agent does not constitute a fraud on the part of the principal, but merely gives life to the agreement, and the grantor can only enforce it as made, and cannot rescind the conveyance.</p> <p>Id.—Accepting Eruits of Agent’s Acts —Secret Fraudulent Intent ^J}. —Ratification.—The secret, unexpressed intention of the agent of a grantee that his principal shall not perform an agreement to hold the property, in trust, as security, falsely represented by the agent to the grantor as having been made by the grantee, being no part of the means by which the conveyance was induced, a ratification of the agent’s acts, by accepting their fruits, does not involve a ratification of his secret X, fraudulent intent, so as to justify a rescission of the conveyance.</p> <p>Id.— Ratification of Unassumed Authority.—There can be no ratification of an authority which the agent did not assume to possess, and which the other party did not believe or suspect him to possess.</p> <p>Id. — Enforcement of Trust — Pleading. — A trust agreement cannot be enforced in an action to rescind a conveyance, where the pleading does not justify such relief.</p>

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

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

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

<p>Vendor and Purchaser — Assumption of Mortgage — Redemption — Deed under Foreclosure — Assumpsit — Money Paid. — Where the vendor of land agreed with the purchasers to pay a mortgage upon it, and, after a sale under foreclosure, agreed to redeem it, but failed to comply with either agreement, and the purchasers thereupon, with his consent and under his promise that they should lose nothing, and that he would make it good, arranged to have a sheriff’s deed executed under the foreclosure sale, and to take a conveyance thereunder from the agent of the mortgagee who purchased at the sale, upon payment to him of the amount required for redemption, the arrangement must be considered as, in effect, a redemption of the property, and the payment as made for the use of the original vendor, and not for the use of the grantee of the sheriff’s deed, and the purchasers may recover from the original vendor the amount so paid, as money laid out and expended for his use at his special instance and request, which he promised to repay to them.</p>

The action was brought to recover money paid in redemption of a mortgage to Samuel and Margaret Poor-man, which the defendant agreed to pay when he conveyed the mortgaged land. Further fact are stated in the opinion, and in the decision of the case of Ebel v. Chandler, ante, p. 372.

<p>Criminal Law — Setting aside Information—Preliminary Examination—Written Commitment — Reporter’s Note of Oral Order.— An order holding the defendant to answer for a public offense, after a preliminary examination, must be in writing and signed by the magistrate, in order to sustain an information, and an oral order reduced to writing by the reporter, and not signed by the judge, is not a compliance with the statute, and will not justify the overruling of a motion to set aside the information for want of a legal commitment by a magistrate.</p> <p>Id.— Construction of Code — Directory Provision—Indorsement upon Deposition—Execution of Written Order.—The provision of section 872 of the Penal Code, requiring that where it appears upon a preliminary examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, an order to that effect, and that the defendant he held to answer the same, shall be indorsed upon the deposition, may be regarded as directory, in so far as it requires such indorsement; yet it is essential that the order be reduced to writing and signed by the magistrate, and entered either upon the official docket of the magistrate or upon the complaint or depositions.</p>

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

<p>Setting aside Judgment — Excusable Neglect — Construction of Code ■— Abuse of Discretion. — While an application under section 473 of the Code of Civil Procedure, for relief from a judgment on the ground of mistake, inadvertence, surprise, or excusable neglect, is addressed to the sound legal discretion of the trial court, and an order granting or refusing the relief asked will only be disturbed on appeal when it appears that such discretion has been abused, yet the provisions of that section are to be liberally construed, with a view to effect its objects and to promote justice, and when it appears that the court abused its discretion in denying the relief asked for, its order will be reversed upon appeal.</p> <p>Id. — Motion by Grantee of Defendants — Parties — Continuance of Action in Names of Original Defendants — Appeal. — Where, after judgment in an action to enforce laborers’ liens against mining property, the defendants conveyed the property to a corporation by a recorded deed, and an appeal was thereafter continued in the names of the original defendants, and after a reversal upon appeal, another judgment was rendered against the same defendants by default, the grantee of the original defendants may, in its own name, move to set aside the judgment, and, on denial of its motion, may appeal from such order; and an objection that there was no judgment as to such grantee, and therefore the order was not ■ subsequent to judgment and not appealable, cannot be sustained.</p> <p>Real Action — Transfer Pendente Lite — Rights of Transferee. — Under section 385 of the Code of Civil Procedure, if real property is conveyed during the pendency of litigation in regard to it, the grantee may thereafter continue to prosecute or defend the action in the name of his grantor, or may cause himself to be substituted in his place, and if no substitution is asked for, the action will proceed in the name of the original party, as if no transfer had been made, and to have it do so, no application to or action by the court is necessary.</p> <p>Id. — Continuance of Proceedings after Transfer — Setting aside Judgment — Motion in Name of Original Defendants •— Election of Grantee. — Where an appeal in an action to enforce liens against real property has been prosecuted in the names of the original defendants after a recorded transfer of the property, and upon reversal of the judgment, the plaintiff has filed an amended complaint against them, and upon their default, asked for and obtained a decree foreclosing the 'liens and directing a sale of the property, all the proceedings are properly continued and taken in the names of the original defendants, and a motion to set aside the judgment by default may be properly made in their names, although their grantee does not nominally join in the motion and ■ did not ask to have the action continued in their names, and such motion will be presumed to be in the interest of the grantee, or the grantee may elect to make the motion in his own name.</p>

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

<p>Tax Deeds—Prima Facie Evidence—Collusiveness—Political Code. — Section 3786 of the Political Code, making the recital of the matters required to be recited in tax deeds prima fade evidence of their truth, and section 3787 of the same code, providing that as to all other matters the deed is conclusive, aic valid and effective, and do not deprive the property-owners of any substantial rights because limiting their defense to the proof of such matters as show that they do not justly owe the tax, and not allowing them to assail the regularity of proceedings not affecting their substantial rights.</p> <p>Id.—Certificate of Tax Sale — Filing for Record — Fees — Duty of Recorder. — The filing for record of a certificate of tax sale being a public duty of the recorder for which no fees are provided, the presentation of such certificate by the tax collector to the recorder for filing is a sufficient filing, so far as affects the rights of the purchaser, although the recorder does not mark it filed, because of the non-payment of fees demanded by him.</p> <p>Id.—Notice of Application for Tax Deed — Amendment of Code — Prior Right Vested. — Section 3785 of the Political Code as amended in March, 1885, providing that notice must be given by a purchaser of real property at a tax sale of his application for a deed, does not apply to a purchaser whose right to a deed had become absolute by expiration of the time for redemption before the taking effect of the amendment, no such notice having been required prior thereto.</p> <p>Id.—Constitutional Law — Obligation of Contracts — Extension of Time for Redemption. —To extend the time for redemption is to alter the substance of the contract, and a fortiori would a law giving a right to redeem when by the law under which the purchase was made the right to the deed has become absolute.</p> <p>Id. — Fiscal Year. — The fiscal year begins on the 1st of July, and ends with the 30th of June following.</p> <p>Id.—Assessment — Prima Facie Evidence — Burden of Proof.—A tax deed establishes the assessment prima fade, and it is not necessary for the grantee to show, in an action by him to quiet title, that the one to whom the property was assessed had title thereto, but the burden is on the defendant to establish the contrary.</p> <p>Id.—Sale under Local Statute — Constitutional Law. — A tax sale made nnder a local statute prior to the adoption of the constitution of 1879, forbidding local legislation, is not subject to objection on the ground that the law contravened section 25 of article IV. of the constitution.</p>

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

<p>Riparian Rights — Diversion of Watercourse—Pleading—Use of Stream — Surplusage. — Where a complaint in an action for the diversion of a watercourse states facts showing that the plaintiff is a lower and the defendant an upper riparian proprietor upon the stream, averments of the plaintiff’s use of the water for a mill, winery, domestic purposes, etc., are mere surplusage.</p> <p>Id. — Length of Stream — Diversion bt Owner of Spring — Sources of Spring. —The right of the owner of land to have a well-defined watercourse continue to flow through it does not depend upon the length of the stream above him, nor is his right affected by the fact that the source of the stream is a spring upon the adjoining land of another, who has diverted the stream from its accustomed channel directly from the spring, nor is it material to consider the sources of the spring itself, in an action to restrain such diversion.</p> <p>Id.—Cross-complaint — Counter-diversion by Plaintiff — Answer^ Prescriptive Right. — It is doubtful whether a defendant, in an action to restrain the diversion of a watercourse, can obtain relief against a counter-diversion of the same stream by the plaintiff at a point below the defendant’s diversion, to the injury of the defendant, yet a plea by the plaintiff, in answer thereto, of a prescriptive right to such diversion will support a finding in favor of the plaintiff.</p> <p>Jd. — Plea of Prescriptive Right — Uninterrupted User.—An aver, ment, in the answer to the cross-complaint, of the use of the water of the stream by the plaintiff for the requisite period, by a diversion which was “open, notorious, and continuous, and adverse to defendant,’’ is a sufficient averment of a prescriptive right to the use of the water diverted, although the word “ uninterrupted ” is not used in the averment.</p> <p>Id. — Restraining Diversion beyond Water-shed — Decree Favorable to Appellant. — Where the decree in an action to restrain the diversion of water permits the diversion of it by the defendant for any useful purpose, so as not to leave an insufficient flow for the plaintiff’s domestic use and watering of stock, and restrains the defendant from diverting the water beyond the water-shed of the stream, and requires him to return the unused surplus to the stream above the plaintiff’s land, the decree is as favorable to the defendant as he can properly ask for, and cannot be complained of by him upon appeal.</p>

<p>Appeal — Non-appealable Order — Review of Order Refusing to Dismiss Motion for New Trial. — An order denying a motion to dismiss a motion for a new trial is not an appealable order, nor can an exception to the ruling be considered upon an appeal, unless it is made part of the record upon appeal from an order which grants, or which in effect operates as a denial of, the motion for a new trial.</p> <p>Id. — Order Refusing to Amend Minutes. — An order denying a motion to amend the minutes of the trial court after judgment is not a special order made after final judgment, within the meaning of subdivision 2 of section 963 of the Code of Civil Procedure, and is not an appealable order nor subject to review by the ordinary process of appeal.</p> <p>Trial — Oral Stipulation of Attorneys — Amendment of Minutes — New-trial Statement. — An oral statement or admission made by the attorneys upon the trial, and to the court, to obviate proof of a stipulated fact, may be acted upon by the court in giving its judgment, or in its instructions to the jury, though not entered upon the minutes of the court; nor need the minutes be amended to show the stipulation, but it may be shown in the statement or other record on motion for new trial.</p>

<p>School District — Public Corporation.—A school district when organized as provided by the Political Code is a public corporation of a quasi municipal character, possessing such authority as has been conferred by the legislature, to be exercised in the mode and within the limits prescribed by the statute.</p> <p>Id.—Change of Boundaries —Power of Legislature.—The legislature has the power to change the boundaries of a school district, and in the exercise of such power it may make such provision respecting the property and obligations of the corporation as it may deem equitable or proper, and its action is conclusive.</p> <p>Id. — Effect of Change—Absence of Legislative Provision — Property Rights — Liabilities. — When the boundaries of a school district are changed, either by forming a new corporation out of the territory of the original one or by transferring a portion of the territory to another corporation, in the absence of any provision on the subject, the old corporation will be entitled to all the property and be solely liable for all the obligations, and the territory taken therefrom will not be entitled to any of the corporate property or liable for any of the obligations of the old corporation.</p> <p>Id.—Taxation — General Laws—Power oe Public Corporations.— Although the legislature cannot directly impose taxes upon counties or other public corporations, it has authority to vest the power of taxation in them by general laws, and such corporations have no power to impose taxes other than that granted by the legislature, and its exercise must be within the limits and in the manner so conferred.</p> <p>Id. — Taxation of School District — Erection of School-house — Limits of Power of Supervisors. — The authority of the supervisors to levy a tax in a school district for the erection of a school-house is not only limited to the amount voted by the district, but is to be levied only upon the property within the district voting the same.</p> <p>Id. — Change of Boundaries before Tax Levy—Liability of Transferred Territory. — Where the electors of a school district have voted to build a school-house, but before the levying of the tax therefor by the supervisors, the boundaries of the district have been changed, the territory transferred from the limits of the district is not liable for the tax so levied; though the rule would be otherwise if the tax had been levied before the change in the boundaries.</p> <p>Id.—Construction of Code—“ District ” Distinguished from “Territory.”— The word “district,” as used in section 1837 of the Political Code, providing that if the electors of a school district vote to build a school-house, the trustees are to certify this fact to the board of supervisors, who, when levying the county taxes, must levy a tax sufficient to raise the amount voted “upon all the taxable property in the district voting such tax,” is not the equivalent of “ territory within the district,” but is a synonym for the “corporation,” voting the tax; and the tax to be levied by the supervisors is limited to the property within the boundaries of such corporation at the time of the levy.</p> <p>Id. —Identity of School District. — By a change in the boundaries of a school district, the public corporation or district does not lose its identity or name, or cease to be the same legal entity that it was before.</p> <p>Id.—Power of Taxation — Benefit to Tax-payer — Exclusion from Advantage. — The power of taxation is authorized for the benefit of the tax-payer, and taxation cannot be justly compelled for an object or for the benefit of a class in which the tax-payer is directly excluded from participating.</p>

<p>Appeal from an order of the Superior Court of San Mateo County dismissing an action, and from a judgment entered thereon. '</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Past Offenses—Statutory Construction—General Saving Clause. — A permanent saving clause in the general body of the law, if clothed in apt language to express the purpose, is as efficient as a special clause expressly inserted in a particular statute, saving the operation o£ a repealed statute in its applicability to past criminal offenses.</p> <p>Id. —Repeal by Amendment. —A statute re-enacting a former statute regulating the punishment of crime, and providing that each section thereof “ is hereby amended so as to read as follows,” repeals all contained in the sections amended that is not contained in the sections as re-enacted.</p> <p>Id. — Homicide — Change of Punishment — Effect of Code. — Section 329 of the Political Code, providing that “the repeal of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment or information and punishment is expressly declared in the repealing act,” constitutes a general saving clause; and the act of the legislature of March 31, 1891, amending and re-enacting former sections, and prescribing a different and more severe punishment for murder, although containing no express saving clause, will be held to apply only to future offenses, leaving past offenses to be punished under the law in force at the date when the offenses were committed.</p> <p>Id.—Construction of Code — Repeal of Law Creating Offense.—A law repealing the punishment of an offense is within the meaning of the terms of section 329 of the Political Code enacting a general saving clause, where a law is repealed “ creating ” a criminal offense.</p> <p>Id. — Relation of Punishment to Crime — Effect of Repeal. — A description or definition of acts necessary to constitute a crime does not make the commission of such acts a crime, unless there is a punishment annexed. Punishment is as necessary to constitute a crime as definition, and the repeal of either is a repeal of the whole law creating the crime.</p> <p>To.—Homicide — Defense of Insanity — Presumption—Burden of Proof. — A person is presumed to be sane until the contrary is shown, and where a defendant charged with murder relies upon insanity as a defense, the burden is upon him to show it by a preponderance of evidence.</p> <p>Id. — Sentence — Degree of Murder. — A judgment stating that the sentence of the defendant was for murder of which he had been convicted is sufficient, although it fails to show the degree of the murder.</p> <p>Id.—Information—■ Murder of Human Being.—An information charging a defendant with having murdered “ one James Collins ” sufficiently charges the murder of a human being.</p> <p>Id. —Amendment of Minutes Nunc pro Tunc—Power of Trial Court — Pendency of Appeal. —The trial court has the power to amend its minutes nunc pro tunc, even pending appeal, so as to conform to the trua state of facts.</p>

<p>Criminal Law—Homicide — Self-defense—Wound of Defendant— Expert Evidence — Position of Defendant when Shot — Question for Jury. —Upon the trial of a defendant charged with murder, where the defendant contended that he acted in self-defense, and did not shoot until after he himself was wounded, and the position of his wound was shown and also the course taken by the bullet, the question as to his position at the time he was shot is not one in relation to which the opinion of an expert can be properly received, but is for the jury to determine.</p> <p>Id. — Appeal — Prejudicial Error — Presumption. — An error in the admission of evidence must be presumed prejudicial, where it cannot be said with certainty that the incompetent evidence did not have any influence upon the minds of the jury in rendering their verdict.</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 San Diego 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>Criminal Law — Homicide — Manslaughter. —To reduce a felonious homicide from the grade of murder to that of manslaughter, upon the ground of sudden quarrel or heat of passion, the provocation must be of such a character as would be naturally calculated to excite and arouse | the passions; and it must appear that the party acted under the smart \ of his sudden passion and resentment.</p> <p>Id. —-Instructions — Self-defense — Apparent Danger. —Upon the trial of a defendant charged with murder, an instruction to the jury, that, “to justify the killing of another in self-defense, it must appear that the danger was so urgent and pressing, that, in order to save his own life or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary,” when properly construed, means that the danger must appear to the defendant, and not to the jury; although the instruction would he clearer and more satisfactory if the words “ to the defendant as a reasonable man ” were inserted after the words “ must appear ”; yet where the jury are elsewhere unequivocally instructed as to the law of apparent danger, they could not he misled by the instruction as given.</p> <p>Id. —Justifiable Homicide — Conditions of Instruction not Asked for. — An instruction to the jury, that if the defendant killed the deceased while resenting an attack on the part of the deceased to murder him, or an attempt to do him great bodily harm, the killing was justifiable, does not confine the defendant’s right to kill the deceased exclusively to the case of an attack to murder or an attempt to do great bodily harm; and an objection upon appeal, that it should have stated further, that an attempt to kill the defendant by the deceased, either with or without malice aforethought, would have justified the killing by the defendant, will not be sustained, if the defendant did not ask for such additional conditions.</p> <p>Id.—Pursuit of Deceased with Deadly Weapon—Murder — Self-defense. —• If one, with murder in his heart and a deadly weapon in his hand, pursues and overtakes «mother, and then and there shoots and kills him, he is guilty of murder, regardless of what the deceased may have been doing at the moment of the shooting; and no question of his declining a further struggle, or of self-defense, is involved in such a case.</p> <p>Id.—Instruction — Hypothesis of Murder—Exclusion of Self-defense.— An instruction, founded upon evidence in the case upon atrial for murder, that if the deceased, seeing the defendant draw a pistol, ran away, and the defendant, with intent willfully and deliberately to murder, pursued and overtook the deceased when unarmed and showing no disposition to kill and murder the defendant, and that the defendant then and there, without believing himself in danger of losing his life, fired the fatal shot and killed the deceased, the evidence shows no self-defense, is properly given.</p> <p>Id.—Degrees of Murder — Drunkenness — Instruction — Belief of Judge as to Guilt. — Where the court had fully instructed the jury as to the definition of manslaughter, and stated to them that under the information and the evidence the defendant could be convicted of such offense, an instruction defining the two degrees of murder, and stating that in determining the degree any evidence tending to show the mental status of the defendant is a proper subject for the consideration of the jury, that the fact that defendant was drunk does not render the act less criminal, and in that sense is not available as an excuse, but that there is nothing in the case to exclude it as evidence upon the question as to whether the act was deliberate and premeditated, that “it was murder, whether premeditated or not,” and that the question of the degree of murder was one of fact for the jury, is not subject to the objection that the jury would understand that the court considered the defendant guilty of murder.</p> <p>Id.—Technical Analysis of Instructions.—The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the instructions to the jury.</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 San Joaquin County.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Injunction — Excavation of Alleyway—Evidence — Effect of Map — Dedication — Public User. — In an action to enjoin the excavation of what is claimed by the plaintiff to be a private street or alleyway, made such by mesne conveyances under an alcalde grant for the private benefit of owners of lots who had purchased thereunder, where the only question at issue is, whether the land involved was or was not a public street, it is error to hold that it is conclusively proved to be a public street because laid down as such on a map of the city, and to refuse to allow the plaintiff to prove that there had been no dedication by the owner of the land to the public use, and no user thereof by the public as a street.</p>

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

<p>Trover —Title of Plaintiff—Possession — Ownership — Pleading — Support of Judgment. — To enable a plaintiff to recover for the conversion of personal property taken by a wrong-doer, he must have the general ownership or a special ownership in the goods; but one having possession merely is the owner as against a wrong-doer, and a complaint averring possession and a right of possession in the plaintiff, without a direct averment of ownership or title, is sufficient to support a judgment in favor of the possessor against a trespasser.</p> <p>Dismissal of Action — Security for Costs —Failure of Non-resident Plaintiff — Res Adjudicata—New Action by Resident Plaintiff. — A judgment dismissing an action because of the failure of the plaintiff, who was a non-resident of the state, to give security for costs, is not upon the merits, and only concludes the matter then directly adjudged, and is not a bar to a subsequent action, founded upon the same cause of action, by the same plaintiff, after becoming a resident of the state.</p> <p>Id. — Failure to Enter Judgment — Excusable Neglect — Construction of Code — Provision not Mandatory.—Section 581 of the Code of Civil Procedure, providing that an action may be dismissed if judgment is not entered within six months after its rendition, is not mandatory, and does not confer an absolute right to the dismissal, where the neglect to enter the judgment is shown to be excusable when the order of dismissal is applied for.</p>

Mandamus from the Supreme Court to the judge of the Superior Court of Santa Cruz County. The facts are stated in the opinion of the court.

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

<p>Criminal Law—Instruction not Requested—Reasonable Doubt.— The defendant in a criminal prosecution cannot object that the court failed to instruct the jury as to the definition of a reasonable doubt, where he has not asked for such an instruction.</p>

<p>Appeal—Order Denying New Trial — Support of J udgment — Sufficiency of Findings. — The insufficiency of the findings to support the judgment cannot be considered on an appeal from an order denying a new trial, but only on an appeal from the judgment.</p> <p>Id. — Contradictory Findings — Special and General Findings. — If a court, upon an issue essential to the decision of the case, should make two findings directly contradictory to each other, the point might possibly be made on an appeal from an order denying a motion for a new trial that there was no finding upon such issue, and therefore a mistrial; but where the findings do not appear to he contradictory, a contention that special findings should prevail over general findings, so as to entitle appellants to judgment, amounts to a contention that the findings do not support the judgment, and cannot prevail upon such an appeal.</p> <p>Water Right — Appropriation for Mining Purposes — Abandonment — Riparian Rights —■ Diversion of Stream. — After a ditch by which the water of a creek was appropriated for mining purposes has fallen into disuse and has been abandoned, the water right is destroyed by the abandonment, and where, after such abandonment, the water of the creek has continuously flowed over lands belonging to a riparian owner, and been used by him for irrigation and for domestic and general farming purposes, for many years, no person claiming under the appropriators can revive the old ditch and water right so as to divert the water beyond the water-shed of the creek, to the injury of the riparian owner.</p>

<p>Motion in the Supreme Court to recall a remittitur. The facts are stated in the opinion of the court.</p>

<p>Bond — Liability of Sureties — Sale of Labels — Refusal of Offer for Delivery — Expense of Plates. — Where, upon release of an attachment against a corporation, a bond has been given to secure the payment by the corporation of all sums due and to become due under its contracts with the plaintiffs for the sale and delivery of show-cards, labels, and lining for boxes, the sureties on the bond are liable for labels prepared and offered for delivery, which the corporation did not take, but left in the hands of the plaintiffs, and are also liable for the expense incurred in the preparation of plates, which were a necessary ingredient in the printing of the labels contracted for, and which were useless" to the plaintiffs, if the corporation refused, after the expense was incurred, to allow the labels to be printed and delivered.</p> <p>Id. — Law Entering into Contract. — A contract for the sale of goods, and a bond given to secure the performance of the contract, are both deemed to have been made with reference to the law governing sales of goods.</p>

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

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

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

<p>Master and Servant — Liability of Railroad Company — Wanton Act of Engineer — Intentional Fright of Street-oar Passengers. — A railroad company is not liable for the act of an engineer, not done within the scope of his employment, or in the transaction of his master’s business, in intentionally and wantonly backing his engine toward a street-car which was crossing the railroad track, with the simple intent to frighten and scare the passengers in the street-car, without colliding therewith, as the result of which a passenger upon the street-car was frightened, and believing himself in imminent danger from an anticipated collision, jumped from the street-car and was injured.</p> <p>Id. —Independent Purpose of Servant. — When a servant acts without ) any reference to the service for which he is employed, and not for the purpose of performing the work of his employer, but to effect some independent purpose of his own, the master is not responsible for either the act or omission of the servant.</p> <p>Id. — Test of Master’s Responsibility. — The test of the master’s responsibility for the act of his servant is, whether or not the act was done in the prosecution of the business that the servant was employed by the master to do, or in the execution of the authority given by the master, and for the purpose of performing what the master has directed, and if so, the master will be responsible, whether the wrong doné be occasioned by negligence, or by a wanton or reckless purpose to accomplish the master’s business in an unlawful manner.</p>

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

<p>Writ of review to the Superior Court of Nevada County. The facts are stated in the opinion of the court.</p>

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

<p>Estates of Decedents —Family Allowance —Discretion as to Amount. — The discretion of the probate court in the matter of fixing or refusing to reduce the amount of a family allowance is necessarily nearly conclusive.</p> <p>Bill of Exceptions—Opinion of Court — Recital of Facts. —Where the opinion of the court is incorporated in a bill of exceptions, the bill only settles the fact that such opinion was rendered and filed, and cannot be regarded as determining that the recitals of fact contained in it are true.</p> <p>Id. —Effect of Opinion — Review on Appeal. —With the process of reasoning in the opinion of the court below by which it reached its conclusion, the appellate court has nothing to do; but to justify a reversal, the appellant must show an erroneous ruling, and not merely bad reasoning or mistaken views of the law.</p>

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

<p>Criminal Law — Assault with Intent to Rape — Information — Allegation of Intent. — An information charging that the defendant did unlawfully, feloniously, with force and violence, assault a person named and described as a female child under fourteen years of age, with intent to commit rape, and without her consent and against her will, sufficiently shows upon whom the rape was intended to he committed; and the failure specifically to allege an intent to commit rape upon the person named is not ground for setting aside the information.</p> <p>Id.—Evidence — Corroboration or Prosecutrix.—Upon a prosecution for an assault with intent to commit rape, the uncorroborated testimony of the prosecutrix is sufficient to sustain a conviction; and where the testimony of the prosecutrix is corroborated in many respects by other witnesses, the question as to the defendant’s guilt is for the jury, and a verdict of guilty will not be disturbed on appeal as not justified by the evidence.</p> <p>New Triad — Newly Discovered Evidence — Counter-affidavits — Discretion — Appeal.—Newly discovered evidence which is merely cumulative does not constitute a good ground for granting a new trial; and where every material fact of the alleged newly discovered evidence is contradicted by counter-affidavits, the discretion of the court in refusing a new trial will not be interfered with upon appeal.</p>

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

<p>Appeal from a judgment of the Superior Court of 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>Evidence — Good Character of Unimpeached Witness.—Evidence is not admissible to prove that the character of a witness for truthfulness is good, unless the opposite party has tried to impeach him by showing that his general reputation is bad.</p> <p>Criminal Law —Homicide — Evidence — General Reputation of Defendant. — In the prosecution of a defendant for murder, an offer by the defendant, who is a witness in his own behalf, to prove by other witnesses that his reputation for truth, honesty, and integrity is good is properly denied by the court, where his character has not been questioned by the prosecution, and there is no offer to prove good reputation for the traits of character involved in the crime charged.</p> <p>Id. — Comparative Weight of Defendant’s Evidence — Modification of Instruction Asked.—Upon the trial of a defendant charged with murder, an instruction to the jury, asked by the defendant, to the effect that the defendant was a competent witness, and that it was the duty of the jury to weigh, examine, and take his testimony into consideration, “ the same as it does the testimony of all the other witnesses in the case,” is properly modified by striking therefrom the words “the same as it does the testimony of all the other witnesses in the case.”</p> <p>Id.—Reasonable Doubt — Requested Instructions Given Elsewhere. — It is proper to refuse instructions requested by the defendant upon the subject of reasonable doubt upon the ground that they are given elsewhere, if the charge contains all that is correct in the instructions asked,</p> <p>Id.—Modification of Refused Instruction.—A modification of a refused instruction upon the subject of reasonable doubt is immaterial, if it was properly refused, either with or without the modification.</p> <p>Id. — Instruction as to Weight of Evidence — Province of Court. — It is not the province of the court to instruct the jury about the weight of evidence; and an instruction asked by the defendant, that unless the jnry disbelieved the testimony of the defendant, the weight of testimony tended to prove that his act was not criminal, is properly refused.</p> <p>Id. •—Instruction as to Matter of Fact—-Friendship of Defendant with Deceased. — An instruction asked by the defendant, to the effect that “ the testimony in the case does show that the defendant and the deceased were old and particular friends of many years, ” and directing the jury as to what “ bearing on the case ” such friendship should have, is properly refused, as stating the result of evidence which it is the duty of the jury, and not of the court, to arrive at.</p>

The note secured by the mortgage provided that if the interest should not be paid when due the whole sum of principal and interest should become immediately due and payable, at the option of the holder of the note. The mortgage provided that in case of default in the payment of the note, or of any installment of the interest thereon when due, the mortgagee might foreclose the mortgage. Further facts are stated in the opinion of the court.

<p>Estates of Decedents — Nomination of Administrator by Non-resident Surviving Spouse ■— Construction of Code — Policy of Law. — Under sections 1365 and 1369 of the Code of Civil Procedure, construed together, a non-resident surviving spouse, although incompetent to serve as administrator or administratrix of the estate of the deceased spouse, has the right to nominate some fit and competent person to act as administrator; and section 1379 of that code is not inconsistent with that right, the surviving husband or wife being always interested in the estate, and it being the policy of the law that such person, or his or her nominee, shall have the absolute right to control the administration of the estate.</p> <p>Decisions —• Stare Decisis. — A decision of the supreme court which has been in force for over twelve years, and has been accepted and acted upon as correct ever since, and which is not shown to violate any principle of law or work injustice, will not be reversed, even if its correctness is doubted.</p>

Motion to dismiss an appeal from an order of the Superior Court of San Diego County allowing an attorney’s fee in a probate proceeding. The facts are stated in the opinion of the court.

Mandamus to the judge of the Superior Court of San Diego County to compel settlement of a bill of exceptions. The facts are stated in the opinion of the court.

Mandamus to the judge of the Superior Court of San Diego County to compel the settlement of a bill of exceptions. The facts are stated in the opinion of the court.

Mandamus from the Supreme Court to the judge of the Superior Court of San. Diego County. The petitioner, Maggie Leach, was found by the superior court to be entitled to five sixths of the estate of Henry S. Burton, deceased, subject to distribution, and Elizabeth Cochrane and Bi chard Lull, absent grandchildren of the decedent, who were represented by an attorney appointed by the court, were found to be entitled each to one twelfth thereof.

<p>Criminal Law—Offering Bribe — Construction of Penal Code—Public Corporations—Irrigation District — Defective Indictment. — Section 165 of the Penal Code, providing for the punishment of any one offering a bribe to any member of a common council, board of supervisors, or board of trustees of any county, city, or corporation, with intent to corruptly influence such member in his action, etc., applies only to public and quasi public corporations; and an indictment under that section, charging a defendant with having offered a bribe to a member of the board of directors of a corporation, known as the Alta Irrigation District, but which fails to allege that such corporation is either a public or quasi public corporation, or that it was organized under the Wright Act, is fatally defective.</p> <p>Id.—Trustees of Corporation — Directors of Irrigation District.— The term “trustee” of a corporation, used in section 165 of the Penal Code, is to be understood in its widest and broadest sense, and to include the “directors” of an irrigation district organized under the Wright Act.</p>

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

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

<p>Garnishment— Proceedings Supplementary to Execution — Judgment against Garnishee — Action — Pleading. — In an action upon a judgment rendered against a -garnishee upon proceedings supplementary to execution against a judgment debtor, it is sufficient to aver in the complaint that the judgment sued upon was duly given and made, and that no part of it has been paid, and it need not aver that no appeal was taken from the judgment, nor that plaintiff was authorized by an order of court to institute the action.</p> <p>Id. — Order in Supplementary Proceedings — Judgment — Jurisdiction — Collateral Attack. — The superior court has jurisdiction to make an order on proceedings supplementary to execution against a judgment ' debtor, that a garnishee found to be indebted to the judgment debtor do pay to the plaintiff the amount of such indebtedness, and such order is, in effect, a judgment on which execution may issue, and which may be appealed from, and which cannot be assailed collaterally.</p> <p>Id. — Service of Process upon Garnishee —Jurisdiction of Person — Examination of Garnishee. — A garnishee, being no party to the original action against the judgment debtor, need not be served with process therein; hut it is sufficient, to give the court jurisdiction of his person, that copies of the order and affidavit upon which it was based, requiring the garnishee to appear for examination, were duly served upon him, and that he appeared and was examined in obedience thereto.</p> <p>Id. — Costs — Report of Referee—Order of Confirmation.—Where costs of the supplementary proceedings were allowed against the garnishee in the referee’s report, hut were not allowed by the court in its order of confirmation, they cannot be recovered in an action upon the judgment rendered in the supplementary proceedings, requiring the garnishee to pay to the judgment creditor the amount of his indebtedness to the judgment debtor.</p> <p>Nonsuit — Specification of Grounds — Review upon Appeal. — The only ground upon which a motion for nonsuit can be reviewed upon appeal is that specifically stated when the motion was made.</p>

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

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

<p>Ejectment — Writ oe Possession — Order Restraining Dispossession— Landlord and Tenant. —Where the plaintiff, in an action of eject ment, recovered judgment on ‘the sole ground that the defendant, being his tenant, was estopped to deny his tenancy, and a third party claimed also as landlord of the same tenant under a superior title, recognized as such by the trial court, but of which he was not allowed the advantage in the action, an order restraining dispossession of the grantee of such third party under the writ of possession is properly granted.</p> <p>Id. •— Judgment — Res Ad judicata—Superior Title not Passed upon. _The only matter concluded by the judgment in such action as against the third party, who sought to defend as landlord of the defendant, is that the defendant was not his tenant, but the tenant of the plaintiff and the grantee of such third party, in possession by another tenant, is not concluded from showing that such possession is not under the defendant in the action, nor estopped from setting up the superior title, which was not judicially passed upon, but declared by the trial court to be paramount to that of the plaintiff, as a shield against the enforcement of the writ of possession.</p>

<p>Homestead — Abandonment by Grant — Quitclaim Deed — Construction of Code. —The word “grant,” used in section 1243 of the Code of Civil Procedure, providing that a homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged by the husband and wife, is used in its generic, and not its technical, sense, and, as so used, is applicable to all transfers of real estate, and includes a quitclaim deed of the homestead executed by the husband and wife, which therefore operates as an abandonment of the homestead, and conveys to the grantee all their interest in the property.</p> <p>Deeds — Construction — Conflict between Habendum and Premises. — Where the language in the habendum, of a deed is irreconcilable with that used in the premises, the premises will prevail; but, like the words employed in a contract, all the words employed in the deed should be given some effect, if possible, and if consistent with the evident purpose and operation of the deed.</p> <p>Id.—Use of Word “Grant”—Qualification of Meaning. — The word “grant,” as used in deeds, has a well-known signification, but the parties may limit or qualify its meaning, and if they choose to do so, the court should not hesitate to carry out their expressed intention.</p> <p>Id. —Rules of Construction — Intention of Parties. —It is impossible to lay down an invariable and universal rule of construction of deeds. The tendency of modern decisions is to uphold conveyances, and give effect to the intention of the parties, regardless of technical rules of construction.</p> <p>Id. —Deed of Grant —• Reconveyance Limited to Interest Conveyed — Repugnance to Grant. — A grant, bargain, and sale deed of land containing the clause: “This conveyance is intended to reconvey and release only such title as the parties of the first part obtained to said premises by virtue of a deed from the parties of the second part to the parties of the first part, ” — shows the intention of the parties, upon its face, to qualify the interest granted, and to place the parties in statu quo, to which intention effect should be given, regardless of technical rules of construction; and the language of such clause will not therefore be construed as repugnant to the grant, and void, thereby defeating the manifest intention of the parties.</p> <p>Money had and Received — Agreement to Divide Proceeds of Sale — Evidence. — In an action to recover the proceeds of the sale of land conveyed by the plaintiff to the defendant, which the defendant agreed to sell and divide the proceeds thereof with plaintiff, where it appears that the land was conveyed to the plaintiff by a quitclaim deed of a husband and wife, who had a homestead thereon, and that the plaintiff conveyed to the defendant all his right, title, and interest in the property, upon the strength of the defendant’s agreement to protect the plaintiff’s title, to perfect it if necessary, and to sell the land for the plaintiff upon shares, and the defendant subsequently procured a deed of grant, bargain, and sale to himself from the grantors of the plaintiff and then sold the land, evidence of the grantees of the defendant, that they purchased relying upon the title which the defendant had acquired through his grant from the plaintiff’s grantors, is immaterial, and is properly excluded.</p> <p>Id. — Finding — Expense Incurred by Defendant — Attorney’s Fees.— A finding that the defendant agreed with the plaintiff to pay all costs and expenses which might be incurred in or about the recovery, sale, or disposal of the land being sufficiently supported by the evidence, the defendant is not entitled to a credit of money paid to an attorney for advice and assistance; and where it appears that the total amount allowed to the defendant is excessive by more than one half of such attorney’s fees, the defendant could not be prejudiced by a failure to allow him such credit, even if he were entitled thereto.</p> <p>Id. — Accounting. — An action for money had and received is proper where the complaint sets forth all the facts upon which the plaintiff relies for the recovery of his share of the proceeds of sale made by the defendant, and it is apparent from the evidence that no accounting is necessary; though it seems the court might order an accounting taken if necessary.</p>

<p>Foreclosure of Mortgage — Answer by Mortgagee of Two Tracts — Judgment — Res Adjudicaba — Second Foreclosure upon Tract not Involved. — Where, in an action to foreclose a mortgage, a subsequent mortgagee, who was made a party defendant, filed an answer setting up a mortgage covering the tract of land involved in the action, and also another tract, and praying that if any surplus should remain after applying the proceeds of sale of the tract involved in the action to the payment of the first mortgage, it should be applied to the payment of the subsequent mortgage, a judgment foreclosing the prior mortgage is not a bar to another action by the subsequent mortgagee to foreclose his mortgage, as against the other tract of land not involved in the first action.</p>

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