Volume 96 — California Reports

<p>Appeal from a judgment of the Superior Court of Solano County.</p>

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

<p>Action — Parties —Transfer of Defendant’s Interest—Presumption — Appeal. — After the transfer, by a defendant, of all interest in the subject-matter of the litigation, it is proper that all proceedings in the case, including an appeal, he taken for and on behalf of the grantee in the name of the original defendant; and in the absence of any showing to the contrary, it will be presumed that they were so taken.</p> <p>Id. —Action to Enjoin Diversion of Water — Conveyance of Canal — Appeal by Grantor — Dismissal. — An appeal taken in the name of the original defendant, in an action to restrain the diversion of the waters of a river by means of a canal owned by the defendant, from a decree entered therein against such defendant, will not be dismissed because of a conveyance by the defendant, prior to the appeal, of the canal and water right to another person, in the absence of any showing that the appeal was not taken for and on behalf of the grantee.</p> <p>Riparian Rights — Use of Water for Irrigation ■— Appeal — Direction for New Decree — “Views Expressed” in Opinion—.Suggestions Arguendo—Matter Outside Issues ■—Diversion of Surplus Water. —In an action by a lower riparian proprietor against an upper riparian owner to obtain a perpetual injunction restraining the latter from diverting the water through its canal, where it was held, upon a former appeal, in reversing-a decree ordering the defendant to fill up the head of the canal so as to prevent any water from flowing therein, that the defendant was entitled to a reasonable use of the water for the purpose of irrigating his riparian lands, and the appellate court also suggested, in its opinion, that “there may be times of flood or high water when no one below would be injured if defendant’s.canal should carry away from the river surplus water to its full capacity,” and ordered a decree to be entered in accordance with the “ views expressed ” in its opinion, but the pleadings raised no issue as to the defendant’s right to divert the flood or surplus water from the river, and the remark concerning it was' made merely for the purpose of showing the unreasonableness and unjustness of the decree of the lower court, such suggestion does not constitute one of the ‘ ‘ views expressed ” in the opinion, and it is not error for the lower court to refuse to insert in its amended decree, made after the going down of the remittitur, that the defendant was not enjoined from diverting “ the surplus waters of said river at times of flood or high water, when the plaintiffs would not be injured thereby.”</p>

<p>Place of Trial — Order Refusing to Change Venue — Conflicting Evidence — Review upon Appeal. — An order refusing to change the place of trial of an action to the county in which the defendant claims to reside will not be reversed upon appeal if the evidence as to the place of residence of the defendant is conflicting.</p>

<p>Trespass—Injury to Soil by Contractor—Liability of Canal Company. — A canal company, which, for the purpose of raising and otherwise improving its canal, caused the top soil of the land along the side of the canal to be plowed up and scraped away by a contractor who was employed by an agent of the company to do that specified work, is liable to the owner of the land for the damage resulting therefrom.</p> <p>Id. —Liability for Acts of Independent Contractor— Harmless Acts Negligently Done—Contract for Injurious Acts — Respondeat Superior. — When a person makes an independent contract with another, by which the latter is to do for the former a piece of work in itself harmless, and the latter does the work so carelessly or unskillfully as to injure a third party, the former is not, as a general rule, liable; but when the contract is in its very nature and necessarily injurious to a third party, the doctrine of respondeat superior applies.</p> <p>Id. — Authority of Agent Employing Contractor — Parol Evidence. — It is not necessary that the employment of a surveyor by the canal company to act for it in the matter of repairing and enlarging its canal should be in writing, in order to render the canal company liable for the acts of a contractor employed by the surveyor to take the soil from the adjacent land; but it is sufficient if his authority to make the contract appears by oral testimony.</p> <p>Id.—Amount of Injury to Land — Evidence — Harmless Question.— Where a witness had testified that the land was worth a certain sum before the digging and scraping by the canal company, and that it was not worth anything afterwards, it is not prejudicial error for the court to allow the plaintiff to ask the witness whether or not he would give as much for the land after the digging and scraping as he would have given before.</p>

The following is the instruction given by the court and referred to in the opinion: “The defendant has been examined as a witness in his own behalf. It is his right to do so, and you will consider his testimony as you would that of any other witness examined before you.

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

The main facts are stated in the opinion of the court. The bulkhead spoken of in the last clause of the opinion was erected in the works as an agreed boundary after the defendant Rice had excavated the vein at the point of intersection, and after the drifts in the two mines had come together.

<p>New Trial — Accident and Surprise—Abandonment of Cause by Attorneys with Consent of Client. — A motion for a new trial by a defendant, upon the ground of accident and surprise, is properly denied, where it appears that the only facts constituting the alleged surprise and accident consisted of the withdrawal of a cross-complaint by the former attorneys of the defendant, and their failure to ask for a continuanee, or to be present at the trial, all of which was done after consultation with the defendant, and with his consent, with a view to a separate action for damages against the husband of the plaintiff, there being no charge that such attorneys were incompetent, unfaithful, or negligent.</p> <p>Id.—Mistake or Inadvertence. —There is no such ground for granting a new trial as mistake or inadvertence, as distinguished from accident or surprise.</p> <p>Findings — Secondary Evidence not Objected to. — The fact that evidence relied upon to sustain a finding or decision of the court was secondary is immaterial, where it was not objected to, and no exception was taken or reserved to its admission.</p> <p>Trial — Failure to Attend — Waiver of Findings. — The failure of a defendant to attend the trial is a waiver of findings under section 634 of the Code of Civil Procedure, and the fact that the judgment erroneously refers to findings, when none exist, is of no consequence.</p> <p>Id.—Trial without Passing upon Demurrer — Failure to Object.— The failure of the court to pass upon a demurrer to an answer is not an error of which the defendant can complain, where he does not attend the trial nor object to a trial at the time, and the plaintiff insists upon trying the issues of fact.</p>

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

<p>Pleading — Complaint—Striking out Evidentiary Matter__It is proper to strike from a complaint the statement of matter which, though it may„be proper to he shown in evidence upon the trial of the action, adds nothing to the ultimate and issuable facts alleged in the complaint.</p> <p>Id.—Ejectment—Right of Possession of Rooms in Court-house — Wrongful Withholding — Sufficiency of Complaint. — A complaint in an action by a county to recover possession of rooms in the courthouse, which alleges facts showing the plaintiff’s right of possession of the conrt-house, and of the rooms therein described, and that the defendants wrongfully withhold the possession of said rooms from the plaintiff, states a cause of action.</p> <p>Id. —Judges’ Chambers—Names of Judges—Judicial Notice—Demurrer to Complaint. — The fact that the complaint shows that the rooms occupied by the defendants were marked upon the plans of the courthouse as judges’ chambers does not show that the defendants, who are sued by the county as individuals, and not as judges, are rightfully in possession of the rooms, though they have the same names as the judges of the superior court, and the court cannot, upon demurrer, take judicial notice that the defendants are such judges.</p> <p>Id._Power of Supervisors — Control of Court-house. —The corporate powers of a county can only be exercised by the board of supervisors, or by agents and officers acting under their authority, or authority of law; and the supervisors are the representatives of the county for the purpose of providing necessary county buildings and suitable rooms for county purposes, and of erecting and furnishing a court-house, and selecting and designating rooms therein to be occupied by the different officers; and have continual power to assign and change the assignment of rooms in the court-house.</p> <p>Id._Power of Superior Judge — Selection of Rooms.—The superior judge has no more power or right than any other county officer to select the particular room in the court-house which he will occupy as his chambers, or to take possession of any room assigned by the supervisors to another officer; though he is not compelled to occupy the room assigned to him if it is not suitable, and in such case may proceed to provide a room under the authority conferred by section 144 of the Code of Civil Procedure,</p>

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

<p>Real Estate Broker—Contract of Employment—Description of Land — Action for Compensation — Evidence.—A contract to employ a real estate broker need not describe the lands specifically if the terms of the employment can be made definite without it; but where the contract of employment attempts to limit the employment to certain specified property, and is an action to recover compensation for a sale negotiated, it must be shown that the property sold is within the description given in the contract, in order to entitle the broker to recover bis commissions for the sale, unless a ratification of the sale as made is shown.</p> <p>Id. — Ratification of Unauthorized Sale — Knowledge of Terms and Conditions. — Before a ratification by the owner of lands of a sale thereof by a broker, not within the terms of his authority, can be inferred, it must be shown that the owner had knowledge of the terms and conditions of the sale.</p> <p>Id. — Offer to But off Intending Purchaser — Finding of Contract. — Where a real estate broker negotiated a sale of lands upon different terms and conditions from those authorized in his contract of employment, an offer by the owner of the land to the intending purchaser to buy off his claim cannot be construed as a ratification, and although evidence of some value, is too equivocal to justify the finding upon it alone of a contract of sale.</p> <p>Id. — Withdrawing Propeutt from Sale — Right to Commissions.— Where the contract of employment provides that if the owner should, before the expiration of the contract, withdraw the sale of property therein specifically described, the broker should be entitled to his commission, the broker is entitled to recover such commissions as a debt due from the owner, upon his withdrawing such property from sale within the time named, even though the broker should not have found a purchaser for such property.</p>

<p>Account Stated—Admission—New Contract —' Action. — An account stated is an agreed balance of account, which implies an admission that the account is correct, and that the balance struck is due and owing from one party to the others; and its effect is to establish prima facie the accuracy of the items without other proof, and to constitute a new contract, on which an action will lie.</p> <p>Id.—Estoppel — Impeachment for Fraud or Mistake — Reopening Account in Equity. —An account stated does not operate as an estoppel, and may be impeached for fraud or mistake, and will be allowed to be opened and re-examined in a court of equity, if there has been any mistake, or omission, or accident, or fraud, or undue advantage by which the account stated is in truth vitiated, and the balance incorrectly fixed.</p> <p>Id.—Impeachment of Settled Account of Surviving Partner—Charge of Uncollected Note — Failure of Collection— Breach of Promise by Agent of Administratrix. — An account of a surviving partner with the estate of a decedent, though approved by the probate court, ,,-ill be allowed to be reopened and impeached, in an action by the administratrix to recover the balance of the account as an account stated, where it appears that the surviving partner was not in fact indebted to the estate in any sum whatever, and that the balance with which he had charged himself consisted of one half of the amount of a note due to the partnership, which he was authorized to collect, and expected to be able to collect, but never succeeded in collecting, through no fault on his part, owing to the insolvency of the maker and loss of all of his property, and that he was led to present the account as he did through reliance on • unfulfilled promises made by an agent of the administratrix, that he would raise the money to enable the maker of the note to pay off the indebtedness.</p>

<p>Pleading — Amendment — Inserting Signature of Attorney—Harmless Action of Court. — Where the court allows an attorney to insert an omitted signature to an amended complaint to which an answer has been filed, it seems that the defendant is not entitled as of right to demur or answer anew to the complaint as thus amended; but whether erroneous or not, the action of the court in refusing a motion for leave to file such demurrer or answer does not prejudice any substantial right of the defendant, if an amended answer is in fact filed before evidence is introduced, and the case is tried thereupon.</p> <p>Corporations — Action by Stockholder — Setting Aside Fraudulent Sale of Corporate Property — Pleading — Specifications of Fraud—False Recital as to Insolvency — Evidence.—In an action by a stockholder of a corporation to set aside a sale of the corporate property by the directors upon the ground of fraud, where the resolution authorizing the sale of the property and the deed made in pursuance thereof recited that the sale was made because the corporation was greatly indebted, and had no means to pay its debts, it is proper that the complaint should negative such recitals, and aver an ability upon the part of the corporation to meet the indebtedness, as specifications of constituent parts of the fraud charged, and if these averments are denied in the answer, the issues thus raised are material, and evidence relevant thereto is properly admitted.</p> <p>Id. — Demand upon Corporation -f Fraud of Directors—Uselessness of Demand. •—• Where it is alleged in the complaint in such action that the majority of the directors participated and assisted in the acts complained of, and have ever since controlled the action of the board, and that it would therefore be useless to make a demand upon the corporation or the directors to bring the action, which allegations are not denied, and the answer of the corporation shows that any demand upon it or upon its directors would have been useless, no demand is necessary to be alleged or shown.</p> <p>Id. — Special Meeting oe Directors — Call Contrary to By-laws — Illegal Meeting — Void Conveyance of Corporate Property.— Where the by-laws of a corporation, relating to the manner of calling special meetings of the board of directors provide that the meetings shall be called by special notice, and that such notice shall “ be given upon the order of the president, or if there be none, on the order of two directors,” a meeting called by two directors, while there is a president competent to act, merely because of the refusal of the president to call the meeting, is illegal, and the action of the directors at such meeting in authorizing a conveyance of the property of the corporation is void, they not having been lawfully assembled as a board to authorize such conveyance.</p> <p>Id. —Due Assembling of Directors—Validity of Corporate Act.—No decision or act of the board of directors of a corporation, made or done while not duly assembled as a board, is a valid corporate act.</p> <p>Id.— Defect of Parties — Directors Charged with Fraud — Waiver of Objection. — An objection that there is a defect of parties defendant, in that the directors who were charged with fraud as being interested in the sale sought to be annulled should have been made parties defendant, is waived by a failure of the_defendants to raise it by demurrer or answer.</p>

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

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

<p>Landlord and Tenant—Letting Land upon Shares — Lease — Tenancy of Land. —Where the owner of land “lets the same ” for a term of years to a tenant, who takes immediate possession of the premises, and who, by the terms of the agreement, is to take care of the same in a good husband-like manner, “for and during the whole of said term,” the fact that the letting is for a share of the produce of the land, and the increase of certain animals, etc., conceding that it constitutes a tenancy in common as to the produce of the farm, does not preclude the relationship of landlord and tenant in respect to the land, which exists under the terms of the lease.</p> <p>Id.—Unlawful Detainer — Breach of Conditions of Lease. —The owner of such land may maintain an action of unlawful detainer for the recovery of the possession of the premises upon breach of the conditions of the lease.</p> <p>Id.—Waiver of Breach — Acceptance of Rent — Dismissal of Previous Action — Breach of Continuous Covenants. — The fact that former breaches of the conditions of the lease were waived by the acceptance of rent, and that a former action in which a forfeiture of the lease was claimed was dismissed without prejudice upon the receipt of rent due, does not preclude the right of the lessor to maintain an action for subsequent breaches of covenants of the lease, which were continuing in their nature.</p>

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

<p>Estates of Deceased Persons — Determination of Heirship — Time of Appeal from Judgment. — An appeal from a judgment determining the question of heirship in a proceeding for the settlement of the estate of a deceased person must be taken within sixty days after the entry of the judgment.</p> <p>Id.—Jury Trial—-Error without Prejudice. —Error in the impanelment of a jury, and the submission to it of special issues upon the question of heirship, is not prejudicial, if the court itself found upon all the issues submitted to the jury.</p> <p>Id.—Appeal from New Trial Order. —Upon an appeal from an order denying a new trial, errors apparent on the face of the judgment roll cannot be considered.</p> <p>Id. —Evidence. —Where it does not appear from the record upon appeal that a document offered upon the trial and ruled admissible by the court was read to the jury as evidence, error is not shown by the record, even if it would not have been permissible to read it to the jury.</p>

<p>Swamp and Overflowed Land — Fitness for Cultivation — Purchaser must be Settler. —Under sections 2 and 3 of article 17 of the constitution, swamp and overflowed lands which have become fit for cultivation before application to purchase can be sold only to actual settlers.</p> <p>Id. —Contest as to Right of Purchase. —In a contest over the right to purchase such land, each party is an actor, and must allege and prove all the facts essential to entitle him to purchase.</p>

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

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

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

<p>Officer — Right to Salary — Removal for Misconduct — Reversal of Judgment — Mandamus. —-A public officer accused and found guilty of willful misconduct in office is entitled, upon a reversal of the judgment of removal, to the salary of the office during the time he was suspended from the performance of its duties by the erroneous judgment of the trial court, and may compel the auditor, by writ of mandate, to draw his warrant for the amount of such salary.</p> <p>Id. — Salary Incident to Office—Suspension without Right.—The right of a public officer to receive the salary attached to the office is an incident which attaches itself to the legal title to the office; and he cannot be deprived of the salary, because he was, without his fault and against his consent, suspended from office and released from the performance of its duties, pending an appeal from an erroneous judgment of removal for misconduct.</p> <p>Id. — Payment of Salary to Appointee during Suspension. — The fact that during the time of the suspension from office of the officer convicted of misconduct its duties were performed by a person properly appointed for that purpose, pursuant to section 770 of the Penal Code, and that the county has paid the salary to such appointee, does not affect the right of the suspended officer to recover the salary of the office during the time of his suspension.</p> <p>Id.—Effect1 of Apbeal— Revebsal of Judgment — Restobation of Rights — Constbuction of Code. —Although section 770 of the Penal Code provides for a suspension from office pending the appeal from the judgment of removal, that section must be construed as a whole, and the right of appeal given by it secures the usual results which flow from the reversal of a judgment, including the restoration of all rights taken from the appellant by the erroneous judgment, and the leaving of the parties where they stood prior to its rendition.</p>

<p>Action upon Note —• Defense — Failure of Consideration — Invalid Bond of Water Company. — An action upon a promissory note, given in consideration of the purchase of a bond of a water company organized under the laws of this s tate, cannot be defended against upon the ground of a failure of consideration of the note, owing to the alleged invalidity of the bond, through failure of the corporation to take the steps required by law in the issuance of its bonds.</p> <p>Id. — Sale of Bonds of Corporation — Caveat Emptor. — The purchaser of the bond of a corporation, liavipg the same opportunity as the seller to ascertain the steps taken by the corporation in the issuance of its bonds, buys subject to the rule of caveat emptor, whether he makes such examination or not, and assumes all the risk of its invalidity when he accepts the bon'd in exchange for his promissory note.</p>

<p>Insolvency—Adjudication upon Petition of Creditors — Inventory and Schedule — Verification not Required — Discharge. — When a debtor is adjudged insolvent upon petition of his creditors, he is not required to file in the court a verified inventory and schedule, and when ■he literally complies with an order of the court requiring him to file an •inventory and schedule, his discharge from liability cannot be resisted by his creditors upon the ground that the inventory and schedule were not verified.</p>

(Appeal from an order of the Superior Court of Humboldt County denying a motion for a new trial. I The facts are stated in the opinion of the court.

<p>Criminal Law —Mutilation of Public Record — Construction of Cods — Custody of Record — Indictment. — Under section 114 of the Penal Code, making it unlawful for a person not an officer to mutilate or destroy any public record, construed in connection with section 113 of the same code, it is not material whether or not the record is in the custody of any officer, and an indictment for the offense need not so allege. The words “having the custody of any record,” used in section 113, are used only to designate the officer who is punishable for the acts therein prohibited.</p> <p>Id. — Copy of Altered Record — Statement of Offense. — An indictment for the offense of altering a public record need not set out a copy of the instrument altered, nor the substance thereof, but it is sufficient if it sets forth the offense charged in such a manner as to enable a person of common understanding to know what is intended.</p> <p>Id.— Changing Record of Deed — Name of Grantee — Facts Constituting Offense. — An indictment which alleges in substance that the defendant did wilfully alter and procure to be altered a certain deed record of real estate, setting out the number and page of the record-hook, ami that thereby the record was changed so as to read that the grantor therein named sold and conveyed the property to the defendant, when, as a matter of fact, and as the record stood before the altering, the deed conveyed the property to the defendant’s wife, sufficiently alleges the facts constituting the offense charged.</p> <p>Id.—.Test of Sufficiency of Indictment.—The fundamental test as to whether or not an indictment is sufficient is whether or not the act or omission charged as an offense is stated with such a deg: ee of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.</p> <p>Id.—Fraudulent Intent to Alter Record —Ignorance of Law.—It is not necessary, in making out the offense of altering a public record, to prove any fraudulent intention upon the part of the defendant; nor is ignorance of the law and innocence of any intent to violate its terms any excuse for a violation thereof.</p> <p>Id.—Criminal Intent — Statutory Construction.—When an act in general terms is made indictable, a criminal intent need not be shown, unless from the language or effects of the law a purpose to require the existence of such intent can be discovered.</p> <p>Id. — Validity of Deed—Effect of Record. —Where a deed, as recorded, is valid upon its face, the record is notice to all the world of its contents; and it is immaterial, upon an indictment for the altering of the record that the instrument was void for objections not appearing upon its face.</p> <p>Id. — Charge to Jury — Reading of Code.—Although the offense of altering a public record by a private person involves matter contained both in sections 113 and 114 of the Penal Code, it is not error to read only section 113 to the jury to inform them as to the acts prohibited, without reading section 114 in connection therewith, where the instructions embody all the information to be obtained from the latter section.</p> <p>Id. — Evidence — Other Similar Acts. — In a criminal prosecution for the altering of a public record, it is not permissible to introduce evidence concerning other acts by the defendant of the same nature as that charged in the indictment.</p> <p>Id. — Impeachment of Witness — Particular Acts. — A witness cannot be impeached by evidence of particular wrongful acts.</p> <p>Id. —Cross-examination of Defendant—-Discretion as to Scope. —In a criminal prosecution, the trial court is not allowed the discretion as to the extent and scope of the cross-examination of the defendant which it is permitted to exercise in the examination of the other witnesses.</p> <p>Id. — Instruction—Testimony of Accomplice — Discredit of Witness for Defendant — Charge upon Matters of Fact. — In a criminal prosecution, an instruction to the jury that “the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution, ” is erroneous, where the accomplice has been called as a witness by the defendant, and not by the prosecution. Such instruction tends to discredit a witness for the defendant, and charges the jury with respect to matters of fact.</p> <p>Id.—Instruction as to Weight of Defendant’s Testimony.—An instruction to the jury in a criminal action, directing their attention to the fact that the defendant had offered himself as a witness on his own behalf, and saying to them that in considering the weight and effect to be given to his evidence, in addition to noticing his manner and the probability of his statements, they could consider his relation to the case, and the circumstances under which he gave his testimony, the consequences to him resulting from the verdict in the case, and all the inducements and temptations which would ordinarily influence a person in his situation, having been sanctioned under the old constitution, must be considered as a part of a similar provision of the constitution of 1879, and cannot be held erroneous. "It would be better, however, to entirely omit such instruction from those asked and given on behalf of the prosecution in the future.</p> <p>Constitutional Law — Judicial ■ Construction of Old Constitution Made Part of New. — The construction placed upon a provision of the old constitution becomes a part of a similar provision in the constitution of 1879, and cannot be departed from by the appellate court, although it should not have been so construed under the provisions of the old constitution.</p>

Motion to dismiss appeals from a judgment and two orders of the Superior Court of San Francisco. The facts are stated in the opinion of the court.

<p>Municipal Corporations — Liability for Construction of Sewer. — Under the provision of the act of March 18, 1885 (Stats. 1885, p. 147), a city is only liable for work done in the construction of sewers, when it has expressly contracted to pay for such work out of its funds, or when, in order to raise the necessary amount to pay for such construction, the assessment upon any lot would exceed one half of its valuation in the last assessment for municipal taxes, in which case the excess is to be paid by the city.</p> <p>Id. — Pleading—Insufficient Complaint.— A complaint in an action against a city for a sum of money claimed to be due from it on account of the construction of a sewer, which alleges a promise of the city to pay for the same, but shows that the contract under which the work was done did not bind the city to pay for the work, and expressly provided that the city should not be liable for any portion of the expense incurred in the performance of the contract, except as otherwise provided in the act of March 18, 1885, and does not allege that in order to collect sufficient money to pay for the cost of the work it would have been necessary to assess any lot, properly chargeable with such cost, an amount exceeding one half of its last assessed valuation, does not state a cause of action.</p> <p>Id. — Conclusion of Law — Demurrer. — An allegation in such complaint that a sum specified is “ chargeable to the city and payable out of its municipal treasury,” where the other facts alleged do not disclose a liability upon the part of the city, is to be regarded simply as the statement of a conclusion of law, which is not admitted by a demurrer.</p> <p>Id. — Promise without Consideration. — Where the alleged promise of the city to pay for the construction of the sewer consisted of a resolution of the board of trustees of the city, passed after the contract was fully performed, agreeing to pay the amount claimed to he due from the city, such promise is without consideration, and does not impose a binding obligation upon the city.</p> <p>Id. — Powers of Municipal Corporation — Notice to Contracting Parties. — Cities are creatures of the law, with powers defined by the law, and persons dealing with them are chargeable with notice, not only of the extent of, hut also of the mode in which their powers may be exercised.</p> <p>Id. — Moral Obligation. — A city is under no moral obligation to pay for the construction of a sewer that it has not contracted to pay for, and which not only the law, but the contract following the law, expressly provided that it should not be responsible for.</p>

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

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

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

<p>Banks—Duty to Honor Check of Depositor — Illegal Wager—Betting upon Election — Payment of Certified Check — Action by Depositor. —A banker is bound to honor his depositor’s orders so long as he has sufficient funds in his hands; and where the depositor has drawn a check upon the bank in favor of another party, with whom he has made a wager on the result of an election, and the check has been deposited with a stake-holder, certified by the bank, and paid after the loss of the wager, the fact that the banker knew that the check or money was intended to be used for an illegal purpose will not enable the depositor to recover from the bank the amount of the check, after it has been paid or certified by the bank, without a notice from the customer stopping payment.</p> <p>Id. — Disobedience to Orders of Customer — Promotion of Unlawful Purpose —Knowledge of Banker Immaterial. — A banker cannot excuse his disobedience of his customer’s orders, in the due course of business, by setting up that he knew or had reason to believe that the customer’s orders were given in promotion of an unlawful purpose.</p>

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

<p>School Land—Tax Deed — Assessment upon Certificate of Purchase — Equitable Title. — A tax deed to school land sold for delinquent taxes assessed to the holder of a certificate of purchase therefor passes only the equitable title of the applicant.</p> <p>Id.—Patent to Assignee of Certificate — Ejectment — Pleading.— Where the holder of a tax title to school land for which a certificate of purchase has been issued has not perfected his equitable title by paying the balance of the purchase-money due the state, with interest, an assignee of the applicant for purchase, who afterwards makes such payment and obtains a patent for the land, acquires the legal title thereto, which will prevail against the equitable title of the holder of the tax title in an action of ejectment by the patentee, if no equitable defense is pleaded by the holder of the tax title.</p> <p>Id. — Statute of Limitations. — The statute of limitations does not commence to run in favor of the holder of a tax title in possession of state school land, as against the holder of a patent issued to an assignee of the certificate of purchase therefor, until the issuance of the patent to the assignee.</p> <p>Ejectment—Effect of Legal Title—Equitable Defense—Pleading. —In an action of ejectment, the legal title will always prevail against an equitable one, if no equitable defense is pleaded.</p> <p>Pleading — Amendment to Answer — Discretion.—An application for permission to file an amended answer is addressed to the discretion of the trial court; and where the amendment states no defense that could not be made under the original answer, it is not error for the court to permit the answer to be so amended.</p>

<p>"Writ of Review— Beneficial Effect. —A writ of review will be refused, where it appears that it can have no beneficial effect.</p> <p>.Id.—Review of Order of Supervisors — Allowance of Claim—Payment before Application for Writ. — An order of the hoard of supervisors of a county allowing an unverified bill against the county will not be annulled upon a petition for a writ of review, upon the ground that the order was unauthorized and in excess of the board’s jurisdiction, where it appears that the creditor, immediately after the allowing of the bill, procured a warrant therefor from the auditor and obtained the money from the treasurer.</p> <p>.Id,—Adequate Remedy at Law — Recovery of Money Paid—District Attorney — Application by Tax-payer. — The remedy provided for by section 8 of the County Government Act, to the effect that whenever any board of supervisors should, without authority of law, older any money paid, and such money should have been actually paid, the district attorney should sue to recover the money so paid, is a plain, speedy, and adequate remedy at law, available to any tax-payer upon his complaint to the district attorney, and is sufficient to defeat an application by a tax-payer for a writ of review in his own name to annul the claim so paid, it not appearing that the district attorney has failed or refused to perform his duty.</p> <p>Id. — Interest of Tax-payer. —The interest which a mere tax-payer has in the recovery of money wrongfully allowed by the board of supervisors and paid by the treasurer does not entitle him to bring suit in his own name until after the district attorney has refused to perform the duty enjoined upon him by section 8 of the County Government Act.</p>

<p>Water Rights — Appropriation upon Public Land — Rights of Appropriator against Purchaser prom Government. — The right to the use of water flowing in a stream over public land of the United States may be acquired by appropriation; and when such an appropriation has been made for some useful or beneficial purpose, the rights acquired by the appropriator will be recognized and protected as against another person who subsequently obtains title to the land from the government.</p> <p>Id. — Change of Place of Diversion—Change op Use. —A person entitled to the use of the waters of a stream by appropriation may change the place of diversion, or the place where it is used, or the use to which it was first applied, if others are not injured by such change.</p> <p>Id. —Relation of Patent for Homestead —Priority of Water Rights. — Though a patent to a homestead claimant may relate back to a point of time five years before its date, still, his rights as a riparian propr.etor are subordinate to those of an appropriator who constructed a new ditch before that time, or who had succeeded to and still retained a complete equitable title to an old ditch, constructed long before by first appropriates, and to the water right thereby acquired, which had never been abandoned or lost.</p>

<p>Vendor and Purchaser — Contract for Payment upon Delivery of Deed — Action by Vendor to Quiet Title — Offer to Convey — Repudiation of Contract — Cross-complaint — Specific Performance — Tender. — Where the owner of land entered into a contract with an intending purchaser for its sale, by the terms of which part of the purchase-money was to be and was paid down by the vendee, and the balance was to be paid, upon approval of the title, “ on delivery of the deed,” and the vendee entered into possession and made improvements, the commencement of an action to quiet title, by the vendor against the vendee, without an offer to convey, is a repudiation of the contract, and entitles the vendee to the right to file a cross-complaint for specific performance of the contract without a previous tender of the balance of the purchase-money.</p> <p>Id.—Withdrawal of Money Deposited by Purchaser — Demand of Vendor — Release — Tender upon Trial. — In such case, the withdrawal by the vendee of a sum of money deposited in the hands of a third party to cover the balance of the purchase-money, which was “to be paid on delivery of deed, ” if a violation of the contract of purchase, was not such as to release the vendor from performing or offering to perform on his part, nor such as to prevent the vendee from obtaining specific performance of the contract, notwithstanding a demand upon the depositary for the whole sum deposited, unaccompanied by an offer to convey, where it appears that the vendee was ready at all times to complete the purchase, and upon the trial tendered the balance due on the contract, which was much less than the sum deposited, and upon a refusal by the vendor to accept it, deposited it with the clerk of the court for the vendor.</p> <p>Id. — Specific Performance — Inexact Compliance with Contract — Costs. — Where any lack of exact compliance with the contract on the part of the purchaser can be sufficiently compensated by allowing costs to the vendor, while a refusal to allow a specific performance would cause irreparable loss to the purchaser, a specific performance may properly be decreed in favor of the purchaser upon payment of costs.</p>

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

<p>Pleading — Complaint — General Demurrer —Defective Statements. —A general demurrer to a whole complaint cannot be sustained if the complaint states facts, though imperfectly, showing that the plaintiff is entitled to relief, either legal or equitable.</p> <p>Id. :— Quieting Title — Diversion of Water — Information and Belief — Defective Averment — Adverse Claim. —A complaint, in an action to quite title to water flowing across the plaintiff’s land, and to enjoin a diversion thereof, and to recover damages for the diversion, which states a wrongful diversion of the water of the stream by the defendants, to the detriment of the plaintiff, and a threatened continuance of such diversion, is sufficient to entitle the plaintiff to some relief, and is not bad upon general demurrer because its averments as to the adverse claim of the defendants are merely to the effect that plaintiff is informed and believes that they claim some interest in the stream adverse to the plaintiff, without alleging that they do claim such interest.</p> <p>Damages for Diversion of Water — Joint Liability — Defendants Claiming under' Common Title — Diversion by One for Several Benefit of All. — In such action, where the defendants all join in a common answer denying the plaintiff’s title, and alleging that all of the defendants claim an interest in the waters of the stream adverse to that of the plaintiff, by virtue of an appropriation made by one of the defendants and his grantors, and it appears that, in pursuance of said claim and for the several benefit of himself and his co-defendants, such defendant entered upon the stream above the plaintiff’s land and diverted the waters of the stream therefrom, all of the defendants are jointly liable for the damage resulting from such diversion, and the fact that the ditch had not been extended to the land of one of the defendants is immaterial upon the question of his joint liability.</p> <p>Findings—Omission to Find — Review upon Appeal. — Where the findings made dispose of the issues sufficiently to support the judgment, and make it clear that if more specific findings had been made, they must necessarily have been adverse to appellant, the judgment cannot be reversed for failure to find specifically upon each issue.</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 the court.

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

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

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

<p>Contracts — Parol Evidence to Vary Memorandum.—The rule that when a contract has been reduced to writing, parol evidence is not admissible for the purpose of cutting down or adding to its terms, does not apply to a mere memorandum which does not of itself import any contract, but is only intended as an informal memorandum to be considered in connection with previous oral negotiations. In order for the rule to have any application, the writing must be one which, by legal construction, shows upon its face that it was intended to express the whole contract between the parties.</p> <p>Id. — Assumpsit tor Work and Materials — Evidence — Accordance of Work with Contract — Opinions. —In an action to recover for work done and materials furnished in the construction of a sidewalk, where the plaintiff has testified as to the precise work he had agreed to do, and the kind of materials it was agreed should be used in its construction, it is competent for him to state whether in fact the work had been done according to the contract. Such evidence is not within the law excluding the opinions of witnesses, but is a statement of facts within his knowledge</p> <p>Id.—Parol Contract fob Sidewalk—Validity — Price Exceedinq One Thousand Dollars — Construction of Code.—A contract for the construction of a sidewalk in a city is governed by section 1191 of the Code of Civil Procedure, and not by section 1183 of that code; and a contract for such work is not void because not in writing when the price exceeds one thousand dollars.</p>

<p>.Insolvency — Partnership — Transfer to Innocent Third Person to Secure Payment of Specific Debts — Fraudulent Preference — Action by Assignee. — Where a transfer of property is made by a partnership to a third person for the purpose of securing him in his future payments of certain partnership obligations, in respect to which they had incurred danger of criminal prosecution, and not for any previous liability which he was under for the partnership, and it appears that the transferee did not know or have reason to believe that the firm was insolvent at the time of the transfer, or that any fraud was intended on the Insolvent Act on the part of the insolvent debtors, and that he paid full consideration for the goods transferred in good faith, he cannot be said to have accepted a preference in violation of the Insolvent Act, although the transfer was made within one month prior to a petition in insolvency by creditors of the firm, and the value of the property cannot be recovered from him in an action by the-firm’s assignee in insolvency.</p>

<p>Appeal from an order of the Superior Court of Alameda County denying a motion to set aside a judgment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Constitutional Law — Qualification of State Senator — Change of District after Election. — Under section 4 of article IV. of the constitution, providing that “no person shall be a member of the senate or assembly who has not been a citizen and inhabitant of the state three years, and of the district for which he shall be chosen one year, next before his election,” a citizen and resident of the state for three years who was duly elected state senator at the election held in 1890 for the fortieth district, composed of the counties of San Bernardino and San Diego, and who was at that time a qualified citizen and inhabitant of San Bernardino County, of which he remained a resident, was not deprived of his office because of the redistricting of the state by the legislature in 1891, whereby the county of San Diego alone was made to constitute the fortieth district.</p>

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

<p>Negligence — Master and Servant—Carelessness of Fellow-servant. — For injuries received from the carelessness of a fellow-servant in the same general business, a servant cannot recover against his employer.</p> <p>Id.—Railroads—Injury to Conductor — Neglect of Engineer. — A person employed as conductor and brakeman of a railroad train, who is injured while coupling cars, owing to the alleged negligence of the engineer in moving the cars without a signal from the conductor, cannot recover for the injury from the railroad company.</p> <p>Id.—Failure to Provide Suitable Cars or Complement of Men — Assumption of Risk. — The failure of a railroad company to provide suitable cars and a sufficient complement of men does not entitle an employee, who has been injured through the negligence of a fellow-servant, to recover damages against the company, where it appears that he knowingly assumed the risk, and that no new danger accrued or was increased after the employment.</p> <p>Id. — Contributory Negligence.—Where it appears that the accident resulted from the plaintiff’s own carelessness, he cannot recover for the injury.</p>

Appeals from two several judgments of the Superior Court of Los Angeles County, and from orders denying a new trial in two several actions. The facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of Fresno County denying a motion to order execution to issue in’ favor of a joint judgment debtor claiming contribution from another joint judgment debtor.</p> <p>The facts are stated in the opinion.</p>

<p>Constitutional Law—Term op Oppice op Senators—Redivision op Districts — Unequal Representation. —Under the constitution and laws of this state, the senators elected in the year 1890 from the even-numbered senatorial districts continue to hold office for the full constitutional term of four years, and the act redividing the state into new senatorial districts, approved March 11, 1891, purporting to continue the senators in even-numbered districts in office for the full term of four years, is not in conflict with the constitution, notwithstanding some of the counties in the newly formed districts will have double representation in the senate, and others will be deprived of their fair and equal representation.</p> <p>Id. — Construction op Constitution — Inconveniences oe Application. — The courts, in construing the constitution, are bound to suppose that any inconveniences involved in the application of its provisions, according to their plain terms and import, were considered in its formation, and accepted as less intolerable than those avoided, or as compensated by countervailing advantages.</p>

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

<p>Ejectment — Damages — Rental Value — Pleading — Reception of Rents and Profits. — A complaint which alleges that the defendant wrongfully ousted the plaintiff from premises owned by the plaintiff, and took possession thereof, to the plaintiff’s damage in a sum specified, and further states the rental value of the premises, warrants a judgment for the possession and for the value of the rents and profits during the period of the wrongful withholding, and is not defective in not averring that the defendant had received the rents and profits.</p> <p>Id. — Informal Verdict — Construction —• Rents and Profits — Support of Judgment. — A verdict in an action of ejectment, whereby the jury “ find for the plaintiff, and judgment in the sum of $1,175,” though informal, must be construed to be a general verdict, with a special finding of the value of the rents and profits during the whole period of the wrongful withholding, and is sufficient to support a judgment that the plaintiff recover the possession of the premises and “the sum of $1,175, rents and profits, ” and costs.</p> <p>Id. — Admissions of Pleadings—Rental Value — Evidence — Presumption upon Appeal.—Both the court and jury are bound by the admissions of the pleadings as to the withholding of possession, and as to the rental value of the premises, to the extent of those admissions; and where the evidence is not returned upon appeal, it may be presumed that the verdict, under the admissions of the pleadings, taken in connec- , tion with the evidence, was proper as to amount.</p> <p>Id. — Objection to Verdict upon Appeal. — A party will not be heard to object to a verdict for the first time upon appeal from the judgment, if it is susceptible of a construction which may have a lawful effect relevant to the pleadings. '</p>

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

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

<p>Corporations — Assessment of Paid-up Stock—Stock Issued below Par — Equality of Assessment. —Where all the stock of a corporation is fully paid up, it is assessable; and as between stockholders who have obtained paid-up shares at one fourth of their par value in exchange for property conveyed to the corporation, and those who have obtained paid-up shares at the same rate by purchase, for cash, of stock reserved for working capital, the effect of an assessment upon all the stockholders is equal and just.</p> <p>Id. — Sale of Reserved Stock at Discount — Consent of Stockholders . — Paid-up Certificate—Estoppel.—When, by consent of all the stockholders of a corporation, reserved stock is sold by the corporation for less than its par value, it is to be considered as fully paid-up stock; and when the equitable owners of all the unsold stock, who are the legal owners of all the stock issued, and who control the board of directors, procure the sale, by the corporation, of the reserved stock for one fourth of its par value, and the issuance of certificates, in accordance with the by-laws, certifying to the purchasers that the price paid was full payment, and that the stock purchased was fully paid stock, the stockholders who are the real sellers, as well as the corporation, are estopped from denying that the stock sold was fully paid-up stock, and from claiming that any sum is due or owing from the purchasers or holders thereof to the corporation.</p> <p>Id. — Legality of Contract — Construction of Civil Code. — The contract for the sale of reserved stock below par as paid-up stock is not unlawful, and is not in violation of section 323 of the Civil Code, which does not prohibit the issuing of certificates before the stock is fully paid up, hut enjoins the duty of issuing certificates for fully paid-up stock, and authorizes the stockholders to enact by-laws in accordance with which the corporation may issue certificates before full payment.</p> <p>Id. — Ratification by Stockholders. — Though the unanimous consent of stockholders cannot cure the illegality of issuing certificates in violation of law, yet they may ratify an unauthorized issuance of certificates.</p> <p>Id. —Authority to Sell Stock as Fully Paid — Acquiescence of Stockholders. — Where all of the stockholders have, at a regular meeting before the sale, authorized and directed the corporation to sell the reserved stock as fully paid stock for fifty cents per share, and the by-laws require each certificate to state that the stock was fully paid, and the certificates issued on the sales of the reserved stock so stated, and during a period of more than three years immediately after such sales and the issuance of such certificates all the stockholders acquiesced therein, none of them can deny that the price paid was full payment for the stock.</p>

<p>Mechanics’ Liens — Consolidation oe Actions — Findings. — Where several actions for the foreclosure of mechanics’ liens are consolidated, it is better to have only one set of findings in the consolidated action; hut the mere fact that the court makes separate findings in each of the cases is not in itself sufficient cause of reversal.</p> <p>Id. — Completion oe Building — Cessation oe Work — Contradictory Findings. —The findings are not contradictory because stating a date of completion of the building, and also that it was never actually completed, where they show that the work ceased on a certain day, and such cessation continued for more than thirty days, which facts constitute a “ completion,” under section 1187 of the Code of Civil Procedure.</p> <p>Id. — Time oe Filing Liens. — Where it appears that the work continued without a cessation of thirty days until a specified date, when it ceased for more than thirty days, and that within thirty days after the expiration of thirty days from the date of the final cessation of work the liens were filed, such liens appear to have been filed in time.</p> <p>Id. — Questions oe Fact — Completion — Trivial Imperfection — Continuance of Work — Cessation — Findings — Evidence. — The questions whether there was a completion, or a trivial imperfection, or a continuance of work during a certain period, or a cessation of work for thirty days, are questions of fact upon which it is proper that the court should find directly, without finding the evidence in regard to such facts.</p> <p>Id. —Former Cessation for Thirty Days — Burden oe Proof. —. Where a lien is assailed on the ground that work had formerly ceased for a period of thirty days before the last cessation of work, the burden is on the owner of the building to show that such cessation actually occurred, and it is not enough to show that it might have occurred.</p> <p>Id. — What Constitutes “Cessation”—Notice — Clandestine Stoppage and Presumption Insueeioient. —In order to constitute a “ cessation from labor for thirty days,” such as will bar a lien if not filed within thirty days thereafter, within the meaning of section 1187 of the Code of Civil Procedure, the cessation should he of such character as to carry some charge of notice to a careful person; and it is not sufficient that there be a mere clandestine stopping of actual work for thirty days, and then beginning it again without any indicia to the world that it had been stopped for thirty days.</p> <p>Id. — Abandonment by Contractor. — The abandonment of work upon a building, by a contractor, before its completion does not necessitate the filing of lien within thirty days thereafter, where the owner goes on with the work, and does not occupy or accept the building.</p> <p>Id. — “Occupation”—“Acceptance” — Appointment oe Painter as Keeper. —The appointment, by the owner of the building, of a painter as keeper, and the fact that he lives in it while painting it, after the contractor has abandoned the work, does not constitute an “occupation” or “acceptance” of the building by the owner within the meaning of section 1187, which only applies in case of contracts.</p>

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

<p>Contracts — Action for Breach — Defense — Modification — Non-performance — Evidence. — In an action for damages for the breach of a contract by the defendants to deliver to plaintiff’s assignors certain carloads of produce, where the defendants alleged in their answer that the contract set out in the complaint was afterwards modified in writing by changing the place for the delivery of the produce, and extending the time of delivery, but admitted their non-performance of the new agreement, the plaintiff is entitled to insist upon the damages sustained by the breach of the original contract, and evidence offered by the defendants to prove the modified agreement is not improperly excluded by the court.</p> <p>Id. — Prevention of Performance — Impassable Stream—Insufficient Defense. —In such action, where the answer alleged that there was a regular daily communication between the place of residence of the defendants and the place where the produce was to be delivered, a portion of the way by stage, which crossed an unbridged river, and that, prior to the date for the delivery of the produce and until the day after, the river “ was swollen by recent rains, so that its passage was impossible, that said stream was unbridged, and at seasons of heavy rains it becomes for days wholly impassable,” and that upon an attempt by the defendants it was found impossible to cross the stream, in order to deliver the produce, but did not allege that there was anything unusual in the rise of the river at that time of year, nor that the defendants could not have reached the place of delivery by another route, the averments of the answer are insufficient to show that performance of the contract was prevented by an irresistible and superhuman cause.</p> <p>Id.—Act of God—“Irresistible and Superhuman Cause”—Ordinary Rise of Stream. —The words “irresistible and superhuman cause,” as used in section 1511 of the Civil Code, which provides in what cases the performance of an obligation is excused, are equivalent in meaning to the phrase “act of God,” and refer to those natural causes the effects of which cannot be prevented by the exercise of prudence, diligence, and care, and the use of those appliances which the situation of the party renders it reasonable that he should employ. The words, as applied to watercourses, include only floods or extraordinary freshets, and not such rises or high water in a stream as is usual and ordinary, and reasonably anticipated at particular periods of the year.</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 the court.

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

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

<p>Statutory Construction. — In the construction of a statute, all its provisions must be considered together, and must be reconciled as far as possible, and particular provisions must be so construed as to promote and not to defeat the general purposes and policy of the law.</p> <p>Id . — Object oe Registration Law — Construction in Eavob oe Rights oe Voters.—The object of the registration law is to prevent illegal voting by providing, in advance of election, an authentic list of qualified electors; and when its terms are doubtful, they should be so construed as to give the fullest opportunity to voters to procure the entry of their names upon the register that is consistent with reasonable precautions against fraudulent registration.</p> <p>Id. — Construction of Political Code — Time Allowed for New Registration. — Under section 1094 of the Political Code as amended in 1889, providing that when the board of supervisors of any county shall require anew registration of the voters, the “registration shall commence one hundred days before a general election, and shall continue for eighty-five days thence next ensuing, when such registration shall cease, ” while the board of supervisors are prohibited from canceling the existing register and ordering a new registration less than one hundred days preceding a general election, they are not prevented from allowing more than one hundred days, and the registry of a name in the new register, made at any time after the old register is canceled, and more than fifteen days prior to the election, is lawful and valid, though made more than one hundred days before the election.</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 the city and county of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street-railway — Paving of Street — Petition of Receiver of Insolvent Company — Protest of Bond-holders — Appeal from Order — Supersedeas — Premature Application. — Where the receiver of an insolvent street-railway company, in order to provide funds for the paving of the public street between its tracks, as required by law, presented a petition to the court, accompanied by a contract for the paving, which provided for payment in cash, or in receiver’s certificates to be issued by the court, against the issuance of which certain holders of mortgage bonds protested, and asked that in case the certificates were issued they should be made subordinate to the liens securing the bonds, and the court denied, the protest, and directed the acceptance of a bid for the work, and approved the contract providing for the issuance of receiver’s certificates, but did not direct the issuance of any certificate, nor refuse to declare that the receiver’s certificates, if issued, should be subordinate to the liens securing the bonds, such bond-holders are not entitled to a writ of supersedeas to stay the issuance of the certificates pending an appeal by them from the order of the trial court, the application therefor being premature.</p>

<p>Mechanic's Lien —Date of Completion of Building — Immaterial Mistake in Notice of Lien— Pleading — Evidence. —A notice of claim of a mechanic’s lien is not required to state the date of the completion of the work or structure, nor even that the lien was filed within thirty days from its completion; and although the notice contains an evidently mistaken reference to a date of completion of the work, which was prior to the commencement of the work, and more than thirty days prior to the date of the lien, such mistake is immaterial, where both the notice and the complaint allege that the lien was in fact filed within thirty days from the completion of the building, and such fact is proved in the action to foreclose the lien.</p> <p>Id.—Notice of Subcontractor’s Lien — Specifications of Original Contract ■—Demurrer. — A complaint upon foreclosure of a subcontractor’s lien, which describes the notice of lien as stating that the claimant entered into a contract with the original contractors, under and by virtue of which he was to do all painting, staining, varnishing, and tinting, and to furnish all necessary materials, as specified in the plans and specifications of the buildings, is not fatally defective, as against a general demurrer to the complaint, because the notice does not set forth the plans and specifications of the original contract in regard to the painting.</p>

<p>Judgment Roll—Judgment—Findings — Construction of Statute.— The statute in reference to the judgment roll contemplates that there shall be but one judgment and one set of findings incorporated therein.</p> <p>Id. — Transcript upon Appeal — Certificate of Trial Court Inconclusive— Power oe Appellate Courts.—Upon an appeal from a judgment, the appellate court is not bound by the papers found in the transcript which purport to constitute the judgment roll, nor by the certificate of the trial court that certain papers therein enumerated constitute the judgment roll. If it is contended that the judgment roll presented to the appellate court is defective or lacking in material parts, the omitted'documents, if properly certified, may be brought before that court, and it will determine what constitutes the judgment roll.</p> <p>Id. —Presumption upon Appeal—Later Judgment and Findings Presumed Correct.—Upon an appeal from a judgment, where the judgment roll consists simply of the pleadings, findings, and judgment, and the respondents bring before the appellate court another set of findings and another judgment made and entered prior to the filing of the findings and entry of judgment contained in the transcript, asserting them to be the true findings and judgment, in the absence of any showing by bill of exceptions or otherwise, the judgment and findings later in point of time must prevail and be deemed to be the true and final judgment in the case, and it must be presumed that circumstances arose which justified the court in setting aside the first findings and judgment, and in filing the second findings and judgment.</p> <p>Contracts — Covenant to Employ Superintendent—Agency—Liability for Negligence. —Where a party to a contract covenanted to furnish a superintendent, whose duty it should be to supervise the work contracted to be performed by such contracting party, such superintendent is not thereby made the agent of the other party to the contract, nor is the party appointing the superintendent relieved from liability to the other party for loss resulting from the negligence and incompetency of the superintendent.</p>

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

<p>Superintendent of Streets — Official Neglect—Liability of Sureties — Appeal to Supervisors — Election of Remedy.—The remedy, given by section 11 of the street law of 1885, of appeal to the board of supervisors by any one injured in consequence of the official neglect of the superintendent of streets to see that the laws, ordinances, and regulations relative to the streets are carried into execution, is not exclusive, but the party injured may elect to bring an action against the sureties upon the official bond of the superintendent under the provisions of section 22 of the same act.</p>

<p>Misjoinder of Causes of Aotion — Loss of Money through Negligence of Bailee—Conversion—Demurrer— Prejudicial Error. — A cause of action for damages for negligence of the defendant in not taking due and proper care of a sum of money delivered to him at his request, of which he agreed to take proper care, hut lost it through his gross carelessness, negligence, and improper conduct, and failed to redeliver it upon demand, is a cause of action for breach of contract, and cannot he joined with a cause of action for the conversion of the money to the use of the defendant, and the overruling of a demurrer for such misjoinder is prejudicial error.</p> <p>Id. — Amendment of Complaint at Trial — Filing Amendment after Judgment — Error without Prejudice. — Where the plaintiff was permitted at the trial to amend the statement of his second cause of action by adding that the money claimed in that count was the identical money claimed in the first count, the fact that the amendment was not actually made and filed until after the verdict and entry of judgment is error without prejudice, such amendment being immaterial, and it appearing that the case was tried with reference to it.</p>

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

<p>Swamp and Overflowed Land—Bed of River—Void Patent.—The bed of a river through which the water baa ceased to flow because of a change in the course of the river is not swamp and overflowed land within the meaning of the act of Congress of September 28, 1850, nor within the meaning of the state statutes allowing such land to be appropriated; and a patent issued therefor, upon an application for its purchase as swamp and overflowed land, is void.</p> <p>Id. —Unauthorized State Patent—Collateral Attack bv Possessor of Land. — A state patent issued for land which the state has no authority to dispose of is void, and may be collaterally attacked in any action, and its operation as a conveyance defeated, by a party in mere possession of the land, though not connected with the source of title.</p>

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing to quash a summons and dismiss an action.</p> <p>The facts are stated in the opinion of tne court.</p>

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

<p>Lease — Covenant fob Quiet Enjoyment — Failure of Joint Lessee to Execute or Accept Lease — Nonsuit. —In an action for damages for breach of a covenant for quiet enjoyment, contained in a lease, where the plaintiffs introduced in evidence a written instrument in the form of a lease by the defendant to the plaintiffs jointly, but which was signed by the defendant and one of the plaintiffs only, and the plaintiffs failed to introduce any evidence tending to show its acceptance as a lease by the lessee who did not sign it, or any occupation under it, a nonsuit is properly granted.</p>

<p>Agency — Evidence — Proof of Authority — Declarations of Agent — Res Gestíe. — Though the authority of a person to act as agent for another cannot be proven by the declarations of the one assuming to act as agent, yet when it is once shown that a person has actual or ostensible authority to act for another, any declarations made by such agent at the time of the transaction of the business intrusted or apparently intrusted to him, and relating to such business, is admissible as part of the res gestee.</p> <p>Id. — Declarations beyond Scope of Authority. — Where an agent is not acting within the scope of his apparent authority, his declarations, or any agreement which he assumes to make for his own benefit, are not. admissible in evidence against his principal.</p> <p>Id. — Ostensible Authority of Agent of Grantor — Possession of Deed — Security for Loan to Agent. — The possession of a deed by the" agent of the grantor named therein clothes him with ostensible authority merely to make a sale of the land to the grantee named therein, to agree upon the price and other terms of the contract of sale, and thereupon to deliver the deed as an absolute conveyance, or if as a mortgage, then as security for some obligation of the principal only, and does not confer upon him ostensible authority to deliver the deed to the grantee as security for a personal loan or advance made to himself.</p>

<p>Husband and Wife — Agreement for Separation—Estates of Decedents — Family Allowance — Homestead. — A wife separated from her husband in accordance with the terms of a written agreement of separation is not a member of his family, and is not entitled, upon his death, to a family allowance out of his estate, under sections 1465, 1466, and 1468 of the Code of Civil Procedure, nor is she entitled to have a homestead set apart from his separate property, even for a limited period.</p> <p>Id. — Agreement for Separate Property — Effect of Separation —. Selection of Homestead. — An agreement between a husband and wife for a separation and division of the community property, by the terms of which each party relinquished all right to the share allotted and assigned to the other, the wife agreeing that the sum allotted to the husband should be his separate estate, and that as to it she “ relinquishes all right as his wife, in law or equity, or by descent, and each party shall have hereafter no claim upon the other for support or sustenance,” is fully authorized by sections 158 and 159 of the Civil Code, and is binding upon the parties, and deprives the wife of the right thereafter to select a homestead out of the husband’s separate property, either during his life or after his death.</p> <p>Id.—Probate Homestead.—No property can he set apart as a probate homestead which might not have been dedicated as such under the homestead act immediately preceding the death of the deceased.</p> <p>Id. — Setting aside Order for Probate Homestead — Action by Creditor of Estate — Pleading — Fraud upon Court. — A complaint, in an action by a creditor of the estate of a decedent to set aside an order setting apart a probate homestead to the defendant as the widow of a deceased, which charges a willful suppression of a material truth and the suggestion of a falsehood by the defendant, with intent to deceive and mislead the court, to the prejudice of the creditors of the estate, and avers that such suppression and suggestion had the intended effect, to the injury of the plaintiff, who was one of such creditors, states facts constituting fraud of which the plaintiff is entitled to complain.</p> <p>Id. — Suit by Creditor whose Claim is Unallowed — Inadequate Remedies. — A creditor of an estate whose claim against the estate has not been allowed, and who claims that an order setting apart a homestead to the widow of the deceased has been procured by fraud, is entitled to bring an action in equity to set aside and annul it upon the ground of fraud, and is not restricted to an appeal from the order, or to a motion to vacate the order, both of which are inadequate remedies.</p>

<p>Application of Payments — Creditor's Knowledge of Debtor’s Intent — Manifestation of Intent. — Where it appears that at the time payments were made by a debtor to his creditor, the debtor intended them to be applied upon a specific obligation, and the creditor “ well knew ” that the debtor so intended, nothing further is required to fix the application of the payments, and the mode by which the debtor manifested his intention in such case is immaterial.</p>

<p>New Trial — Use of Settled Statement—-Presumption upon Appeal. — A statement upon motion for a new trial which appears from the record upon appeal to have been duly presented, settled, and allowed will be presumed to have been used upon the hearing of the motion, where nothing to the contrary is shown; and it is immaterial that it does not appear by indorsement of the trial judge thereon that it was used on the hearing of the motion.</p> <p>Id. — Embodiment of Evidence in Statement — Certificate of Judge.’— Where the statement is certified by the trial judge to be correct, an objection upon appeal that the statement does not contain all the evidence is without merit.</p> <p>Id. — Omission of Signature to Statement — Acceptance of Service without Objection — Amendment. — Where it appears that the statement as presented to the plaintiff was indorsed “Defendant’s statement of the case,” and service thereof was accepted by the plaintiff without objection, upon objection by the plaintiff to the settlement of the statement, upon the ground that it was not signed by the moving party or his attorney, it is proper for the court to permit the attorney for the moving party to amend the statement by signing the same.</p> <p>Id. — Request for Settlement — Amendment after Time for Statement. — The action of the trial court in allowing a party moving for a new trial to insert in the proposed statement a request for its settlement and allowance is not erroneous, although the amendment was made after the time for filing the statement had expired.</p> <p>Nuisance — Obstruction of Natural Watercourse — Back-water —Liability of Municipal Corporation. — A city is not authorized to place any obstruction across the channel of a natural watercourse without taking the necessary precautions for the escape of the water flowing therein, and if the water is backed upon private property by means of an embankment erected in the grading of a street, and does not provide for the escape of the water by means of a permanent sewer, or some other channel of escape in lieu thereof, it is liable to an action by the owner of the property flooded to abate the obstruction as a nuisance and to recover the damages thereby sustained.</p> <p>Id. — Expert Evidence — Change in Condition of Settled Building. — In an action against the city for damage caused by such back-water, the question whether the plaster in plaintiff’s building, which had been caused to settle six or seven inches, would be in the same condition after as before the building settled, is not a proper subject for expert evidence.</p>

<p>Contest of Probate of Will — Appeal from Order Denying New Trial. — Where there has been a regular contest over the probate of a will, an appeal lies from an order denying a motion for a new trial of the contest.</p> <p>Appeal — Errors without Prejudice. — The judgment will not be reversed upon appeal because of errors occurring during the progress of the trial, where it appears that the judgment could not have been different had the errors not been committed.</p> <p>Will—Rights of Testator — Unreasonable Provisions. —The right of a testator to dispose of his estate depends neither on the justice of his prejudice nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.</p> <p>Id.—Evidence — Mental Capacity of Testator — Caprioiousness — Spiritualism. — Capricious and arbitrary likes and dislikes are not evidences of insanity, nor does evidence that a testatrix was a spiritualist constitute any proof that she was insane, especially where it does not appear that any views she may have had on the subject of spiritualism had anything to do with the making of her will.</p> <p>Id.—Trial of Contest —Errors without Prejudice.—The action of the trial court will not be reversed for alleged errors of law committed during the trial of the contest of a will, where it appears that no prejudice could have resulted to the appellant.</p> <p>Id. —Charge to Jury — Quotations from Decisions. —It is not error for the trial court, in charging the jury, to quote from decisions of courts in other cases, if the quotations correctly state the law.</p> <p>Id. — Charge as to Absence of Counter-evidence — Harmless Error. — In a contest over the probate of a will, where the execution of the will is fully and clearly proven, and there is no evidence to the contrary, a charge to the jury that there is no evidence tending to show that the will was not executed and attested according to law is not prejudicial error, even if it be construed as a charge upon a matter of fact.</p>

<p>Action upon Note—Defense — Equities between Original Parties — Vendor and Purchaser — Failure of Consideration.—In an action upon a promissory note between the original parties thereto, the note if/ subject to inquiry as to its consideration, and as to any equities existing between the parties which arose out of the execution of the note or are connected therewith; and it is a good defense to the note that it was given for the purchase-money of land, for which the plaintiff has failed to make a title in pursuance of his agreement.</p> <p>Id. — Contract of Sale—Note in Lieu of Cash Payment—Writings t.o be Construed Together. — A promissory note given by intending purchasers of land for the amount of the first installment of the purchase-money, and executed and accepted in lieu of a cash payment provided for in the written contract of sale, and at the same time with the execution of the agreement, is to be interpreted and regarded as a part of the agreement. All of .the writings executed at that,time Jiecojne.a .part., of the transaction, and are to be considered together as parts of one agreement.</p> <p>Id. — Collection of Installment of Purchase-money — Action after Last Installment is Due-—Merger—Dependent Obligation — 'X Tender of Conveyance.—Where, by the terms of a contract for the sale and conveyance of land, the purchase price is made payable in installments, and. a conveyance is. to. be made upon payment of the last installment, the -obligations as Jo-prior, installments will be regarded as independent, and the vendor may sue _forjt prior installment before the time lms.arrived for payment^f_the,last.installment without the execution or tender .of. conveyance; but if a recovery of aprior installment is not sought until the time for the payment or collection of the last installment has accrued, the right of action for the several installments is merged in the entire obligation, and the whole of the obligations of the parties to the agreement become dependent and concurrent, and the vendor cannot recover any part of the purchase-money unless he makes or tenders a conveyance of the premises.</p> <p>Id.—Waiver of Note as Independent Obligation.—-Where a note is given in lieu of an independent installment of purchase-money, the vendor, by deferring action thereon until after the time when the entire purchase-money has matured, waives the right to treat the note as an independent obligation, and cannot recover in the action if it is neither alleged nor found that he made any tender of a conveyance before suit.</p> <p>Id. — Presumption upon Appeal — Tender of Deed to One of Several Purchasers. —Where the record shows a tender of a conveyance to one of several purchasers not a party to the suit, but does not show to whom the deed conveyed the land, it will be presumed, in support of the judgment rendered in favor of the purchasers sued upon a note for purchase-money, that it was a conveyance in favor of the purchaser alone to whom the conveyance was tendered, and did not purport to convey the land to the defendants.</p>

The action was brought in 1877 to recover possession of the land described in the opinion of the court. The plaintiff claimed to have succeeded by mesne conveyanees to the right of possession.of Jacob 0. Beideman, who was in possession of the lot sued for prior to his death, which occurred in 1867.

<p>Estates of Decedents — Presentation of Claims — Contingent Claims — Uncertainty of Amount. —Since the amendment of 1880 to section 1493 of the Code of Civil Procedure, all contingent claims which are provable and payable at any time must be presented to the executor or administrator of the estate of a decedent within the time limited in the notice to creditors, or such claims are barred forever, although the amount of the claim cannot be ascertained within the ordinary period of administration.</p> <p>Id. —Covenant to Indemnify Lessees — Breach after Time for Presentation of Claim. — A covenant made by a lessor of real estate to indemnify the lessees, and save them harmless during the term of the lease, from one half of all the damages which they may sustain by the leaking or overflow of water upon their goods in the building, caused by any occupant of any part of the building other than that demised, must be presented as a contingent claim to the administrator of the deceased lessor within the time limited by notice to creditors, or any action for breach of it is forever barred, though there may be no breach thereof until more than two years after the expiration of the time so limited.</p>

<p>Assumpsit — Services Rendered as Notary and Stenographer — Pleading — Common Count — Certainty. — A complaint alleging an indebtedness in a certain sum for services rendered as a notary and stenographer in a specified case, at defendant’s special instance and request, and stating that said services were reasonably worth the sum specified, of which a specified portion was paid, leaving a certain balance due, for which plaintiff demands judgment, is sufficiently certain, and is not the subject of special demurrer for not stating the time or place of the services, or whether they were performed within two years, or whether the contract was oral or written, or express or implied, or for not stating the separate value of the services rendered as a notary and those rendered as a stenographer.</p> <p>Id.—Evidence — Special Contract — Conflict of Evidence — Reasonable Value'— Agency. — Where it appears in evidence that the services were rendered under a special contract, and conflict of testimony arises as to the amount agreed to be paid, proof of the reasonable value or market price of the services is admissible in evidence, as a general rule, as tending to show what price was agreed to be paid; but this principle does not apply where the contract was made by the defendant with an agent of the plaintiff, who agrees that he made the contract in terms as contended for by the defendant, and where the only dispute is as to whether the agent transcended the authority given him by his principal in making the contract.</p> <p>Id. — Authority of Agent — Employment of Servant — Price of Services— Disregard of Instructions—Liability of Principal.— Where an agent is authorized to make a contract for the employment of the services of a third person, the principal is responsible for the services performed under the contract actually made by his agent, according to the terms of such contract, though the agent may have disregarded the instructions of his principal, and exceeded the limitations placed upon his powers as to the terms of the contract by contracting to pay a greater price than was authorized.</p>

<p>Mechanics’ Liens —Guardian and Ward — Order of Court Essential to Authorize Buildino Contract. — The guardian of a minor cannot subject the estate and property of the ward to a mechanic’s lien arising from work done and materials furnished under a contract for the erection or repair of a building which is the property of the ward, without first obtaining an order of the court authorising the guardian to make the contract.</p> <p>Id.—Validity of Contract Essential to Validity of Lien.—A mechanic’s lien arises from work done and materials furnished under an obligatory contract, and if the contract be not binding, the lien necessarily fails.</p> <p>Id. — Contract of Infant. — An infant is not bound by his contract for the erection or repair of a building.</p>

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

<p>Innkeepers — Liability fob Property of Guests'—Statute of Limitations. — The time within which an action may be commenced against an innkeeper upon his liability as an insurer of the property of his guests is governed by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure, which provides that an action upon an obligation not founded upon an instrument in writing may be brought within two years.</p> <p>Id.—Construction of Code—“Liability Created by Statute ”— Continuation of Common Law. — The liability of an innkeeper for losses or injuries to the property of guests declared by section 1859 of the Civil Code is not a “liability created by statute,” within the meaning of subdivision 1 of section 338 of the Code of Civil Procedure, fixing a limitation of three years to “an action upon a liability created by statute. ” The rule stated in section 1859 of the Civil Code is simply declaratory of the common law, and is to be considered as a continuation thereof, and not as a new enactment.</p> <p>Id. — “Construction ” of the Common Law. — The word “construed,” as used in section 5 of the Civil Code, providing that the code sections, “so far as they are substantially the same as existing statutes or the com-</p> <p>mon law, must be construed as continuations thereof, and not as new enactments,” as applied to the common law means “regarded” or “considered,” and not “interpreted.” There is no such thing as construction of the common law.</p> <p>Id. — Pleading — Separate Counts in Complaint — General Demurrer. — A general demurrer to a whole complaint which contains two counts or two causes of action is properly sustained, where neither of the counts states a cause of action; and it is not necessary that the demurrer in such case should refer to either of the counts separately.</p>

<p>Negligence — Master and Servant—Carelessness of Engineer of Mining Company — Injury to Workman.—An engineer of a mining company, employed to operate an engine and hoisting-tackle, used upon and in connection with the main shaft of the mine, to hoist the rock and ,■débria therefrom, and to raise and lower the miners, is a fellow-servant with a workman in the mine; and the mining company is not liable for damages for injuries received by a workman, caused by the negligence of the engineer in hoisting him, in the absence of proof that the company neglected to use ordinary care in the selection of the engineer.</p> <p>Id. — Proximate Cause of Injury — Negligence of Fellow-servant — Defective Appliances — Misleading Instruction. —Where it clearly appears that the immediate and proximate cause of the injury to the workman was the negligence of the engineer, no recovery can be had by the injured party, even though the machinery and appliances were defective and an instruction, in such case, which ignores this rule, and grounds a recovery upon the existence of defective appliances, is misleading and erroneous.</p>

<p>Tax Sale—Notice to Redeem — Statement of Excessive Amount — Void Deed. —A notice to redeem from a tax sale, preliminary to a demand for a deed, pursuant to section 3785 of the Political Code, must state the amount then due, and if the amount therein stated is in excess of the amount then actually due, the time for redemption does not expire, and the tax deed given thereunder conveys no title.</p> <p>Id. — Fee fob Service of Notice. — The fee of three dollars allowed for service and proof of service of the notice to redeem is no part of the sum due at the date of the notice, and no part of such fee can be included in the notice of the sum due.</p> <p>Id.—Notice Limiting Redemption—Construction of Statute — Substantial Conformity Required. — The statutory notice limits the period of redemption, and until the prescribed notice is given, the redemptioner is not called upon to redeem, and may insist upon a strict construction of the statute. Although a substantial, rather than a literal, conformity to the statute may possibly be considered sufficient, its express requirements cannot be avoided on the ground that they serve no useful purpose. «</p> <p>Id. — Conclusiveness of Tax Deed — Acts Required of Applicant for Deed. —The conclusiveness of a tax deed, under section 3787 of the Political Code, as to the proceedings, from the assessment to the execution of the deed, other than those mentioned in section 3786 of the same code, relates only to acts and proceedings required to be done and had at the hands of the public officials intrusted with the various steps leading up to the execution of a tax deed, and not to acts required by the applicant for the deed, in respect to the statutory notice of redemption.</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>Contracts — Validity — Pdblic Policy — Restraint of Trade. — A contract in restraint of trade, otherwise than as expressly excepted in sections 1674 and 1675 of the Civil Code, is against public policy, and void by the terms of section 1673 of the same code.</p> <p>Id. — Business Combination of Powder Companies — Restriction óf Sale of Dynamite. — A contract for a term of three years, between several powder companies, providing that neither of the parties thereto shall make any shipment of dynamite powder to any part of the United States east of certain boundaries, and regulating the manufacture and sale of it by the parties in the territory west of those boundaries, under certain specified restrictions, and giving power to a standing committee to fix prices, regulate the manufacturing cost, and impose fines for violations of the contract, and providing for a termination of the contract if any other party or parties shall begin to manufacture and sell dynamite in competition" with the parties to the contract, is in restraint of trade, and void as against public policy.</p> <p>Id. — Contract Dealing with Patent Rights — Business Combination — Control of Manufacture and Sale. — A trader may sell a patent right, and protect his assignee by an agreement to refrain from any acts which would lessen its value, and neither to use the patent nor to interfere in any way with the profit to be derived from it; but several persons or companies cannot legally enter into a business combination to control the manufacture or sale or price of a staple of commerce, merely because some of the contracting parties have letters patent for certain grades of that staple.</p> <p>Id. — Patents for Making Dynamite — Combination to Control Dynamite Generally. — The fact that certain of the parties to a contract providing for the restriction of the sale of dynamite powder were the owners of letters patent for invention of methods or processes for making dynamite does not render the contract valid, where it is not confined to dynamite produced under the processes of the named patents, but refers to dynamite generally, and recognizes the probability of other persons, not having the patents named, entering into the business of making and selling the same commodity.</p> <p>Id. — Action for Accounting — Means of Promoting Illegal Contract. — No action will lie in favor of one of the parties to such contract to compel. the other parties to allow an examination of their books and papers, and for a judgment for such sum as may he found due, under a complaint alleging that the defendants have made false reports of the amount of dynamite sold, and have refused an examination of the books, etc., the provisions of the contract sought to he enforced by the action being the very means established by the parties to the contract for the purpose of making sure their illegal agreements.</p> <p>Id. — Action not Allowable upon Illegal Contract — Maxim.—No cause of action can arise out of an illegal contract; and the court will leave the parties to such contract exactly where it finds them, under the rule expressed in the maxim, Ex turyi causa non oritur actio.</p>

<p>Trade-marks — Injunction — False Representation by Plaintiff — Fraud upon Public. — A person coming into a court of equity for an injunction to restrain the use of a trade-mark must come with clean hands and without any lack of truth in his own case, and cannot enjoin a defendant from using a trade-mark which he himself is not, in equity or good conscience, entitled to use, and which contains a false representation calculated to deceive the public as to the manufacturer of the article and the place where it is manufactured.</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>Appeal from an order and decree of the Superior Court of Santa Cruz County settling the final account of an administrator, and making a final distribution.</p> <p>The facts are stated in the opinion of the court.</p>

Appeal by the “Williams heirs” from a judgment of the Superior Court of the city and county of San Francisco declaring Florence Blythe to be the sole heir of Thomas H. Blythe, deceased. The court below found that the real name of the deceased was Thomas H. Williams, that he had no heirs in the direct line except the plaintiff, Florence Blythe, and that the persons known as the “Williams heirs” were next of kin to him in the collateral line.

Application to the Supreme Court for a temporary stay of proceedings pending an appeal. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion.</p>

The action was brought against the defendant, as executor of the estate of Julia Kirsch, deceased, to recover the sum of $3,725, alleged to have been received by the defendant as such executor from the German Savings and Loan Society, “ to and for the use of and belonging to plaintiff,” which the defendant refused to pay to plaintiff upon demand made therefor.

<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>Husband and Wife — Note of Wife — Judgment — Satisfaction from. Separate Estate. — A promissory note of a wife, made after marriage, is a transaction by her respecting property, within the meaning of section 158 of the Civil Code, and a judgment thereon may properly be rendered against her, but can be "satisfied only out of her separate estate. The same is true of a judgment rendered against her after-marriage upon a note executed by her before marriage.</p> <p>Id,—Judgment as Contract of Married Woman.—A judgment is one form of a contract, and a married woman may suffer a judgment to be rendered against her, such judgment being only enforceable against her separate estate.</p> <p>Id. — Non-joinder of Husband — Waiver of Objection—Action upon Judgment. —If a wife suffers a judgment to be rendered against her in an action in which she is a sole defendant, without making any objection to the non-joinder of her husband, whether such judgment is rendered after a trial on the merits or by default, the objection is waived, and she is bound by the judgment to the extent of her separate estate, and cannot thereafter, in an action upon the judgment, make the objection of such non-joinder.</p> <p>Id.—Misnomer of Wife—Judgment in Maiden Name—Note Given before Marriage. — A judgment against a wife, in an action against, her alone, in her maiden name, upon a note given by her in such maiden name before marriage, is not void because of misnomer in describing her by her maiden name, instead of by the name of her husband, she being sufficiently identified by the name under which she was sued.</p> <p>Id.—Form of Judgment against Married Woman.—In an action upon such judgment, brought against the wife by her married name and her husband, the judgment should provide that it be enforced out of her separate estate.</p>

The principal facts are stated in the opinion of the court rendered upon the former appeal, and reported in 84 Cal. 250-253. Further facts are stated in the opinion of the court upon this appeal.

<p>Arbitration — Award—Judgment—Stay of Proceedings—Validity of Submission. — Where the agreement of submission under which an award is made is valid as a statutory submission, and is entered as an order of court, the court has no right to stay proceedings on the judgment entered upon the award, however erroneous the action of the arbitrators may have been; but if the agreement of submission is not valid under the statute, proceedings upon the judgment may be perpetually stayed by the court.</p> <p>Id. — Setting aside Common-law Award. — If an award, though not good under the statute, is valid as a common-law award, a motion to set it aside is properly denied. i</p> <p>Id. — Statutory Arbitration — Construction of Statute — Derogation of Common Law — Substantial Compliance.—In this slate, the rule that statutory proceedings in cases of arbitration, being in derogation of the common law, must be strictly construed has been abrogated by the code, and it is sufficient if there is a substantial compliance with the requirements of the statute.</p> <p>Id.—Submission Void under Statute — Invalidity of Judgment.— A submission of disputed matters to arbitration, under an agreement of submission which clearly shows an intention by the parties thereto to ignore nearly all of the material provisions of the statute relating to arbitrations, and which expressly repudiates any intention of following its requirements, or of availing themselves of the machinery of the court to assist the arbitrators, or correct any errors of the latter, is void as a statutory submission to arbitration, and an award thereon cannot be enforced as a judgment, although it may be good as a common-law award and as the basis of an action.</p> <p>Id. — Setting aside Void Judgment — Perpetual Stay of Execution. — A judgment entered by the clerk upon an award of,arbitrators which is not supported by a valid statutory agreement of submission to arbitration is absolutely void, and is, in legal effect, no judgment. It may be set aside by the court with or without a motion therefor, and execution thereof may be perpetually stayed.</p>

<p>Taxation — Assessment — Interest of Mortgagee — Description of Mortgaged Premises — Division into Blocks and Lots. — An assessment of taxes to a mortgagee on the mortgage interest in land, which describes the mortgaged land as divided by the owner into blocks and lots before the levy of the assessment, sufficiently describes the land, although the mortgage described the land as an entire tract in a specified section and township, where it appears that the blocks and lots assessed to the mortgagee constitute the identical land described in the mortgage, and no more, and that the assessment is in substantial conformity to the statute, and in proper form for the assessment of a mortgage interest in town lots.</p> <p>Id.—Recovery of Tax Paid by Mortgagor—Payment of Mortgage to Assignee — Action against Assignor Assessed. — Section 3627 of the Political Code, which gives the mortgagor of land who has paid the mortgage tax the right to deduct the amount of the tax from the mortgage at the time of payment, is permissive, and not mandatory or exclusive, in its terms, and does not prevent a mortgagor who has paid the mortgage debt without deduction of the tax to an assignee of the holder of the mortgage, to whom it was assessed, and who has been compelled to pay the mortgage tax to relieve his property from the lien, from bringing an action to recover the amount paid from the one to whom the mortgage was assessed, whose duty it was to pay it, and whose debt it is.</p> <p>Id, — Evidence — Validity of Road and School Tax — Assessment-book — Prima Facie Case. — The introduction in evidence of an assessment-book, which is by statute prima fade evidence, not only of the assessment and bf the amount of the unpaid taxes, but also of the fact that all the forms of law in relation to the assessment and levy have been complied with, is sufficient proof of the validity of a road tax and special school tax, which are required to be levied by the supervisors and to appear upon the assessment-book.</p> <p>Id. — Assessment to Owner of Mortgage — Assignment before Levy — Personal Liability of Assignor. — The owner of a mortgage is personally liable for the payment of a tax assessed upon it during his ownership of it, and his liability does not depend upon his continued * ownership of the mortgage until after the levy of the tax or until the time for payment arrives, and one who owned a mortgage on the first Monday of March, and to whom it was assessed, is not discharged by a mere assignment of the mortgage before the levy of the tax in October of the same year.</p> <p>Assumpsit for Money Paid — Implied Request. — Where a plaintiff, either by compulsion of law, or to relieve himself from liability, or to save himself from damage, has paid money, not officiously, which the defendant ought to have paid, a count in assumpsit for money paid will be supported. In such case the law implies a request on the part of the defendant and a promise to repay, and the plaintiff has the same right of action as if he had paid the money at the defendant’s express request.</p>

<p>Telegraph Company—Negligence in Transmitting Message—Pleading— Consideration of Contract. — A complaint against a telegraph company which alleges that the plaintiff’s assignors presented a message to the company, which the company undertook to forward, but that by reason of its gross negligence and carelessness the message was erroneously worded, whereby the senders of the telegram were damaged in a certain sum, but which fails to allege either a contract in writing to transmit the message, or a consideration for the company’s undertaking to transmit it, states no cause of action.</p> <p>Id. — Damages — Special Damage—Nominal Damages — Judgment by Default — Insufficient Complaint. — An averment in the complaint, that by reason of the negligenee and gross carelessness of the telegraph company in forwarding the message, the senders “ were prevented from buying and purchasing a lot of hops, consisting of 152 bales, averaging 180 pounds per bale, at 8J cents per pound, and amounting to $2,325.60,” and that by reason thereof the senders “ were damaged in the sum of $684 dollars,” is "insufficient to show any special damage, for want of averments showing that plaintiff suffered loss from not buying the hops at the named price, and cannot support a judgment for more than nominal damages. A judgment by default for the damages specified in the complaint will be reversed upon appeal.</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>Power of Attorney—Execution in Partnership Name—Insufficient Certificate of Notary—Evidence. —A certificate of a notary public in. an acknowledgment to a power of attorney executed in the name of a partnership, that it was executed “by the therein-named Abel Rey & Co., by Fernand Rey (personally known to me), a member of that firm,” as his voluntary act and that of his firm, is insufficient evidence to prove its execution by the firm, it not being made to appear that there was such a partnership, or who composed the firm, or that Fernand Rey was known to be a member of the firm.</p> <p>Id.—Power to Collect Judgment — Assignment not Included.—A power of attorney authorizing an agent, upon non-payment of a judgment mentioned therein, to “ commence, bring, and prosecute all such actions, suits, and other proceedings ” as he may think fit or be advised, and “for all and any of the purposes aforesaid, to use our names, and generally to act in and about the premises as fully and effectually as we ourselves could do if personally present,” does not authorize the attorney named therein to make an assignment of the judgment, or to substitute an assignee instead of the owners of the judgment for the purpose of suing thereon.</p>

Application to the Supreme Court for a writ of review to annul a judgment of the Superior Court of Lassen County. The judgment sought to be annulled was rendered upon appeal to the superior court from a judgment rendered in justice’s court in favor of the defendant in an action brought by H. L. Hoagland against Josiah Sherer. The appeal was taken by the plaintiff upon questions of law alone.

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

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

<p>Probate Sale of Realty—Collateral Attack—Substantial Compliance with Statute — Construction against Distributee. — A probate sale of real estate will not be declared void upon a collateral attack on the title acquired thereby, if the statutory provisions on the subject are substantially complied with; and in a doubtful case a court will not lean toward the attacking party when he is a mere volunteer, and when his grantor was a distributee in the final decree based upon the validity of the sale, and made no objection to it, and received without question the benefit of the money paid into the estate by the purchaser at the sale.</p> <p>Id. — Quieting Title—Fraud in Probate Sale — Pleading — Evidence. — When a cause of action to quiet title depends upon the proof of fraud in connection with a probate sale, the facts constituting the fraud must be averred in the complaint, else they cannot be proved.</p> <p>Id. — Probate Sale for Benefit of Administratrix — Complaint to Quiet Title — Inadmissible Evidence. — Where it appears, in an action to quiet title to land, that the land in contest originally belonged to the estate of a decedent, and that one of the defendants, as administratrix of the estate, sold the property at probate sale to another person, who, after the administration had closed, reconveyed it to her, but the complaint contains only the averments usually employed in an action to quiet title, and does not aver fraud, or the facts sought to be proved, evidence that the purchaser at the probate sale bought the property at the instance and for the use and benefit of the administratrix, and that the deed afterwards made by the purchaser to the administratrix was in pursuance of a preconcerted agreement between the two, by which the administratrix was to have the property, is properly excluded.</p> <p>Id.—Purchase by Discharged Administrator.—An administrator has a perfect right to purchase from one to whom a probate sale has been made, after he has ceased to be an administrator, and the administration has been closed, and there is nothing irregular or improper upon the face of such purchase.</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>