Volume 95 — California Reports

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

The facts in regard to the contest of the will are stated in the opinion. On the motion to dismiss the judgment, the affidavit of the contestant showed that he, had paid the clerk’s fee for entering the judgment, and that the judgment was signed at the date of the verdict, August 11, 1889, and that the clerk was requested to enter it, and that he supposed in good faith that it had been entered. It was not in fact entered until May 2, 1891.

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

Application to the Supreme Court for a writ of mandate. The petition sets forth a recoyery of the possession of a tract of land in an action of ejectment brought August 12, 1873, by William Ford, in the superior court of the city and county of San Francisco, against the husband of petitioner, B. S. Green, and other defendants, to which action petitioner was not a party.

<p>Constitutional Law—Jurisdiction of Supreme Court—Power of Court in Bank — Modification of Judgment Rendered in Depart" mbnt—Rehearing in Bank.—Under the constitution of this state, there is but one supreme court, and the jurisdiction which is vested in it may he exercised either in Bank or in Department. The court in Bank has the power to correct an error in, or modify the judgment rendered in, a Department, at any time within thirty days, of its own motion, irrespective of any application- therefor, and it is not necessary that the cause be argued in Bank upon an order therefor, to give the court in Bank jurisdiction thereof.</p> <p>Id,—Failure of Clerk to Enter Order Modifying Judgment__An order of the supreme court modifying a judgment is not rendered nugatory by reason of the failure of the clerk to enter it in his minutes until after the expiration of thirty days from the time when the judgment was pronounced in Department. The action of the court does not depend upon the entry of its orders by the clerk, hut upon the fact that the orders have been made, and whenever it is shown that an order has been made by the court, it is as effective as if it had been entered of reo. ord by the clerk.</p>

<p>Deeds — Description of Town Lots — Certainty—Reference to Plat — Parol Evidence — Identity of Plat.—A deed of town lots which gives the dimensions of the boundaries thereof, and describes them by the numbers of the lots and block, referring to a plat thereof, is not upon its face void for uncertainty, though the description is not sufficiently certain without production, by one claiming under it, of the plat therein referred to, or of its contents; and parol evidence is admissible for the purpose of identifying a plat offered in evidence as the one referred to in the deed.</p> <p>Id.—Quieting Title—Evidence—Existence of Map—Proof of Identity— References in Chain of Title—Conveyancer from Defendant — Admission. — In an action to quiet title to land, where the deed under which the plaintiff claims title was made by one of the defendants, and refers to a map for a description of the property, such deed is, as against that defendant and his co-defendant claiming under him by a subsequent conveyance, sufficient proof of the fact that there was such a plat in existence at the date of the deed to the plaintiff; and further evidence, tending to show that the property was in fact surveyed prior to the execution of any of such deeds, and that the defendant who was the grantor of the plaintiff had himself, some two years thereafter, produced the map offered in evidence as the plat of the tract, sufficiently identifies the map as the one mentioned in the deed, and entitles it to be admitted in evidence on behalf of the plaintiff.</p> <p>Id.—Map of Addition to Town — Certainty—Absence of Field-notes or Designation — Reference to Natural Monuments — Location of Land. — Where a map of an addition to a town, though unaccompanied by field-notes, and having no signs or letters to indicate the different points of the compass, or any express designation of it as the map of any particular place, yet shows upon its face streets and alleys, and blocks subdivided into lots, and the relative location of a country road and a river, naming many of the streets and numbering the blocks, it cannot be said, as a matter of law, that the map is upon its face void for uncertainty, or that it would be impossible to locate upon the ground a block of land, described in a deed by number, and as bounded on one side by one of the streets named in the map.</p> <p>Id. —Identity of Block—Evidence. —Whether a block of land referred to in a deed is capable of being identified by reference to a map of an addition to the town is a question of fact, upon which the evidence of persons acquainted with the town, and what is known as such addition thereto, and the different streets or other objects shown on the map, is admissible.</p> <p>Id. — Metes and Bounds of Block — Finding against Evidence. — Where the plaintiff claims under a deed of town lots, which does not describe the lots by metes and bounds, but refers to them only as constituting a block designated on the map of an addition to the town, and though introducing and identifying the map, introduces no evidence showing that the land could be properly located and described by specific metes and bounds with the aid of the map, a finding and judgment that the plaintiff is the owner of land described by specific metes and bounds is against the evidence.</p> <p>Id. — Construction of Pleadings — Issues — Denial of Ownership — Failure to Deny Specific Boundaries Recited — Proof of Boundaries. —Where the complaint in an action to quiet title, after alleging the plaintiff’s ownership of the land as marked on a plat, proceeds by way of recital to state that the land is particularly described according to certain specific metes and bounds, and the answer, without joining special issue as to the boundaries, denies the ownership by the plaintiff of the land described in the complaint, or any part thereof, the fact is not thereby admitted that the land is correctly described by the metes and bounds specified in the complaint, but the plaintiff must prove that fact, and in the absence of any evidence to prove them, a judgment quieting the title to the land described by such specific boundaries will be reversed upon appeal.</p>

<p>Partnership—Farming and Thrashing Business—Sharing Net Profits as Compensation. —• In order to constitute a partnership in the farming and thrashing business, there must be an agreement to carry on the business together and divide the profits, and the fact that one of the agreeing parties is to receive one half of the net profits of the business will not make him a partner therein, if it is agreed that he is to receive the same only as compensation for the use of personal property let by him to be used by the other party in the prosecution of such business in his own name, and solely on his own account.</p> <p>Id. — Evidence of Partnership — Declaration of Copartner. — Upon the trial of an issue joined as to the fact of partnership, the declaration of an alleged partner, made in the absence of the party denying the partnership, cannot, as against the absent one, be used to establish the fact of partnership.</p>

<p>Deed oe Trust — Rescission — Revocation oe Will. —A complaint in an action brought to have it decreed that a conveyance of lands by the plaintiff to the defendant created a mere naked legal trust, and to compel the defendant to convey the lands to the plaintiff, alleging that the property was conveyed in trust, and that at the same time the defendant executed a written instrument, which, after reciting that the property was conveyed in trust, contains an acceptance of the trust and an agreement to carry out the same according to a declaration of trust set forth in plaintiff’s will, executed contemporaneously therewith, and which further alleges that the deed was executed solely for the purpose of securing the defendant for small amounts of money to be loaned to the plaintiff by the defendant, and as a part of his last will, and further avers that the plaintiff has revoked his will and the naked trust, if any, created by the conveyance, and has offered to repay the sums advanced by defendant, but which avers neither undue influence, fraud, or any other of the ordinary grounds for avoiding conveyances, states no cause of action.</p> <p>Id. —Voluntary Trust not Revocable — Want of Consideration. — A voluntary deed of trust passing a present interest in fee to the trustee, with full power to control, encumber, and sell the property without reserving a power of revocation, is irrevocable, and a want of consideration therefor is immaterial.</p> <p>Id.—Declaration of Trust in Will — Revocation of Will — Separate Deed of Trust — Reference to Will. —A declaration of trust in a will as to property conveyed to a trustee by an absolute conveyance in trust, which is no part of the will, is not revoked by the revocation of the will, where the property conveyed is expressly excepted from the estate disposed of by the will, and the declaration of trust contained in the will is referred to in the deed of trust for the purpose of showing the nature of the trust.</p> <p>Id. —Mistake of Law—Testamentary Disposition — Relief in Equity. — A mere mistake of law on the part of the grantor of a deed of trust as to the nature and effect of the instrument, supposing it to be a mere testamentary disposition of his property, remaining within his control, is not ground for relief in equity, especially where it appears that he intended to put the property beyond the reach of an unfavorable judgment.</p>

<p>State Harbor Commissioners — Action on Wharfinger’s Bond — Use of Name of People — Attorney-General. — Under section 2523 of the Political Code, providing that the board of state harbor commissioners may institute and prosecute to final judgment actions in the name of the people of the state for the collection of any money due, or that may become due, under the authority of article IX., part III., title VL, of the Political Code, the board has authority to use the name of the people without the relation of the attorney-general, in an action against the sureties of a wharfinger to recover moneys lost to the board by his delinquency.</p> <p>Id. — Removal of Wharfinger — Change of Statute. — The fact that the wharfinger was appointed in 1880, and removed from office in 1883, after the delinquency complained of had taken place, and that the action was commenced after a change was made in the statute, whereby the duties of the wharfinger were conferred upon another officer, called a collector, is no objection to the maintenance of the action by the harbor commissioners against the sureties of the wharfinger for money which had become due from the wharfinger before his removal from office and before the change in the law.</p>

<p>Toll-road — Expiration op Franchise—Public Highway. —A franchise for a toll-road, granted by the legislature for the period of twenty years expires by limitation at the end of the twenty years, and the road then . becomes a public highway.</p> <p>Id. — Possession op Toll-road — Collection of Tolls — Presumption. — A person in the possession of a road claimed by him to be a toll-road, authorized by the legislature to be continued for twenty years, who has collected tolls thereon for over twenty years since the passage of the act, and who shows no other'franchise therefor, will be presumed to have claimed the right to tolls under the original grant, and to have collected them lawfully during the existence of the franchise, although there is no direct evidence that the persons named in the act, or their assigns, constructed the road, or that he was an assignee of such persons, or collected tolls under that franchise.</p> <p>Id. — Dedication of Public Road — Condition as to Tolls. — The act of constructing and opening a toll-road for use, followed by public user thereof, constitutes a dedication of it as a public road. The fact that tolls are demanded, and that the public uses the road only upon condition of paying tolls, does not affect the question of dedication.</p> <p>Id. — Authority of Supervisors — Free Public Road—Tolls—Franchise. — The board of supervisors of a county has no authority to grant a franchise to collect tolls upon a free public road.</p> <p>Id. —Leghslative Act — Excess of Authority — Limits of Procedure.— The granting of a franchise for a toll-road by the board of supervisors of a county is a legislative act, and the board, in granting it, cannot exceed the authority vested in them, or transcend the limits of the procedure required of them.</p> <p>Id. —Judicial Inquiry as to Character of Road — Collateral Attack upon Authority of Supervisors. —The granting, by the board of su. pervisors of a county, of a franchise to collect tolls, does not preclude inquiry by the courts as to whether the road was a toll-road or a free public highway, and their conclusion upon that fact may be questioned collaterally.</p> <p>Id. —Record of Public Road — Dedication It is not necessary that the board of supervisors of a county should cause a road to be recorded as such, to render a strip of land dedicated to the public as a public road a legal public highway.</p>

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

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

The following are the fifth and sixth instructions requested by the defendants and refused by the court: 5.

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a0new trial =</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Subscriptions to Stock—Creditor’s Bill—Pleading — Indebtedness of Corporation — Conclusiveness of Judgment.—A judgment against a corporation establishes its liability conclusively until reversed in a direct proceeding, and concludes the stockholders in an action against them in the nature of a creditor’s bill, to compel them to pay in the unpaid portion of their subscriptions to the capital stock, toward the satisfaction of the judgment obtained; and it is not necessary that the complaint in such action should allege the indebtedness upon which the judgment was recovered.</p> <p>Ed.—Insolvency of Corporation — Sufficiency of Complaint—Nonjoinder of Creditors — General Demurrer — Answer. — A complaint in an action in the nature of a creditor’s bill to compel the subscribers to the capital stock of an insolvent corporation to account for and pay in the unpaid portion of their subscriptions to the satisfaction of a judgment obtained against the corporation, which alleges the existence of the judgment debt, the insolvency of the corporation, that the subscribers owe on their unpaid subscriptions, and that the execution issuing on the judgment has been returned wholly unsatisfied, but which does not show upon its face that there are any other creditors of the corporation, states a cause of action, although it does not state that the proceedings are for the benefit of all the creditors; and the question of defect in the pleading, or of non-joinder of other creditors, cannot be raised upon general demurrer to such complaint, hut can only be pleaded by answer.</p> <p>Id.—Right of Judgment Creditor.—A judgment creditor who has exhausted his legal remedy by an execution returned nulla bona may, alone or with other judgment creditors, file a bill against persons hold, ing property of the debtor which cannot he reached by execution.</p> <p>Id. — Division of Fund — Action by Single Creditor —• Decree for Benefit of All. — Where a fund can only be divided satisfactorily among a certain class of persons, the decree must be so framed that all of them may be brought in for their distributive shares, but even then the bill may often be filed by any one of them on his own behalf. It is only when it subsequently appears to the court that a distribution must be made that a decree will be made for the benefit of all.</p>

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

<p>Home for the Care of Inebriates — Recovery of Fines Paid to County Treasurer — Mandamus. —There is no law which specially enjoins it as a duty of the treasurer of the city and county of San Francisco, resulting from an office, trust, or station, to pay to the Home for the Care of the Inebriates of San Francisco the amount of any fines collected by the police courts and turned over to him, and mandamus will not lie to compel him to pay over to the Home the amount of any fines so collected, although the clerk of the police judge’s court may have turned over to the treasurer the moneys which he is enjoined by the act of March 17, 1876, to pay directly to the officers of the Home.</p> <p>Id. — Payment of Fines for Drunkenness—Repeal of Statute. — The act of March 17, 1876 (Stats. 1875-76, p. 325), providing that the fines and forfeitures, not exceeding eight hundred dollars in the aggregate in any one month, imposed and collected by the police judge’s court in San Francisco for drunkenness, shall be paid by the clerk of such court to the Home for the Care of Inebriates, was not repealed by the act of March 5, 1889 (Stats. 1889, p. 62), reorganizing the police court, and providing that all fines and forfeitures imposed by such court should be paid into the treasury of the city by the clerk of each department once a week, and repealing all inconsistent acts and parts of acts, but containing no special reference to the act of March 17, 1876.</p> <p>Id. — Repeals by Implication — Special Statute when not Repealed by General Law—Repeal of Inconsistent Acts. —Repeals by implication are not favored, and the repugnancy between two statutes should' be very clear to warrant a court in holding that the later in time repeals the other, when it does not, in terms, purport to do so. This rule has peculiar force in the case of laws of special and local application, which are never to he deemed repealed by general legislation, except upon the most unequivocal manifestation of intent to that effect, by language showing that the attention of the legislature was called to the special act, and that the general act was intended to embrace the special cases; and the mere fact that the general act contains a clause repealing acts inconsistent with it does not diminish the force of the rule.</p>

Application to stay execution upon appeal from a judgment of the Superior Court of the county of Los Angeles foreclosing a mortgage. The facts are stated in the opinion of the court.

<p>Prescription — Adverse User of Water—Public Lands — Grant from Government. —There can be no adverse possession of land, or adverse user of water to the natural flow of which such land is entitled, so long as the title to the land remains in the United States; but a prescriptive right to the use of water may be acquired after the legal title of such land has vested in a grantee of the government.</p> <p>Id. — Grant to Central Pacific Railroad Company—Vesting of Title. —The grant of land to the Central Pacific Railroad Company, by the acts of Congress of July 1, 1862, and July 2, 1864, to aid in the construction of its road, was a grant in. prcesenti, passing the legal title to the lands granted as of the date of the grant, as soon as the sections were identified by a legal survey and the definite location of the road.</p> <p>Id.—Patent for Railroad Land — Diversion of Water — Statute of Limitations. —As the legal title to land granted to the Central Pacific Railroad Company vested in the company upon identification of the land, and not at the date of the patent issued by the United States, the statute of limitations commenced to run in favor of one who diverted the waters of a stream upon the land after such identification and prior to the date of the patent, from the date of the diversion, as against the railroad company and its grantees.</p> <p>Id.—Effect of Grant — Adverse Possession—Subsequent Patent.— When the legal title to land is granted by act of Congress, the title of the government is as effectively divested as it would be by the issuance of a patent therefor by the executive department under authority of law, and such land then becomes subject to the limitation laws of the state in which it is situated, and an adverse possession thereof, after the date of such grant for the requisite period fixed by such laws, will ripen into a legal title in favor of the adverse possessor, and the effect of such possession is not interrupted or defeated by the subsequent issuance of a patent therefor in pursuance of such act of Congress.</p> <p>Id. — Recitals in Patent — Survey and Identification of Land Granted — Payment of Costs and Pees. — The recitals in the patent from the United States to the Central Pacific Railroad Company, showing that the line of the railroad was definitely located, and that the company afterward filed with the register and receiver at Sacramento a selection of the land under the acts of Congress, and that such selection was properly certified to or approved by such register and receiver, are sufficient proof of the fact that the land was at the date of its selection surveyed by authority of the United States, and identified as laud to which the grant made to the company had then attached, and that the costs of such survey and other fees required by law had been paid by such company.</p>

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

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

<p>Statute of Limitation's — Cause of Action Barred in Another State — Pleading— Construction of Code. — It is not necessary for a defendant who claims that the cause of action is barred by limitation, under section 361 of the Code of Civil Procedure, to set out the facts upon which he relies to show that the cause of action arose in another state, and that under the laws of that state it would be barred by the statute of limitations, but it is sufficient if he states generally that the cause of action is barred by that section. The rule of pleading established by section 458 of the Code of Civil Procedure applies to section 361 of that code.</p> <p>Deed as Security for Loan— Contracts Made out of State — Construction — Conflict of Laws. —In the construction of a deed to land in this state, executed out of the state, as security for the repayment of money advanced, the laws of this,state existing at the time the deed was executed must be read as a, part thereof, and must govern the right to foreclose-and to redeem, although the-contract of loan is to be construed according to the-laws of the state where it was made.</p> <p>Id. —Remedies under Laws of New York — Statute of Limitations— Action, to Redeem—Law of California — Deed Passing Title,— Where such deed and contract of security were executed in the state of New York, between residents of that state, either party could have maintained an action in that state on the contract, the one to enforce the right to redeem, and the other to recover the amount for which the land was held as security; and when the action in that state to recover the debt became barred by the laws of that state, no action to redeem from the security could thereafter be maintained in this state, where it appears that, by the law in force in this state at the time of the execution of the deed, the legal title passed to the grantee by the deed, and the right to redeem was barred whenever the debt to secure which the deed was made became barred by the statute of limitations.</p> <p>Id. —Right of Redemption — Law of California in Poroe at Date of Deed — Subsequent Change of Law. — The right of the grantee of the deed of land in this state, intended as security, to redeem therefrom, and the time within which redemption might be made, were fixed by the laws of this state in force at the time of the execution of the deed; and no subsequent legislation could change the rights or obligations of the parties, or extend the time for action, section 346 of the Code of Civil Procedure having been enacted after the execution of the deed, and the decisions based on that section do not apply in determining the effect of the deed.</p> <p>Id. —Laws of New York Immaterial — Interest in Land — Lex Loci Rbi Sitae. —It is immaterial whether by the laws of the state of New York, where the deed of land in this state was executed, an action to redeem the land under the contract for security could be maintained in that state, although an action for the recovery of the money due was barred, since the interest of each party in the land is governed by the lex loci rei sitae in force at the time of the execution of the deed, and the right to redeem is governed by the laws of this state then in force.</p> <p>Id.—Effect of Overruled Decisions — Deed Passing Title.—The decisions of the supreme court of this state do not make or change the law, but simply declare what the law is, and overruled decisions declaring that a conveyance absolute in form but intended merely as security did not pass the legal title to the grantee, not having stated the law correctly as declared in later cases, cannot be considered as forming part of a conveyance executed after the making of the earlier decisions, and before they were overruled, and do not furnish the true rule of interpretation thereof.</p>

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

<p>Motion in the supreme court for a writ of restitution. The facts are seated in the opinion of the court,.</p>

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

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

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

<p>Entibe Contract — Prevention of Performance — Quantum Meruit. — Where work has been done under an entire contract, which the defendant, without justifiable cause, prevented the plaintiff from completing, the defendant is liable to the plaintiff for the value of the labor done and materials furnished and used.</p> <p>New Trial — Statement — Specifications of Error — Instructions. — A general specification in a statement on motion for a new trial, “ that the court erred in giving to the jury instructions asked by plaintiff,” is insufficient.</p>

<p>„ „ „ „ Public Highway—Petition to Supervisors — Width of Road — stuction of Political Code — Validity of Proceedings. — Section 2682 of the Political Code, providing what the petition to the board of supervisors for the laying out of a public highway must contain, does not require it to state the width of the road, and the failure to state it does .not render the proceedings void, notwithstanding section 2681 of the same code requires the road to be at least forty feet wide, and authorizes the viewers to report upon the necessity of a greater or practicability of a less width of road than petitioned for. A petition for a road not stating the width must he construed to be a petition for a road at least forty feet wide.</p> <p>Id. — Approval of Bond. — Where the bond required by section 2683 of the Political Code to accompany the petition is presented with it, though the petition is marked filed a few days before the date of the bond, an order of the board of supervisors, that the bond he filed, and that the petition be acted upon by the appointment of viewers, is sufficient evidence of an approval of the bond by the board.</p> <p>Id. — Justification of Sureties — Rights of Property Owners.—The fact that the bond was approved, although the sureties had not justified as required by law, is a mere irregularity, which could not affect the private rights of a property owner. The validity of the proceedings cannot be made to depend upon the correctness of the judgment of the board as to whether the justification of a surety was in accordance with the statute.</p> <p>Id. —• Condemnation of Land — Substantial Compliance with Statute — Records of Supervisors — Indulgence of Courts.—The laying out of a public highway is a proceeding to condemn laud, and the mode * is in some sense the measure of the power, and it must appear that the statute has been substantially complied with, to render the proceedings valid; yet the courts make very liberal indulgences in favor of the rec. ords of the board of supervisors in such proceedings, which, though of great importance, are usually imperfect.</p>

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

Appeals from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial. The facts are stated in the opinion.

<p>Partnership — Action for Accounting and Settlement—Assignment of Interest—Assignor a Necessary Party. '—In an action for an accounting and settlement of a partnership, where it appears that the defendant was in partnership with the plaintiff’s assignor and another person, all of whom were jointly interested in the profits of the partnership, and it also appears that no settlement of the partnership matters had ever been made between the original partners, all of them are necessary parties to the action; and a demurrer to the complaint for defect of parties, in that the partner who was plaintiff’s assignor, and who was nob joined, was a necessary party to the complete determination of the controversy, is properly sustained.</p> <p>Id. — Pleading — Partnership in Contracts for Street Work — Collections to be Made by Copartner — Insufficient Complaint. — When the complaint in such action alleges that the defendant agreed with the plaintiff’s assignor and another person to do certain street work with them as partners, and that the defendant should appoint a book, keeper who should keep all accounts, pay all bills, and collect all moneys belonging to the copartnership, and that the profits arising from the work should be equally divided, and which alleges that the work has been performed, and that a large sum of money is still uncollected, but which does not aver that the defendant failed to perform any of the conditions of the agreement to be performed by the defendant, or that the defendant was neglecting or refusing to collect the unpaid money, or was insolvent’or likely to become so, or unable or unwilling to respond to any just claim or demand against the defendant, or that there was any danger that the money, when collected by the defendant, would be misappropriated, squandered, or lost, fails to state a cause of action.</p>

<p>Vendor and Purchaser — Action to Recover Purchase-money Paid — Time oe Essence—Pleading — Insufficient Complaint-—Want of Performance by Plaintiff. — A complaint by a purchaser to recover money paid upon a contract for the purchase of laud, which alleges that by the terms of the contract the sum sued for was to be paid down, and • the remainder of the purchase-money was to be paid in installments, and that upon the payment of the last installment the vendor was to execute a deed of the land; that time was made the essence of the contract by express terms; and that at the maturity of the contract the vendors failed and refused to execute a deed; but which does not allege a payment of any deferred installments, or a tender of performance, or an excuse for a failure to make the tender, or any rescission of the contract, — does not state a cause of action.</p> <p>Id.—Mutual Neglect to Perform—Rescission — First Breach by Purchaser — Tender and Demand of Conveyance.—The mere neglect of both parties to such contract to perform the contract on the day fixed for its performance could not, without anything more, operate as a rescission thereof; and when the complaint shows a first breach of the contract on the part of the purchaser, by failure to pay the first deferred payment a full year before the vendors were required to convey, a full tender on his part of the remainder of the purchase-money due, and a demand for a deed, is essential to a recovery of the purchase-money paid, and it is not enough to allege a refusal of the vendors to make and tender a deed at the date fixed for conveyance.</p>

<p>Statute of Frauds — Sale of Personal Property Owned in Co-tenancy — Change of Possession. — Although the statute of frauds is not applicable to a sale by a joint owner or co-tenant of personal property of his interest to a third party, where his co-owner has exclusive possession, yet where one of the co-owners of personal property, who is in the sole possession thereof, sells his interest therein to a third party, there must be an immediate delivery, followed by an actual and continued change of possession, as required by section 3440 of the Civil Code, or the sale will be void as to his creditors.</p> <p>Id. — Fraudulent Transfers — Attachment by Subsequent Creditor — Consideration — Good Faith. — A transfer of personal property which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession, is fraudulent and void as against the claim of any creditor who is such creditor during any of the time the person making the transfer remains in possession, and such creditor may cause the property to be seized in the same manner as he might have done had there been no attempted transfer by the debtor. The consideration paid by the purchaser or the good faith of the transaction cannot be inquired into for the purpose of evading the force and effect of the law declaring such transfer fraudulent and void.</p>

<p>Eminent Domain — Condemnation oe Water Rights — Pleading—Public Use — Supply oe “ Farming Neighborhood. ” — A complaint in an action by a water company to condemn water rights and a strip of land, which alleges that it is necessary to condemn and take the water rights in order to carry out the purpose of the water company to supply a “ farming neighborhood, ” composed of land riparian to the creek, with water for domestic use and irrigation, but which does not otherwise show whether the “ farming neighborhood ” is inhabited, not only fails to show that the use for which condemnation is sought is a public use, but shows affirmatively that it is not.</p> <p>Id. — “ Neighborhood ”—Construction oe Pleading. — The term “ neighborhood” is an indefinite phrase, and may consist of but two houses upon a single farm; and as the pleading must be construed most strongly against the pleader, it must be understood that the farming neighborhood to be benefited consists of one farm only, and this the property of the plaintiff.</p> <p>Id. — Uncertain Description oe Rights to be Condemned — Special Demurrer. — A complaint in an action to condemn water rights, which describes them generally as all the rights of each of the defendants, whether as riparian owners or acquired by appropriation, adverse use, or prescription, except for domestic use and reasonable irrigation of their riparian lands, is uncertain in not showing definitely what water rights are proposed to be condemned, and is insufficient as against a special demurrer.</p>

Application to the Supreme Court for a writ of prohibition to the superior court of the city and county of San Francisco. The fact are stated in the opinion of the court.

<p>Stipulation of Attorneys — Construction of Code — Written Agreement not Filed nor Entered upon Minutes. — Section 283 of the Code of Civil Procedure, which provides that an attorney can bind his client in an action, by his agreement, “filed with the clerk, or entered upon the minutes of the court, and not otherwise,” was not intended to enlarge or abridge the authority of the attorney, but only to prescribe the manner of its exercise, and does not-require a construction, that in no instance shall an agreement which the attorney may make in behalf of his client be binding, unless entered in the minutes of the court, or filed with the clerk. Its provisions refer to executory agreements, and not to those which have been wholly or in part executed.</p> <p>Id.—Stipulation Acted upon without Filing—Estoppel.—If the attorneys in an action have acted upon a written agreement, to such an extent that it would be inequitable not to recognize its binding effect, the court will not allow the agreement to be repudiated, upon the ground that it has not been filed with the clerk.</p> <p>Id. — Effect of Substitution of Attorneys — Continuing Force of Stipulation. —The parties to an action cannot he relieved from an obligation created by their attorneys, by the mere fact that another attorney is substituted in the place of the former attorneys who created the obligation. An attorney who is substituted for another in a cause steps into the place of his predecessor, and stands, with reference to the case and to the other party, precisely as did his predecessor, and can repudiate or be relieved from an agreement that had been made by him, only to the same extent and in the same manner as could his predecessor.</p> <p>Id. — Stipulation as to Testimony — Continuing Consent — Death of Witness — Irrevocable Agreement — Effect of Subsequent Filing. — The execution of a stipulation between the attorneys .of the parties to a cause, that the testimony of a witness taken in another action should be read and used in the trial of the cause in which the stipulation was entered into, is a continuing consent on the part of the attorneys that the stipulation may be filed at any time thereafter, unless they in some direct and express mode signify their withdrawal of such consent; and the death of the witness before such withdrawal renders the stipulation irrevocable; and the filing of the stipulation thereafter has the effect to operate and become binding upon the parties as from its date.</p> <p>Negligence — Falling of Elevator — Evidence — Instructions from Builders of Elevator to Owners. —In an action for injuries caused by the falling of an elevator, where the main issue is whether the defendants had been negligent in the mode in which they had run the elevator at the time of the accident, testimony as to directions given to one of the defendants, from those who put the elevator in the building, as to how the elevator should be bandied or used, and as to what the effect would be if he did not carry out those instructions, is relevant, material, and competent upon the issue of negligence.</p> <p>Id.—Negligence Relative to Circumstances — Situation and Knowledge of Parties. —Negligence is opposed to diligence or carefulness, and is never absolute or intrinsic, but is always relative to some circumstance of time, place, or person, and is to be determined by reference to the situation and knowledge of the parties, and all the attendant circumstances; and what would be extreme care under one condition of knowledge and one state of circumstances would be gross negligence with different knowledge and in changed circumstances.</p> <p>Id. — Knowledge of Facts Showing Duty — Care in Control of Superior Force. — Negligence being the violation or disregard of some duty or obligation which one owes to another, a knowledge of the facts out of which the duty springs is an essential element in determining whether there has been any negligence; and the amount of care requisite to be exercised in the use of a mechanical or natural agency, whose supe- ~ rior force demands skill in its management to prevent its getting beyond ordinary control, depends upon the extent to which the knowledge goes.</p> <p>Id. — Evidence of Notice — Testimony of Defendant.— Cross-examination of Informant — Hearsay. —Whenever the knowledge of a defendant charged with negligence is a factor in determining the question'd negligence, it may be shown by his own testimony that he received notice of facts which would constitute negligence, and it is no objection that the notice was not given under the sanction of an oath, or that the opposite party had no opportunity of cross-examining the informant, and proof of such notice is not within the rule excluding hearsay.</p> <p>Evidence — Declarations — Hearsay. —Where the fact sought to be established is, that certain words were spoken, without reference to the truth or falsity of the words, whether by a party to the action as an admission of a fact, or to him as a notice, or under such circumstances as to require action or reply from him, the testimony of any person who heard the statement is original evidence, and not hearsay.</p> <p>New Trial—Misconduct of Jury — Counter-affidavits — Excusable Neglect — Discretion. — Where one of the grounds of a motion for a new trial is misconduct of the jury, and counter-affidavits directly responsive to the affidavits in support of the motion are prepared, but by inadvertence and excusable neglect are not filed until more than ten days thereafter, it is within the discretion of the court to permit such counter-affidavits to be read, upon a proper showing of excusable neglect.</p> <p>In._Time for Counter-affidavits not Jurisdictional.—The time within which counter-affidavits on a motion for a new trial may be filed is not jurisdictional, but is only a rule of procedure subject to the equitable control of the court.</p> <p>Rules of Procedure — Object and Construction. — Rules of procedure, whether statutory or made by the court, are intended to facilitate courts in doing justice between the parties, and when not jurisdictional are intended for the convenience of courts and litigants, and should be liberally construed.</p> <p>Evidence — Admission — Willingness to Settle — Offer of Compromise. —The statement of a party against whom a claim is made, that he is willing to settle the claim, when not connected with an offer of compromise, may be proved as an admission against interest. The rule which excludes offers of compromise does not apply to statements made by a party which are in no wise connected with any attempt at a compromise* whether made to a stranger or to a co-defendant.</p> <p>Vebdiot — Damages not Excessive. — A verdict for thirty thousand dollars damages held not excessive under the facts of this case.</p>

<p>Contract rob Crop to be Sown — Right to Volunteer Crop' on Land not Sown. —Under a contract by the terms of which the owP® land agreed to furnish 140 acres of land, “ more or less,” to another Person to sow in wheat, in consideration of an interest in the crop, and th® latter agreed “to plow and put in wheat the above-mentioned good farmer-like style, ” whether such contract be considered a lea s® or a cropping contract, the person sowing the crop has no right in an/ °f the land except that which he sows in wheat, and is not entitled to- any Part of a volunteer crop growing upon a part of the 140 acres not sc'wn ra wheat by him.</p>

<p>Appeal from a judgment of the Superior Court of Solano County, and from an order refusing to set aside a judgment by default.</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>Electric Street-railroad—Void Franchise—Pleading—Promise to Pay for Street Paying — Want of Consideration. — A complaint in an action upon a written obligation for the payment of money, which alleges that the obligation was given by the defendant, an electric street-railroad company, to repay the plaintiff and other property owners for paving the street, in consideration that the plaintiff would not take any steps to prevent the electric company from tearing up the paving and laying its tracks; and which also alleges facts showing that the franchise of the company is void, having been granted by the city council without power, and that the plaintiff and other property owners could and would have prevented the defendant from laying its tracks on the street but for the promise to pay, — shows a want of consideration for the promise, and states no cause of action.</p> <p>Id. — Assignment of Void Franchise — Void Ordinance — Condition that Property Owners be Repaid. —An assignment of a void franchise confers no rights, and a void ordinance granting a franchise to the assignee, on condition that the grantee repay to property owners all sums paid by them for paving, which the assignor had been required to do under a former void ordinance, cannot constitute a consideration for a promise to pay the money to the property owners.</p> <p>Id. — Obstruction of Street — Public Nuisance — Special Damage — Contract against Public Policy. — A track laid and poles erected in the street without authority constitute an illegal obstruction, or public nuisance; and where no fact is averred to show special damage to the plaintiff by the obstruction, an agreement not to prevent it is an agreement not to institute a public prosecution, which is against public policy and void, and cannot constitute a consideration for a promise to pay money for not preventing it.</p> <p>Id.—Taking up of Granite Blocks — Consideration of Promise to Pay for Paving. —The taking up of granite blocks used in paving the street, and which apparently belong to the city, constitutes no consideration for a promise to pay a property owner for the paving done by him, it not appearing that they were sold to the defendant by the plaintiff, or that the plaintiff consented to their removal in consideration of such promise.</p> <p>Pleading — General Demurrer—■ Support of Judgment — Sufficiency of Statement — City Ordinances. — The same distinction between insufficient facts and an insufficient statement of facts, which prevails when it is considered whether the complaint supports the judgment, should prevail upon general demurrer; and although city ordinances are not set out inhmc verba, or pleaded as authorized by section 459 of the Code of Civil Procedure, their existence alleged in the complaint must be considered as against a general demurrer.</p> <p>Id.—Grounds of Special Demurrer.—Upon a general demurrer to a complaint, where the facts necessary to constitute a cause of action are shown by the complaint to exist, although inaccurately or ambiguously stated, or appearing by necessary implication, the demurrer will he overruled.</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>Husband and Wife — Community Property — Purchase after Marriage — Presumption — Burden of Proof. —Real estate acquired by purchase during coverture is presumed to be community property, no matter whether the deed be taken in the name of the husband or wife, or both. While this presumption is not conclusive, the burden of proof rests upon the party affirming the fact to be to the contrary, and such fact must be established by clear and convincing evidence.</p> <p>Id. — Separate Property —Necessity of Identification — Commingling of Funds. — In order that property may maintain its status as separate property, it is not necessary that it should be preserved in specie or in kind; yet when it has undergone mutations and assumed other conditions, it is absolutely necessary, in order to maintain its character as separate property, that it be clearly traced and located; and where money belonging to the wife has been so commingled with the funds of her husband, who is an active business man engaged in numerous speculations, so that it is impossible to say that any part of it passed into a particular tract of land purchased by the husband, such tract is community property.</p> <p>Id.—Delivery oe Deed — Intent — Recording — Death oe Grantee— Sufficiency of Delivery. — Where a deed of realty was delivered to the grantee, with the intention of vesting the title thereto in the grantee, the fact that the grantor requested the grantee to refrain from recording the instrument until after the grantor’s death is entirely im. material; and the grantor’s belief, that if the grantee died before the grantor that he could conceal or destroy the deed and thereby reinvest the title in himself, does not militate against the sufficiency of the delivery at the date of the conveyance, or destroy his clear intention to part with the title and vest the same in the grantee.</p>

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

<p>Vendor and Purchaser — Rescission ot Contract — Recovery oe Purchase-money Paid — Pleading — Excuse eor Tender and Demand — Withdrawal ob Escrow by Vendor. — A complaint, in an action to recover purchase-money paid under a contract for the purchase of land, need not allege a tender of the residue of the purchase-money, and a demand for a deed, if it shows a sufficient excuse for the omission, and where such complaint alleges that by the terms of the contract the deed to the land was placed in escrow, to be held until the final payments should be made, and that the vendor withdrew the deed from the holder thereof, and denied the right of the plaintiff to purchase under the contract, with intent to rescind the contract, it sufficiently shows that a tender of the balance of the purchase-money and a demand for the deed would have been of no avail, and entitles the plaintiff to the relief sought, as against a general demurrer.</p>

<p>Annulment of Marriage — Alimony Pendente Lite — Determination of Issues —Review upon Appeal. —Upon the hearing of a motion for alimony pendente lite and counsel fees, in an action for the annulment of a marriage, the trial court cannot determine the issues raised by the pleadings, and the supreme court has no jurisdiction to determine them upon appeal from an order granting such motion, nor to determine the correctness of an order overruling a demurrer to the complaint.</p> <p>Id.—Issue as to Subsequent Marriage — Allowance of Alimony.— Where the marriage is claimed to be a nullity, and is sought to be annulled on the ground of a previous marriage of the defendant with another person, but the defendant avers a subsequent marriage with the plaintiff after the disability was removed, and prays for alimony, upon appeal from an order allowing alimony to the defendant, it need not be considered whether the issue as to the subsequent marriage is sustained upon the hearing of the motion.</p> <p>Id. — Alimony without Claim for Divorce — Cross-complaint of Wife. —Under section 137 of the Civil Code,, which provides that the wife in case of desertion may maintain an action for permanent support without applying for a divorce, and that the court may, in its discretion, require the husband to pay alimony during the pendency of the suit, and money necessary for the prosecution of the action, a wife who is sued for the annulment of a marriage may file a cross-complaint for relief under that provision.</p> <p>Id.—Amount of Alimony—Discretion as to Allowance.—Upon a motion for an order granting alimony pendente lite and counsel fees to the defendant, where the affidavits used upon the hearing show that the only property belonging to the parties or to either of them is a house and lot, to the procurement of which both parties contributed, the title to which is in the defendant, and which is occupied by her, bat that it produces no income; that the defendant has no means of support, and that the plaintiff’s income is about $145 per month, — an order by the court that the plaintiff pay to the defendant $45 per month, and $100 counsel fees, is not an abuse of discretion.</p>

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

<p>Contract of Street-railway ' Company to Run Trains — Forfeiture of Extension—Excuse for Non-performance — Foreclosure of Mortgage— Receiver — Injunction.—The performance by a street-railway company of its contract to run regular trains each day for a period of ten years, under penalty of forfeiting an extension of its road, to be conveyed upon demand, is not excused because of the bringing of a suit by a mortgagee to foreclose a mortgage upon the street-railway, and the appointment of a receiver to take possession thereof, who failed and ceased to operate the road, the street-railway company being enjoined from interfering with the possession and control of the road.</p> <p>Id.—Performance of Contract — Interference by Writ — Suit by Private Litigant — Prevention by Operation of Law. —The interference by a writ sued out by a private litigant will not excuse the performance of a contract, although it may deprive the contracting party of the means of performance; and such interference is not a prevention by operation of law.</p> <p>Id— Control of Acts of Third Parties. — The obligor contracts that he can and will control the acts of third parties, so far as necessary to ¡enable Mm to perform Ms contract.</p> <p>3¡d. —Impossibility of Performance. —The impossibility of performance which will excuse the performance of a contract by the parties thereto ¡must consist in the nature of the thing to be done, and not in the inability ,¡of the parties to do it. If the thing can be accomplished by any one with 1 proper means and the requisite skill and knowledge, the promisor is not less answerable because it is impossible to him.</p> <p>"Id. — Possession of Receiver — Conveyance by Mortgagees dpon 'Breach of Condition. —A conveyance by a railroad company of a portion of its property to parties with whom it had contracted to convey such portion upon the breach of a condition cannot disturb the possession of a ¡receiver appointed by the court, in an action against the company for the foreclosure of a mortgage, or embarrass him in the discharge of his .duties.</p>

<p>Deed by Aged Woman to Nephew—Consideration—Prevention or Support — Cancellation. — Where a woman nearly seventy years of age, with no children ot relatives in this state, made a deed reserving a life estate in herself, and granting a remainder in fee of her real estate to her nephew, who, at her request, came to this state from New Jersey, at his own expense, to live with her, take care of her, attend to her business, and improve her home, and make it more comfortable, in consideration of the deed, and it appears that she was, at the time of the making of the deed, of sound mind, and executed and delivered it voluntarily, in the absence of fraud or undue influence, and that the nephew and his wife in good faith came to this state to make their home with her, and cared for her, and spent four hundred dollars in repairing and enlarging the house, when she changed her mind, and would not permit them to remain, through no fault of theirs, and that after they left they offered to send her money if she needed it, or to return and rent the property, which offer she refused because she had remarried, the deed will not be set aside at suit of herself and husband.</p>

<p>Notice of Overruling of Demurrer—Presence in Court — Waiver of Written Notice. —Written notice of the overruling of a demurrer is waived by the presence in court of the attorney for the demurring party at the time of the ruling, and the time to amend or answer runs in such case from the time when the ruling is made.</p> <p>Id. —Default Judgment — Authority of Clerk. —When a demurrer has been overruled and time given to answer, but no answer is filed within the time granted by the court to the defendant in which to answer, the clerk is authorized to enter a default judgment without an order of the court.</p>

<p>New Trial—Newly Discovered Evidence — Discretion—Review upon Appeal. — A motion for a new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and its action in refusing the motion will not be disturbed upon appeal, where the appellate court cannot say, upon the record before it, that if a new trial were had, and the newly discovered evidence were produced, the result would be different.</p> <p>Id.—Question of Boundary — Conflicting Evidence — Contradicting Field-notes of Survey. — The refusal of the trial court to grant a new "trial upon the ground of newly discovered evidence will not be reversed upon appeal, where it appears that the question at issue was one of boundary of land, upon which the evidence was substantially conflicting, and the newly discovered evidence fixes the location of the stations of a survey on the east side of an arroyo, in contradiction of the field-notes of the survey, which described them as being on the west side of the arroyo, and which were confirmed by other evidence adduced upon the trial, and by counter-affidavits used upon the hearing of the motion.</p>

<p>Criminal Law—Larceny—Evidence—Irrelevant Statements —Cross-examination— Objections — Motion to Strike out.—The fact that a witness, upon the trial of a defendant charged with the larceny of cattle, made irrelevant statements in his examination in chief as to the acts of the defendant with reference to other cattle, does not give the defendant the right to enter into a cross-examination upon such matters. The remedy of the defendant is to object to the questions, if such were asked, and if the statements were volunteered,- a motion to strike out should be made.</p> <p>Id. —Time not of Essence of Offense — Alibi — Instructions. — Where a defendant was charged with feloniously stealing and driving away cattle “ on or about the twentieth day of November, 1890,” and his defense was an alibi, an instruction to the jury to convict if they believed from the evidence, to a moral certainty, that the defendant stole, or aided in stealing, the cattle named in the information, although they might not believe that it was done on the 20th of November, 1890, but within a few days from that time, is proper, and does not deprive the defendant of the defense of alibi.</p>

Application to the Supreme Court for a discharge from imprisonment upon a writ of habeas corpus. The facts are stated in the opinion of Chief Justice Beatty.

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

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

<p>Unrecorded Botldingi Contract — Action for Reasonable Value of Work and Materials. — An action may be maintained for the reasonable value of work done and materials furnished in the erection of a building, although the value of the labor and materials exceeds one thousand dollars; and it is no defense to such an action, either that the implied contract for reasonable value was not recorded, or that the work and materials were done and furnished in pursuance of a written contract which was not filed for record in accordance with the statute.</p> <p>Id. — Record of Implied Contract — Construction of Code. — The code does not provide for recording an implied contract which is not complete until the labor is done and materials furnished, and could not be recorded before the commencement of the work. The statute only applies to express contracts stating obligations thereafter to he performed.</p> <p>Id. — Invalidity of Unrecorded Written Contract — Evidence of Reasonable Value. — A written contract for the erection of a building for a price exceeding one thousand dollars, if not recorded, is wholly void for all purposes, and is not competent evidence of the value of the labor done and materials furnished in the erection of the building, in an action to recover their reasonable value. .</p> <p>Id. — Findings — Work and Labor under Invalid Contract.—In an action for the reasonable value of labor done and materials furnished in the erection of a building, where the defendant alleges that the work done and materials furnished were in pursuance of a written contract, a finding by the court that the alleged contract never had been recorded, and was therefore wholly void, is equivalent to a finding that there was no written contract, and that no labor was done or materials furnished under it; and it is immaterial whether the work and materials were or were not in accordance with the terms of the unrecorded written contract.</p> <p>Id. — Counterclaim for Damages for Breach of Invalid Contract — Findings. — In such action, where the answer pleaded damages as a counterclaim, because of the failure of the plaintiff to complete the building on the date stipulated in the written contract, and a cross-complaint filed by the defendant also claimed damages for such delinquency, a finding by the court that the written contract relied upon by the defendant, upon the breach of which such damages depended, was void for want of filing in the recorder’s office, disposes of the issues thus raised.</p>

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

<p>Insolvency — Discharge of Insolvent—Debt Created by Fraud.— The fact that a particular debt of an insolvent debtor was created by fraud is no ground for refusing a discharge from other debts.</p> <p>Id.—Books of Account — Construction of Insolvent Act.—The purpose of section 49 of the Insolvent Act, providing that a final discharge in insolvency may be refused when the debtor has not kept proper books of account, is to require every merchant or tradesman to so keep his books that any competent person, by an examination of them, can ascertain and determine the real condition of his affairs; and if they are so kept, though imperfect, inartistic, and inaccurate in unimportant particulars, they will be treated as proper books of account, within such section.</p> <p>Id. — Accounts of Outside Matters — Propriety of Books.—Though a trader should be held to the utmost good faith and reasonable care in keeping accounts of his business as such, yet he is not required to enter in his books accounts of outside matters; and the question whether his books were “proper ” or not is one to be determined in each particular case by the facts and circumstances there shown.</p> <p>Id.—Accounts of Money Borrowed—■ Repayment — Discharge of Insolvent. — A discharge in insolvency should not be denied on the ground that the debtor failed to keep proper books of account, where the only fault found with the books is, that he did not keep in them, in the name of one of his creditors, an account of certain small sums of money borrowed from him, from time to time, during a period of eighteen months, and it does not appear that there ever were any other business transactions between the parties, and the small loans were paid back within two days, and the payments entered in the bank-book kept by the debtor in bis books.</p>

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

Motion in the Supreme Court for leave to file an undertaking upon appeal, and to be allowed to withdraw money deposited in lieu of such undertaking. The facts are stated in the opinion of the court.

<p>Dedication of Street — Grant upon Conditions — Public User — Forfeiture — Neglect to Grade Street. •— Land granted to a city by a corporation, in pursuance of a resolution of the directors of the corporation granting it for a public road and highway, on the condition that a fence thereon be removed and reset on the line of the road at the expense of the city, and that the street be graded at the city’s expense, becomes a public street, subject to the conditions named, upon its acceptance and user by the city; and the city does not forfeit its right to use it as a public street simply because it does not grade it when required to do so by the corporation, but it must be apparent that the city will not grade it at its expense, or at all, before the corporation can reclaim the land.</p>

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

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

<p>Trust Deed—Declaration oe Trust — Power to Sell and Convey. — An instrument which conveys to a grantee named therein the legal title to property described, upon certain trusts which it declares, and whicli confers upon him the power in execution thereof to sell the property thus conveyed aud transmit the legal title to his grantee, is a trust deed.</p> <p>Id. — Deed to Creditor to be Paid from Proceeds of Sale — Mortgage. — The fact that such deed was made directly to a creditor of the grantor as trustee, and not to a third party, is immaterial upon the question as to whether the conveyance should be treated as a mortgage or a deed of trust, as such question must depend upon the essential character of the instrument as shown by its terms, and not upon whether the grautee is a creditor whose debt is to be paid out of the proceeds to arise from the execution of the trust which is declared.</p> <p>Id. — Death oe Grantor—Revocation oe Power oe Sale—Failure to Present Claim — Cancellation oe Deed. — The death of the grantor does not operate as a revocation of a power of sale contained in a trust deed, or limit the effect of the deed; and the failure to present to the administrator of the deceased grantor the claims secured by it furnishes no ground for a court of equity to cancel the deed.</p> <p>Id.—Construction of Deed — Consideration of Promise to Trustee — Appeal — Law of Case. — The construction placed upon a deed of trust by the supreme court, in its decision reversing the judgment and remanding the case for a new trial, holding that a promise to pay ten thousand dollars to the trustee, besides his debts and the reasonable expenses of his administration, was without consideration, is the law of the case, and the question of its correctness will not be considered upon a second appeal. ^</p> <p>Id.—Compensation of Trustee—Reimbursement of Expenses. — A "trustee, upon the close of his trust, is entitled to a reasonable compensation for his services in performing his duties under the trust deed, to be fixed by the court, unless the parties can agree in relation thereto, and is entitled to be reimbursed for all expenses incurred by him.</p>

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

<p>New-trial Statement — Specifications — Review upon Appeal. — Where there is no specification of error in a statement on motion for new trial, errors alleged by the appellant to have been committed by the court during the trial will not be considered by the appellate court.</p> <p>Divorce — Adultery — Plea of Condonation — Question of Fact — Conclusiveness of Finding. — In an action for divorce upon the ground of adultery, where the defendant, after denying the charge of adultery, alleged a condonation by the plaintiff, and his cohabitation with her after the bringing of the action; and the defendant testified that after the conmencement of the action she went to a cottage with him at his request, where they undressed and went to bed together, and that they staid there most of the afternoon and had sexual intercourse; and the plaintiff testified that he did not have sexual intercourse with her, as stated by her, nor at any time after the commencement of the action, but did not say whether he had undressed and occupied the bed with her in the cottage, — a finding by the court against the plea of condonation is conclusive. The question of the plaintiff’s credibility, and the probability of his statement in view of his failure to deny that he undressed and went to bed with the defendant, as stated by her, are matters for the determination of the trial court.</p> <p>Id. — Restoration to Marital Rights — Act of Sexual Intercourse. — The requirement of a “restoration of the offending party to all marital rights,” under section 116 of the Civil Code, in order to constitute con-donation, is not proved by evidence of sexual intercourse alone; and the fact that a wife charged with adultery went to a cottage with her husband at his request, and that they went to bed and had sexual intercourse, does not necessarily show forgiveness or intention on his part to take her back to his home and restore her to marital rights.</p>

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

<p>. 1 Municipal Corporations — Change of Boundaries — Construction of Statute—Unreasonable Exclusion of Territory—Special Election —Mandamus. —The act of March 19,1889 (Stats. 1889, p. 356), providing for the changing of the boundaries of cities and municipal corporations, and the exclusion of territory therefrom, was intended to provide for an ordinary reasonable change of the boundaries of a city, ^nd not a means by which a city might be practically disincorporat.ed; and where it appears, in a proceeding thereunder, that the extent and proportion of the population sought to be excluded from a city would leave less than one half the population necessary to form a municipal corporation, the right of an elector and property owner to a writ of mandate to compel the trustees of the city to call a special election, for the purpose of submitting • the question of the exclusion of the territory to the electors, will be denied.</p> <p>¡Id. —Mandamus in Discretion of Court —Violation of Spirit and Purpose of Law. — The writ of mandamus is not wholly a writ of right, but lies to a considerable extent within the sound discretion of the court where the application is made, and should not issue to compel a technical compliance with the letter of the law, in violation of its plain intent and spirit, nor to wrest a statute from its true purpose.</p>

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

<p>Municipal Corporations—Widening of Street—Ordinance not Complying with Statute — Insufficient Specification of Boundaries — Assessment — Injunction. — The ordinance adopted by the city of Los Angeles July 8, 1889, for the widening of First Street from the west side of Los Angeles Street to the west line of Alameda Street, which provides that the exterior boundaries of the district of land to be benefited are “all lots and parcels of land fronting on each side of First Street, from the west side of Los Angeles Street to the west side of Alameda Street,” does not comply with the provisions of section 2 of the act of March 6, 1889 (Stats. 1889, p. 70), under which the proceedings for the -widening were had, which declares that the city council shall pass a resolution “specifying the exterior boundaries” of tlie'district of lands to be affected or benefited thereby; and a sale of lands for the purpose of satisfying an assessment under such ordinance will be restrained by injunction.</p> <p>Id. — Jurisdictional Requirements Essential. — In proceedings for the widening of a street, every requirement of the statute which may in any manner benefit the owner must be observed in order to give jurisdiction to the municipality. After the jurisdiction is once acquired, subsequent proceedings can be attacked for only such irregularities as affect substantial rights; but for the purpose of acquiring jurisdiction, every requirement must be regarded as of equal necessity.</p> <p>Id.—Filing of Objections to Improvement—Right to Object to Jurisdiction—Waiver.—The fact that a property owner, whose land had been assessed for the widening of a street, appeared before the city council and filed objections to the improvement, and afterwards protested against the report of the commissioners, did not operate as a waiver of his right to object to want of jurisdiction in the council over the subject-matter of the improvement.</p>

Application to the Supreme Court to secure the custody of a child upon a writ of habeas corpus. The facts are stated in the Opinion of the Chief Justice.

<p>Dedication of Highway — Manifestation of Intent. — To constitute a dedication of land to public use as a highway, no particular formality of either word or act is required. It may be made either with or without writing, by any act of the owner, such as throwing open his land to public travel, or platting it and selling lots bounded by streets designated in the plat, thereby indicating a clear intention to dedicate, or an acquiescence in the use of his land for a highway, or his declared assent to such use. The vital principle of the dedication is the intention to dedicate, and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made.</p> <p>Id.—Building Fences — Public Use — Declarations of Intention.— The act of a land-owner in building a fence on each side of a strip of land, leaving it open at each end to the access of the public, the strip having been used for fifteen years prior thereto without objection, and traveled over by a large number of persons, the act of building such fence being both preceded and followed by expressed statements of the land-owner showing his intention to dedicate the land as a public street, shows such a dedication.</p> <p>Id. —Payment of Taxes — Rebuttal of Intention. —Where the intention of a land-owner to dedicate part of the land for street purposes has been shown by specific acts, and it does not appear bnt that the entire tract, including the street, has been assessed as a whole, the payment of the tax thereon by the owner cannot be held to rehut his intention of dedication so shown by his specific acts.</p> <p>Id. — Assessment of Taxes — Estoppel of Public__The general public are not estopped from claiming that land has been dedicated as a public street by the act or omission of the city assessor in assessing the land to the dedicator and his successors in interest.</p> <p>Id. — Public Use without Action of Municipal Authorities. — The use of land as a street by the public, for a reasonable length of time, where the intention of the owner to dedicate is clearly shown, is sufficient to perfect the dedication, without any specific action by the municipal authorities, either by resolution or by repairs or improvements.</p> <p>Id. — Common-law Dedication—Estoppel of Dedicator—Rights of Public. — A common-law dedication operates against the dedicator by estoppel, and this estoppel may be invoked by or on behalf of the public at large as well as by the municipal authorities of a city.</p> <p>Id. — Evidence of Dedication. — The evidence in this case reviewed and held to show an act of dedication of land to public use for street purposes.</p>

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

<p>Attorney and Client — Special Contract for Services of Assistant Counsel — Service not Requested — Waiter of Performance.— Where a firm of attorneys was employed to assist in the prosecution of certain libel suits pending and to be brought against a private individual, and also a civil suit against a newspaper for libelous articles, under a contract that part of the fee was to be paid in cash, a part in sixty days, and the balance “on the termination of said suits,” and it appears that all the services were performed except the contemplated suit against the newspaper, and the evidence in an action upon the contract tends to show that the defendant never went near the members of the firm after employing them, nor in any manner thereafter requested them to bring the action against the newspaper, nor did the other attorneys whom they were employed to assist ever call upon them for any service in relation to such suit, it was not incumbent upon such firm to commence the action against the newspaper without further directions from the defendant or from the other attorneys, and having waited a reasonable length of time, and until after the action against the newspaper was barred by limitation, without receiving such directions, they were justified in assuming that the defendant had waived the bringing of the action, and they are entitled to recover the balance due under the contract, as if such service had been actually performed.</p> <p>Id. — Pleading — Allegation of Full Performance — Proof of Waiver — Immaterial Variance. — Where the complaint in such case alleged the full performance of the contract on the part of the attorneys, and the evidence upon the part of the plaintiff tended to show performance by them of all the services contemplated by the contract, except in relation to the suit against the newspaper, but as to that a waiver of performance by the defendant, and the evidence was received without objection, and the defendant is not shown to have been misled by the variance, it is to be disregarded as immaterial.</p>

<p>Appeal — Review of Demurrer — Errors against Respondent. — Where a demurrer of a defendant is overruled for want of presentation, upon an appeal by the plaintiff from a judgment for the defendant, the respondent cannot urge any grounds of special demurrer, or any errors committed against him, for the purpose of sustaining a judgment erroneously rendered in his favor after a trial upon the merits; but the appellate court can only consider such errors of the court as contributed to the rendition of the judgment for the defendant, and can consider the demurrer only so far as it goes generally to the cause of action, and affects the question whether the complaint is sufficient to render the exclusion of evidence under it erroneous.</p> <p>Pleading — Uncertainty — Construction.—The character and effect of an averment that may be uncertain in one of its clauses is not limited to a construction of that clause merely, but the averment is to be considered as a whole, and in connection with the entire complaint.</p> <p>Id. — Allegation as to Partnership in Lands — Division of Profits — Ownership of Land. —An allegation that defendants agreed upon certain terms to become equal partners with the plaintiff in certain real property, which the complaint elsewhere shows was held by plaintiff upon a dry, naked trust for third parties, and was purchased from the beneficiaries and transferred to another person as trustee for plaintiff and defendants, does not necessarily imply an agreement for a conveyance of the property to the defendants; and taken in connection with the other averments of the complaint, and with an averment immediately following, that they were to share equally all sums received for the property, and all profits and losses accruing on account thereof, shows that the agreement was for a partnership in the profits that might result from dealing in the land, and had no necessary relation to the ownership of the land.</p> <p>Partnership — Dealing in Lands — Statute of Frauds — Oral Agreement — Evidence. — A partnership may be formed for the purpose of dealing in lands, by buying and selling lands generally, or it may be limited to a speculation upon a single venture; and like any other contract of partnership, it is an agreement to share in the profit and loss of certain business transactions, and does not contemplate any transfer of land from one party to the other, or the creation of any interest or estate in lands, other than a pecuniary interest, and need not be in writing under the statute of frauds, but may be formed by oral agreement and proved by parol evidence.</p> <p>Id.—Acquisition of Lands by Partnership—Equitable Rights of Partners. — Though such partnership agreement does not of itself create any interest or estate in land, and a bill for the conveyance of lands could not- be maintained thereunder, yet by the subsequent acts of the parties, rights are acquired in reference to land purchased in pursuance of the agreement which a court of equity will protect against any attempt to make the statute of frauds an instrument of fraud, by raising an equity superior to the legal title, and controlling the legal title in subordination thereto.</p> <p>Id. — Interest in Lands — Trust Resulting by Operation of Law — Parol Evidence of Partnership. — If a partnership is proved between the parties upon sufficient evidence, they would have an interest in the lands acquired which forms a portion of the assets of the partnership by reason of a trust resulting by operation of law as an incident to such partnership, but that fact would not constitute a reason for excluding parol evidence to establish the existence of the partnership.</p> <p>Id. — Partnership Assets — Lands Treated as Personalty. — Lands acquired hy a partnership for partnership uses constitute partnership assets, and will be treated in equity as personalty, whether the partnership was formed by oral or written agreement; and the same principle applies when the object of the partnership is to deal in lands which are purchased with partnership assets.</p> <p>Id. — Settlement of Partnership — Conversion of Assets into Money — Source of Title. — A court of equity, in the settlement of partnership accounts and the conversion into money of partnership assets, whether real or personal, and their division among the partners, never inquires into the source of title of such assets, or in whose name they are held.</p> <p>Id. —Division of Proceeds of Sale of Lands — Statute of Frauds No Defense. — In an action for division of the proceeds after a sale of lands under an oral partnership agreement to deal in lands, the statute of frauds is not allowed as a defense thereto; and the same principles which apply to such an action are applicable in an action to subject land which has become a portion of the assets of such a partnership to a sale and distribution of proceeds among the partners by a court of equity. Statute of Frauds — Executed Agreement. — The statute of frauds has no application to an executed agreement.</p>

<p>Water Right— Constant Flow— Construction of Judgment. — A judgment in an action to determine and define a water right, adjudging that the defendants are the owners of a quantity of the waters in question “ equal to a constant flow of two and one third inches, measured under a four-inch pressure, on their said premises, and are entitled to the use of the pipes, ditches, aqueducts, andreservoirs belonging to plaintiff, "for the purpose of storing, preserving, and conducting the same upon their lands, does not entitle the defendants to put into the pipe an appliance by means of which they can at one time accumulate a head of water greater than a constant flow of two and one third inches under a four-inch pressure, and average the flow so as to equal the amount of such constant flow, but requires them not to obstruct the flow to any greater extent at any time then the constant flow provided for by the judgment.</p> <p>Id. —Rights Acquired by Stipulation—Finding. —If by the terms of a stpulation, entered into after the commencement of the former action, the defendants acquired any rights in the waters flowing their lands in the pipes of the plaintiff, other or different from those specified in the judgment, they are entitled to be protected therein in a subsequent action involving the water right; but it is necessary that the court in such subsequent action should find whether the stipulation was made before or after the commencement of the former action, and what were its terms.</p>

<p>Excavation bv Coterminous Owner of Land—Fall of Adjoining Building — Breach of Agreement to Pat Damages — Pleading — Demurrer. — A complaint alleging that the defendant commenced to excavate upon a lot adjoining premises occupied by plaintiff’s assignors • as a warehouse; that upon a notification that the excavation, if continued, would undermine the warehouse and damage the goods of the occupants, the defendant promised to stop the work of excavating and discontinue the same, but notwithstanding his promise, continued to excavate in a negligent, unskillful, and careless manner, and carried away the earth from under the warehouse, causing the floor of the warehouse to fall through, together with the goods stored therein, whereby the goods were greatly damaged; that thereupon a settlement of the damages was demanded, which the defendant promised to pay as soon as the damages should be fully ascertained; that afterwards a compromise was agreed upon, whereby the defendant was to take certain tin plate at a stipulated price, and was to take away certain rivets, sort them over, and return the undamaged ones, and to pay all damage for the rivets not returned; that the tin plate and rivets had been delivered to the defendant previous to the agreement, but that some of the rivets which were to be sorted and returned were so unskillfully sorted that the firm refused to receive them, and that the residue had never been, sorted or returned, and that the firm were damaged thereby in a certain sum, but that the defendant had. failed to pay any part of the damages, — states a cause of action for the breach of the agreement to pay for the goods delivered and the damages caused by the excavation, and is not demurrable, upon the ground of uncertainty, or that several causes of action are improperly united.</p> <p>Id. — Matter of Inducement — Uncertainty of Pleading. — The action is for breach of the oral agreement to pay what damages were agreed for excavating and removing the earth from under the warehouse and causing it to fall, and not merely for excavating upon the adjoining lot, and the previous recitals are of matter of inducement, and do not render the complaint uncertain.</p> <p>Id. — Agreement of Compromise — Distinct Items —Joinder of Causes. " — The fact that the agreement of compromise specifies several distinct items or payments to be made does not make them different causes of action, nor render the complaint demurrable for misjoinder of causes.</p> <p>Id. — Contract to Pay Damage — Consideration. — It is a sufficient consideration for the promise of the defendant to pay to the tenants of the warehouse the damage caused by the excavation that the owner of the warehouse authorized the defendant to erect a wall on the line for a party-wall, and that it was necessary for the defendant to dig under the warehouse and remove one of its walls, thereby causing the damage agreed to be paid.</p>

<p>Negligence—Backing of Train at Station — Contributory Negligence— Question for Jury. — In an action for personal injuries caused by the alleged negligence of the engineer of a passenger train in backing the train after stopping at a station, while the plaintiff was alighting from the train, where the evidence is conflicting as to the pe, riod of time between the stop and the movement backwards, the question of contributory negligence of the plaintiff in leaving her seat in the car before the train stopped is fairly within the province of the jury to decide.</p> <p>Id. —Recompense for Pain — Compensatory Damage — Inaccurate Instruction — Harmless Error.—In such action, an instruction to the jury that “money is an inadequate recompense for pain,” though not an appropriate expression in a charge to the jury upon the question of compensatory damage, does not constitute a reversible error, where the jury are also instructed that resulting pain is an element of damage to be compensated, and that if the plaintiff was entitled to recover, “the measure of her recovery is what is called compensatory damages, — that is, such sum as will compensate her for the injury she has sustained that “the determination of the. amount is committed to the judgment and sound discretion of the jury”; and that it should be “in such measure as a jury, dispassionately considering all the circumstances of the case, will allow.”</p> <p>Id. — Excessive Damages. — A verdict will not be disturbed because excessive, unless the amount of the damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate discretion of the jury.</p> <p>Id.—Earnings of Plaintiff. — The rule that damages recoverable for injuries received because of the negligence of a defendant should not exceed an amount upon which the legal interest would equal the value of the injured party’s past earnings and probable future earnings does not apply to a case where the cause of action is the plaintiff’s own personal injury, but is applied only to cases where suit is brought for the death of a relative.</p> <p>Id. •—Verdict not Excessive—Conflicting Evidence. — A verdict for fifteen thousand dollars for personal injuries received through the negligence of a railroad company held not excessive under the circumstances of this case, there being evidence tending to show a permanent injury, accompanied with continual suffering and disability, which the jury would be warranted in believing, notwithstanding conflicting evidence as to the extent of the injury.</p>

<p>Negligence — Excessive Damages — New Trial. — Where the amount of damages given in an action for damages for negligence are obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate discretion of the jury, the verdict will be set aside as excessive.</p> <p>Id. — Action for Death — Measure of Damages — Pecuniary Loss — Sorrow and Mental Anguish — Loss of Society. —In an action to recover damages for the death of a relative, caused by negligence, the plaintiff does not represent the right of action which the deceased would have had if the latter had survived the injury, but can recover only for the pecuniary loss suffered by the plaintiff on account of the death of the relative. Sorrow and mental anguish caused by the death are not elements of damage in such a case, and nothing can be recovered as a solatium for wounded feelings; and the loss of society can only be considered for the purpose of estimating the pecuniary loss.</p> <p>Id.—Death of Minor Child — Action by Mother — Excessive Damages — Pleading •— Proof. — A verdict for twenty thousand dollars for the death of an infant child, given in an action by the mother to recover damages for its death, alleged to have been caused by the negligence of the defendant, will be set aside as excessive, especially where there was no averment in the complaint of any special damage, and there was no evidence whatever introduced or offered upon the subject of damage.</p> <p>Id. — Value of Services — Pecuniary Injury to Parent. — In an action by a parent to recover damages for the death of a minor child, caused by the negligence of the defendant, the main element of damage is the probable value of the services of the deceased until its majority, considering the cost of its support and maintenance during the early and helpless part of its life; and a charge to the jury that they were not limited by the actual pecuniary injury sustained by the parent by reason of the death of the child is error.</p> <p>Id. — Pleading — Loss of Services Special Damage, — The loss of the services of the deceased child is not special damage necessary to be averred, but is a natural and necessary sequence of the death.</p>

<p>Appeal from an order striking out parts of a default judgment.</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, 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 Orange County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Order Denying New Trial — Effect of Nunc tro Tunc Amendment — Relation to Date of Order — Appeal. —A nunc pro tunc order of the trial court amending an order denying a new trial after the taking and perfecting of an appeal therefrom, by adding a recital to the effect that the motion for a new trial was based and submitted on a bill of exceptions filed at the date of the hearing of the motion, merely corrects the first order, and takes effect as of the date of the order corrected; and a contention that the last order superseded the first, and is the only order denying a new trial, which should have been appealed from instead of the first order, is untenable. In legal effect there was but one order.</p> <p>New Trial — Bill of Exceptions — Specifications — Insufficiency of Evidence—Decision against Law. — Where the specifications in a bill of exceptions used on a motion for new trial include a double statement that the evidence is insufficient to justify the decision, and that the decision is against law in the particulars specified, the ambiguity is removed where the particulars stated show that the objection is to the insufficiency of the evidence.</p> <p>Vendor’s Lien — Bona Eide Purchaser—Notice before Payment. — In' an action to foreclose a vendor’s lien upon land, a defense of a second vendee, that he was a bona fide purchaser for value without notice, is net made out by proof that he purchased in good faith, without any previous knowledge of the fact that his vendor had not fully paid the original vendor, but it is also necessary for him to show that he had paid for the land before he received notice of the original vendor’s lien.</p> <p>Id. —Notice of Non-payment by Vendor— Effect upon Second Vendee — Deduction from Purchase Price.—Notice to a second vendee of land before his payment for the land, that his vendor had not fully paid the original vendor, is equivalent to a notice before purchase, and he is affected pro tanto as to the amount remaining unpaid by his vendor, and if he pays such amount he can enforce repayment from his vendor by deducting it from the purchase price or valuation of the land sold to him.</p>

<p>Former Adjudication — Action upon Different Demand — Defense not Concluded — Evidence of Different Defense.—Although a judgment upon the merits is a conclusive determination respecting the plaintiff’s right of action, and respecting all matters directly in issue in the action, and which might have been litigated in respect to the plaintiff’s demand, yet the judgment, as an estoppel, is limited to the right of the plain tiff to maintain the action in which it was rendered, and a judgment for the defendant does not estop him, in another action upon a different demand, either as to the defense which was pleaded in the former action, or as to any other defense which might have been interposed therein, or from showing that the evidence, which established an affirm- • ative defense which defeated the former action, was sufficient also to establish a different fact, which becomes material to a defense to any other demand by the same plaintiff.</p> <p>Id.—Judgment not Conclusive as to Collateral Matters. — A judgment only concludes the parties as to facts in issue, as distinguished from facts in controversy, and is not conclusive of any matter which only comes collaterally in issue, nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from the judgment; nor of any collateral facts which are offered in evidence to establish matters or facts in issue.</p> <p>Id. — Action for Diversion of Water — Defense of Prescriptive Right — Effect of Judgment — Admission of Answer — Extent of Right. — In an action for the diversion of water, where the real issue before the court is as to the right of the defendant to divert the water, the diversion of which is complained of, although the defendant pleaded as a defense a prescriptive right to divert a certain amount of water, with respect to which he asked an affirmative relief, the amount of the diversion to which the prescriptive right extends is not a material issue, and is not conclusively determined by a judgment in favor of the defendant, although the findings state such amount, in accordance with the answer, and does not preclude him from defending a subsequent action complaining of a greater diversion, by proof of a greater prescriptive right. The answer in the former action has only the effect, in the subsequent action, of an inconclusive admission of the fact stated as to the extent of the prescriptive right.</p> <p>Id. — Findings Outside of Issues in Former Action — Evidence — Failure to Find. — Findings outside of the issues in the former action, as to the extent of the prescriptive right, not entering into the judgment, could have no effect in that action, and cannot have any greater effect in a subsequent action than would any other declaration of the judge who tried the former action, and car not have the effect, as evidence in the subsequent action, to require a finding to be made upon an issue upon which there is no other evidence in support of the claim made.</p> <p>Id.—Diversion of Water — Evidence — Waste of Water.—The complaint having averred that the court had decided in the former action that the defendants had the legal right to divert water enough to fill their ditch, evidence that after the diversion of the water by means of the ditch a portion of it was turned back into the stream by a waste-way is properly excluded.</p> <p>Id. — Pleading—Effect of Former Judgment — Evidence Contrary to Admission. — An averment in the complaint that the court had decided certain facts in the former action carries with it the admission that the decision was sustained by sufficient evidence to support it, and precludes evidence for the plaintiff to prove the contrary; nor is the effect of such admission qualified or controlled by an averment in the complaint of the contrary fact sought to be proved.</p>

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

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

The action was brought by the respondent as a judg- - ment creditor of the Santa Rosa Land and Improvement -Company, to compel a payment of an unpaid subscript tion of the appellant to'its capital stock. Other facts . are stated in the opinion of the court.

<p>Corporations — Unpaid Subscriptions to Stock — Creditor’s Bill to Enforce Payment. — A judgment creditor who has exhausted his legal ' remedies against a corporation may maintain an action against its stockholders to recover, for the benefit of all the creditors who may desire to come in and he made parties, the amount due upon unpaid subscriptions for stock, when the corporation neglects or refuses to collect the same. .</p> <p>Id. — Stockholder’s Personal Liability to Creditors — Construction of Code. — The remedy given by section 322 of the Civil Code, fixing the personal liability of the stockholders of a corporation, is purely statutory, and furnishes to creditors of corporations 'additional security, by making the stockholders directly liable for their proportion of the corporate debts, and was not intended to diminish the assets of the corporation by releasing the stockholder from his indebtedness to the corporation on account of his unpaid subscription for stock, or to take away from the creditor the right to resort to a court of equity to compel its payment.</p> <p>Id.—Several Liability of Stockholders upon Subscriptions—Parties to Creditor’s Bill. — The liability of each stockholder upon his subscription to the capital stock of a corporation is several and not joint; and upon a creditor’s bill by a judgment creditor who has exhausted his legal remedies against the corporation, to subject the amount due from the stockholders for unpaid subscriptions for stock to the payment of the judgment, it is not necessary that all of the stockholders should be made parties defendant.</p> <p>Id. — Evidence — Pursuit of Statutory Liability — Exhaustion of Remedies — Return of Execution Unsatisfied. — It is not necessary for the judgment creditor of the corporation, who is seeking in equity to enforce payment of subscriptions to stock, to show that he had pursued his statutory remedy against the stockholders, and proof that the creditor had exhausted his legal remedies against the corporation is shown by the introduction in evidence of the judgment against the corporation with the return of the execution issued thereon unsatisfied.</p> <p>Id. —Conclusiveness of Returns — Inadmissible Evidence — Property Subject to Execution. — The return of the execution issued upon the judgment as unsatisfied is conclusive, in the equitable action against the stockholders, that the creditor has exhausted his legal remedy upon the judgment; and evidence offered by the defendants for the purpose of showing that the corporation was the owner and in the possession of a large amount of personal property, which might have been levied upon, is properly rejected by the trial court.</p> <p>Id. — Conolusiveness of Judgment — Inadmissible Assault by Stockholders— Debt of Corporation Ultra Vires. —A judgment again, t a corporation for an alleged corporate indebtedness is conclusive upon it, and of the right of the creditor to subject its property to the satisfaction thereof; and in the absence of fraud is equally conclusive upon the stockholder, when it is sought to satisfy the judgment out of the assets of the corporation in bis hands; and evidence offered by the stockholders in the action against them, to show that the indebtedness for which the judgment against the corporation was recovered arose upon a contract which was ultra vires, is properly excluded by the trial court.</p> <p>Id. — Acts of Corporation Binding upon Stockholders in Absence of Fraud. — A corporation represents and binds its stockholders in all matters within the limits of its corporate powers, so long as it acts in good faith and without' fraud upon their rights; and in the bringing and defending of suits affecting the rights and obligations of the corporation, it binds the stockholders as fully as in the making of contracts; and with its right to maintain and defend actions concerning its corporate rights or liabilities, the stockholders cannot interfere, except when the directors refuse to act, or are guilty of fraud in the maintenance or defense of the action.</p> <p>Id. — Stock in Name of Defendant — Liability of Holder to Creditors — Inadmissible Evidence — Agency for Owners.—One to whom stock is issued by a corporation, and who has the same placed in his name on the corporation books as the owner, is liable to the creditors of the corporation as though he were the absolute owner, although he was in fact a pledgee, agent, or trustee for the real owner; and in an action against a stockholder to subject the amount due from him for unpaid subscriptions to stock to the payment of an unsatisfied judgment against the corporation, evidence is inadmissible to show that he was the real owner of only part of the shares issued to him by the corporation, and that the others standing in his name were owned by other parties, and were issued to him for the purpose of negotiating a loan for the real owners.</p>

Motion to dismiss an appeal from an order made after the affirmance of a capital conviction fixing the time and place of execution. The facts are stated in the opinion of the court.

<p>Undertaking on Appeal—Execution by Foreign Surety Corporation — Authority oe Oeeioers. — An undertaking upon appeal, executed by a foreign surety corporation, and signed in behalf of the corporation surety by its second vice-president and its assistant secretary, with the seal of the corporation affixed, will not be declared void, as not being properly signed, where there is nothing to show that such officers were not authorized to sign and deliver it.</p> <p>Id. — Authority oe Foreign Corporation to Transact Business — Certificate oe Insurance Commissioner— Dismissal of Appeal. —A motion to dismiss an appeal upon the ground that the undertaking was executed by a foreign surety corporation which had not filed with the secretary of state a designation of some person residing in this state upon whom service of process could be made, as required by the act of April 1, 1872 (Stats. 1871-72, p. 826), will be denied, where it appears from the certificate of the insurance commissioner of this state that the surety corporation is duly authorized to transact business in this state.</p> <p>Id. — Effect of Certificate — Presumption. — There is a presumption that the insurance commissioner properly performed his official duty in issuing the certificate, and such certificate is prima fade evidence that the surety company has complied with section 616 of the Civil Code, though it does not expressly so state.</p> <p>Id. —Construction of Code — Designation of Agent of Foreign Surety Corporation —Filing in Office of Insurance Commissioner — Statute of Limitations. — Section 1056 of the Code of Civil Procedure, giving the insurance commissioner the same jurisdiction and powers to examine the affairs of a surety corporation as he has in other cases, and requiring him to file similar statements and issue similar certificates, and section 616 of the Political Code, providing that the commissioner is not authorized to issue such a certificate to a foreign insurance company until it has first filed in his office “the name of an agent and his place of residence in this state, on whom summons and other process may be served in all actions or other legal proceedings, ” apply to a foreign surety company; and when such a corporation has filed with the insurance commissioner the designation required by section 616, that is all that is required of it in the fiiatter of naming an agent upon whom process may be served, to entitle it to do business in this state, although the failure to file such designation with the secretary of state might deprive it of the benefit of the statute of limitations, as provided by the second section of the act of April 1, 1872.</p>

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

<p>Water Rights — Percolating Waters—Appropriation of Spring — Diversion. —Where a spring is fed solely hy percolating waters which seep into it from swamp or wet land surrounding the same, and not hy any running stream of water, there is no water at such spring to which the right of use can be acquired, either by statutory appropriation or by adverse user, and no action will lie in favor of one who has collected the water at the spring in a reservoir, and transmitted it by a pipe for use, against one who has diverted the water from the reservoir by means of a tunnel and ditch, constructed above the reservoir on his own land, for irrigation and domestic use.</p> <p>Id. — Subterranean Waters Part of Soil.—The law controlling the rights to subterranean waters not running through a channel or defined course is very different from that affecting the rights of surface streams. In the former case the water belongs to the soil, is part of it, is owned and possessed as the earth is, and may be used, removed, and controlled to the same extent by the owner; and no action will lie for injuries caused by cutting it off.</p> <p>Id.—Action for Diversion — Finding as to Percolation—Failure to Find as to Appropriation. — A finding, in an action for the diversion of water from plaintiff’s reservoir, that the reservoir was sustained by percolating waters alone, and that the digging of the ditch hy the defendant was for useful purposes upon his own land, and above the reservoir, is sufficient to sustain the judgment in favor of the defendant, and a failure to find upon the issue of appropriation does not constitute a reversible error.</p> <p>Findings — Control of Judgment — Failure to Find.—Where the finding of a certain fact necessarily controls the judgment in an action, the failure of the court to find upon other issues does not constitute reversible error.</p>

<p>Mortgage — Condition as to Approval op Title by Attorneys—Validity op Title Immaterial in Absence op Fraud. — In an action to foreclose a mortgage given to secure the payment of promissory notes, payable to the mortgagee when he should perfect the title to certain land to the satisfaction of certain attorneys named, where it appears that the attorneys named rejected the title, and there is no allegation that their action was controlled by fraud, collusion, or undue influence, the mortgagee cannot recover, although the court may find the title to he in fact good.</p> <p>Id. — Arbitration — Perpormance op Contract — Decision op Umpire — Jurisdiction op Court. — When parties to a contract fix upon an umpire and agree to abide by his decision, neither of them, without the consent of the other, can, in the absence of fraud, withdraw the question of performance from the common arbiter for the purpose of referring it to the decision of a court or jury.</p>

<p>Appeal from an order of the superior court of Butte County denying a motion for a new trial.</p> <p>The action was brought for a dissolution of a partnership and an accounting, under an agreement in writing set out at length in the complaint, and from which it appears that on the twelfth day of January, 1885, the defendant, R. M. Green, was the discoverer and owner of certain formulas for the manufacture of medicines composed in part of the gum of the abietine tree; that at the same time the defendant and the plaintiff, J. M. Frost., now deceased, and in whose stead his administrator, John Guidery, has been substituted, owned and jointly held a contract with one Williams, for the purchase from said Williams of a grove of abietine trees; and that it was the desire of the said Green and Frost to form a company for the manufacture and sale of said medicines; that said Frost should negotiate a sale of interest in said properties, for a sum of money satisfactory to said Green, and in case of such sale Green was to be paid five thousand dollars for his property rights. Williams was to be paid his price for the grove of trees, and the balance of the purchase price was to be equally divided between Green and Frost. Frost was likewise, in the event of a sale by him, to have an undivided half-interest in the unsold portion of the property. In addition to this, Frost was to have the exclusive right to sell the remedies in the state of Ohio for one year, Green agreeing to deliver such medicine at stated prices. It was further agreed that in the event Frost should be unable to make a sale, after the use of due diligence to that end, then, in consideration of such services, he was to be the owner of an undivided one fourth of said property rights. The answer denies the existence of a partnership; denies that Frost performed the conditions of the contract, on his part to be performed; and alleges, as a separate defense, that subsequent to the execution of the contract of January 12, 1885, and in or about the month of March, 1885, Frost associated with him one Threlfall, and jointly with said Threlfall obtained from said Green an agreement in writing, wherein and whereby the agreement of January 12, 1885, was superseded, vacated, and annulled. On the trial the defendant proposed an amendment to the answer, under the circumstances detailed in the opinion, and to the effect therein stated, which amendment was disallowed by the trial court. The evidence was confined exclusively to the question of the existence of a partnership, and the subsequently executed agreement, and the court, without directing an accounting, ordered the defendant to deliver to said plaintiff Frost a certain number of the shares of the Abietine Medical Company’s stock, which had been received by Green as the purchase price of his proprietary rights. The defendant moved for a new trial, and the appeal is from an order refusing the new trial.</p> <p>Further facts are stated in the opinion of the court.</p>

<p>Appeal—Service of Notice — Objection to Jurisdiction — Waiver under Rules. —An objection by a respondent to the jurisdiction of the supreme court to entertain the appeal, on the ground that it does not appear that the notice of appeal was' served, will not be considered by the court, where the objection was not taken and notified to the appellant in writing ten days before the hearing, as provided for by the rules of the supreme court.</p> <p>Id. — Affidavit of Incurable Defect in Transcript. — The consequence of failing to give such notice as provided by the rules cannot be avoided by the making of an affidavit by the respondent to the effect that the defect cannot be cured by a suggestion of diminution of the record, under the rules.</p> <p>Id. — Judgment Roll — Orders not Incorporated in Bill of Exceptions — Setting Aside Default— Striking out Answer. — An order setting aside a default upon conditions, and an order striking out an answer for failure to comply with the conditions, do not constitute part of the judgment roll, and cannot be considered as part of the record upon appeal from the judgment, though printed in the transcript, if not incorporated in a bill of exceptions, and no points attempted to be made in regard to them can be noticed upon such appeal.</p> <p>Deed in Consideration of Legal Services — Trust — Repudiation of Contract — Failure of Consideration — Undue Influence — Rescission— Pleading — Sufficiency of Cause of Action—Special Demurrer.—A complaint which alleges that the plaintiff’s ancestor conveyed to the defendant’s wife certain real estate for the expressed consideration of legal service to be rendered by the defendent, and that the defendant agreed to examine and quiet the title to the property at his own cost and expense, and then to reconvey one half thereof to the grantor; but that although eight years had elapsed since the conveyance of the property to the defendant’s wife, the appellant had not performed or attempted to perform his agreement; that the title to the property is still clouded, and that the conveyance and agreement were without consideration, and were procured solely by the undue influence of the defendant; that the defendant not only made no attempt to perform the agreement which constituted the whole consideration for the conveyance, but in violation of the trust so created, had sold a portion of the property, appropriating the proceeds to himself, and repudiating the obligations of the agreement and trust, and claiming to be the absolute owner of the property, — although inconsistent, illogical, and insufficient as against a special demurrer, is sufficient, in the absence thereof, to support a decree that the deed to the defendant’s wife was void against the plaintiff, except as to the portion conveyed to a bom tide purchaser without notice.</p>

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

<p>Appeal from an order of the Superior Court of Lassen County denying a motion to strike out a cost bill.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Mechanic’s Lien—Judgment of Foreclosure—Extent, of Land Decreed to be Sold — Presumption upon Appeal — Pleading — Necessity for Convenient Use. —In an action to foreclose a mechanic’s lien, where there is nothing in the record to show that the land described in the decree in favor of the plaintiff directing the land to be sold is greater in extent than that covered by the building, it will be presumed upon appeal in favor of the judgment that it was not greater in extent, and the judgment will not be reversed because of the absence of an allegation and finding that it was necessary for the convenient use and occupation of the building.</p>

<p>Judgment by Default — Application to Vacate — Excusable Neglect — Discretion — Appeal. —Applications to the trial court to set aside a judgment by default, upon the ground of excusable neglect, are addressed to the sound legal discretion of the trial court, and the order of that court, in granting or denying the motion, will not be disturbed upon appeal, unless an abuse of discretion is shown.</p> <p>In.—Insufficient Showing—Mistake in Marking Time for Answer — Numerous Actions. — It cannot be said to be an abuse of discretion for the trial court to refuse to set aside a judgment by default, upon the ground of excusable neglect, where the affidavits merely show that there were several actions between the same parties, and that when the defendant’s attorney received the summons and copy of complaint, he marked the papers “ Answer due April 23d,” whereas it was due the 21st, and the only reason for his not having filed the answer was his mistake in marking the papers, and owing to the fact that there were so many actions against the defendant.</p> <p>Id. — Proof of Service of Summons — Affidavit—Immaterial Pacts — Citizenship ■—Certified Copy. — A judgment by default is not erroneous because the affidavit of service of summons fails to show that the person making the service was a white male citizen o'f the United States, or that he served a certified copy of the complaint, as neither of these things are necessary.</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 tñe court.</p>

<p>Criminal Law — Time for Filing Information — Return of Depositions and Commitment — Motion for Discharge—Discretion.— 'A motion in a criminal prosecution to discharge the defendant, because the information was not filed within thirty days after he was held to answer, may be denied in the discretion of the court, where it appears that at the time of the making of the motion the depositions and commitment thereon, upon which the information was based, had not been returned to the court by the committing magistrate.</p> <p>Id. — Perjury — Testimony upon Trial — Materiality to the Issue. — In order to constitute the offense of perjury, alleged to have been committed in the giving of testimony upon a trial, it is not only necessary that the testimony should be false, but it must also appear that the testimony was material to the issue on trial. Testimony given as to matters collateral to the question at issue cannot furnish the foundation for a charge of perjury.</p> <p>Id.—Allegation and Proof of Materiality.—The materiality of the evidence in such a case is not only a necessary element of the information, but it is a fact which must be established by the evidence of the prosecution as fully and completely as any other fact in the case.</p> <p>Id. — Perjury upon Examination of Another Charged with Perjury — False Charge of Larceny — Immaterial Testimony. — Upon a prosecution for perjury, alleged to have been committed by the defendant at the preliminary examination before a justice of the peace, of another person also charged with perjury, where it appears that the complaint against the latter alleged that he committed perjury in swearing to a complaint falsely charging another person with petit larceny, but it does not appear what property was charged to have been stolen, and the only specification of perjury against the defendant is that he falsely testified.that he saw the person charged with the larceny “take a bracelet” belonging-to the person charged with perjury, it does not appear that such testimony was material upon the examination for perjury, and the evidence fails to support a judgment of conviction of the defendant.</p>

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

<p>Criminal Law—Assault with Intent to Murder —Absence oe Person Intended to be Killed. — Where a policeman bored a hole in the roof of a building for the purpose of determining from observation whether or not the occupant was conducting therein a gambling or lottery game, and the occupant, having ascertained the fact, and believing that the policeman was on the roof at the point of contemplative observation, fired his pistol at that spot, with the intent to kill, he is guilty of an assault with intent to commit murder, although the officer was not at the spot when the shot was fired, but was upon another part of the root</p> <p>Id. — Unknown Obstructions to Criminal Attempt.—Where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed.</p> <p>Id. — Assault —Attempt Coupled with Ability. — In order to be guilty of an assault, there must be an unlawful attempt coupled with a present ability to accomplish the act intended.</p> <p>Id.—Ability to Accomplish Murder — Loaded Pistol — Mistake as to Location op Victim. —A person has the present ability to accomplish the murder intended, when he has a loaded pistol, and the person intended to he fired at is within reach of its effect, and the fact that he was mistaken as to the exact spot where his victim was located at the time of firing is immaterial.</p>

<p>Order Refusing Probate of Will — Time for Appeal — Dismissal. —• An appeal from an order refusing probate to a will should be taken within sixty days after the'entry of the judgment, and an appeal taken thereafter will be dismissed.</p>