Volume 94 — California Reports

<p>Ejectment—Boundary — Location of Station — Question of Fact — Findings. — In an action to recover the possession of land, the question as to the proper location of a station on the boundary, described in plaintiffs’ title deeds as a natural monument, is one of fact to he determined from all the evidence in the case; and where the plaintiffs claim the land under a patent and survey describing such station as located on the seashore, and the defendants contend that it is located in an arroyo, as determined by the courses and distances, thus excluding the land in controversy from the patent, a finding by the court that the plaintiffs are the owners of the land in controversy necessarily involves a finding that the station is located as claimed by the plaintiffs.</p> <p>Id. — Conflicting Evidence — Monument Controlling Courses and Distances. — Where there is a conflict in the evidence as to the true location of a station on the boundary of a rancho, which is described in the title deeds of the rancho as a natural monument,"and is located elsewhere by the courses and distances specified in such title deeds, the natural monument will control.</p>

<p>Construction of Logging Contract—Grant of Right of Way — Landing “down Stream” — Change of Location to Different Stream — Liability for Purchase of Logs.— The owner of timber adjacent to a slough, who also owned landings thereon for logging purposes, near the head of tide-water, granted to persons engaged in logging above his landings a right of way over his land for logging purposes, to a point below his landings, for a period of years, the grantees agreeing, in consideration thereof, to pay a certain sum annually, and that provided they made landings and deposited their logs “ down stream from the present landings ” of the grantor, they would purchase yearly all logs hauled by him and deposited in the slough, paying therefor the prevailing market rates. The grantees of the right of way constructed a logging railroad over it to a point on the same slough a short distance below the landings of the grantor, where they established a landing, and bought the logs of the grantor yearly during its continuance at that point. They afterwards extended their logging railroad farther down stream, and constructed a new landing, located below the junction of the slough with another slough, it being disputed whether the latter slough had the same name as the former or a different name, and refused thereafter to purchase logs from the grantor under the contract. Held, that the grantees of the right of way were liable to the grantor for a failure to purchase his logs under the contract, without regard to whether the new landing was on the same or a different slough, there being nothing in the agreement to limit the words “down stream” to any particular slough.</p> <p>Id. — Conflicting Evidence as to Extent of Slough — Instruction Taking Question from Jury. — The evidence being conflicting as to whether the slough on which the grantor’s landings were situated extended down to and included the new landing of the grantees, and no instruction having been submitted to the jury as to the legal effect of a finding thereon, a requested instruction which assumed that the slough extended only to its junction with another and different slough, on which the new landing of the grantees was situated, was properly refused, as taking the question from the jury.</p> <p>Id. —Refusal to Purchase Logs under Contract— Sales to Third Parties—Liability of Purchaser — Tender.—When the grantees of the right of way under such contract refused to purchase the logs .of the grantor deposited hy him in the slough after the change of landings by the grantees, the grantor not only had the right, but it was his duty, to sell as many of them as he could for the highest price obtainable; and a sale of part of the logs after such refusal did not cancel the obligation of the grantees to purchase the remainder, which was deposited in the slough during the year; neither was a tender to the grantees necessary to be made of the logs deposited in the slough by the grantor after an absolute refusal of the grantees to accept or purchase from the grantor any logs hauled by him or deposited in the slough.</p> <p>Id. — Obligation of Assignee — Covenants Binding Assigns. — Where the logging contract included in the grant of the right of way provided that its covenants should bind the assigns of the respective parties, the obligation of the grantees, under the contract, to purchase the remaining logs of the grantor devolved upon the assignee of the grantees.</p> <p>Id. — Refusal of Assignee to Comply with Contract —Arbitration of Market Rates — Instruction. — There being evidence tending to prove that the grantees’ assignee unqualifiedly refused to be bound by or perform the contract, and to accept or purchase from the grantor the logs hauled and deposited by him in the slough, it was proper to instruct the jury that if they found such refusal from the evidence, it was not incumbent upon the grantor after such refusal to offer to determine by arbitration the prevailing market rates.</p> <p>Id.—Market Price of Logs—Measure of Damages—Instruction.— Where the evidence tended to show that the market for logs nearest to the place in the slough where, by the contract, the grantor was to deliver and the grantees to accept the logs was at the mills in the vicinity of the city of Eureka, on Humboldt Bay, and that if there was any prevailing market price at the place where the logs were to be delivered, it was the same as the market price at the saw-mills on the bay, less the cost of transportation, an instruction to the jury that the measure of damages would be the difference, if any, between the sum which the logs hauled and deposited in the slough by the grantor during the year, and remaining therein, would have brought in the market on Humboldt Bay, at the prevailing rates during such year, and the value of the logs to the grantor as they lay in the slough, at the time of the grantees’ refusal to accept them, if such refusal was made, is erroneous.</p> <p>Id. — “Prevailing Market Rates Construction of Contract — Expenses of Transportation. —Where there are no circumstances dehors the instrument to control the construction of the written terms, the clause in the agreement that the grantees should purchase all logs deposited in the slough, “paying therefor the prevailing market rates,” means the prevailing market rates at the place and time of delivery, if ascertainable; but if not ascertainable, the market rates at the nearest market at the time of delivery, less the expense of transportation.</p> <p>Id. — Value of Logs at Place of Delivery — Refusal to Purchase — Measure of Damages against Buyer. — When there is no market at the place of delivery, the price of getting the logs to the nearest market is to be subtracted from the price at that market, to find the value at the place of delivery; and the measure of damages upon a refusal to purchase the logs contracted for is the market value of the logs at the nearest market at the time of delivery, less the expense of transportation.</p> <p>Id. —Nominal Damages. — Where it appears that the value of the logs to the seller at the place of delivery, and at such time after the breach by the buyer as would have sufficed to transport and resell them with reasonable diligence, was precisely equal to the amount due from the buyer under the contract, the seller is entitled to only nominal damages.</p> <p>Id. — Construction of Contract in View of Acts of Parties — Intention as to Market Rate— Consideration of Right of Way. —When the meaning of the language of a contract is doubtful, the acts of the parties done under it afford one of the most reliable clews to the intention of the parties; and the practical construction given to the logging contract by the acts of the parties in fixing the market rate at the mill on Humboldt Bay, less the cost of transportation, more certainly indicates their intention than does a mere supposed inadequacy of a rental of three hundred dollars per year for the right of way, of which inadequacy there is no proof.</p> <p>Id. — Obstruction of Slough—Excess of Expense of Transportation— Measure of Damages — Evidence.—Where the grantees of the right of way, by obstructing the slough below the grantor’s landing, made the expense of rafting the grantor’s logs to market much greater than it would have been if it were not for the obstructions, the grantor is entitled to recover as damages the excess of the expense of rafting his logs to market over and above what such expenses would have been if no obstructions had been placed in the slough by the grantees; but for the purpose of ascertaining such sum, it is necessary to prove the expense of rafting in an unobstructed condition of the slough, and also the expense of rafting in the obstructed condition so caused, and the difference is the true measure of damages.</p> <p>Id. —Failure of Proof— Excessive Verdict. — Where the court has admitted evidence tending to prove the expense of rafting with the slough obstructed, but no evidence is offered as to the expense of rafting in an unobstructed state of the slough, a verdict in excess of the expense of the rafting in the obstructed condition of the slough will be set aside as excessive.</p>

<p>Estates oe Decedents—Rejected Claim — Judgment—Interest.—It seems that upon the recovery of a judgment against an estate upon a rejected claim, the creditor is entitled to recover interest from the date of such rejection.</p> <p>Id.—Authority oe Probate Court—Amount oe Judgment—Interest not Included — Res Ad judicata. — If from any cause interest has not been allowed in rendering judgment upon a rejected claim, the probate court has no authority to order paid an amount not included in the judgment, a certified transcript of the docket of which forms the claim to be paid, and furnishes the evidence upon which the court acts in ordering its payment, and the amount to which the claimant is entitled is res adjudicata by the judgment.</p> <p>Id. —Interest ubon Costs. —The claimant is entitled to legal interest upon the amount of his judgment for costs.</p>

<p>Change of Place of Tbial—Disqualification of Judge —Qualified Judge Called to Act. —Though it is the duty of a superior judge who is disqualified to try an action for any cause to grant a motion to change the place of trial if he entertains the motion in the absence of any other superior judge who is qualified to act, yet if the superior judge who is holding the court at the time the motion is heard, and wh0 calls it for hearing, is qualified to try the case, and is ready and willing to try it, having been called in for that purpose by the judge who is disqualified, the motion should be denied.</p>

<p>Slander—Damages—Mental Suffering — Disgrace to Plaintiff’s Family. — Mental suffering entitles the plaintiff to compensation in an action for slander, and such suffering may he increased and the damages consequently enhanced by the fact that the members of the plaintiff’s family would suffer by ^reason of the disgrace imposed upon the plaintiff by the slanderous charge.</p> <p>Id. — Evidence — Ages of Plaintiff’s Children—Dependence for Support.—In an action for slander, it is competent, upon the question of damages, to prove the number and ages of the plaintiff’s children; but not that they are dependent upon the plaintiff for support.</p> <p>Id. —Slanderous Charge of Arson — Admission of Incompetent Evidence— Harmless Error.—In an action for damages for slander, where the complaint alleged and the evidence showed that the slanderous words consisted in charging the plaintiff, falsely and maliciously, with an attempt to commit the crime of arson, and the evidence showed that the plaintiff was a defenseless woman with four children, three of whom were minors, and the jury returned a verdict in favor of the plaintiff for twelve hundred dollars, although the prayer of the complaint was for ten thousand dollars, the error of the court in permitting the plaintiff to show how many of her children were dependent upon her for support cannot be said to be error prejudicial to the defendent, in view of the enormity of the charge, the situation of the parties, and the small amount of damages awarded.</p>

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

<p>Criminal Law — Homicide — Evidence — Distance of Deceased from Muzzle of Pistol — Question for Jury — Opinion of Medical Expert— Error without Prejudice.—Upon the trial of a defendant charged with murder, the question as to the distance of the deceased from the muzzle of the pistol at the time of its discharge is properly a question of fact for the jury to determine, and is not a matter of special knowledge, nor a proper subject for expert testimony by a medical witness; yet the error in admitting such testimony for the prosecution is not prejudicial, where the opinion given is not inconsistent with the defendant’s evidence or theory of defense, and could not strengthen the claim of the prosecution.</p> <p>Id. — Circumstances of Mitigation — Burden of Proof—Instructions — Qualifying Words of Statute—Reasonable Doubt. —In a prosecution for murder, a charge to the jury as to the burden of proving circumstances of mitigation, justification, or excuses devolving upon the defendant, substantially embodying section 1105 of the Penal Code, but omitting the qualification contained therein, “unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable, ” is erroneous, and the error is not cured by a general charge as to reasonable doubt which may arise upon a consideration of the whole case.</p> <p>Id. — Instruction as to Self-defense. — An instruction to the jury upon the prosecution of a defendant charged with murder, that “to justify a person for killing another upon the ground of self-defense, the killing must be done under a well-founded belief that it was absolutely necessary for such person to kill the deceased to save himself from great bodily harm,” although not highly commendable, is not erroneous.</p> <p>Id.—Trial —Improper Argument of Counsel—Silence of Defendant at Coroner’s Inquest. — Where a defendant charged with murder was taken to the coroner’s inquest by the officers, but was not sworn as a witness by the coroner’s jury, who were conducting an ex parte examination, and called upon whom they pleased as witnesses, remarks by the district attorney in his closing argument to the jury upon the trial, drawing conclusions adverse to the defendant from the fact that he had not stated certain matters at the coroner’s inquest, which he had testitified to on the trial, and remarks of the judge implying that it was proper to claim that the defendant had failed to make the statements before the coroner, are improper and unfair to the defendant.</p>

<p>Mechanics’ Liens — Abandonment of Original Contract — Completion of Work by Surety—Agency for Owner — Findings—Appeal. —Where the evidence is not before the appellate court, and the court below has found, in an action to foreclose mechanics’ liens upon a house, that the original contractor for the erection of the house abandoned the contract and fled the country, and that the surety on his bond thereafter completed the building merely as the agent and foreman for the owner, and, as such agent, ordered the labor and materials for which the liens were claimed, the findings must be taken as true, and the contention, cannot prevail, upon appeal by the owner of the house, that the surety carried out the contract, and that the rights of the lien-holders must be measured by the contract.</p> <p>Id.— Assigned Liens—Pleading—Separation of Counts — Reference to First Count. — Where a plaintiff in an action to enforce mechanics” liens is also the assignee of several other lien-holders, it is necessary to. state the cause of action upon each lien in a separate count; but where the first count is divided into paragraphs designated by Roman numerals,, and each subsequent count commences with a reference to paragraph I. of the first count, which contains averments necessary to each count, as¡ to the land on which the building was erected, and such paragraph is. expressly made by the reference a part of the cause of action stated in each subsequent count as if incorporated therein, the judgment will not he reversed because such paragraph was not written in full in each of the counts.</p> <p>Id.—Parties — Contractor—Amendment after Statutory Time — Owner not Prejudiced. — The contractor is not a necessary party to an action by a material-man to enforce his lien against the owner of premises for materials furnished the contractor, so far as the rights of the owner of the building are concerned; and an amendment by the plaintiff to his complaint, making the contractor a party, after the statutory time for commencing the action has passed, cannot prejudice the owner of the premises.</p> <p>Id. —Abandoning Contractor not a Necessary Party. —A contractor is not a necessary party to an action to enforce liens for labor and materials furnished after the abandonment by the contractor of his contract.</p> <p>Id.—Hiring for Specified Wages — Finding of Reasonable Value — Immaterial Variance.—Where some of the counts of the complaint allege a hiring by the owner, through her agent, of certain laborers at certain specified wages per day, and the court finds that all the amounts for which judgment was given were “the reasonable value of said work and materials done and furnished,” there is no material variance between the complaint and findings prejudicing the substantial rights of the owner of the building.</p>

<p>Infancy — Parties — Jurisdiction of Person — Appearance of General Guardian — Guardian ad Litem. —• The appearance of a general guardian is sufficient to give the court jurisdiction of the persons of infant defendants, and the fact that no guardian ad litem, was appointed for them is immaterial.</p> <p>Id. — Pleading — Joinder of Infants in Common Answer. — Where infant defendants have no separate or special defense, no separate or special answer need be filed in their behalf, but joinder in a common answer with the other defendants is sufficient.</p> <p>Id. —Waiver of Findings by Infants. —The provision of section 634 of the Code of Civil Procedure, to the effect that findings may be waived by the several parties to an issue of fact, includes all parties, and applies to infants as well as adults.</p> <p>Foreclosure of Mechanic’s Lien — Judgment against Contractor — Appeal by Other Defendants. — Other defendants appealing from a judgment foreclosing a mechanic’s lien cannot object to the sufficiency of the form of a judgment against the contractor, who does not appeal, and by which the appellants are not prejudiced.</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 of the court.</p>

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

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

<p>Homestead Claim—Void Contract for Benefit of Partnership — Illegality. •—■ An agreement to file a homestead claim upon public land under the laws of the United States, and to obtain title thereto for the benefit of a partnership to which the applicant belongs, is in contravention of the spirit and policy of the law, and is illegal and void.</p> <p>Id. — Parol Trust — Title of Partnership — Settlement of Accounts. — A parol agreement by such applicant, after having acquired the title to the homestead upon a settlement of his accounts with the partnership, “that the land belonged to the partnership,” does not create any trust, or vest in his partners any estate in the land.</p> <p>Id. — Apparent Title of Decedent — Setting apart of Probate Homestead — Question of Adverse Ownership. — Where a homestead claimant had obtained a United States patent to the land in his own name, giving him the apparent title, and was residing upon it with his family at the time of his death, and it was inventoried and appraised as a part of his estate, the question of adverse ownership of the land by a partnership of which decedent was a member cannot be considered in a proceeding by the widow in the probate court to have the property selected, designated, and set apart as a home for the use of herself and minor child.</p>

<p>Constitutional Law — Subjection of Municipal Charter to General Laws — Public Libraries.—The act of the legislature of I860 (Stats. 1880, p. 231) entitled “ An act to establish free public libraries and reading-rooms ” by its terms applies only to such libraries as are established under its provisions, and not to those existing prior to its date, which were established under special laws and municipal charters; and the subjection of municipal charters to general laws by the constitution of 1879 does not apply where there is no general law on a given subject to which the charter relates.</p> <p>Id.—Public Library of Los Angeles — Control of Trustees.—The free public library of Los Angeles, having been established under the act of the legislature of March 4, 1874 (Stats. 1874, p. 274), providing for the establishment of a public library in the city of Los Angeles, at a time when the constitution allowed special legislation, is controlled by the city charter of Los Angeles, adopted and approved in 1889, repealing the act of 1874, and providing for the management and control of the library; and the trustees appointed under that charter have the right 'to the control and management thereof, to the exclusion of trustees elected under the general law of 1880, which does not apply thereto.</p>

<p>Homestead — Declaration by Wife — Priority over Unrecorded Mortgage — Intention to Change Residence.—A mortgage executed by the husband, but not recorded before a valid declaration of homestead by the wife is filed for record, cannot be enforced against the wife’s claim of homestead, although ten days after the filing by the wife of the declaration the spouses moved to adjoining lands for the purpose of acquiring title thereto under the United States homestead laws, and the declaration of homestead was made by the wife with full knowledge of her husband’s intended removal from the premises, and with the intention on her part to remove therefrom with him.</p> <p>Id. —Residence—Husband and Wife — Duty of Wife. —The residence of the husband is in law the residence of the wife. The husband has the right to select a residence, and it is the duty of the wife to remove with him when he removes from his residence, and her intention to discharge this duty cannot defeat her right to claim a homestead before the residence is in fact changed.</p>

<p>.Foreclosure of Mortgage — Deficiency Judgment — Assumption of .Mortgage Debt by Grantee of Mortgagor — Burden of Proof — Agency. —In order to render the grantee of a mortgagor liable for a deifieiency judgment in an action to foreclose the mortgage, the mortgagee .must affirmatively show an agreement between the mortgagor and his •grantee for the assumption of the payment of the mortgage debt by the grantee; and where such agreement is denied, and there is no direct • evidence thereof besides the evidence of the mortgagor that he bought the land as the agent of the grantee, and transferred it to him as his principal, and that in other cases where he had bought lands for the principal he had assumed mortgages thereon, a finding of the trial court that the mortgage debt was not assumed by the grantee of the mortgagor will not be disturbed upon appeal.</p>

<p>Foreclosure of Mortgage — Judgment by Default — Supplemental Complaint — Covenant for Insurance — Appeal —Modification of Judgment. — Where the plaintiff, in an action to foreclose mortgages upon real property, has, upon notice to the defendant, obtained leave to file a supplemental complaint asking judgment under covenants contained in the mortgages for moneys paid out for the insurance of the property, a judgment obtained by default thereafter, without additional service of the supplemental complaint, is erroneous, and will be modified upon appeal to the extent of the relief granted upon the supplemental complaint.</p> <p>ID._Service of Summons — Variance of Name —Identity.—Where a defendant sued as “Rosa” Kilfoy has default entered against her by that name upon a return of service of summ'ons upon “Rose ” Kilfoy, described in the return as “one of the defendants,” the names will be considered as substantially the same, and the identity of the person served as one of the defendants is prima facie established.</p> <p>Id._Names — Idem Sonans. — The question whether one name is idem sonans with another is not a question of spelling, depending less upon the rule than upon the usage.</p> <p>Id. —Allowance of Attorney’s Fees — Review upon Appeal. —Where the record is not all before the appellate court, it cannot say that the attorney’s fee allowed to the plaintiff was unreasonable.</p>

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

<p>Non-negotiable Note — Indorsement by Third Person — Guaranty — Demand and Notice — Effect of Delay. •—One who writes his name upon the back of a non-negotiable promissory note to give it credit is a guarantor, and is liable prima facie for the payment of the note upon default of the principal, without any previous demand or notice, and no mere delay of the payee to proceed against the principal, or to enforce any other remedy, will exonerate him from the payment of the note as such guarantor.</p> <p>Id.—Note Payable to Order—Stipulation for Attorney’s Fee.— A promissory note containing a stipulation for the payment of an attorney’s fee in case suit is commenced to enforce its payment is a nonnegotiable instrument, though payable to the order of the payee.</p>

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

<p>Appeal from an order of the Superior Court of Los Angeles County refusing 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 Los Angeles County refusing 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 Calaveras County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation — Subscription Agreement — Waiver of Irregularities in Formation of Corporation.—A subscriber to the stock of a corporation, to be subsequently organized upon the happening of certain conditions specified in the subscription agreement, waives any • defense he may have to the subscription, by reason of the non-performance of the conditions, by voluntarily and intentionally acquiescing, with knowledge of the facts, in the incorporation of the company.</p> <p>Id. —Waiver, how Proved. — Such waiver may be express, or it may be implied from the acts and declarations of the subscriber; and a payment of a call with full knowledge of the facts is such a waiver.</p> <p>Id. —Finding of Waiver. —In an action by the corporation on the subscription, a finding of the ultimate fact that the subscriber had “ waived ” any right he may have had to object to the organization of the corporation implies that he had a knowledge of the right waived, and that his waiver was voluntary; and this conclusion is not affected by the findings of certain probative facts, the only tendency of which was to prove the waiver, although such probative facts may be insufficient in themselves to show a waiver.</p> <p>Id.—Certificate of Stock — Issuance of.—It is not essential to the ownership of stock in a corporation that a certificate for the stock should have been issued to the stockholder; nor need the corporation issue a certificate to a subscriber until the subscription price has been fully paid.</p> <p>Id.—Action on Subscription — Liability for Calls.—A corporation may maintain an action on the contract of subscription against a subscriber to its stock to recover calls made in pursuance to the terms of the contract; and it is not necessary that such calls should be made in the mode prescribed by the Civil Code for the levy of assessments upon the stock.</p>

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

<p>Town Site—Title and Authority of Municipal Officials. —Under the act of Congress of March 2, 1867, entitled “An act for the relief of the inhabitants of cities and towns,” the corporate authorities of the municipalities were mere trustees for the occupants of the lands within the limits of the municipality, and were to execute their trust under such regulations as might be prescribed by the legislature.</p> <p>Id."—Map of Town — Platting of Streets — Petition for Deed — Dedication. — After the passage of the act of March 2, 1867, the mere adoption by the town authorities of an official map of the town, which showed a street laid out through lands in the actual occupation of a private person at the date of the act, did not affect the right of the occupant to the land so designated as a street; and the fact that the grantees of the occupant, in petitioning the municipal authorities for a deed of the land, described it by reference to the map did not have the effect to dedicate the land designated as a street to public use.</p> <p>Id. — Conveyance by Reference to Public Street.—A conveyance of other parts of such land, described by reference to such street, did not have the effect to dedicate the lands so designated as a street to public use; and the conveyance of the lands so designated, although the deed describes it as a street, was neither a dedication nor an offer to dedicate it as such.</p>

<p>Appeal from an order of the Superior Court of Nevada County refusing to change the place of trial of an action.</p> <p>The facts are stated in the opinion.</p>

<p>Forcible Detainer — Pleading — Demand for and Refusal to Surrender Possession. — In an action of forcible detainer, a complaint verified on the 3d of September, 1890, and filed on the 6th of the same month, which avers a demand for the surrender of possession made on the 4th of the preceding March, and a continuous refusal since then to comply with the demand, sufficiently alleges a refusal to surrender possession within five days after demand to sustain a judgment for the plaintiff for the restitution of the premises, for trebled damages, and for costs.</p> <p>Id.—Judgment — Trebled Damages.—In an action of forcible detainer, the plaintiff, upon recovering a verdict which assesses the damages caused by the forcible detainer, is entitled to have judgment rendered against the defendant guilty of the forcible detainer for three times the amount of the damages thus assessed.</p>

<p>Non-negotiable Promissory Note — Stipulation por Attorney’s Fee. — A promissory note which contains a stipulation for an attorney’s fee is not a negotiable instrument.</p> <p>Id.—Indorsement of Non-negotiable Note.—In respect to the immediate indorsee of the payee of a non-negotiable promissory note, the indorsement ordinarily creates the same liabilities and obligations as the indorsement of a negotiable note.</p> <p>Id. — Waiver of Protest.—A waiver of “protest,” made upon the indorsement of a non-negotiable promissory note by the payee, is equivalent to a waiver of demand for payment and notice of non-payment.</p>

<p>Fraud — Judgment — Subsequent Grantee cannot Attack. — A grantee whose grantor had been previously adjudged not to be the owner of the land attempted to be conveyed, who is 'Out of possession, and who was not himself a party to the suit in which the judgment was rendered, cannot maintain a suit in equity to set aside the judgment on the ground that it was procured by fraud practiced upon his grantor.</p>

<p>Sale of Specific Quantity — Acceptance of a Part — Liability of Buyer. — Under a contract for the sale and delivery of a specified quantity of materials, if less than the quantity contracted for is delivered, the buyer may refuse to accept it, or if he has accepted a part, may return it and refuse to accept less than the whole; but if he accepts and retains a part, he is liable for its value.</p> <p>Market Price, how Shown.—The price paid for the purchase of materials is not the criterion of their value, unless it be shown that the amount of the cost was necessary or reasonable.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial.</p> <p>Motion to dismiss appeal. 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 refusing a new trial.</p>

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

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

Motion to dismiss an appeal from a judgment of the Superior Court of Los Angeles County, and from an order allowing attorneys’ fees. The facts are stated in the opinion of the court.

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

<p>Mechanic’s Lien — Void Contract — Time for Piling Claim — Completion of Building — Previous Aooeptanoe. —Where a contract between the owner and a contractor for the erection of a building is void for want of filing in the recorder’s office before the work is commenced, a claim of lien for labor or materials may be filed at any time within thirty days after the actual completion of the building, irrespective of its previous acceptance and occupancy by the owner.</p> <p>Id.—Time of Completion — Question of Fact—Appeal—Conflicting Evidence. —The time of completion of a building which is sought to be subjected to a mechanic’s lien is a question of fact for the trial court to determine, and its determination will not be disturbed upon appeal, where the evidence upon the question is conflicting.</p> <p>Id. — “Trivial Imperfection” — Failure of Completion—Question of Fact. — Whether or not items of work done after the date at which the building is claimed to have been completed were to remedy “trivial imperfections,” is a question of fact for the trial conrt to determine. It cannot be said as matter of law that any failure of completion is a “trivial imperfection. ”</p> <p>Id. — Claim of Lien—Description of Property — Question of Fact. — A description in a claim of lien of the property sought to be charged need not be full and precise, but it is sufficient if it enables a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others. As a general rule, the sufficiency of the description is a question of fact to be determined by the trial court.</p> <p>Id. —False Description of Lot on Street Corner — Identification — Rejection of False Call. — Where a claim of lien stated that the materials had been furnished and used in a building which the owner had caused to be constructed “upon lot 6, in block 28, of the Huber tract, said lot being situate at the southwest corner of Hope and Eighth streets,” the description is sufficient, although that lot and block are on the northeast corner of the streets, and part of the building is on lot 7, it not appearing that any other building had been erected by the owner at the intersection of such streets, than the one at the northeast corner. The description of the block identifies the location of the lot, and the call for the “southwest” corner of the streets may be rejected as would be a false call in a deed of conveyance.</p> <p>Id.—Foreclosure of Lien — Pleading — Amendment to Conform to Proofs—Insufficient Description — Sale of Entire Building.— In an action to foreclose a mechanic’s lien, where it is shown that the building sought to be charged is upon more land than is described in the complaint, but the claim of lien is sufficient to embrace the entire building, the court should direct an amendement to the complaint to conform to the proofs; and a decree directing the sale of only that part of the building which is upon the land described in the complaint is erroneous. The court should direct a sale of the entire building, and such land as it should determine to be required for the convenient use and occupation thereof.</p> <p>Id. — Amount of Land for Convenient Use — Issuable Fact — Pleading. — The amount of land which may be made subject to a lien for work done, or materials furnished for a building constructed thereon is an issuable fact, and can be determined by the court only when such issue is presented by the pleadings, under appropriate averments.</p>

<p>Criminal Law — Mew Trial — Beading of Newspapers by Jury — Rebutting Evidence. — Where a defendant in a criminal prosecution has introduced evidence upon amotion for a new trial, showing that the jury had read newspaper articles during the trial, which it was claimed had a tendency to influence their verdict, it is proper to receive rebutting evidence on the part of the prosecution, showing by the jurors themselves that the reading of the articles bad not influenced them, in any way prejudicial to the defendant in rendering their verdict.</p>

<p>Foreclosure of Lien — Order of Sale—“Writ”—“Execution” — Sale after Return Day — Construction of Code. — The only process provided for the enforcement of a judgment foreclosing a lien upon specific property is that prescribed by section 684 of the Code of Civil Procedure, requiring a judgment for the sale of property to he enforced by a “writ” reciting the judgment and directing the sale. Such “writ” is not an “execution” within the meaning of section 683, and a sale of the property by the sheriff is not invalidated because made after the return day of the writ.</p> <p>Id. — Execution — Sale under Levy after Return Day. —A sale by a sheriff under an execution after the return day of the execution is valid if he has made a levy during the lifetime of the writ; and a sale may likewise be made after the return day of a writ issued under an ordee of sale, where no levy is required.</p> <p>Id. — Directory Provision as to Time — Control oe Court — Setting aside Sale. — The time within which a sale is directed to be made to satisfy a judgment ordering a sale upon foreclosure of a lien is but directory, and under the control of the court; and the sale should not be set aside merely because it was not made before the return day of the writ.</p>

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

<p>State Lands — Quitclaim Deed by Applicant to Purchase.—A quitclaim deed of state lands, made by a party who had merely prepared his application to purchase the same from the state, passes no interest in the lands to the grantee.</p> <p>Id, — Covenant with Respect to After-acquired Title. — A covenant in the habendum, clause of such a deed, that any after-acquired title shall vest in the grantee, does not have the effect of itself to vest such title in the grantee upon its acquisition by the grantor.</p>

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

'San Diego County, and from an order denying a new trial. The facts are stated in the opinion of the court, and in the opinion reported in 79 Cal. 140.

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

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

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

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

<p>Vendor and Purchaser — Auction Sale of Land — Terms of Sale — Construction of Printed Catalogue — Warranty of Title. — Where an auction sale of land was announced by means of a printed catalogue, in which, a number of different tracts belonging to different owners were described, and the terms of credit, differing as to different parcels, were placed at the end of each description, a statement at the end of the catalogue, warranting the title perfect, allowing time for a search thereof, and requiring a deposit of ten per cent upon the fall of the hammer, applies generally to each separate tract of land described therein, and not merely to the one which immediately precedes it.</p> <p>Id.—Action by Vendor—Money had and Received — Deposit with Auctioneer — Authority to Sell — Ratification — Wrongful Return of Deposit — Liability of Agent. — Where no antecedent written authority from the owner of land to make an auction sale thereof is shown, and a corporation engaged in the business of selling lands upon commission, and assuming to act as the agent of the owner of land, sold the land at auction, and received a deposit of ten per cent of the purchase-money, which was returned to the purchaser for a supposed defect in the title, the act of the owner of the land in tendering a conveyance to the intending purchaser in accordance with the contract made by the agent, and in notifying the agent, in writing, not to return to the purchaser the money deposited, before it was returned, is sufficient to show a ratification of the sale and to sustain an action by the owner of the land to recover the amount of the deposit from the agent, less proper charges and commissions, as money had and received to his use, upon a showing that the record title was perfect.</p> <p>Id. — Assumption of Authority by Agent —Prima Facie Evidence. — Where one sells land of another, claiming authority to do so, such assumption of authority is, as against himself, at least prima facie evidence of written authority.</p> <p>Id. — Validity of Patent — Additional Soldier’s Homestead — Entry under Irrevocable Power — Transfer after Entry.—A patent of the United States to a tract of land as an additional soldier’s homestead is valid, although the entry was made in the name of the soldier by his attorney in fact, acting under an irrevocable power dated two years before the entry, to which was added a relinquishment of dower by the wife, and after the entry and approval, but before the issuance of the patent, the land was conveyed in the soldier’s name; and the title of one claiming under such patent is not only good in law, but it is also secure against a suit in equity to annul the patent.</p> <p>Id.— Erroneous Advice of Counsel—Good Faith — Risk of Purchaser. — A purchaser of land is not justified in refusing to accept a conveyance, and in demanding back a deposit paid by him on account of purchase-money, merely because of the opinion of learned counsel, given in good faith, that the title is not safe, if the opinion is erroneous, and the record title is in fact perfect. The purchaser must take the risk of the soundness of the advice upon which he acts.</p> <p>Id. — Auction Sale — Deposit of Percentage of Cash Payment — Examination of Title — Liability of Auctioneer — Return to Purchaser. — Although by the terms of an auction sale a deposit of a percentage of the cash payment with the auctioneer pending the examination of the title, which is warranted perfect, makes the auctioneer a stake-holder for the parties, and for his own protection, yet when the title is shown to he perfect, the deposit then becomes, according to the terms of the sale, a portion of the cash payment, and the property of the owner of the land, less the charges and commissions of the auctioneer, who cannot thereafter return it to the purchaser except at his own risk. Id. — Evidence—Opinions of Attorneys as to Safety of Title—■ Meaning of Printed Terms of Sale. —In an action by the owner of the land to recover from the auctioneer the amount of the deposit so returned, evidence of the opinions of the attorneys who pronounced the record title of the owner unsafe, and also evidence as to the meaning of the printed terms of sale, is inadmissible.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County dissolving an injunction.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Foreclosure of Mortgage — Debt of Association — Deficiency Judgment— Construction of Code.—It seems that if an association of persons transacting business under a common name contracts a debt which is secured by a mortgage of one or more of the associates or of a third person, the mortgagee in his action to foreclose may, if he chooses to do so, proceed against the association by its common name under section 388 of the Code of Civil Procedure, for the purpose of obtaining a deficiency judgment, binding only the joint property of the associates.</p> <p>Id. — Mortgage by Trustee of Association — Action against Association and Members Individually — Right to Deficiency Judgment against Members. — In an action to foreclose a mortgage alleged to have been executed by the trustee of ah association acting in behalf of the association, where the association was sued and also the individual members thereof, all of whom appeared and answered to the merits, and the complaint, though ambiguous, is not clearly indicative of an intention to proceed under section 388 of the Code of Civil Procedure, or to forego the right of plaintiff to a deficiency judgment against the individual members, and the answers of the defendants admitted the genuineness and due execution of the articles of association as set forth in the complaint, and did not controvert the partnership relation of the members and their joint liability to third persons upon obligations of the company incurred while they were such members, and the trial court impliedly found that the trustee executing the mortgage had authority to do so for the company, and that it hound the company and its members, the mortgagee is entitled to a deficiency judgment against the defendants who were members of the association at the date of the execution of the mortgage, and a deficiency judgment against the association alone will be reversed upon appeal of the mortgagee.</p> <p>Id,—Sale of Premises — Waiver of Right of Appeal as to Deficiency Judgment.—The judgment of the trial court directing a foreclosure of the mortgage gave the mortgagee an absolute right to sell the mortgaged premises, and the exercise of such right does not amount to a waiver of his right to appeal from that part of the decree fixing the personal liability for a deficiency of the proceeds of such sale.</p>

<p>Criminal Law —Grand Larceny — Plea of Jeopardy —Dismissal of Charge of Petit 'Larceny after Trial. — A defendant charged with petit larceny, and tried upon the charge, is placed in jeopardy, even though the court, believing him to have been guilty of grand larceny, refuses to render a judgment and dismisses the action of its own motion; and such trial is a bar to a subsequent prosecution against him upon a charge of grand larceny involving the same facts.</p> <p>Id. — Jeopardy not Affected by Lapse or Error — Bar to Prosecution of Higher Charge Including Lower. — When an indictment is sufficient, and the proceedings thereon are regular, before a tribunal having jurisdiction, down to the time when the jeopardy attaches, there can he no second jeopardy allowed in favor of the prosecution on account of any lapse or error at a later stage; and a former conviction or acquittal of a minor offense is a bar to a prosecution for the same act charged as a higher crime, whenever the defendant on the latter might he legally convicted of the former had there been no other prosecution.</p>

<p>Criminal Law — Assault with Intent to Rape—Evidence op Prosecuting Witness — Prima Facie Case. — A conviction of an assault with intent to commit rape will be sustained upon the evidence of the prosecuting witness alone, if it is sufficient to prove such crime; but if the evidence of the prosecuting witness does not establish a prima facie case, and there is no other evidence against the defendant, a judgment of conviction will be reversed.</p> <p>Id.—Measure of Proof Required — Intent to Commit Rape at All Events. —- In order to find a defendant guilty of an assault with intent to commit rape, the assault must have been made with an intent to perpetrate the crime at all events, notwithstanding all possible resistance that could be made by the prosecutrix.</p> <p>Id. — Attempt to Seduce — Absence of Force. — Where the evidence shows that the defendant sought to accomplish the purpose of seduction by promises, persuasions, and arguments, without threats of violence, and that he voluntarily left the bed of the prosecutrix and retired to an adjoining room, where he passed the remainder of the night, at the very moment when, according to the statement of the prosecutrix, she was exhausted, and her refusals and opposition had ceased, a judgment of conviction of an assault with intent to commit rape will be reversed, as not sustained by the evidence.</p>

The action is one of claim and delivery, brought by the plaintiff, Carl Seligman, as the receiver of an insolvent debtor, Pauline Calori, to recover a portion of a stock of groceries, of the value of five hundred dollars, alleged to belong to the insolvent, and to have been removed and secreted by her for the purpose of defrauding her creditors, and to have been received and mingled by the defendant with her own goods in another store building, so that the same were…

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

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

This action was brought in Sacramento County, January 10, 1889, on behalf of the estate of Charles McLaughlin, deceased, to secure the cancellation and annulment of certain agreements relating to all of certain lands, described as situated in Sacramento, Calaveras, San Joaquin, Santa Clara, Alameda, Stanislaus, and Amador counties, and alleged to be claimed by defendants, and to quiet the title of the estate thereto.

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

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

<p>Appeal from an order of the Superior Court of Alameda County denying, in part, a petition for the setting apart of a probate homestead.</p> <p>The facts are stated in the opinion.</p>

<p>Mortgage by Deed Absolute—Security for Debt — Finding against Evidence — Conclusion of Law. — In an action to quiet title to land claimed by the plaintiff under a deed from the defendant, absolute on its face, but which the defendant contends was intended as a mortgage, where the evidence clearly shows without substantial conflict that the deed was intended by both parties as mere security for a debt, a judgment for the plaintiff, based on a finding by the court that it was not intended as security for a debt, will be reversed upon appeal, and the fact that the plaintiff testified that, in his opinion, it was not a mortgage is immaterial. That the instrument was a mortgage is a conclusion of law from the fact that at the time it was executed it was intended merely as security for a debt of the defendant.</p>

<p>Will — Appointment of Custodian — Subsequent Incompetency of Maker ■— Guardian. — A person competent to make a will has a right to select the custodian, and to cause it to remain in his hands until called for, or until death makes it necessary for the custodian to deliver it to the court, or to a person named in the will; and the subsequent incompetency of the maker of the will does not entitle the guardian to the possession of the instrument.</p> <p>Id. — Construction of Code—“Instrument in Writing” — Assets of Ward’s Estate — Will of Ward. —Section 1800 of the Code of Civil Procedure should he read in connection with sections 1459 and 1460 of the same code, and the phrase “instrument in writing,” as used in section 1800 of such code, must he construed as referring to instruments to the possession of which the guardian is entitled as an asset or as evidence of his ward’s title to property, and does not apply to the last will and testament of the ward.</p> <p>Id.—Trust — Revocation — Delivery of Will to Messenger at Testator’s Request — Return of Will — Continuance of Original Trust. —■ Where a person competent to make a will delivered it to another as the custodian thereof, with special directions to retain the same until her death, unless she called for it, and upon her death to deliver it to her executor, the custodian so selected is charged with the execution of the trust, which trust can only he revoked by the.testator; and the fact that the custodian afterwards delivered the will to a messenger at the request of the testator, and that subsequently the same messenger delivered to such custodian a sealed package indorsed thereon as containing the testator’s will, does not extinguish the trust.</p> <p>Id.—Certiorari — Excess of Jurisdiction — Failure to Object to Jurisdiction. —The failure of counsel to question the jurisdiction of the trial court in a proceeding before it, even if unfair to the court, does not deprive him of questioning its jurisdiction upon a writ of certiorari, and of his right to have the order made by the trial court annulled, if it was in fact made in excess of jurisdiction.</p> <p>Id. —Finding — Conclusion of Law. —Upon a hearing in the trial court upon an order to show cause why the custodian of the will should not deliver it to the testator’s guardian, a finding by the court that the sealed package supposed to contain the will belonged to the testator, and belongs to her estate, and that the guardian is entitled to its possession, is a conclusion of law from the facts found by the court, and is not conclusive apon certiorari as against the right of the custodian of the will to its possession, where the findings show that the package was tendered to the court for examination of its contents, and the custodian offered to deliver possession of anything contained therein except the will.</p>

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

<p>Certiorari to the Superior Court of Lassen County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Foreclosure of Mortgage — Estates of Decedents — Statute of Limitations— Death after Maturity of Note. — An action to foreclose a mortgage, commenced neither within four years after the maturity of the note, nor within one year after the issuance of letters of administration upon the estate of the deceased mortgagor, who died after the maturity of the note, and after the statute of limitations had commenced to run, is barred by section 337 of the Code of Civil Procedure, and the right of action is not saved by section 353 of that code.</p> <p>Id. — Extension of Limitation — Object of Statute Allowing One Year after Letters. •— The purpose of section 353 of the Code of Civil Procedure is to secure to a party who has a cause of action against a decedent one year after the appointment of a legal representative within which to bring his action, though the general limitation may have expired, and not to shorten the time limited by the general statute; and it does not have, and was not intended to have, any effect whatever upon his rights, where the general statute has not barred the right of action, and where it is not necessary to extend the time in order to give him his year, but in such case he is simply left to the general statute.</p> <p>Id.—Waiver op Recourse upon Estate—• Notice to Creditors.— Where, upon the foreclosure of a mortgage, it appears that no claim was presented against the estate of the deceased mortgagor, and in the complaint all recourse against any other property of the estate is expressly waived, the fact that notice to creditors was not published by the executrix cannot alter the rights of the mortgagee, nor affect the general statute of limitations.</p> <p>Executors and Administrators — Authority op Executrix after Marriage. — The authority of an executrix does not cease ipso facto upon her marriage, but she merely becomes incompetent, and liable to removal, and her powers as executrix continue until her removal.</p>

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

<p>Wagon-road Franchise — Legislative Grant—Acceptance — Construction of Road — Possession of Public Road. — Under a legislative act authorizing the construction, by private parties, of a wagon-road between two counties, to constitute an acceptance of the franchise granted it is necessary that the parties should indicate such acceptance by the building of the road; and the taking possession of a public road already constructed by the'county authorities between the two counties is not an acceptance of the grant.</p> <p>Id. — Construction of Private Act — Public Interests. —A private act of the legislature, where there is doubt in respect to its interpretation, is to be construed most beneficially to the public interests.</p>

<p>Malicious Prosecution — Arrest on a Charge of Slander — False Imprisonment. — The arrest and imprisonment of a person on a charge which did not constitute a criminal offense, such as a charge of slander, cannot be made the basis of an action for a malicious prosecution, although it might warrant an action for false imprisonment.</p> <p>Id. — Statute of Limitations. — Under the provisions of the Code of Civil Procedure, an action for false imprisonment is barred in one year, and an action for malicious prosecution in two years.</p>

<p>Wills — Charitable and Benevolent Society — Bequest to.—A religious society, such as the board of trustees of a Presbyterian church, is both “charitable” and “benevolent,” within the meaning of section 1313 of the Civil Code, prohibiting a devise or bequest of more than one third of an estate to such society, or in trust for charitable uses.</p> <p>Id. — Charitable Uses. — A bequest to the board of trustees of a religious society, to be “ used for missionary purposes, ” and to be “ equally divided between foreign and domestic missions,” is a bequest in trust for charitable uses, within the meaning of section 1313 of the Civil Code.</p>

6 Appeal from a judgment of the Superior Court of Sonoma County, from an order refusing to enter a judgment of acquittal, and from an order refusing to direct that the defendant be discharged. The facts are stated in the opinion of the court.

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

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

The following is a copy of the body of the agreement referred to in the opinion of the court: — “ We, the undersigned, hereby agree with each other, and the one with the other, that a corporation shall be formed by us under the name of ‘ San Joaquin Land and Water Company/ for the purpose of procuring water rights on one or more of the rivers or streams running through the counties of Calaveras, Tuolumne, Stanislaus, and San Joaquin, in this state; purchase, erect, and…

<p>Contest of Will —Devise to Children of Copartner—Fraud — Undue Influence —Report of Bad Treatment by Relatives of Testator. — Where a will, devising the bulk of the estate of the testator to the children of his copartner, who were upon intimate and friendly relations with the testator, who had declared his intention to make some of them the objects of his bounty, is contested by relatives living in another state, who were not provided for by the will, evidence that the father of the children stated to a witness that the testator had said he had been badly treated by his relatives, and would not give them any part of his property, without proof of the communication of the statement to the testator, does not prove that he fraudulently started or circulated the report, or suggested it to the disordered fancy of the testator, or show undue influence exercised by him over the mind of the testator, it appearing that some of the testator’s witnesses testified to similar assertions by the testator which antedated the interview with the father of the devisees.</p> <p>Id. — Support of Family by Partnership__The support of the family of the copartner by the partnership of which the testator was a member, with his presumed knowledge and consent, would not constitute fraud, and if he were actually defrauded thereby, would not tend to induce a will in favor of the children of the copartner.</p> <p>Id.—Suppression of Letters from Testator’s Relatives.—Where the suppression, by the copartner, of the letters of the testator from his relatives is not one of the charges specifically averred, and there is no proof that he received or suppressed them, beyond a suspicion that he might have done so, under the evidence of one of the testator’s brothers as to the sending of certain letters, which were not returned from the dead-letter office or found among the testator’s effects, such evidence does not prove fraud exercised by the copartner in the procuring of a will in favor of his children.</p> <p>Id.—Undue Influence — Degree of Evidence Required — Destruction of Free Agency. —Slight evidence of undue influence is insufficient to establish it. The influence must amount to force and coercion, destroying free agency as to the very act, and the exertion of undue influence upon the very act must he proved.</p> <p>Id. — Influence in Management of Partnership. — The fact that his copartner had more influence than the testator in the management of the partnership business would not tend to prove that he influenced the testamentary disposition.</p> <p>Id. — Mental Incompetbnoy—Insane Delusion — Special Verdict— Support of Order Vacating Probate — Review upon Appeal.— A special verdict showing that the deceased, at the time of making the will, was of unsound mind, and that he failed to make provision for the contestants by reason of an insane delusion, is sufficient to sustain an order vacating the probate of the will, and where there is some evidence tending to support the verdict upon these issues, only errors of law in trying them can he considered upon appeal.</p> <p>In —Opinion Evidence as to Mental Sanity—“Intimate Acquaintance”— Construction of Code — Discretion. ■—Subdivision 10 of section 1870 of the Code of Civil Procedure, which makes competent “ the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given,” excludes such evidence by others than intimate acquaintances, who are, by unreserved intercourse, familiar with the varying moods and temperaments of the person whose soundness is questioned; but the statutory rule is necessarily more or less indefinite, and a large discretion must be conceded to the trial court, and if the conclusion reached is one that can be reasonably entertained consistently with the idea of intimacy of acquaintance, it will not be reviewed by the appellate court.</p> <p>Id. — Hypothetical Question to Medical Expert — Assuming Fact not in Evidence. — Where the only evidence as to the declarations of the testator about his sister is to the effect that “if he knew where his sister was, he would go and see her and visit her,” a hypothetical question to a medical expert on the subject of mental sanity, in which it is assumed that he referred to a sister whom he knew to have been dead nearly thirty years, rather than to his living sister, should be disallowed.</p> <p>Id. — Instructions as to Value of Evidence — Matters of Fact — Process of Reasoning. — Instructions as to the weight and value of evidence, stating what the jury are at liberty to conclude from certain facts, if found, involving a conclusion, not of law, but of the judging mind from the evidence, are in violation of the constitutional inhibition as to instructions upon matters of fact. The court has no right to dictate or even suggest the process of reasoning by which the evidence shall be judged.</p> <p>Id. — Mistaken Belief as to Mistreatment of Relatives — Insane Delusion — Erroneous Instruction. — An instruction stating, in effect, that if the testator was mistaken in his belief that his relatives had mistreated him, and therefore made no provision for them, he was of unsound mind, is erroneous. The fact of such mistaken belief does not, as matter of law, amount to an insane delusion.</p> <p>Id.—Radical Change of Testator’s Feelings — Cause of Change — Erroneous Instruction. — An instruction that if the jury find that the testator’s feelings toward his relatives had undergone a radical change, they should inquire whether there was good reason for the change, but not limiting the inquiry to whether it was caused by an insane delusion, is erroneous. People may hate their relatives for'bad reasons, and yet not be deprived of testamentary power.</p> <p>Id.—Willful Suppression of Evidence — Inferior Evidence — Presumptions — Exclusion of Evidence — Inapplicable Instructions, — Instructions that “ it is a presumption of law that evidence willfully suppressed would be adverse if produced,” and that “it is a presumption of law that higher evidence would be adverse from inferior evidence being produced,” should not be given, where no suppression of evidence or production of inferior evidence appears in proof; and the exclusion of the evidence of a physician, offered by the contestant of a will upon the condition of the testator’s mind, upon objection of the proponents of the will, is not a suppression of evidence, or the withholding of higher evidence, warranting such instructions, but the rejection of such evidence as inadmissible renders the instructions prejudicially erroneous.</p>

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

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

Writ of error in the Supreme Court to review an order of the Superior Court of San Joaquin County. The facts are stated in the opinion of the court.

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

<p>Constitutional Law — Act to Encourage Cultivation of Ramie — Distinct Items of Appropriation.—The act of the legislature of March 31, 1891 (Stats. 1891, p. 283) entitled “An act to encourage the cultivation of ramie in the state of California, to provide a bounty forrarme fiber, and to make an appropriation therefor; to appoint a state superintendent of ramie culture, and make an appropriation for his salary,” — is unconstitutional, as being in violation of section 34 of article IV. of the constitution, providing that no bill making an appropriation of money, except the general appropriation bill, shall contain more than one item of appropriation, and that for one single purpose.</p> <p>Id. — General Purpose of Distinct Appropriation — Construction of Constitution. — The fact that an act making two or more distinct appropriations has but one general purpose, and that the distinct appropriations subserve that general purpose, will not render it consistent with the constitution, which forbids more than one item of appropriation in the same bill for any one purpose, and requires the one item to be “for one single and certain purpose.”</p>

<p>Dedication of Highway — Offer not Accepted — Revocation. — Where the owners of a tract of land made and recorded a map of the tract, by which it was subdivided and laid out in streets and lots, and marked the location of the streets upon the ground, and united in a deed to the county by which they conveyed the roads so laid out, upon the express consideration that the county should “ accept, declare, duly establish, and use the same as public highways,” and the terms were never accepted or complied with until after the lapse of ten years and after the offer had been effectually revoked, a dedication of the land to the public as a highway is not shown.</p> <p>Id.—Opening of Road—Injunction Suit — Evidence.—In an action to enjoin the opening of a road, evidence of the value of vines planted upon the strip sought to be taken, as well as the value of the strip itself, is immaterial, and it is not error for the court to exclude such evidence.</p>

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

<p>Marriage — Absence of Former Spouse for Five Years — Validity of Second Marriage. — Under section 61 of the Civil Code, a marriage is not void because contracted when one of the spouses had a former husband or wife living, where such former husband or wife has been absent and not known to the other spouse to be living for the space of five years before the subsequent marriage, or is generally reputed and believed to be dead at the time of the contracting of the second marriage, but such subsequent marriage is valid until its nullity is adjudged by a competent tribunal.</p> <p>Id. •— Absence of Wife — Desertion in Foreign Country. — A wife who was residing with her husband in a foreign country, and there deserted him and went to live with her parents, is “absent” from the husband, within the meaning of subdivision 2 of section 61 of the Civil Code, although the husband afterwards came to this country to live, leaving her with her parents in the foreign country.</p> <p>Id. — Action for Annulment of Second Marriage—Cross-complaint— Annulment of Deeds of Settlement — Fraud and Mistake. — In an action by a wife for the annulment of the marriage, upon the ground that at the time it was contracted the husband had another wife living, and that the former marriage had never been dissolved, where the husband seeks in a cross-complaint to have deeds of property executed by him to the wife set aside, on the ground that he was induced to execute and deliver them by fraud and deceit on her part, and by mistake on his part, evidence on the part of the husband tending to show that the deeds were executed at the earnest and repeated request and solicitation of the wife, and that she intended thereby to get all the property in her own name, so that if it should turn out that the former wife was living, she could have her marriage annulled and yet claim and hold the property, and that the husband, honestly believing his former wife to be dead, and having full confidence in the second wife as a true, dutiful, and affectionate wife, and expecting their marital relations to continue so long as both should live, yielded to her wishes and solicitations, is sufficient to support a finding of fraud and mistake in the execution of the deeds.</p> <p>Id. — Husband and Wife — Trust Relation — Undue Influence — Fraud. •— The relations between a husband and wife are confidential, and all transactions between them respecting property are subject to the same rules that control a trustee and cestui que trust. If one of the spouses uses the influence which is given by the marriage relation to obtain any advantage over the other spouse, it is a fraud against such other, for which equity will grant appropriate relief.</p> <p>Id.—Amendment of Cross-complaint to Conform to Proofs of Fraud — Discretion — Absence of Request for Counter-evidence.—The action of the trial court in allowing an amended cross-complaint, setting up fraud in the procurement of the deeds of settlement, to be filed afteh the case had been submitted for decision, and in refusing to strike out the testimony of the defendant tending to show the fraud pleaded in the amended cross-complaint for the first time, is not an abuse of discretion, where the testimony was all in, and the amendment was made to conform to the proofs; and the fact that the plaintiff did not, in giving her testimony, deny the defendant’s charges of fraud, because not based upon any issue in the case, did not render the action of the court prejudicially erroneous, in the absence of a request by the plaintiff to have the cate reopened for the purpose of giving such testimony.</p> <p>Id.—Division of Community Property — Review upon Appeal.—The action of the court, in dividing equally between the parties only the community property described in the deeds, will not be held erroneous upon appeal, where it does not appear from the record that there was any other community property at the date of the decree.</p> <p>Id. — Decree Setting aside Deeds and Dividing Property—Effect of Conveyance Decreed. — A decree of the court vacating and setting aside the deeds, allotting an undivided one half of the property to the plaintiff and the other undivided half thereof to the defendant, and requiring the plaintiff to execute a deed to an undivided one half of the property to the defendant, sufficiently shows that the property is to be equally divided between the parties, and that there is to be vested in each of the parties the title to an undivided half of it, and that the deed from the plaintiff is not intended to affect plaintiff’s half of the property.</p>

<p>Appeal from an order of'the Superior Court of Plumas County for the issuance of a writ of possession.</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 of the court.</p>

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

<p>Money Had and Received — Investment with Plaintiff’s Consent— Violation of Trust.—Where the evidence shows without conflict that the defendant received authority from the plaintiff’s father to invest in a cheap land pool a certain sum which the father had of the son’s money, in regard to which pool the plaintiff’s father had been advised by a letter from the defendant, and that the plaintiff acquiesced in the investment made, the plaintiff cannot maintain an action for money had and received for the recovery of the money invested, but can only claim his proportionate share of the property purchased, although it was turned over by the defendant and another trustee to a corporation without plaintiff’s consent, and in violation of their trust.</p> <p>Id.—Finding against Evidence — Receipt of Money — Harmless Error. — A finding that the defendant did not receive plaintiff’s money, though contrary to the evidence, is harmless, where it appears that if the fact had been found the other way, still plaintiff could not recover.</p>

<p>Eminent Domain — Compensation — Evidence—Benefit from Railroad. — In an action to condemn a right of way for the proposed use of a railway corporation, it is incompetent to show that oranges would bring a better price by reason of the railroad being there, or that the value of the crop is dependent on the market, and its accessibility thereto, or that the accessibility of the produce of the land to the market, by reason of the construction of the road, would prevent any depreciation in its value.</p> <p>Id.—Construction of Constitution — Benefits to Land not Taken.— Section 14 of article 1. of the state constitution, providing for compensation for property taken for public use by a private corporation, “irrespective of any benefit from any improvement proposed by such corporation, ” is not limited to the land taken for a right of way by a railroad corporation, but has reference also to benefits which may accrue to the land not taken, and the amount of damages to the portion of the land of the defendants not condemned must be fixed, irrespective of any benefit which may result to defendants from the proposed railroad.</p> <p>Id.—Increased Cost of Irrigation — Uncultivated Land.—The increased cost of irrigating uncultivated land which is shown to be adapted for cultivation, and to require irrigation, which would be caused by the building of the railroad through the land involved, is a legitimate subject of inquiry, for the purpose of ascertaining the damage sustained by the owner.</p>

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

<p>Criminal Law — Preliminary Examination — Legality of Commitment — Neglect of Committing Magistrate — Setting Aside Information. — An order, in writing, holding a defendant to answer upon. the charge for which an information is filed, is, in fact and in law, made when it is entered upon the docket of the justice, and authorizes the filing of an information by the district attorney, and the failure to indorse the order upon the complaint, or the depositions taken at the preliminary examination, in no manner deprives the order of its validity, or affects any substantial right of the defendant, and neither such failure, nor the failure to reduce the testimony of the witnesses to writing, or to file a written commitment in the superior court, is sufficient ground for a motion to set aside the information for want of a legal commitment before its filing.</p> <p>Id.—Charge of Larceny—Description of Offense — Variance of Information from Commitment. — Where a complaint filed before the magistrate charged the defendant with the larceny of three steers, the property of “one Joseph Wright and E. Gr. Jones,” for which he was held to answer, and the information charged him with stealing two steers, the property of “one Joseph Wright,” the variance is fatal, and a motion to set aside the information as not charging the offense set out in the complaint upon which he was examined and held to answer should have been granted.</p> <p>Jd. — Ownership op Property — Identification of Offense. ■— In an indictment or information for larceny, where the stolen property is not otherwise described so as to identify the offense, the allegation of ownership is a material part of the description of the offense charged.</p> <p>IJd. —- Duty of District Attorney — Absence of Depositions.—The district attorney in an information must confine himself to charging the offense named in the complaint, and for which the defendant was held to answer, in the absence of written depositions showing a different offense, .and he is not authorized to go outside of the complaint, and order and charge a different offense upon what he may have learned from other sources.</p> <p>"Id.—Motion to Set Aside Information — Decision upon Question of Variance — Presumption upon Appeal. — Where the record in a criminal prosecution shows that the complaint upon which the defendant was examined and held to answer was introduced upon the hearing of a motion to set aside the information for variance between the complaint and information, it will be presumed upon appeal that the trial court, in passing upon and denying the motion, considered the question of variance.</p> <p>Bill of Exceptions—Reference to Document Set out in Record.— A hill of exceptions is to be read in connection with the record of which it forms a part, and a .document set out in another part of the record, which is sufficiently identified as the one referred to in the bill of exceptions, may be deemed a part of it, and considered in passing upon the merits of an exception reserved by such bill.</p>

Application to the Supreme Court for a wit of mandamus . to the judge of the Superior Court of Placer County. The facts are stated in the opinion of the court.

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

The judgment directed the plaintiff, as administrator of the estate of Thomas H. Blythe, deceased, to “ pay from and out of the property and money of said estate to the defendant in this action, for the use and benefit of John A. Wright, Esq., counselor at law of this court, or to the said Wright in person, the sum of ninety-five thousand dollars, in full payment and satisfaction for the services of the said Wright, as attorney and counselor at law, rendered to the said…

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

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

Consolidated appeals from judgments of the Superior Court of Sacramento County, and from orders dedenying new trials. The facts are stated in the opinion.

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

<p>Amendment of Amended Answer — Continuance — Terms of Amendment — Discretion. — It is not an abuse of discretion for the trial court to refuse, except upon the terms of payment of a sum of money to plaintiff, to allow the defendants, in an action to foreclose a mortgage, leave to file an amendment to their amended answer, setting up an offer of rescission of the contract, which they claimed was without consideration and tainted with fraud, where it appears that the cause had been on the calendar for two years, and that the amount fixed by the court was to reimburse the actual expenditures of the plaintiff in coming a considerable distance to the place of trial with counsel, which woul d be of no avail if the amendment was allowed, because of the necessity of a coutinuance.</p>

<p>Rescission of Contract of Sale — Agency — Unauthorized Signature of Name of Corporation — Pleading. —A complaint in an action to set aside a writing, purporting to be a contract for the sale of land belonging to the corporation defendant, which alleges that certain real estate agents, who signed the contract in behalf of the corporation, pretended they had authority from the corporation, by written resolution of .its trustees, to contract for the sale of its lands, but that in fact they .had no such authority, and which sets out the contract in lusa verba, to which the corporate seal is not attached, states a cause of action, although it also alleges that the plaintiffs, before discovering the want of authority, paid a part of the purchase price, and that the corporation re.fused to return the amount paid upon demand of the plaintiffs, claiming the contract to be valid and binding, and had instituted suit against the •plaintiffs to recover a balance due on the contract.</p> <p>-Id. — Statute of Frauds — Written Authority of Agent — Record .of Corporation — Ratification. — The authority of an agent to contract for the sale of land must he in writing, and a corporation can confer authority upon an agent to sell its lands only through its hoard of •directors, when duly assembled, by resolution duly passed and recorded, and a ratification of such authority can only be made in the same manner required for the conferring of original authority.</p> <p>Id. —Ratification by Acts in Pais. —The acts of the corporation in accepting money paid it under the terms of the agreement, and in commencing suit to recover money due by its terms, did not amount to a ratification of the contract.</p> <p>Id. — Election to Avoid Contract. — As the corporation not having authorized or ratified the contract for the sale of its land by written resolution could elect not to be bound by it, the same privilege must be given to the purchaser.</p> <p>Id. —Part Performance of Oral Agreement. ■—The payment of part of the purchase-money is not sufficient part performance to authorize the specific enforcement of an oral agreement to convey land.</p> <p>Id.—Possession in Part Performance — Pleading—Anticipation of Defense. — A complaint for a rescission of an unauthorized contract, in writing, for the sale of land, is not bound to anticipate a possible defense that an oral contract was partly performed by taking possession, in connection with payments on purchase-money, and need not negative the fact of such possession.</p>

<p>Criminal Law — Homicide — Evidence — Alibi — Time of Departure of Train — Custom as to Schedule Time — Resister—Hearsay. — In a criminal prosecution for murder, where the defendant claimed an alibi, and the prosecution claimed that the crime was committed before the departure of a certain train, which contradicted the claim of alibi, it is error for the court to permit the prosecution, against objection, to show by the local agent and the night operator of the railroad, that by the rules and regulations" of the company the trains must not arrive before their schedule time, and that the conductor must register the exact time of arrival and departure, and that such register was in fact kept at the station, and to permit the introduction in evidence of the register, where neither of the witnesses had any actual knowledge of the times, nor was the conductor who made the record called as a witness. Such evidence should be excluded as hearsay.</p> <p>Id. — Declaration of Guilt by Person Acquitted — Rebuttal of Hearsay as to Loan of Pistol.—Upon the trial of a defendant charged with murder, where a witness for the defendant testified, without objection, that a person who had been tried for the same offense, and had been acquitted, told him that he killed the deceased, and that he got a gun from another person, testimony of such other person, in rebuttal, that he did not loan a pistol to the person acquitted is incompetent, and does not tend to disprove the evidence as to the fact of his declaration.</p> <p>Id. —Expert Evidence — Province of Jury. —It is error for the court to allow a gunsmith to testify, as an expert, that in his opinion a certain cartridge had never been in a pistol, because he saw no mark on it, and that a ball assumed to have been from a pistol was not similar to another ball taken from the head of the deceased, or to describe the balls which were in court and shown to the jury. Such matters are not properly the subject of expert testimony, but are for the jury to pass upon.</p> <p>Id. — Admissions of Defendant as Witness for Another Defendant. — In a criminal prosecution, voluntary statements or admissions of the defendant, made while testifying as a witness upon the trial of another person charged with the same offense as defendant upon a different information, are competent evidence against him.</p> <p>Id. — What Sworn Statements are Voluntary. — The testimony of a witness in a criminal proceeding is considered voluntary, unless the questions are objected to, and the witness forced nevertheless to testify. The mere fact that he was duly sworn to answer questions, and was compelled to answer or admit that his answers might criminate himself, does not render his testimony involuntary.</p> <p>Id.—Failure of Witness to Testify as Expected — Impeachment.— A witness, whichever party calls him, cannot be impeached unless he has given testimony against the impeaching party. The mere failure of a witness to testify to a fact as expected does not authorize the party calling him to prove that he had elsewhere made the desired statements. It is only when he has given damaging testimony that he can be impeached.</p>

<p>Mechanics’ Liens — Foreclosure — Parties — Non-joinder of Contractors— Objection upon Appeal.—While the contractors are proper parties to an action by material-men to enforce their liens, they are not necessary parties, and the owner of the property cannot complain upon, appeal because they were not joined as co-defendants, where he has not asked the trial court for an order to have them so joined.</p> <p>Id. — Assumpsit against Owner of Building — Value of Materials Furnished — Invalid Contract — Pleading — Evidence. — In an action by a material-man to foreclose a lien under sections 1183 and 1184 of the Code of Civil Procedure, where the claimants sue for the value of the materials furnished at the special instance and request of the owner of the building, the contract with the original contractors being void, it is not necessary that the complaint should set out the original contract, and allege its invalidity; hut the plaintiff may show such matters in evidence.</p> <p>Id. —Illegality of Partnership Furnishing Materials — Estoppel of Owner of Building.— The owner of a building is estopped from setting up the illegality of the formation of a partnership by two corporations which furnished materials for thq building, in an action to foreclose a lien therefor, by an assignee of the partnership.</p> <p>Id.—Validity of Contract — Time of Payment of Last Twenty-five Per Cent — Optional Payment — Bond against Liens — Substantial Compliance with Statute. — A contract for the erection of a building is not rendered void because it provides that the balance of twenty-five per cent of the contract price shall be paid in thirty-five days after the completion of the building, but may be paid at any time between the date of completion and the thirty-five days in case the contractors show receipts, and give special bonds that all bills will be paid, and that no liens or other claims exist against the premises, such payment to he optional with the owner. Such provision of the contract is in substantial compliance with section 1184 of the Code of Civil Procedure.</p> <p>Id. — Description of Property. — A contract for the erection of a building need not contain a description of the property upon which the building is to be erected.</p> <p>Id. — Failure to File Drawings and Specifications Made Part of Contract. — The failure of the contractor to file in the recorder’s office the drawings and specifications of the architect, which the contract recites are signed and attached thereto, and intended to co-operate and become a part of the contract, and which are evidently made an essential part of it, renders the contract void.</p>

<p>Contempt—-Execution fob Fine — Motion to Quash — Judgment Annulled by Certiobabi. — Where one found guilty of contempt of court was sentenced to imprisonment, and at the end of the term to pay a fine, with the alternative of imprisonment at a certain rate per day, and the fine not having been paid, a second judgment was entered against him for the fine, directing that execution issue therefor, and the second judgment was afterward annulled by certiorari, the execution issued thereon necessarily fell with the judgment itself, and a motion to quash the writ should be granted.</p>

<p>Action—Parties — Suit by Administratrix for Individual Rights.— An action instituted by a party on the one side for individual rights, against herself as administratrix of her husband’s estate, is irregular, aud should not be upheld.</p> <p>Quieting Title — Judgment for Substituted Plaintiff against Substituted Administratrix — Appeal by Parties not Aggrieved — Dismissal. —■ Where an action was brought by an administratrix in her own right against herself as administratrix of the estate of her deceased husband and his heirs at law, to quiet title to land claimed by her as her separate property, and claimed by the heirs as community property, and judgment was given in favor of the successor in interest of the plaintiff, who was substituted as plaintiff, and an order was afterwards made substituting him as defendant in the place of the heirs, whom he had bought out, and judgment was afterwards rendered quieting title against a substituted administratrix and those claiming under her in her representative capacity, and “ through the said estate,” an appeal from the judgment and an order denying a new trial, taken by the heirs, or by any person not a party to nor aggrieved by the judgment, will be dismissed.</p> <p>Id. — Appeal by Assignee of Rents and Profits. — An appeal cannot be taken from such judgment by an attorney for one of the heirs, under claim of a transfer of rents and profits accruing from the land in controversy, whose claim was unknown to the substituted plaintiff, who purchased the land and obtained the judgment quieting title to the land against the substituted administratrix, and who was not a proper party to the cause or to the judgment; nor can he prosecute an appeal through heirs who are not aggrieved or affected by the judgment.</p>

<p>Estates oe Decedents — Order Appointing Administrator — Appeal — Stay of Proceedings. — Upon an appeal from an order appointing an administrator, an undertaking on appeal in the sum three hundred dollars, as provided for in section 941 of the Code of Civil Procedure, stays all proceedings upon the order appealed from, and prevents the doing of any act by the appointee as administrator of the estate during the pendency of the appeal.</p> <p>Id. — Appointment of Special Administrator Pending Appeal. — If there be any danger of loss to the estate from a stay of proceedings pending an appeal from an order appointing an administrator, such danger can be avoided by the appointment of a special administrator under section 1411 of the Code of Civil Procedure.</p>

<p>Railroad Company—Liability for Loss of Sheep—Opening in Pence by Lessee of Land —Rights of Licensee. —A licensee who has acquired from the lessees of land the right to pasture his sheep thereon occupies no more favorable position to recover from a railroad company for the loss of sheep which strayed upon the track through an opening in the fence, made by the lessees for their own convenience, than that occupied by the lessees, who could not recover if the stock lost had been their own.</p> <p>Id. —Agreement to Put up Gate — Duty of Railroad Company — Reasonable Time — Liability for Neglect.—If the lessees made the opening in the fence through which the sheep strayed, with the consent of the railroad company, and upon its agreement to replace the opening with a gate, it was the duty of the company to put up the gate within a reasonable time, and if it failed to do so, it would be liable for the loss of the stock occasioned by such neglect, precisely as if it had left the opening without the consent of the adjoining owner when it constructed the fence.</p> <p>,Id.—Evidence of Authority of Agent of Railroad Company.—In order to show that the railroad company agreed to put up a gate as claimed, it must be shown that the person assuming to act for it had authority, either actual or ostensible, to act for it in the matter, or that his agreement was subsequently ratified by the defendants.</p>

<p>Criminal Law — Receiving Stolen Goods — Double Punishment—Nature of Offense. — Section 496 of the Penal Code, which provides for the punishment of a defendant convicted of receiving stolen goods “by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding six months, or by both,” does not authorize a double punishment, and violates no provision of the constitution. The offense is a felony or misdemeanor according to the nature of the judgment.</p> <p>Id. — Power of Legislature. — The power to define offenses and fix penalties therefor rests entirely with the legislature.</p> <p>Id. — Larceny by Assistant Foreman of Warehouse — Purchase of Stolen Goods. — An assistant foreman of a warehouse, who has authority to deliver property stored in the warehouse upon-proper orders presented to him, but who has no authority to sell any of the property, is guilty of larceny in selling the property, and the buyer of such property, knowing the same to have been stolen, is guilty of the crime of receiving stolen goods.</p> <p>Id. — Receiving Embezzled Goods. — Even if it be conceded that the act of the assistant foreman in selling the property in the warehouse was technically embezzlement, the parties buying the property from him would still be guilty of the crime of receiving stolen goods.</p> <p>Id.—Reasonable Doubt — Guilty Intent — Burden of Proof—Error in Instruction. — An instruction to the jury in a criminal action, that “ the effect of the statutory rules of evidence is, that when the doing of an act which, if coupled with a guilty intent, would be a violation of the law is proven, the burden of proving the act to have been done without intent, to the extent of creating a reasonable doubt of the defendant’s guilt upon the whole case, is, in most cases, thrown' upon the accused, ” is erroneous.</p>

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

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

<p>Sale under Execution — Irregularity — Protection oe Bona Pibe Purchaser. — An innocent purchaser of property sold under execution, who, as assignee of a redemptioner’s right to a sheriff’s deed, obtains title under the execution sale without notice of any irregularity in the sale, will be protected therefrom, whether proceeded against by an action or by a motion to set the sale aside.</p> <p>Id. — Setting Aside Sale en Masse—Showing Required.—A sale of property under execution will not be set aside because sold era masse, unless it is made apparent to the court that a larger sum would have been realized from the sale if the property had been sold in parcels, or that the sale of less than the whole tract would have brought sufficient to satisfy the writ.</p> <p>Id. — Pleading — Absence oe Conditions Authorizing Sale en Masse. — In an action to set aside an execution sale, on the ground that the property, consisting of several disconnected parcels of land, was sold ere masse, it is not sufficient to allege merely that several separate tracts were sold in the lump by the sheriff, but it must be shown by the complaint that none of the conditions which would authorize the sale of all the parcels together existed at the time of the sale.</p> <p>Id. — Parol Waiver of Sale in Parcels. — A judgment debtor may by • parol waive a sale of the land in parcels, and give authority to sell ere masse; and where it does not appear that the sale was not made in solido by express direction of the judgment debtor, or offered in parcels and no bids received, the execution sale will not be set aside because of the sale of the property ere masse.</p>

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

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

<p>Constitutional Law—Public Officers — Increase of Compensation — Salary of Deputy. — An order of the board of supervisors of Marin County, allowing a county clerk a deputy at a salary of fifty dollars a month, to be paid by the county, made on the 10th of January, ISS9, and after the election of the county clerk to that office, is in effect an increase of the compensation of such county clerk after his election, and is therefore void, as being in conflict with section 9 of article XI. of the constitution, notwithstanding the amendment of 1887 (Stats. 1887, p. 207) to section 211 of the County Government Act of 1883 purports to authorize the boards of supervisors of certain counties to allow deputies to the county officers on salaries to be paid by the county.</p> <p>Id.— Uniformity of Operation of General Law — County Government Act — Amendment of 1887. — The provision of section 211 of the County Government Act of 1883, as amended in 1887 (Stats. 1887, p. 207), “that whenever, in the opinion of the board of supervisors, the salary of any county officer in the third, fourth, fifth, twelfth, twentieth [and several others] classes as fixed and provided in this act is insufficient to pay a reasonable compensation for the services required to be performed, then said board shall allow such officer a deputy, or such number of deputies as in their judgment may be required to do the business of such office, in connection with the principal, at a salary not to exceed one hundred dollars per month, to be paid at the times and in the manner said principal is paid,” is unconstitutional and void, as it prevents the county government act, which is essentially a law of a “general nature,” from having a “ uniform operation, ” as required by section II of article I. of the constitution.</p> <p>Id. — Delegation of Legislative Power. — Such provision is also unconstitutional and void, as it is an attempt by the legislature to delegate to the board of supervisors the duty imposed on it by section 5 of article XI. of the constitution, of regulating the compensation of all county officers in proportion to their duties. Such legislative duty cannot be delegated. ■ r . ' '</p>

Motion in the Supreme Court to dismiss an appeal from the Superior Court of Tulare County. The facts are stated in the opinion of the court.

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

<p>Agency — Shipment of Goods to Order of Principal — Request of Agent Disregarded — Action by Agent for Proceeds — Money Had and Received. — Where coffee was shipped to the defendant by the plaintiff in his own name, but as the agent of third parties with whom defendant had dealings, and a previous understanding that they were to ship their coffee to him, and the shipper gave instructions to hold the coffee to the order of such third parties, and at the same time preferred a request to the defendant to send a bill of goods to the shipper to be charged to such third parties, the plaintiff cannot maintain an action against the defendant to recover the proceeds of the coffe.e as money had and received to the use of plaintiff upon demand therefor made after defendant had accounted to such third parties for the coffee, as requested by them, notwithstanding defendant did not send the goods to plaintiff, as requested by him, it not appearing that plaintiff had any interest in or lien upon the goods, or made any claim, except for the cash proceeds of the coffee.</p>

<p>Deed — Grant of Absolute Title — Estoppel of Grantor—After-acquired Title — Tax Deed. — The grantor of land is estopped by his deed of grant, bargain, and sale to the grantee, purporting to convey an absolute title to the land, from denying that before and at the time of that deed he had such absolute title, and by that deed conveyed it to the grantee; and if any title is thereafter acquired by the grantor through a tax deed, such title inures to the benefit of the grantee alone.</p> <p>Taxation — Void Assessment — Recitals in Certificate and Deed — Omission in Deed. — Where the certificate of a tax sale states that the property was assessed to a person named, “ and to all owners and claimants, known and unknown,” the certificate shows that the property was not lawfully assessed; and where the tax deed omits to recite the latter part of the assessment as recited in the certificate of tax sale, it is void for not reciting the matters recited in the certificate.</p> <p>Id.— Effect of Recitals — Prima Facie Evidence — Disputable Presumption— Variance of Deed from Certificate. — A tax deed reciting a lawful assessment is only prima facie evidence that the property was assessed as required by law, resting upon a disputable presumption that the recital conforms to the certificate of sale; and where the certificate of tax sale shows an unlawful assessment, its introduction in evidence as a foundation for the admission of the deed not only proves that the property was not lawfully assessed, but also that the tax deed, not conforming to the recitals of the certificate, does not contain the recitals required by law.</p> <p>Statute of Limitations—Adverse Possessiqn — Notice to Owner. —In order to set the statute of limitations in motion against the owner of land, the adverse possession thereof must be sufficiently open and notorious to notify an ordinarily prudent owner of its existence, and of its hostile character, unless he is otherwise actually notified of such facts; and to be available against persons dealing with the owner for the land, the occupancy must be of such a character, at least, as should put them upon inquiry as to the title of the occupant.</p> <p>Id. — Burden of Proof. —The burden of proving all the essential elements of an adverse possession, including its hostile character, is upon the party relying upon it.</p> <p>Id.—Possession of Unimproved and Uninclosed Land — Notice of Adverse Possession —• Prescription —■ Quieting Title — Finding against Evidence. — In an action to quiet title to land, where the plaintiff claims title by prescription, claiming adverse possession under a tax deed during five years before the commencement of the action, but the evidence shows that the land was uninclosed and uncultivated, and no person resided upon it; that it was bounded on all sides by uninclosed land, upon which, as well as upon it, the cattle of the neighbors roamed and grazed without restraint, —the fact that the plaintiff, through his lessee, erected upon the land a rude shed, sufficient to afford shelter to “three valuable animals,” is not sufficient, in the absence of express notice, to justify the inference that the defendant had notice of an adverse possession of the plaintiff, especially where there is no evidence that the shed was ever used for any purpose, and will not justify a finding of adverse possession of the land.</p>

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

<p>Wills — Construction. — The will in this case construed, and held to war-z'ant the disti-ibution of three fourths of the estate to the wife, and one fourth only to the executors upon the trusts set forth in the will and codicil, instead of one half thereof, as claimed by appellants.</p> <p>Id.—Construction of Codicil — Change of Terms of Will.—It must be assumed that the testator, at the time of making the codicil, used the terms therein with reference to the provisions of the will as they would be construed under the facts then existing, and with a knowledge of what property the will provided that the executors should hold in trust, and that he intended that no further change should be made in his will than that expressly declared in the codicil.</p> <p>Id. — Effect of Codicil — Republication of Will as Modified — Modification of Single Clause. — The execution of a codicil has the effect to republish the whole will, as modified by the codicil, as of the date of the codicil; and its effect is not limited to a republication of the only clause which the codicil purports to modify.</p> <p>Id.—Construction of Will and Codicil — Revocation. — The whole of the original will and codicil are to be construed as a single instrument executed at the date of the codicil, and of which all the parts are to be construed so as, if possible, to form one consistent whole; and the codicil will not be construed to disturb the dispositions of the will further than is absolutely necessary to give effect to the codicil; nor will a clear disposition made by the will be revoked by a doubtful expression or inconsistent disposition in the codicil.</p> <p>Id. —Single Modification of Will by Codioil— Implied Negative. — A determination expressed in a codicil to make an alteration in the will in one particular negatives by implication any intention to alter it in any other respect.</p>