Volume 97 — California Reports

<p>Railboads — Wrongful Ejection oe Passengeb — Liability fob Damages. — If a passenger upon a railroad train has paid his fare, he cannot be ejected because he refuses to pay a second time, and if he is so ejected, the company will be liable to him in damages.</p> <p>Id. — Mistake of Conductos as to Non-payment of Ease.—It is no defense to an action by a passenger against a railroad company for a wrongful expulsion that its conductor was honestly mistaken in believing that the passenger had not paid his fare.</p> <p>Id. — Measubb of Damages — Injury to Peelings. — Although the meas, ure of damages in an ordinary case of wrongful expulsion of a passenger from a railroad train, without unnecessary violence or insult, and from which no bodily injury results, is the cost of a ticket from the point of expulsion to the passenger’s destination, together with an allowance for such damages as actually result from loss of time, yet when the expul. sion is accompanied by undue violence, or by insult and abuse, the jury is authorized to consider the injured feelings of the plaintiff, the indignity endured, his mental suffering, the humiliation and wounded pride which one in his condition in life and standing in the community would experience, and to award him compensatory damages therefor.</p> <p>Id. — Breach of Oabp.ieb’s Duty —Action in Tort — Punitive Damages. — The wrongful expelling of a passenger from a railroad train is a breach of duty on the part of the carrier, for which an action in tort will lie to recover damages; and in such action punitive as well as actual damages are recoverable, if the circumstances of the particular case warrant such recovery.</p> <p>Id. — Wanton Trespass — Province of Jury— Excessive Damages.— Where a trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship and oppression, the measure and amount of damages are matters for the jury alone; and the court will not disturb the verdict on tfte ground that the damages are excessive, unless the amount of damages is so disproportionate to the injury proved as to make it clear that the jury, in rendering the verdict, must have acted under the influence sf passion or prejudice.</p> <p>"Id, Unnecessary Violence and Insult to Passenger—Damages not Excessive. — A verdict of five hundred dollars damages for the wrongful expulsion of a passenger from a railroad train cannot be said to be excessive, where it appears from the evidence of the passenger that the conductor used unnecessary violence and insult, which caused mental suffering and humiliation upon the part of the passenger.</p>

<p>Street Assessment — Foreclosure of Lien — Order for Work — Pleading-Jurisdictional Facts —Order Duly Given and Made.— An allegation, in a complaint in an action to foreclose the lien of a street assessment, that the city council, deeming it necessary, “ duly gave and made its determination to order the work done, ” is a statement in legal effect that everything necessary to be done to give the order validity had been done, and the complaint need not set forth the steps required by the statute to give the city council jurisdiction to order the work done.</p> <p>Appeal — Diminution of Record — Substitution of Executors'—Certified Copy of Order. — An objection that the record upon appeal does not show that the executors of a deceased defendant were substituted in his place is obviated by the filing in this court of a certified copy of the order of substitution.</p>

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

<p>City of Los Angeles—Widening of Street—Invalid Ordinance — Unauthorized Acts of Commissioners — Condemnation of Land. — The ordinance of the city of Los Angeles, adopted July 8, 1889, for the widening of First Street in that city, did not confer upon the city any jurisdiction to make the improvement contemplated thereby, or authorize the commissioners appointed thereunder to determine the amount of money which the owners of land to be taken should accept for its conveyance to the city, and the owners cannot be compelled to accept that amount or make a conveyance of their land; and the ordinance cannot be used as the basis of any action for condemnation of the land sought to be included in the improvement</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>Partnership Settlement — Advances by One Partner for Purchase of Land. — In a settlement between partners, where one of the partners has advanced merchandise, paid for from his personal funds, for the purchase of a tract of land, which both parties treated as partnership land, the other partner should he charged with one half of the value of the merchandise as his share of the cost of the investment.</p> <p>Id. —Interest upon Partnership Indebtedness. —Where, by the terms of an agreement between the partners, it was expressly agreed that each party should satisfy one half of the interest charged upon all indebtedness due subsequent to the date of the agreement, it is proper to charge interest upon the amount due to a partnership creditor whose indebtedness was created subsequent to the agreement, with the express consent df the partner who objects to such charge.</p> <p>Id. — Office Expenses. — A partner is properly chargeable with his share of office expenses, where there is nothing in the agreement of the partners to the contrary.</p> <p>Findings — Embodiment of Evidence and Matters of Law. — The practice of drawing findings which consist of a detailed statement of the evidence and the respective claims of the parties to the action, together with the views of the court upon matters of law, is one not to be commended. If it is desirable in any case to place the evidence before the appellate court, a motion for a new trial should be made.</p>

The facts are stated in the opinion of the court, and in the former decisions of the cause, referred to in the present opinion.

<p>Banks — Sworn Statements — Condition Precedent to Suit — Construction of Statute, — Palpable Non-compliance. —The act of the legislature of April 1, 1876 (Stats. 1875-76, p. 729), requiring all banking corporations to publish and record semi-annual sworn statements of their capital stock actually paid in, and showing the actual condition of their assets and liabilities, and where the assets are situated, and prohibiting them, upon a failure to comply with its provisions, from maintaining or prosecuting any action or proceeding in any of the courts of this state until such statements are filed, is penal in its nature, and should receive a liberal interpretation in favor of the bank, but the court is not authorized to refuse to enforce the statute, where the failure to comply with its provisions is palpable and material.</p> <p>Id. — Form of Statements — Uniting Two Statements — Affidavit. — The statute contemplates two statements, but does not prescribe their form, and it is immaterial in what form the facts required are stated. It seems that the two may be incorporated in one, and that a defect in the form of the tabulated statement may be cured by a proper affidavit showing the requisite facts; but if neither the statements themselves nor the affidavit attached show the requisite facts, the statements are insufficient.</p> <p>Id. — Insufficient Statement of Capital and Assets. — A semi-annual statement of a hanking corporation, which mentions, under the head of liabilities, a sum of money as “ Capital,” and under the head of assets a sum specified as “Bills receivable, and other securities," and which does not show, by proper averments in the statement or in the affidavit annexed thereto, that the “ capital ” mentioned in the statement has been actually paid in money in good faith into the treasury of the bank, and that the assets there shown are of the value there stated, and are situated at a place or places named, is not a substantial compliance with the statute.</p> <p>Id.—Insufficient Affidavit by Managing Agent—Copy of Statement. — An affidavit by a managing agent of a bank, annexed to the semi-annual statements of the bank, which contains no intimation that any of the reports or accounts which are combined in the general statement were made under oath by any one, or that the general statement was the sworn statement of any officer or employee of the bank, and which does not contain a statement that he swears that he believes it to be a true or correct statement, but only that he swears that it is a “ true copy of the last statement received,” is not sufficient to render the statements “sworn statements,” as required by the statute.</p> <p>Id. — Foreign Banking Company—Inability to Comply with Statute — Exception — Power of Court. —The fact that a banking company doing business in this state has its principal place of business in a foreign country, and that the agent in this state could not personally know the truth of all matters required to be embodied in its semi-annual statements, is not sufficient to relieve it from such compliance with the statute as is within its power; and if it be said that it is not possible for it to comply substantially with the requirements of the statute, that would be conclusive against its right to maintain an action in the courts of this state. It is not within the power of the court to make an exception, where none is made in the statute.</p> <p>Id.—Personal Disability to Sue — Transaction Performed out of State — Legality of Business.—The penalty imposed by the act of April 1, 1876, for a failure of a banking company doing business in this state to comply with the statute, affects the company by creating a personal disability to maintain or prosecute any action in this state, and this disability is universal, and applies not only to those actions which are brought upon or concerning a banking transaction done or performed by it within this state, but also to any action brought in this state concerning any transaction done or performed out of the state, though the disability to sue in no wise affects the legality of the business transacted.</p> <p>Id.—Time of Condition of Bank — Substantial Compliance.—The statute contemplates that the statements should show the condition of the bank as of a time immediately or shortly preceding the publication of the statement; but where an exact compliance with the statute as .to the time of publication is impossible, it seems that a publication and recording as soon thereafter as the same could be reasonably done would be a substantial compliance, and relieve the corporation from the penalty imposed by the statute.</p>

<p>Negligence — Action against Railway Company — Evidence — Order fob Delivery of Papers — Impeachment — Inconsistent Statement. — In an action against a railway company for damages for injuries received by the plaintiff because of the negligence of the defendant, it is proper for the court to compel the defendant’s counsel to deliver to plaintiff’s counsel a bundle of papers or package containing certain written statements of employees of the defendant in relation to the facts surrounding the occurrence which caused the plaintiff’s injury, where it appears that the bundle was in the court-room, in the possession of the defendant’s counsel, and that plaintiff’s counsel had been allowed to examine it, and desired to use it as a foundation to impeach the testimony of one of the defendant’s employees, who was a witness for the defendant, and who had made one of the statements which was at variance with his testimony.</p> <p>Id,—Evidence — Physician as Witness — Visit for Report to Dependant—Prescribing for Person Injured.—It is proper for a physician to testify, in an action for damages for personal injuries, as to information acquired by him of the physical condition of the party injured, if he has visited such injured party upon the suggestion of the defendant, and stated to her that he came there solely and entirely at the request of the defendant to ascertain the nature and character of her injuries, for the purpose of reporting them to the defendant, and confines his conduct to such examination and report; yet where it appears that he continued to visit and prescribe for her, and that the information acquired by him was obtained while visiting her at her request and prescribing for her, such evidence, if objected to by her, is properly excluded.</p>

<p>Homestead — Separate Property of Husband — Rights of Wife. — The filing, by a husband, of a declaration of homestead upon his separate property vests the wife with an interest in the premises of which she cannot be divested by any act of her husband alone, or by any action taken against him alone.</p> <p>Id.—Mortgage Prior to Homestead Claim — Foreclosure—Parties — Decree Void against Wife—-Right of Possession.—Where a husband, after having mortgaged premises which were held by him as nis separate estate, filed a declaration of homestead thereon, his wife is thereby rendered a necessary party defendant to an action to foreclose the mortgage; and a judgment in an action against the husband alone for the foreclosure of the mortgage, directing the sale of the homestead premises, is void as against the wife, and a sale thereunder confers no rights of possession against her.</p> <p>Id.—Ejectment by Wife — Defense — Non-payment of Mortgage — Subrogation. — Where the grantee of the purchaser at such foreclosure sale took possession of the land after the sale, it is no defense to an ac. tion of ejectment by the wife of the mortgagor that the mortgagor had not paid the mortgage debt, nor that such grantee is subrogated to the rights of the mortgagee, if the mortgage conferred no right of possession upon the mortgagee prior to the expiration of the time for redemption from a valid foreclosure sale.</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>Justice’s Court — Motion to Set Aside Service of Summons — Action in Wrong County — Affidavits.—A justice of the peace has jurisdiction to entertain a motion of a defendant to set aside the service of a summons attempted to be made upon him in a county other than that in which the action was pending, in violation of the provisions of section 848 of the Code of Civil Procedure, and the motion is properly made upon affidavits showing the grounds of the motion.</p> <p>In.—Allegation of Complaint — Place of Performance of Contract — Inquiry as to Fact. — The fact that an unverified complaint filed in an action in a justice’s court alleges that the contract sued upon was to be performed by the defendant therein in the county in which such action was brought does not foreclose all inquiry as to the fact, or deprive the justice of jurisdiction to pass upon the truth of the allegation upon a motion to set aside the service of summons.</p> <p>Id. — Jurisdiction to Decide Motion — Certiorari. — Where a court has jurisdiction to hear and decide a motion before it, its decision thereon cannot be reversed or annulled upon certiorari, no matter whether the decision was right or wrong, upon the evidence before the court.</p> <p>Id. — Burden oe Prooe upon Dependant. —-The burden of proving an improper service of summons in an action in a justice’s court, upon amotion to set aside the service upon affidavits showing the ground of the motion, is on the defendant, and he is required to present a clear case. ,</p>

<p>Mechanics’ Liens — Payments to Contractor — Recitals in Receipts to Material-man — Plea of Estoppel — Findings. — Where the answer in an action to foreclose a mechanic’s lien for materials furnished in the alteration of a building pleaded by way of estoppel that the defendant, relying upon the recitals in receipted bills of the plaintiff, made the last payment to the contractor, where it appears that the plaintiffs furnished the receipted bills for the purpose of assisting the contractor in securing his certificate from the architect that the last payment was due, though in fact the money had not been paid to plaintiff, it is not error to fail to find upon the plea of estoppel, where it further appears that a large part of the contract price was payable under other certificates not depending upon the false recitals, and where the court has found that defendant in fact paid no money upon the certificate of the architect.</p> <p>Id.—Time of Completion of Building — Certificate of Architect — Finding against Evidence. — Where a contract for the alteration of a building provided for a payment to the contractor when all the work was complete and accepted by the architect, “ provided that at the making of any payment the said contractor shall produce receipted bills for all materials and labor furnished by him to the architect before any certificate is given for the said payment,” a certificate of the architect, issued in compliance therewith, that the building “is now finished as per contract,” and that the contractor “is now entitled to the last and final payment, ” is not evidence of the time of the completion of the building; and where it appears from the testimony of the contractor that the building was in fact completed some ten days before the date of the certificate, a finding that the building was completed upon the date of the certificate will be set aside, as not supported by the evidence.</p>

<p>Mutual Aid Association—Sick-benefits — Submission to Established Tribunal — Conclusiveness of Decision. — The voluntary submission, by a member of a benevolent and mutual aid association, of his claim against the association for “sick-benefits,” to a tribunal of the association established for the purpose of settling all matters of difference which might arise between the association and any of its members, growing out of a refusal upon the part of the association to pay benefits claimed, is an implied agreement upon his part to be bound by their judgment and award.</p> <p>Id.—Arbitration — Implied Agreement — Conclusiveness of Award. — Where a matter is submitted to arbitrators, it is not necessary that there should be any express agreement to abide by the award -when made, for the law implies an agreement from the very fact of submission to be bound by their judgment or award, in the absence of any fraud or mistake, or other cause which in equity would entitle him to avoid the same.</p>

<p>Assumpsit — Money Paid—Pleadinq — Uncertainty—Items of Account—Bill of Particulars. —A complaint alleging that the plaintiff, as a commission broker, advanced a specified sum of money for defendants, at their instance and request, in the purchase of produce, and that the defendants promised to pay the same to plaintiff, but although often requested so to do, neglected and still neglect to pay the same to the plaintiff, is neither uncertain nor ambiguous. The plaintiff need not set forth the items of an account alleged, but must, if demanded in writing, give a copy of the account to the adverse party, or be precluded from giving evidence thereof.</p> <p>Id. — Goods Sold — Commissions on Produce — Pleading — Implied Averment op Services.—An allegation in a complaint that the de. fendants are indebted to the plaintiff for the balance of an account for produce sold to the defendants, and for commissions on the purchase by-plaintiff for defendants of various articles of farm produce, implies that the plaintiff performed services for the defendants in purchasing the articles; and a finding that the defendants are indebted to the plaintiff for labor performed at their request is within the issues.</p> <p>Id.—Agency — Compensation for Services.—Commissions are the compensation to agents, factors, and other persons who manage the affairs of others, in recompense for their services.</p> <p>Findings — Failure to Find upon Issue — Evidence — Appeal.—The omission of the trial court to find upon an issue is not an error for which the judgment will be reversed, where it does not appear that evidence was introduced in relation to such issue.</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>

Mateo County. The facts are stated in the opinion of the court, and in the decision rendered upon the former appeal. (71 Cal. 169.)

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

Motion to set aside an order of the Supreme Court dismissing an appeal from a judgment of the Superior Court of Alameda County. 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>Appeal from an order of the Superior Court of Monterey County setting aside a judgment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of San Diego County dissolving an attachment.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>Husband and Wife — Action for Permanent Alimony — Desertion by Husband. — The action for permanent maintenance of a wife by the husband, without a divorce, under section 137 of the Civil Code, can only be based upon the ground of desertion by the husband; ancj proof of willful desertion by him, or that, by reason of his cruelty or threats of bodily harm, she was forced to leave the family dwelling-place, is essential to support the action.</p> <p>Id. — Wife must be without Fault — Defense to Action. — It is essential that the wife who seeks permanent alimony should be without fault on her own part; and the same grounds which would justify the husband in leaving her and living separate from her, or which would be a sufficient defense to any action by her for a divorce from him, will be a defense to this action; and if, in case of his desertion of her, her conduct after such desertion has been such as to forfeit her right to be received as his wife, she cannot maintain the action.</p> <p>Id. — Adultery of Wife — Demand for Reception and Support — Refusal not Desertion. — A wife who has left her husband by abandoning the family dwelling-house, and remained away for more than twenty-seven years, having lived in adultery, under an assumed contract marriage, with another man, with whom she lived until his death, has thereby forfeited all right to be recognized or received by the husband as his wife; and the failure of the husband thereafter to comply with a demand of the wife that he should receive and support her as his wife does not constitute desertion upon his part.</p> <p>Id.—Belief of Divorce Immaterial.—The fact that the wife, at the time she began to live in adultery, had been informed by the man with whom she was living, and believed, that her husband had procured a divorce from her, does not exonerate her from the consequences of her - act.</p> <p>Id. — Action for Alimonv Independent of Right of Divorce.—The right of a wife to maintain an action against her husband for support and maintenance is independent of her right to maintain an action for divorce, and does not depend upon his continued desertion of her for a year; but the action may be instituted at any time after his desertion of her, when he fails to support her.</p> <p>Id.—Judgment in Former Action — Res Adjudioata — Continued Desertion. — A judgment, in an action by a wife for permanent support and maintenance, that the facts alleged were insufficient to entitle her to the relief asked, is a bar to her right to maintain a subsequent similar action, in which no other act of desertion upon the part of the husband is alleged or claimed than that claimed in the prior action. Mere lapse of time since the act of desertion does not give her any additional cause of action, or increase the effect of the desertion for the purpose of entitling her to maintain such subsequent action.</p>

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

<p>Statutory Construction—Remedial Statutes — Rules oe Procedure. ■— Remedial statutes should be liberally construed in favor of the remedy, and rules of procedure are remedial in their nature.</p> <p>Id. — Change of Place of Trial — Construction of Code. — The provisions of section 396 of the Code of Civil Procedure, relating to change of the place of trial, should be liberally construed, and a substantial compliance with its terms is sufficient.</p> <p>Id. — Form of Demand. — A written demand for the change of place of trial of an action is not insufficient because the attorneys of the defendant, describing themselves as such, say that they demand, instead of saying that the defendant demands, the change.</p> <p>Id. — Action against Municipal Corporation — Construction of Constitution. — Section 16 of article XII. of the constitution, which provides for the place of trial of actions against corporations, relates exclusively to private corporations, and has no application to a suit against a public municipal corporation.</p> <p>Id. — Residence of Corporations. — It is the settled law of this state that a domestic trading corporation resides in the county where it has its principal place of business; and a municipal corporation, though not capable of having a residence in the restricted sense of the word, occupies a position in regard to residence as favorable as an ordinary trading corporation.</p> <p>Id. — Residence of Municipal Corporation — Change of Place of Trial. — A" municipal corporation is a resident of the county wherein its territory lies and all its constituents reside; and it has a right, when an action, which should have been brought against it in the county of its residence, is brought outside of the county, to demand a transfer of the cause to the county of its residence.</p>

<p>Constructive Fraud — Voluntary Gift to Son by Aged Mother — Exclusion of Other Children — Illiteracy. — The transfer by an aged mother, by way of gift, of all her estate to one of her sons, to the exclusion of all her other children, will not be set aside as constructively fraudulent, where it appears that the gift was made freely and voluntarily, and with full knowledge of all the facts and comprehension of the nature and effect of the transfer, and in the execution of a purpose long entertained by her, originating in a desire to show her appreciation of the son’s devotion and services, and without any undue influence or fraud upon his part, although, by reason of her illiteracy and want of experience and knowledge of business affairs, she was not able, unassisted, to take care of her property, and by reason thereof was liable to be deceived and imposed upon by designing persons in the transaction of her business.</p> <p>Id. — Trust Relation — Scrutiny of Equity — Right of Son to Receive Bounty from Mother. — Transactions between an aged mother and her son, in whom she reposes high trust and confidence, which result in the voluntary transfer to the son of all of her property, should be thoroughly sifted by a court of equity; but there is no rule which oreates a disability in the son to take a bounty under such circumstances, and where the deed is voluntarily given by the mother with her eyes open, and there is no imputation of undue influence, it will not be set aside merely upon the ground that an honorable man would not accept a gift which strips the mother of all of her property and leaves her dependent upon the charity of others.</p> <p>Id. •— Disposition of Whole Estate of Donor. — A person in possession of all of his faculties has a right to dispose of all of his property as he sees fit, and a voluntary disposition will not be set aside simply because the donor has divested himself of all of his property.</p> <p>Id. — Presumptive Invalidity of Transfer — Burden of Proof — Free Action of Donor. — Although transactions between an aged or diseased and enfeebled parent and one of several children, whereby the parent conveys his entire estate to such child, to the exclusion of other children, dependent upon his bounty, will be watched by courts of equity with the most scrutinizing jealousy, and will generally be held presumptively void upon a showing of confidential relations, without a showing by the donor of any actual imposition upon him, and will be set aside upon the discovery of the least fraud, and the burden is upon the donee to show that the gift was made freely and voluntarily, with full knowledge of all of the facts, and with perfect understanding of the effect of the transfer, yet where it is shown by the donee that the gift was freely and voluntarily made, and no imposition was practiced upon the donor, the conveyance will not be set aside.</p> <p>Id.—Moral Obligations not Enforceable in Equity.—Neither courts of equity nor law will enforce mere moral obligations; and a voluntary conveyance will not be set aside merely because of such moral obligations, however strongly they appeal to the sentiment of equity and justice.</p> <p>Id. — Want of Independent Advice — Great Age of Donor. — The fact that the mother did not have independent advice will not vitiate a free and voluntary gift to her son, made with a full understanding of all the facts and of the effect of the transfer, nor does the fact that she was of great age alone wasrrant the setting aside of the conveyance.</p>

<p>Vendor and Purchaser—■ Contract.oe Sale — Dependent Covenants — Failure to Execute Deed — Action by Purchaser — Pleading — Written Offer to Perform — Tender. — Where, by the terms of a contract for the sale of real estate, the vendor agreed to execute a conveyance of the property on or before a specified date, provided the purchasers should, on or before that date, pay the balance of the purchase price, the covenants are mutual and dependent, and the purchasers cannot sue for damages for failure of the vendor to make the conveyauce, unless the complaint alleges a full performance, or offer to perform, on their part; but it is sufficient to aver an offer in writing by the purchasers to pay the residue of the purchase-money, accompanied by a demand for a deed; and it is not incumbent upon the purchasers to allege or prove an actual production or tender of the money to the vendor, in order to enable them to maintain the action, if the vendor did not signify his acceptance of the offer.</p> <p>Id.—Contract for “Good and Perfect Title.” — To satisfy a contract for the conveyance of a “ good and perfect title,” the title must not only be good in point of fact, but it must also be apparently perfect when exhibited, — that is, free from any reasonable objection. It is not sufficient that it can be shown to be good as the result of an action instituted for the purpose of reforming defects existing in any deed which is necessary to make the chain of title complete.</p> <p>Id. — Apparent Defect in Title — Misnomer of Grantee. — Where the legal title to land is in a person bearing the name of K. F. Redmond, the execution of a deed of the land by one K. F. Redman does not transfer such a title to the vendee named therein as an intending purchaser from such vendee is bound to accept; and a subsequent execution by the said Redman of another deed to the same land to the same vendee, in which he recites that he derived title thereto under the name of K. F. Redmond, that his name was erroneously written Redmond in the conveyances to himself, and that he is the identical person to whom such conveyances were in fact made under the name of K. F. Redmond, does not, of itself, cure the apparent defect in the vendee’s title.</p> <p>Id. —-Names not Idem Sonans — Presumption against Identity. —The names “K. F. Redmond.” and “K. F. Redman ” are not idem sonans; but the presumption is, that they refer to different persons.</p> <p>Id. — Change op Name — Construction op Statute — Misnomer. — The statute of 1873-74, p. 345, which provides that “any person in whom the title to real estate is vested, who shall afterwards, from any cause, have his or her name changed, shall, in any conveyances of real estate so held, set forth the name in-which he or she derives title to said real estate,” was only intended for such cases as that of a married woman conveying land to which she acquired title before her marriage, or where a man whose name has been changed by law conveys property, the title to which was vested in him prior to such change of name; and it cannot be construed as authorizing one who has in fact received a conveyance in which his name has been erroneously stated to correct such mistake by reciting the fact in a subsequent deed.</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>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order .denying a new trial.</p> <p>‘The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Appeal — Amendment op Record — Unattthenticatbb Copy of Reporter’s Notes — Charge to Jury—Bill of Exceptions. — A paper filed in the supreme court as an attempted amendment or addition to the record upon appeal in a criminal action, which consists of what appears to be a certified copy of the long-hand transcript of the official reporter’s notes of the trial judge’s charge to the jury, filed with the clerk, hut never indorsed or authenticated by the judge, is no part of the record, and cannot be used to correct the copy of the charge which is embraced in the bill of exceptions settled and allowed by the judge.</p> <p>Id. — Correspondence Relating to Designation op Judge—Certificate of Governor’s Private Secretary — Bill of Exceptions. — A record upon appeal in a criminal action cannot be amended or added to by the filing of a paper consisting of copies, certified by the private secretary of the governor, of certain correspondence between the regular judge of the trial court and the county clerk on the one side, and the-governor on the other, relating to the designation of another judge to preside in the place of the regular judge for the trial of the defendant and others, whose prosecution had been commenced by the regular judge while district attorney. To make them part of the record, they should have been embodied in the hill of exceptions.</p> <p>Id.—Disqualification of Judge — Drawing Panel of Term Jurors.—> A superior judge, in ordering and superintending the drawing of a panel of jurors for a session of the court, does not thereby sit or act in a cause which subsequently comes before the jurors; and his act in drawing the jurors is not void merely because the prosecution of a defendant, whom the judge is disqualified from trying, is t"o come on for trial before such jurors and another judge.</p> <p>Id.—Challenge to Panel — Objection after Verdict.—If a panel of jurors drawn for a session of the superior court is incompetent to try a defendant, or the act of the judge in ordering the jurors drawn is void as to such defendant, the objection should be taken by a challenge to the panel, and cannot be raised for the first time after verdict.</p> <p>Id. — Action by Superior Judge of Another County — Presumption of Jurisdiction. —Where a judge of a superior court of a county other than that in which a defendant is tried presides at the trial of such defendant, and no objection to his authority is raised at the time he receives the defendant’s plea, it will be presumed that he is lawfully exercising jurisdiction; and an objection that the order of the governor designating him to preside in such court was not issued until two days after he received the defendant’s plea is without merit. It will be presumed in such case that he was presiding at the date of the plea by invitation of the regular judge of the county.</p> <p>Id. — Continuance — Cumulative Evidence — Discretion. — Although the rule that a trial will not be postponed ordinarily for the purpose of obtaining cumulative evidence is by no means absolute, and has no application to a case in which the only evidence at hand is that of an interested party, especially when he is defendant under an indictment for murder, yet a refusal of the court to grant a continuance, though not sustainable upon the ground that the evidence is cumulative, is not prejudicial error, where there is another ground upon which the ruling may have been made, and which is sufficient to sustain it without an abuse of discretion.</p> <p>Id.—Departure of Witness for China — Insufficient Showing for Continuance. —It is not an abuse of discretion for a trial judge to refuse to grant a defendant in a criminal prosecution a continuance, asked for upon his affidavit alleging that a material witness, who was a China-man, had sailed for China, promising to return, and that he was provided with papers securing him the right to return, where it does not appear that the defendant had direct knowledge of the facts entitling the witness to return and re-enter this country, and he neither stated the facts nor the source of his information, and it appeared that no effort was made to induce the witness to remain, although the defendant was informed of his intended departure, and knew that his trial was impending, and no steps were ever taken to secure his testimony by deposition.</p> <p>Id.—Impaneling Jury — Voir Dire — Leading Questions to Jurors — Discretion. — It is within the sound discretion of the court to allow leading questions to be asked of jurors upon their voir dire.</p> <p>Id.—Murder—Information—Previous Conviction—Pardon — Withdrawal of Charge by Consent of Defendant.—Where an information against a defendant for murder contained a charge of prior conviction of murder, and alleged that it had not been reversed, annulled, or set aside, but it appeared by the evidence that the offense had been pardoned, and the only thing done by the court in regard to it was to permit the prosecution, with the consent of the defendant, to withdraw that part of the charge, no error of the court is shown.</p> <p>Id. — Evidence — Good Disposition of Defendant — Cross-examination. _Evidence of the good disposition of a defendant charged with murder, other than evidence of his good reputation, may be properly excluded, but when it is received without objection, it is' proper, upon the cross-examination of witnesses testifying to the good disposition of the defendant, to ask them if they had heard of his prior conviction of murder, and of his having drawn his pistol on different persons.</p> <p>Id.—Challenge to Jurors—Implied Bias — Constitutional Law.— The law taking away the challenge to a juror for implied bias, on the ground that the juror has formed or expressed an unqualified opinion as to the guilt of the accused, is constitutional.</p>

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

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

<p>Appeal—Review of Discretion — Divorce—Judgment Dividing Community Property—Error not Amounting to Abuse of Discretion. — Although, ordinarily, the exercise of the discretionary power of the trial court will not be revised by the appellate court except upon the ground that such power has been abused, yet upon an appeal from a judgment dividing community property, in an action for a divorce upon the ground of adultery or extreme cruelty, section 148 of the Civil Code provides a different rule, and subjects the exercise of the discretion of the trial court in dividing the community property to revision upon appeal for any apparent degree of error, though not amounting to an abuse of discretion.</p> <p>Id. — Extreme Cruelty — Award of Community Property to Wife, — In an action by a wife against her husband for a divorce upon the ground of extreme cruelty, a judgment -granting a divorce to the wife, and dividing the community property equally between the spouses, should be modified upon appeal by awarding all the community property to the wife, where it appears that the husband is earning from forty to sixty dollars a month, while the wife and a minor daughter awarded to her are left to earn their own support, and the entire community property consists of a house and lot, worth but about two thousand dollars, together with the household and kitchen furniture.</p> <p>Id.—Presumption upon Appeal — Separate Property — Findings.— Where the record is silent as to separate property, it cannot be presumed upon appeal that either party has any separate property, and it must be presumed that the court found all the material facts not admitted by the pleadings.</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>Estates of Deceased Persons — Deposit of Funds by Administrator nk his Own Name—Liability for Loss — Good Faith. —An administrator who deposits funds of the estate in a bank in his own name, without any designation or indication of his representative capacity, is personally liable for the loss of the deposit, resulting from a failure of the bank, although he had no other funds or account with the bank, and made the deposit therein for the express purpose of keeping it separate from his individual funds, and the bank was of good credit and standing, and was believed by him to be solvent and safe. In such case the good faith or intention of the administrator in making the deposit in his own name is in no way involved.</p> <p>Id.—Construction of Code—Willful and Unnecessary Mingling of Trust Property. — The liability of the administrator in such a case is not limited nor changed by section 2236 of the Civil Code, which provides that “ a trustee who willfully and unnecessarily mingles the trust property with his own, so as to constitute himself in appearance its absolute owner, is liable for its safety in all events but that section is in accord with the general rule, and in effect declares it.</p>

<p>Attachment — Sale of Land by Attachment Debtor after Levy — Merger of Lien — Bond for Stay of Execution.—Where land is attached and held under the attachment until judgment in the case, but after the levy of the attachment, and prior to the judgment, the attachment debtor conveys the land to a third party, the attachment lien continues in force, and there is no judgment lien upon the property into which the attachment lien can merge, nor is the attachment lien released or discharged by an undertaking upon appeal to stay execution upon the judgment.</p> <p>Id.—Sale of Land under Attachment—Priority over Subsequent Mortgage by Grantee. — In such case, a sale of the land under execution upon the judgment in the attachment suit vests title in the execution purchaser, which will prevail over title derived by a purchaser at a foreclosure sale under a mortgage given by the grantee of the attachment debtor.</p> <p>Id.—Relation — Sheriff’s Deed of Attached Property.—A sheriff’s deed, executed in pursuance of an execution sale under a judgment in an attachment suit, takes effect from the date of the attachment, if the levy was such as to create a lien.</p>

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

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

<p>Criminal Law—Perjury—Evidence—Testimony in Cause where Perjury was Committed — Materiality. — Upon the trial of a defendant charged with perjury, evidence of the testimony which the witnesses gave at the trial in which it was alleged the perjury was committed, and the state of the cause in which the alleged false testimony was given, may be proven, in order to show the materiality of the latter; and where evidence of such previous testimony was given for the purpose of showing as a fact that the testimony had been given, and was expressly limited to that purpose, an objection to such evidence, upon the grounds that the defendant was not present when the testimony was given, and had no opportunity to examine or cross-examine the witnesses, that one of the witnesses was living within the jurisdiction, and should have been called himself, and thai the other witness was dead, and therefore his former testimony could not be introduced, is without merit.</p> <p>Id. — Testimony, when Material. — The testimony of a witness may be material when contradicting a part of the testimony given by another witness which is material, or if going to the credit or discredit of other witnesses.</p> <p>Id. — Right of Defendant to be Confronted with Witnesses. — The rule that a defendant in a criminal action must be confronted with his witnesses does not apply upon a prosecution for perjury, where all that is sought to be proven is the mere fact that certain testimony had been given upon the trial where the alleged perjury was committed, and the defendant is confronted with the witnesses who testify as to that fact.</p> <p>Id.—Testimony of Short-hand Repórter — Reading from Notes.— Where the official stenographic reporter of the court in which the tidal was had wherein the alleged perjury was committed was sworn as a witness upon the trial of the defendant for perjury, and testified that he had taken notes of the testimony in the former trial, and that they were correct, it was not error for the trial court to allow him to read the testimony from his notes, subject to cross-examination.</p> <p>Id. — Materiality of Palse Testimony — Question of Law — Inconsistent Instructions. — On a trial for perjury, the question of the materiality of the alleged false testimony is always one of law for the court, and not of fact for the jury; and it is error for the court, in instructing the jury, to leave the question to the jury in one part of the instructions, while in another part it is decided by the court and taken away from the jury.</p> <p>Id. — Province of Court and Jury. —While the jury has the naked power to decide all the questions arising on the general issue of not gu$ty, it only has the right to find the facts, and apply to them the law as given by the court.</p> <p>Id. —Instruction — Pacts Showing Materiality. —On a trial for perjury, it is the duty of the court to instruct the jury as to what facts would show material testimony.</p> <p>Id. — Immaterial Testimony upon Trial fob Mubdbr. —In a prosecution for perjury, where it appears that upon a trial for murder, in which the alleged false testimony was given, there was no conflict of testimony, and no issue as to the fact that the person murdered was found lying in front of her house, wounded, it is immaterial to know who carried her into the house, and evidence that one of the witnesses testified that he. and another person carried her into the house, it not appearing that he testified at that trial to any other fact material to the case, whereas the defendant testified that they did not carry her in, but that two China-men did, does not show that the defendant’s evidence was material, and an instruction to the jury, to the effect that such testimony was material, is erroneous.</p> <p>Id. — Time op Materiality. — The alleged false testimony must be shown to have been material at the time when it was given.</p> <p>Id. — Dying Declaration — Materiality op Discrediting Evidence — Instruction — Duty op Court.—Where a witness has testified to a dying declaration of the deceased as to who killed her, evidence of the defendant accused of perjury that she told him she did not know who shot her may be material, as tending in some degree to discredit the dying declaration; but the court should determine whether the declaration was a dying declaration before instructing as to the materiality of the alleged false testimony.</p> <p>Id. — Cross-examination — Witness Appearing upon Second Trial — Explanation op Delay. — Where a witness testified upon the trial of a defendant for perjury, alleged to have been committed during a murder trial, that he was present and saw the deceased shot, that he was not a witness upon the first trial of the person charged with the murder, and had told no one what he knew about the shooting until he was.picked up on the street during the second trial of such person, and taken to the district attorney’s office, it is error for the court to refuse to allow the defendant to ask the witness, on cross-examination, who took him to the district attorney’s office, for the purpose of showing how he came at so late a time to tell what he knew about the case.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County settling an executor’s annual account.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sales —Return of Goods — New' Contract — Sale for Purchaser’s Benefit — Action for Difference in Price — Recoupment of Damages. — Where goods ordered were sent to the purchaser with the privilege of returning anything not suitable to the purchaser’s market within ten days, and several months thereafter, without previous complaint, the purchaser requested permission to return part of the goods, which request was declined by the seller, with an offer to receive them to be handled by the seller for the purchaser at the best price obtainable, and they were returned to the seller pursuant to such offer, the offer and acceptance thereof constituted a new contract, which precluded the purchaser from thereafter recouping damages for the goods returned, on the ground that they were not the kind of goods ordered, and he is liable in an action by the seller for the difference between the original price of the goods and a less price at which they were sold for his benefit under the new contract.</p>

<p>Criminal Law — Assault to Commit Rape — Evidence — Testimony op Prosecutrix. — The testimony of the prosecutrix alone, upon the trial of a defendant charged with an assault with intent to commit rape, may be sufficient of itself to establish a prima facie ease against the defendant.</p> <p>Id.—Assault with Guilty Intent — Abandonment op Intentions before Consummation op Act. —Where the conduct of a defendant charged with an assault with intent to commit rape is shown to have been such, at the time of the alleged assault, as to indicate that his mind was bent upon using whatever force upon the female would be necessary to accomplish the consummation of his desires, the evidence is sufficient to support a conviction of the offense, and the fact that he abandoned his intentions before the consummation of the act, by reason of the approach of other parties, or by reason of the pains of a stricken conscience, will not purge him of the legal consequences of his criminal conduct.</p> <p>Id. •— Evidence — Prostration op Mind op Prosecutrix. — Upon a prosecution of a defendant charged with an assault with intent to commit rape, evidence showing that the prosecutrix remained in an unconscious or semi-conscious state some hours after she escaped from the defendant is admissible.</p> <p>Id. — Immediate Complaint by Prosecutrix — Statement as to Details — Hearsay. — The fact that the prosecutrix made immediate complaint is material and competent evidence, though her statements as to the details of the affair should be rejected as hearsay.</p>

<p>Sheriff — Custody of Prisoners — Working Prisoners under Order of Supervisors. — Sections 1613 and 1614 of the Penal Code, which provide that certain prisoners may be required to labor on the public works or ways in the county by an order of the board of supervisors, and the County Government Act (Laws 1891, p. 306, sec. 25, subd. 30), which confers authority upon the board of supervisors of a county “to. provide for the working of prisoners,” do not impose upon the sheriff any duties in addition to the general duties prescribed by section 1600' of the Penal Code and section 4176 of the Political Code, in relation to the custody of prisoners, and do not make it the duty of the sheriff to keep the prisoners in his immediate custody while they are at labor:</p> <p>Id. — Custody by Overseer of Work — Mandamus.—The authority conferred by the County Government Act (Laws 1891, p. 306, sec. 25, subd. 30) upon the board of supervisors of a county “ to provide for the-working of prisoners ” upon public works or ways, “under the direction of some responsible person,” includes the custody of the prisoners while-absent from the jail, by the “responsible person” under whose direction they are required to labor, and they may be taken out of the custody of the sheriff for such purpose; and upon a refusal by the sheriff to-deliver such prisoners to a person duly appointed overseer of them, he may be required to do so by a writ of mandate.</p>

<p>Contract of Employment—Action for Breach — Evidence—Effort to Obtain Different Employment. — In an action for damages for the breach, by the defendant, of a contract, by which the defendant agreed to employ the plaintiff for a term of two years, where it appears that the defendant, shortly after the expiration of the first year, without cause, discharged the plaintiff, and refused to accept further services, or to pay for the same, it is not error for the trial court to sustain an objection to a question asked of the defendant as to whether he had tried to get employment in a kind of business different from that for which he was employed by the defendant.</p> <p>Statute of Frauds — Written Contract—Letters and Telegrams.— A complete contract, binding under the statute of frauds, is constituted by letters and telegrams between the parties, if they show clearly what the contract is, and are so connected with each other that they may fairly be said to constitute one paper relating to the contract.</p>

Motion in the Supreme Court to recall a remittitur and 'reinstate an appeal. The facts are stated in the opinion of the court.

<p>Criminax. Law—Incest—Evidence—Previous Prostitution oe Daughter— Reception oe Earnings by Father. —Upon the trial of a defendant charged with having committed incest with his daughter, it is error for the court to permit the introduction of evidence by the prosecution tending to show that, prior to the commission of the crime charged, the daughter was living as a prostitute with her mother, and was giving to her father the earnings of her shame.</p>

<p>Constitutional Law — Gift of Public Moneys — Act fob Benefit of Sufferers from Floods. — The act of the legislature appropriating the sum of five thousand dollars for the benefit of the sufferers from the Tia Juana floods of the 22d of February, 1891, is clearly in violation of section 31 of article IV. of the constitution, which provides that the legislature shall have no power “to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual. ”</p> <p>Id.—Mandamus to Controller — Evidence Aliunde—Void Statute. — Although an act of the legislature directing the controller to draw his warrant in favor of an individual cannot be impeached by evidence aliunde, yet where facts appear upon the face of the act showing its invalidity, an application for a peremptory writ of mandate to the controller, requiring him to draw a warrant in pursuance of the provisions of the act, should be denied.</p>

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

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

<p>Petition to the Supreme Court to sign and seal a bill of exceptions. 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 San Diego County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Prescription — Adverse Possession — Division Fence — Payment of Taxes.—Where the division fence between coterminous owners oi land was so located as to place a strip of land belonging to one of the coterminous owners upon the side of the other coterminous owner, and the fence so remained for a period of more than five years, but the lots were assessed for taxes yearly to each' owner simply by reference i o their number, without mention of the fence, or reference thereto, and paid by each owner as thus assessed, the possession of the owner on whose site the strip of land was located was not adverse as to such strip, and he could not acquire a prescriptive title thereto for want of payment of all taxes assessed upon the strip of land during the five years of the alleged adverse possession.</p>

<p>Real Property — Constructive Possession •— Adverse Possession by Intruder — Color of Title. — Title to land draws to it the possession, and it remains with the owner of the legal title until he is divested of it by an actual adverse possession; and while he is in actual possession of a part of the premises, he has constructive possession of the remainder, and can be ousted by a mere intruder only to the extent of the actual occupation of such intruder; and no entry by an intruder under color of title to the whole tract can give him a constructive possession which would oust or supersede the constructive possession of the real owner.</p> <p>Id.—Public Lands — Possession by City — Judicial Notice.—The court will take judicial notice of the actual possession by a city of part of its public lands, and of its constructive possession of the remainder.</p> <p>Id. — Quieting Title — Defense of Prescription — Payment of Taxes. — In an' action to quiet title to land, where it appears that the land was originally a part of the pueblo lands of a city, under conveyances from which the defendant and its predecessors held the legal title of record, and that neither the plaintiff nor his predecessors in interest, who claimed a title by prescription to the whole tract by virtue of their actual possession of part of it, had paid the taxes assessed upon the land after April 1, 1878, but that defendant and its predecessors in interest, to whom they had been assessed, had continuously paid the same after said date, the defense of prescription cannot be sustained.</p> <p>Id. — Right of Corporation to Defend Action — Record of Copy of Articles — Evidence — Appeal — Objection for First Time — Waiver. — An objection that a corporation defendant in an action to quiet title to land had not proved a compliance with the provisions of section 299 of the Civil Code, requiring all corporations to file a certified copy of the copy of its articles of incorporation in every county in which it holds property, and that therefore it was not entitled to defend the action, cannot be taken for the first time upon appeal. The objection is waived, if not taken at the trial, or, at least, at the conclusion thereof.</p>

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

<p>Appeal from an order of the Superior Court refusing to set aside a homestead.</p> <p>The facts are stated in the opinion of the court.</p>

<p>County Printing — Publication of Delinquent Tax List —• County Government Act — Political Code — Repeal.—Subdivision 23 of section 25 of the County Government Act, which provides that the board of supervisors shall fix the price of all county advertising, and that each county officer shall procure such advertising at a price not greater than that so fixed, repealed so much of section 3~66 of the Political Code as required the board of supervisors to contract for the publication of the delinquent tax list by advertising for sealed proposals to do the same, and awarding the advertising of the list to the lowest bidder; and under such subdivision the tax collector is authorized to select any newspaper, in the county and procure the advertising of the list, provided it is done at the price fixed by the board of supervisors, and he cannot be compelled to publish it in any other way.</p> <p>Id. — Advertisement for Sealed Proposals — Mandamus — Tax Collector. — The fact that the tax collector advertised for sealed proposals for the publication of the delinquent tax list does not entitle the lowest bidder to a writ of mandate to compel him to advertise the list in the newspaper of such bidder.</p>

<p>Mortgage — Foreclosure for Unpaid Interest.—Where, by the terms of a mortgage, the mortgagor promised to pay the mortgage note “according to the terms and conditions thereof,” and that “in default of the payment of note by its terms,” the mortgagees or their assigns might foreclose, and the terms of the note were, that the interest should he payable annually, and the principal at the end of five years, the owners of the mortgage are entitled to foreclose it upon a default in the payment of the interest for the amount of interest due, and need not wait •until a default in the payment of the whole note, principal and interest.</p> <p>Id. —Foreclosure for Debt not Due — Default — Province of Court. — In such case, where the mortgagees alleged, in the complaint to foreclose the mortgage, that the mortgaged property could not he sold in portions, without injury to the parties, and prayed for a decree of foreclosure for the entire debt evidenced by the note, and the mortgagor failed to answer the complaint, whereupon his default was entered, the trial court must determine upon the hearing whether, in addition to the foreclosure for the interest due, to which plaintiffs are entitled, they are entitled to all the relief asked, under section 728 of the Code of Civil Procedure.</p>

The plaintiff sued to recover $2,036, a balance alleged to be due as the reasonable value of services rendered by him as foreman of defendant’s livery-stable. The .defendant admitted the service, but pleaded payment, and specially pleaded a counterclaim, amounting to $519, for the board and keeping of the plaintiff’s horse.

<p>Landlord and Tenant — Lease Subject to Mortgage—Rent—Payment in Advance — Action by Purchaser—Use and Occupation. — Where one of two co-owners of a tract of land mortgaged bis interest therein, and the mortgage had been recorded and a judgment foreclosing it had been entered prior to the leasing of the land by a third party, the lessee will be held to have accepted the lease with knowledge of the rights of the mortgagee under the mortgage and the judgment foreclosing it, and he is liable to the purchaser under the foreclosure sale for one half of the value of the use and occupation of the premises from the date of the purchase; and the fact that the lessee paid the rent in advance for the term is no defense to an action by the purchaser to recover bis share of the value of the use and occupation.</p> <p>Id. — Use by Tenant Holding over.—Where the lessee continues in possession of the premises after the expiration of the lease, he does not cease to be a tenant in possession, or acquire any right to use the property without paying for it, and he is liable to a purchaser under the foreclosure of a mortgage upon a half-interest in the premises, made prior to the lease, for one half of the value of the use and occupation of the premises for the period during which he held over.</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 Santa Barbara County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>¡street Assessment — Delay in Making Contract — Pleading — Cause for Delay. — A complaint in an action upon a street assessment which shows that the contract which is the basis of the assessment was not entered into within fifteen days after the first posting of the notice of the award to the contractor, as required by the act of March 18, 1885 (Stats. 1885, p. 147), but which contains no averment that the delay in entering into the contract was not caused by the neglect, failure, or refusal of the contractor, is fatally defective. ''</p> <p>Id.—Mandatory Statute — Time for Commencement and Completion of Work — Invalid Contract. — The provision of section 6 of the act of March 18, 1885 (Stats. 1885, p. 147), providing that the superintendent of streets shall fix the time for the commencement and completion of the work under all contracts entered into by him, is mandatory, and a contract not in accordance with its terms is invalid.</p> <p>Id.—Pleading — Pacts Showing Valid Contract.—The complaint in an action upon a street assessment must allege facts affirmatively showing that the contract was valid, and must show that the contract for the work done fixed the time for the commencement and completion of the work. It is not sufficient to allege generally that the contract entered into was one by which the contractor agreed to do the work named therein in accordance with specifications, which are not set out, and under the direction and to the satisfaction of the superintendent of streets, but it must affirmatively appear from the statement of the contract, whether it is set out in hcec verba or according to its legal effect, that it contained everything essential to make it a valid contract under the statute.</p>

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

<p>Counties — Creation of New County — Power of Legislature — Eights and Obligations of Old County.'— The legislature, except as restrained by constitutional limitations, may change the boundaries and extent of counties within the state, consolidate two or more into one, or divide and create new counties out of the territory of one or more previously existing ones. Upon the creation of a new county out of the territory of another, the legislature, in the absence of constitutional restrictions, may make such provision with reference to the public property and debts, or their division, as to it may seem just; and in the absence of any provision in reference thereto, the old county will he entitled to retain all public property and assets, except such public buildings as lie within the territory of the new, and will also be liable for all its prior obligations.</p> <p>Id. —Act Creating Orange County — Liability to Los Angeles County for Indebtedness.—Under section 7 of the act of the legislature of March 11, 1889, creating the county of Orange out of a portion of the county of Los Angeles, which provides that commissioners are to determine the indebtedness of the county of Los Angeles “ existing at the time this act takes effect,” the act itself declaring that it “shall take effect and be in force from and after the date of its passage and approval,” the county of Orange is liable to the county of Los Angeles only for the indebtedness found to be existing on March 11, 1889, and is not chargeable with moneys expended by the latter county after that date, and prior to the organization of the new county, though expended within the territory of the new county.</p> <p>Id. — Construction of Constitution — Apportionment oe Indebtedness — Division of Assets — Power of Legislature. — Section 3 of article XL of the constitution, which provides that “ every county which shall be enlarged or created from territory taken from any other county or counties shall be liable for a just proportion of the existing debts and liabilities of the county or counties from which such territory shall be taken,” relates only to the indebtedness of the county, and does not require any division of the assets or property of the old county, but the disposition of these matters is left to the determination of the legislature in each particular case; and it is competent for the legislature, in dividing the property and assets of the county, to fix upon any date which it chooses to select as the time for ascertaining the amount and value of such assets and property, as well as for determining, in connection therewith, the *(just proportion” of the debts and liabilities to be assumed by the new county.</p>

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

<p>Appeal from an order of the Superior Court of the city and county of San Francisco denying the petition of the public administrator for letters of administration upon an estate, and granting the petition of E. W. Gunther for said letters.</p> <p>The facts are stated in the opinion of the court.</p>

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

Hearing in the. Supreme Court upon a writ of certiorari to annul an order of the Superior Court of Los Angeles County appointing a receiver. The facts are stated in the opinion of the court.

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

<p>Guardian and Ward — Sale of Ward's Realty—Proceeding in Rem — Jurisdiction of Ward — Collateral Attack — Publication of Irregular Order to Show Cause. —A proceeding by a guardian for the sale of the ward’s estate is not adverse to the ward, bat is a proceeding in rent carried on by the ward, and for his benefit, of which the statute requires no notice to be served upon the ward. The presentation of the petition brings the ward into court, and gives the court jurisdiction to order a sale of his estate, which the ward cannot afterwards collaterally question, although the order to show canse, as published, irregularly fixed the hearing at an earlier date than that allowed by the statute.</p> <p>Id. —Defective Description of Realty to be Sold — Sale by Correct Description — Jurisdiction. — The fact that the petition of the guardian for the sale of the ward’s estate, and the order to show cause, contained a defective description of the real estate sought to he sold, did not affect the jurisdiction of the court to order a sale, or the validity of the sale by the correct description.</p> <p>Id. — Guardian’s Deed — Divestiture of Ward’s Title — Confirmation of Sale. ■— The title of a ward to real estate, sold under an order of sale, upon a petition therefor by bis guardian, is divested by the guardian’s deed, and not by the confirmation of the sale by the court.</p>

<p>Ejectment — Possession of Defendant — Failure of Proof. — In an action to recover possession of land, where the evidence fails to show that the defendant was in possession at the commencement of the action, the plaintiff is not entitled to judgment.</p> <p>Id. — Trespass of Defendants — Lack of Possession — Verdict against Evidence. — Where the evidence given in such action on the part of the plaintiff has reference to certain acts done by the defendants on the land a few days before the action was commenced, and tends rather to show a trespass, or a prevention of the plaintiff from going thereon, than an actual possession thereof by the defendants, and it was testified on behalf of the defendants that from that time until the commencement of the action neither of them was in possession, or exercised any control of the land, and there is no evidence of any subsequent act by either of them with reference to the land, or that either of them was in possession of the land at the time of the commencement of the action, or for several days prior thereto, a verdict in favor of the plaintiff will be set aside as not sustained by the evidence.</p> <p>Id. — Instruction — Presumption of Possession from Trespass. —An instruction to the jury that if they should find from the evidence that, a few days before the commencement of the action, the defendants were upon the premises, or entered thereon and drove the plaintiff and her agents and employees off the premises, and prevented them from plowing the premises, by threats or force, such acts were acts of possession on the part of the defendants, and that if there was no evidence to the contrary, they might presume and find that the defendants were in possession at the time of the commencement of the action, is erroneous. Possession of the defendants must he shown as a fact, and cannot be inferred from the mere commission of a trespass by defendants upon the possession of plaintiff.</p> <p>Id. — Presumption as to Continuance of Trespass. — There is no presumption of law that a trespass continues from the time of the commission until any suusequent date.</p>

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

<p>Malfeasance of Municipal Officers —Repeal of Statute — Municipal Corporation Act — Dismissal of Complaint.—The act of March 30, 1874 (Stats. 1873-74, p. 911), providing for a judgment of removal from office of municipal officers for malfeasance in office upon complaint of any person, and for a money judgment in favor of the complainant for one hundred dollars, was repealed by the inconsistent provision of the act of March 13, 1883 (Municipal Corporation Act, sec. 11; Stats. 1883, p. 266), providing for removal from office, and conviction of a misdemeanor to be punished as such; and a complaint by a private person under the former act, after the passage of the Municipal Corporation Act, must be dismissed.</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>Assumpsit — Monet Loaned to Hotel Corporation — Transfer of Cause of Action — Evidence — Deed from Stockholder to Co-stockholders. — In an action against a hotel corporation to recover a sum of money claimed to have been loaned to the corporation by the plaintiff, where the answer alleged as a defense that before the commencement of the action the plaintiff had transferred the demand to other parties, and was not the owner or holder thereof, and the evidence showed that the plaintiff had made the advances of money as a stockholder in the corporation defendant, a deed from the plaintiff to the alleged transferees, who were also stockholders in the corporation, transferring all of the plaintiff’s interest in all the property belonging to the corporation, “including all furniture and fixtures, insurance, papers, stock, hooks of account, bills receivable, accounts, claims, and advances, business, and good-will,” is properly admitted in evidence, upon the part of the defendant, as tending to show a sale and transfer by the plaintiff to the transferees therein named of the demand against the corporation, which is the basis of the action.</p> <p>Id. — Parol Evidence to Explain Deed. — The hotel corporation not being a party to the deed from the plaintiff to a portion of the remaining stockholders, and not having any shares of stock to he sold, or any claims for money advanced, notwithstanding the description in the deed is of property belonging to the hotel company, including stock and moneys advanced, it is competent to show by parol evidence that the plaintiff had made advances of money as a stockholder to the corporation, which were the subject of the transfer, and thus explain the language of the contract by reference to the circumstances under which it was made.</p> <p>Id. — Construction of Written Instrument. —■ Courts cannot adopt a construction of any legal instrument which shall do violence to the use of language or to the rules of law.</p>

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

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

<p>Appeal from 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>

The facts are stated in the opinion of the court. The following are the instructions to the jury referred to in the opinion: — Instructions aslced by plaintiff and given:—■ “ 1.

<p>Appeal from an order of the Superior Court of Los Angeles County denying a motion to dismiss an action, and from an order granting a motion for an entry of j udgment nunc pro tunc.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of Sacramento County denying an application for letters of administration, and granting letters to the public administrator.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>Taxes — Sale of Real Pbopebty—Notice of Redemption. —Where real property was sold for taxes, and the time for redemption had expired prior to the amendment in 1885 of section 3785 of the Political Code, requiring notice of redemption to be given, no such notice was necessary to the validity of a tax deed.</p> <p>Id. —Bxpibation of Time fob Redemption — Finding. —In an action to recover possession of land, where the defendant claimed title under a tax deed, a finding by the court that the property was sold by the tax collector to the defendant in the proceedings for the collection of delinquent taxes for the year 1883, and that a deed was executed therefor on July 7, 1885, sufficiently shows by unavoidable inference that the sale could not have been later than March, 1884, and that the year allowed for redemption after the sale had expired, before the execution of the tax deed, and before the taking effect of the amendment to the Political Code requiring notice of redemption.</p> <p>Id. — Proof of Publication — Effect of Tax Deed. —A tax deed is conclusive evidence that proper proof was made of publication by filing with the clerk and recorder of the county the affidavit required by section 3769 of the Political Code.</p>

<p>Criminal Law — Seduction under Promise of Marriage — Evidence — Chaste Character of Proseoutrix — Qualification of Witness. — On the trial of a defendant charged with the seduction of an unmarried fe nale of previous chaste character, under promise of marriage, the testimony of a witness for the prosecution that he had known the prosecutrix for one or twoyears, and hadroomed in thehouse where shewas employed, and had never known of any improper conduct on her part, is not objectionable upon the ground that it did not appear that the witness had had opportunities for observation sufficient to qualify him to testify.</p> <p>Id. — Competency of Evidence. —Testimony of a witness for the prosecution that the prosecutrix had lived with her for two years, and during all that time was a woman of good character and good repute, is admissible as tending to prove that the prosecutrix was a woman of previous chaste character.</p> <p>Id. — Good Faith in Making Promise. — The offense of the seduction of an unmarried female of previous chaste character, under promise of marriage, as defined by section 268 of the Penal Code, is complete, if, under and by means of the promise of marriage, the female is induced to surrender her chastity to the promisor, and he then refuses to fulfill his promise; and it is no defense to a prosecution therefor that when he made the promise he intended in good faith to carry it out.</p> <p>Id. — Cross-examination — Impeachment of Defendant — Contradictory Affidavit — Reference to Inadmissible Affidavit. — The trial court properly permitted the prosecution to read in evidence, upon cross-examination of the defendant, an affidavit made and used by him upon a motion for a new trial in a civil action instituted against him by the prosecutrix, where it appeared that the affidavit tended to contradict the statements made upon his examination in chief, and properly refused to allow the defendant to read certain affidavits therein referred to, which were not admissible for any purpose.</p> <p>Id. — Instructions — Matters of Fact — Previous Chaste Character.— An instruction asked for by the defendant, to the effect that if the jury should find that prior to the alleged seduction the proseoutrix committed lewd and immodest acts, and did not deport herself as a virtuous woman should, that, in that event, she was not, at the time of the alleged seduction, a female of previous chaste character, even if it should appear that she did not actually have illicit sexual intercourse, is an instruction upon matters of fact, and is properly refused by the court.</p> <p>Id. — Request fob Instruction Already Given. — The refusal of the court to give an instruction to the jury, asked for in a criminal prosecution, is not error, where the matter contained therein is clearly and fully stated in another instruction already given.</p>

<p>Intervention — Final Judgment.—An intervention cannot he allowed after final judgment.</p> <p>Id. — Mandamus — State Warrant — Payment — Denial of Motion for Intervention. •— Where, after judgment in favor of the petitioners for a writ of mandate to compel the state controller to draw a warrant upon the state treasurer, the controller obeyed the writ, and the warrant issued by him was paid, a motion by a third party to set aside the judgment, and for leave to file a complaint of intervention, is properly denied.</p>

<p>Estates of Deceased Persons — Mortgage by Administrator — Recital of Order of Court. — A mortgage of property of a decedent, executed by the administrator of the estate pursuant to an order of the superior court, duly made, under the provisions of sections 1577 and 1578 of the Code of Civil Procedure, which, after referring to the order of the superior court authorizing its execution, recites that “ the mortgagor, pursuant to the order last aforesaid, mortgages to the mortgagee, ” sufficiently shows that the mortgage was executed by the mortgagor in his character as administrator, in pursuance of law, and the order of the superior court directing its execution.</p> <p>Id. — Order to Show Cause — Publication — Service upon Minor Heirs. ■—An order to show cause why the real estate of a decedent should not be mortgaged, made under the provisions of sections 1577 and 1578 of the Code of Civil Procedure, and which was duly published as provided in subdivision 3 of section 1578 of the Code of Civil Procedure, is not insufficient because it does not direct or require personal service upon the minor heirs.</p> <p>Id.—Guardian ad Litem — Jurisdiction — Irregularity — Validity of Mortgage. — In proceedings for the mortgaging of property of a decedent, by the administrator of the estate, under sections 1577 and 1578 of the Code of Civil Procedure, the appointment of a guardian ad litem of minor heirs is not required. The court which has jurisdiction to administer the estate has jurisdiction to authorize the mortgage; and the non-appointment of a guardian ad litem is, at most, only an irregularity, which, by the terms of the code, cannot impair or invalidate the proceedings, or the mortgage given in pursuance thereof.</p>

<p>Criminal Law — Robbery — Alibi — Identity of Robber — Conflict of Evidence—-Effect of Verdict.—In a criminal prosecution for robbery, where there was positive evidence before the jury on the part of several witnesses that the defendant was the individual who committed the offense charged, a verdict of guilty must be deemed to have determined any conflict of evidence concerning the defense of alibi, or as to the identity of the robber with the person accused.</p> <p>Id. — Neglect to Request Instruction Omitted. — The failure of the court, in a criminal prosecution, to instruct the jury upon any proposition deemed essential by the defendant is not error, where no request is made for such instruction.</p> <p>Id.—New Trial—Newly Discovered Evidence — Counter-affidavits — Discretion. — It is not an abuse of discretion for the trial court to deny a motion for a new trial in a criminal prosecution, made upon the ground of newly discovered evidence, where the affidavits offered in support thereof are fully contradicted by counter-affidavits on the part of the prosecution.</p> <p>Id. — Denial of New Trial — Additional Affidavit of New Evidence. — Where the court has already denied a motion for a new trial, a motion of the defendant to he allowed to file an additional affidavit in support of his motion, upon the ground of newly discovered evidence, is properly refused, especially where no affidavit of the witness by whom the facts could be shown was introduced.</p>

<p>New Trial—-Notice of Intention-—Statement — Record upon Appeal, — The insertion, in a record upon appeal from a judgment and an order denying a new trial, of_ the appellant’s notice of intention to move for a new trial, which was not inserted in the statement, is improper, and forms no part of the record.</p> <p>Id. — Specifications of Error — Disregard of Statement. — A statement on motion for a new trial which contains no specifications of error whatever should be disregarded on the hearing of the motion.</p> <p>Street-oars — Deposit of Pare — Reasonable Rule—Non-compliance with Demand — Eviction of Passenger. —(A rule of a street-car com-V. pany requiring passengers to deposit their fare upon entering the car is reasonable, and the refusal of a passenger to comply with the rule after demand therefor warrants the company in evicting him from the car, using no more force than is necessary for that purpose. \</p>

<p>Water Eights — Appropriation — Eiparian Eights. — An appropriator of water on the public lands does not, by becoming a riparian owner, lose his right to acquire more of the water by a subsequent appropriation, or enlargement of his ditch, but he may take all the water of the stream if he is the first or prior appropriator, and there is no other riparian owner at the time of the appropriation or enlargement of the ditch, and those who subsequent!}' became riparian owners acquire no rights as against such prior appropriator.</p>

<p>Fire Insurance—Harvesting-machine — Construction of Policy.— A policy of insurance against fire, upon a harvesting-machine, which ran in terms for a period of one year, but which contained a clause in the body of the policy, “ all while owned by assured, and known as the Harvest King harvesting machine and outfit, and operating in the grain-fields, and in transit from place to place, in connection with harvesting in Fresno County,” must be construed as meaning that the insurance company would be responsible if the property should be destroyed by fire at any time during the year, while operating in the grain-fields, or in transit from place to place in connection with harvesting, and does not cover a loss by fire occurring after the harvesting season was over, and after the machine had been taken to the home of the insured to he put in his shed.</p>

<p>Levee District — Petition for Formation. — A petition for the formation ol a levee district under the act of March 10, 1891 (Stats. 1891, p. 30), need be signed only by a majority of freeholders owning lands along the stream within the proposed district, and not by a majority of all the freeholders owning lands subject to overflow along the entire course of the stream, whether within the district or not.</p> <p>Id. — Publication of Petition — Description of Boundaries — Reference to Annexed Plat not Published. — Where a petition for the formation of a levy district under such act fully stated the boundaries of the proposed district with minute detail, and the body of the petition was published as required by the act, the publication is not rendered fatally defective by failure to publish a plat of the boundaries, merely because the petition contained a provision that “ the said proposed boundaries of said district are shown approximately by the plat thereof hereunto annexed.”</p>

<p>Motion to dismiss an appeal from an order of the Superior Court of Tuolumne County striking out a statement on motion for a new trial, and motion to strike out a portion of the transcript upon appeal.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Attachment — Seizure of Goods..of Third Persons — Trespass—Demand. — Where, prior to the amendment of 1891 to sections 549 and 689 of the Code of Civil Procedure, a sheriff, under a writ of attachment against one person, seized the goods of another, which, at the time of seizure, -were in ,the custody either of the owner or of a person other than the defendant in the writ, he was a trespasser ab initio, and no previous demand yas necessary to authorize a recovery for such trespass.</p>

Motion in the Supreme Court for a writ of supersedeas pending an appeal. The facts are stated in the opinion of the court.

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

<p>Vendor and Purchaser— Contract of Sale — Specific Performance — Power of Court to Discharge Encumbrances. —1£ a contract for the sale of land provides that the conveyance shall transfer the title free of encumbrances, the court, in an action for specific performance brought by the purchaser, can direct the application of the purchase-money to the satisfaction of those encumbrances, and for that purpose can cause the money to be brought into court, and disbursed under its direction. If the holders of the encumbrances are before the court, they will be bound by the direction of the court, and their claims will be satisfied by a satisfaction of the judgment; and even if they are not before the court, where the amount of the encumbrances is ascertained, and the court finds that the liens can be discharged by mere payment, it can direct that the payment he made directly to the holders of the encumbrances, instead of to the vendor, who cannot object, so long as he incurs no liability, and is freed from any personal claim for the amount of the encumbrances.</p> <p>Id. — Option for Return of Purchase-money — Encumbered Title — Rights of Purchaser. —An agreement for the sale and conveyance of land by the owner thereof, which acknowledged receipt of part of the purchase-money, and by the terms of which the balance of the purchase-money was to be paid on the delivery of a deed, free from encumbrances, within sixty days thereafter, upon receipt of which payment the vendor was to execute a good and sufficient deed conveying the title thereto, and that in ease of failure to make the deed the money paid was to he returned, does not give the vendor the option of conveying the lot or not, as he might choose, but gives the purchaser the right to an enforcement of the vendor’s unconditional agreement to make a conveyance of the land, the provision for the return of the money in the case of failure to execute the deed being for the benefit of the purchaser alone; nor can the vendor object to the enforcement of the contract, that there were encumbrances upon the land or defects in the title.</p> <p>Id. —Acknowledgment of Cash Received — Order for Less Sum — Application in Discharge of Encumbrances. —The acceptance, by the vendor, of an order payable at a future time, when the deed was to he delivered, in a less sum of money than that acknowledged in the agree- • ment as received, in lieu of the cash payment acknowledged, will be regarded as a contemporaneous agreement between the parties in modification of the price to he received for the conveyance, and is not inconsistent with or contradictory of the acknowledgment in the agreement; nor can the vendor object to the application of the money to be obtained upon such order in satisfaction of liens created by him upon the land, which was agreed to be conveyed free of encumbrance.</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>Foreclosure of Mortgage — Parties — Amended Complaint — Deficiency Judgment — Partnership. —In an action to foreclose a mortgage, where a partnership was sued originally as one of the parties defendant, but in an amended complaint the members of such partnership were named individually as defendants, and the partnership was not named as defendant, a deficiency judgment against the partnership is erroneous. The fact that the original complaint and summons were served upon the partnership is immaterial.</p> <p>Pleading — Amended Complaint Supersedes Original.—When an amended complaint is filed and served, the original ceases to perform any function as a pleading.</p>

<p>Negligence — Keeping of Vicious Dog — Pleading — Contkibutoby Negligence. —A complaint in an action to recover damages, alleged to have been suffered by the plaintiff from the bite of a vicious dog owned and kept by the defendant, in consequence of the negligent manner in which the defendant kept the dog, need not negative contributory negligence on the part of the plaintiff.</p> <p>Id. — Conflicting Evidence — Appeal. — Where the evidence in such actions is conflicting, both as to the negligence of the defendant and as to the contributory negligence of the plaintiff, a verdict in favor of the plaintiff upon both these issues will not be disturbed upon appeal.</p> <p>Instructions — Appeal — Argument of Counsel — General Objection. '— Where the court gave oral instructions, intended to cover the whole ground of instructions asked by both parties, so far as possible, and which, though not very perspicuous, appear to contain no error prejudicial to appellant, an objection, urged in the points and authorities of counsel for appellant, merely stating “that instructions asked by appellant were proper, and that they were not covered by the court’s charge to the jury,” is too general. The proper instructions said to have been asked, and not substantially given, should have been specified by the counsel.</p>

<p>New Trial — Notice of Decision — Service — Notice of Intention. — Where the defendant in an action in which he filed a cross-complaint making the plaintiff and his alleged assignors parties defendants served a notice of the decision of the court in his favor upon the attorneys for the plaintiff and defendants to the cross-complaint, directed “to the plaintiff” and the “ attorneys of record, ” and one of the attorneys named accepted service thereof as “ attorney for plaintiff and defendants to cross-complaint, ” the notice must be treated as a notice to and accepted by all of the losing parties, and a notice of intention to move for a new trial, served and filed by the defendants in the cross-complaint after the expiration of ten days from the service of the notice of decision, is not served or filed in time.</p>

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

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

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

<p>Criminal Law — Sentence — Imprisonment por Non-payment op Fine — Powers of Inferior Courts — Penal Code. — Section 1446 of the Penal Code, relating to proceedings in justices’ and police courts, and providing that a judgment that a defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, in the proportion of one day’s imprisonment for every dollar of the fine, was not affected by the amendment of March 19, 1891 (Stats. 1891, p. 52), to section 1205 of the same code, which is a limitation upon the powers of the superior court, and provides that the judgment of imprisonment shall not exceed one day for every two dollars of the fine, nor extend in any case beyond the term for which the defendant might be imprisoned.</p> <p>Id.—Different Degrees of Punishment — Validity of Statute. — The fact that criminals may be subjected to different degrees of punishment for the same offense in different courts, in the exercise of a limited discretion, does not affect the validity of the law.</p> <p>Id. — Sentence of Police Court — Habeas Corpus. — A defendant convicted in the police court of a crime for which the punishment by imprisonment could not exceed fifty days, and sentenced to pay a fine of one hundred dollars, at the rate of one day for each dollar of the fine remaining unpaid, is not entitled to release upon habeas corpus.</p>

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

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

<p>Criminal Law—Evidence — Cross-examination of Prosecuting Witness — Employment of Associate Counsel. — In a criminal prosecution, it is error for the court to refuse to allow the counsel for the defendant to ask the prosecuting witness, upon cross-examination, whether he had employed an attorney, who was acting as associate counsel for the prosecution.</p> <p>Id. — Reputation of Defendant — Deposition — Objection to Evidence — Record upon Appeal. — Where, at the taking of a deposition for the defendant, a question was asked as to the general reputation of the defendant “for peace and quiet, and as a law-abiding citizen,” and no objection to the question appears to have been made at the taking of the deposition, but an objection to such question, as not being in statutory - form, and as incompetent, was sustained at the trial, the ruling will not be reversed upon appeal, where the record is silent as to where the deposition was taken, and as to whether in the presence or absence of counsel for the people.</p> <p>Id. •— Appeal — Presumption — Showing of Error. — Error will not be presumed upon an appeal, but must be affirmatively shown by the record.</p>

<p>New Trial — Statement — Specifications of Insufficiency of Evidence — Appeal. — Specifications of insufficiency of the evidence to justify a verdict in a statement upon motion for a new trial must he disregarded upon appeal from an order refusing the new trial, where the evidence in support thereof is not to be found in the record.</p> <p>Id.—Error Assigned upon Instructions — Insufficient Record upon Appeal. — Alleged error in instructions to the jury will not be considered, where the record upon appeal fails to set forth the testimony upon which they are predicated, and where it appears from the record that other instructions were given which are not embodied therein.</p> <p>Id. —Presumption as to Additional Instruction. — It must be presumed upon appeal, where additional instructions were given which are not embodied in the record, that under such instructions, taken with those given and refused, the law of the case was properly presented to the jury.</p> <p>Former Adjudication — Mortgage by Deed Absolute. — In an action to recover an excess of price received by defendant from the sale of property transferred by absolute deed from plaintiff to defendant, which it was alleged was given as security for indebtedness, a former judgment between the same parties in an action to set aside the deed, the gist of which was as to whether the conveyance was absolute or merely as security, is admissible in bar of the action after the time for appeal in the former action has elapsed.</p> <p>Id. — Stay of Operation of Judgment — Effect of Motion for New Trial. — A motion for a new trial does not stay or suspend the operation of a final judgment in the cause, in the absence of an order of the court to that effect.</p> <p>Id.—Effect of Appeal — Bar of Subsequent Action.—Where an appeal is pending, and until the time therefor has expired, a final judgment, unless satisfied, is not evidence in bar of recovery in another .action for the same cause.</p> <p>Id.—Pendency of Action During Time for Appeal — Pleading — Abatement of Subsequent Action. —Until the time for an appeal has expired, if the judgment has not been sooner satisfied, the action is, under section 1049 of the Code of Civil Procedure, to he deemed as pending, and the proceedings therein are admissible under proper pleadings in abatement of a subsequent action for the same cause.</p> <p>Id. —Lapse of Time for Appeal Pending Suit — Evidence of Former Judgment in Bar — Pleading—Supplemental Answer — Waiver. — Where the time for an appeal from a judgment has expired before the judgment is offered in evidence in bar of another action for the same cause, it is admissible in support of a plea in bar of the action, though such plea was made in the answer before the time for appeal had elapsed, where no objection, is made at the time of its offer in evidence upon the ground of the want of a supplemental answer pleading such judgment in bar, the defective plea in the answer being waived by the acquiescence and failure of the plaintiff to object thereto.</p>

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

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

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

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

<p>Boundary Line — Location of Half-section Corner — Survey — Finding against Evidence. — In an action to quiet title to city lots, where the only point in controversy was the location of a half-section line running east and west, which formed the north boundary line of the city, and the controversy turned .upon the location of the half-section corner on the east side of the section, the testimony of the surveyor, who surveyed and platted an addition to the city, and ran the half-section line to which plaintiff claimed, that in surveying it he found a stake which he assumed and believed to be the half-section corner, taken in connection with the testimony of five other witnesses, including three professional surveyors, that the corner from which the survey was made was a “charcoal” or “government” corner, in the absence of any evidence showing that a stake or corner had ever been seen at a different place in that vicinity, is sufficient to establish it as a government corner; and a finding that the line was twenty-four feet north of the line so surveyed, based on a survey and measurement by courses and distances from the southeast corner of another section, a distance of a mile and half south of the stake in question, is unsupported by the evidence.</p> <p>Id. — Monuments Control Courses and Distances — Evidence of Survey. — The monuments or marks placed upon the ground by the surveyor in making a survey constitute the survey, and the courses and distances are only evidence of the survey. Although evidence based upon courses and distances from other known points is admissible to fix a corner, where no corner is found, it is not admissible to change the location of an original corner of the survey when found.</p> <p>Id. — Line of Government Survey — Lower Order of Evidence — Support op Finding—Immaterial Conflict. —Where the existence of the monuments established by a government surveyor in making the original survey are proved, evidence of a line of the survey based upon courses and distances, being of a lower order than evidence thereof based upon the monuments, raises no material conflict in support of a finding as to the location of the line, unless it demonstrates to a reasonable probability that the monuments as found upon the ground are not those established by the original survey.</p> <p>Id.—Locating Line of Half-section — Starting-point—Survey by Courses and Distances. — In locating the line of a government half-section, a survey from a remote corner of another section by courses and distances is more liable to error than a survey by courses and distances from the nearest established corner of the same section.</p> <p>Id. — Direction of Half-section Line —Monuments Control. —When the half-section corner on each side of a section are definitely located, the half-section line must be drawn from one corner to the other, regardless of its variation from the due east and west course.</p> <p>Id. — Quieting Title — Adverse Possession — Constructive Possession of City Lots — Finding against Evidence, — In an action to quiet title to city lots bordering on each side of a half-section line, where the defendant testified that all of the strip of land in controversy had heen lying out open, unfenced, and uncultivated, and that he never claimed anything excepting what was actually embraced in the fractional part of the block claimed by him, and it did not appear that he had actual possession of the strip in controversy, his constructive possession extended only to the true line; and a finding that the defendant had heen in the adverse possession up to the line fixed by the court is not sustained by the evidence.</p>

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

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

<p>Statutes — Dependent Provisions — Constitutional Law. — When a statute, or section thereof, is unconstitutional in one of its provisions, and the remainder of its provisions are so interlaced and mutually connected with and dependent upon each other as to warrant the belief that the legislature intended the statute or section to stand as a whole, and would not have passed it if it had been believed that all of the provisions could not be carried into effect, all parts of the statute, or section thereof, fall together.</p> <p>Id. —Repeal, —No repeal by implication can result from a subsequent unconstitutional statute, nor from a provision in such statute that all acts and parts of acts inconsistent therewith are repealed.</p> <p>Id. — County Government Act — Compensation of Tax Collector — Repeal of Code Provisions. — Section 211 of the County Government Act, being unconstitutional, did not operate to repeal section 3770 of the Political Code by implication as being inconsistent therewith; but section 164 of the same act as originally enacted (Stats. 1883, p. 361), providing that the salaries and fees therein provided for should be in full compensation for all services rendered by the officers therein named, being constitutional and valid, operated to repeal section 3770 of the Political Code, providing that the tax collector must collect, in addition to the taxes due on the delinquent list and five per cent added thereto, fifty cents on each lot separately assessed, one half of which should go to the county, and the other to the collector for preparing the list.</p> <p>Id. — Power of Supervisors — Liability of Tax Collector. — The board of supervisors have no authority of law to fix the compensation due to any county officer; and a tax collector who has collected taxes under section 3770 of the Political Code, and retained one half of the amount under an order of the board of supervisors allowing the same, is liable to an action by the district attorney in the name of the county, under section 8 of the County Government Act, to recover the money so re- " tained, with' twenty per cent damages for the use thereof.</p> <p>Id. —Damages for Use of Money Retained — Due Process of Law.— The provision of section 8 of the County Government Act which allows the county, at suit of the district attorney, to recover from an officer to whom money has been paid as salary or fees without authority of law twenty per cent damages for the use thereof is not unconstitutional as depriving a defendant of property without due process of law.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco allowing a party to a divorce proceeding, who had been ordered to pay the costs and expenses of a reference, to mortgage his property for the purpose of securing the money to comply with the order.</p> <p>The facts are stated in the opinion of the court.</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>Corporations — Fraud of Promoters — Setting aside Decree of Foreclosure — Cancellation. — A corporation may maintain an action to annul a decree of foreclosure of a mortgage upon its property, and to cancel the notes and mortgage for fraud in their procurement by false representations of the promoters of the corporation and their agents, made to subscribers to stock, as to the price at which the land was obtained by the promoters under a bid at an administrator’s sale, and that it was intended, in organizing the corporation, to place all the stockholders upon an equal footing, by purchase of the land at the bottom price at which it was bid in at the sale, and to complete the purchase at the price bid, and by fraudulent concealment from the other subscribers of the fact that two of the subscribers were agents of the promoters, acting for a commission to sell the land to the corporation at a price much greater than the amount of the bid, whereby the subscribers were induced to subscribe to the stock aud to consent that the corporation should execute the notes and mortgage for such greater price.</p> <p>Id. — Agreement between Subscribers — Purchase by Corporation — Assignment — Right of Action for Fraud. — Where an agreement between individuals, who afterwards became subscribers to the stock of a corporation, agreeing individually to purchase land in the proportions in which they became subscribers to such stock, was not a binding contract of purchase, for want of a party who proposed or agreed to sell, and the intention of the subscribers to the agreement was not to purchase the land individually, hut to become subscribers to a corporation to be organized, which should purchase the land, and which obtained a deed under the contract to purchase it, and executed notes and mortgage for the purchase-money, the corporation must be regarded as the purchaser, and it is not necessary that the subscribers to the agreement should assign to the corporation their right of action for fraud in the sale of the land to them.</p> <p>Id. — Promoter Defined — Fiduciary Relation to Corporation — Subscription of Share-holders upon Trust. —A promoter of a corporation is a person who, by his active endeavors, assists in procuring the formation of the company and the subscription of its shares, whether he afterwards becomes connected with the company or not, and he is considered in law as occupying a fiduciary relation to the corporation and to its shareholders who subscribe upon the trust that the promoters will control the enterprise for the benefit of the company.</p> <p>Id, — Purchase from Promoter — Duty to Disclose Facts — Misrepresentation— Actions by Corporation.—A promoter of a corporation, who induces others to subscribe for shares for the purpose of selling ■ property to the company when organized, must faithfully disclose all facts relating to the property which would influence those who form the company in deciding upon the judiciousness of the purchase, and if he is guilty of any misrepresentation of facts or suppression of truth in relation to the character and value of the property or his personal interest in the proposed sale, the company will be entitled to set aside the transaction, or recover compensation for any loss it has suffered.</p> <p>Id. —Agency to Sell Land of Promoters — Authority to Promote— j Evidence. — Authority to agents of the promoters of a corporation to ' sell the land of the promoters to the corporation for a commission tends, • in connection with other evidence, to prove authority to such agents to promote the corporation.</p> <p>Id.—Declarations of Agents — Co-conspirators.—The agents having represented the promoters in promoting the corporation as part of a scheme to sell the land of the promoters to the corporation for the benefit of all the conspirators, evidence as to what they said to induce subscriptions to the agreement to purchase the land by the corporation is competent as against their co-conspirators.</p> <p>Id. — Setting aside Judgment of Foreclosure — Laches — Knowledge of Fraud. — An action by the corporation to set aside the decree of foreclosure, and to cancel the mortgage given for purchase-money, on the ground of fraud of the promoters of the corporation in selling land to the corporation and procuring the mortgage, is not barred by laches because it appeared that the defrauded stockholders had general notice of the fraud within one month after the foreclosure sale, and no motion was made within six months to set aside the decree, when it does not appear that they were then sufficiently informed of the particulars of the fraud, or as to the evidence by which the fraud might he proved in court, or as to how many of the stockholders participated in the fraud, or as to where to apply for reliable information, and it appeared that a majority of the hoard of directors having notice of the original fraud, which was a defense to the foreclosure proceedings, had willfully and fraudulently permitted the judgment to be taken by default, that the stockholders resided some distance apart, and that as soon as possible they elected a new hoard of directors, and immediately thereafter authorized the bringing of the action by the corporation, which was commenced two months and nineteen days thereafter, although eight months had elapsed after the judgment of foreclosure before the action was brought.</p> <p>Id.—Remedy by Motion — Fraud — Limitation. — A motion to set aside a judgment on the ground of fraud in its procurement is not subject to the limitation of six months provided in section 473 of the Code of Civil Procedure.</p> <p>Id. — Concurrent Remedies — Suit in Equity.—The remedy by motion to set aside a judgment on the ground of fraud is not an exclusive remedy, where such relief is not perfectly adequate, but is only one step which might be taken to secure equitable relief in the action; and in such case a separate equitable action may be brought to obtain the whole relief required.</p> <p>Id. — Suit in Equity — Lapse of Time — Bar of Equitable Remedy. — The mere lapse of time less than the statutory period of limitation will not bar an action for equitable relief, unless the delay, under the circumstances, has been such as to justify the presumption that the defendant may have been prejudiced thereby. The bar of an equitable remedy in such cases is not imposed upon the plaintiff as a penalty for his negligence, but is intended merely to protect the defendant from such consequences of the delay as may be prejudicial to his rights.</p> <p>Id.—Unprejudicial Delay — Non-waiver oe Rights of Defendant Stockholders—-Election of New Board of Directors — Suit by Corporation. — Where it appeared that nothing in the facts and cir-i cumstances of the case indicated acquiescence of the defrauded stockholders in the wrongs complained of, or a waiver of their rights, and neither the situation of the defendants nor the condition of the property was so changed during or in consequence of the delay in bringing suit as to cause the judgment of foreclosure to be more onerous than it would have been if the action had been commenced sooner, and it further appeared that all of the persons who participated in or had any knowledge of the transactions were living and testified at the trial, and all documents claimed to he material for the defense were produced, and it was shown that during the first six months after the rendition of the judgment the plaintiff corporation was under the control of the defendant» and their associates in fraud, the delay in bringing suit until a new board was elected, to bring it in the name of the corporation, and until eight months after the judgment was rendered, cannot be said to be such laches as to bar the action.</p> <p>Id.—Prior Purchase of Land by Promoters — Fraudulent Secret Profits — Recovery by Corporators. — The fact that the defendants purchased the land at an administrator’s sale before the corporation was formed, or any steps taken towards its formation, does not prevent the recovery by the corporation of “secret profits ” realized by such purchasers in the sale to the corporation, when it appears that the defendants placed themselves in a fiduciary relation to the corporation by promoting it, and while in that relation, by means of fraudulent representations and concealments, induced the corporation to purchase their land, whereby the “ secret profits ” were made; and the annulment of a decree of foreclosure, and the cancellation of notes and mortgage given for the purchase-money, though not equivalent to a full recovery of all the fraudulent “secret profits ” realized by the purchasers, and inuring equally to the benefit of all the stockholders, is appropriate relief to the extent to which it goes.</p> <p>Id.—Contract of Sale — Rescission for Fraud — Concurrent Remedy— Cancellation of Mortgage for Part Purchase-money.—A rescission of the sale and restoration of the land to the defendant, for fraud, even if a practicable mode of relief, is not exclusive of any other appropriate mode by which a court of equity might give appropriate relief, doing no injustice to the defendants; and where rescission does not appear to be practicable, and the defendants have not requested a rescission, or tendered repayment of moneys wrongfully obtained by them upon the purchase, they are not in a condition to claim that , rescission was the exclusive remedy, and that the cancellation of 'notes or mortgage given for part of the purchase-money, which does not give full relief for the fraud, is not appropriate relief.</p> <p>Id.—Retention of Commissions by Agents of Promoters — Grievance between Co-conspirators or Stockholders. — Where the relief granted to the corporation is equally favorable to all the stockholders, the fact that the effect of the decree is more favorable to the agents of the promoters who retain their commissions besides their stock, than to the promoters of the corporation, is not a matter which concerns the corporation, and no grievance between the co-conspirators in the fraud, or between individual stockholders, can be redressed in the ac« tion by the corporation</p>

<p>Change of Place of Trial — Motion upon Filing of Demurrer—. Counter-motion — Convenience of Witnesses — Impartial Trial. —Where a motion for a change of the place of trial is made upon the filing of a demurrer to the complaint without filing an answer, the plaintiff cannot, by cross-motion, demand the retention of the action in the county where it is pending on the ground of convenience of witnesses, and that an impartial trial cannot be had in the county to which the action is sought to be transferred.</p> <p>Id.—Demand — Joinder of Defendants.—It is not necessary that all the defendants in an action should join in a demand for a change of venue.</p> <p>Id. —Affidavit of Merits by One Defendant for All. —An affidavit of merits, used at the hearing of a motion for a change of'venue, in behalf of each and all the defendants, made by one of the defendants therein, which recites that the affiant makes it for each and all of the defendants and at their request, and that the affiant and the other defendants have fully and fairly stated the. facts of the case to their attorneys, who, • upon such statement, advised each and all of them that they had a good and substantial defense upon the merits of the action, which each and all of them believed to be true, is in all respects sufficient, and is not objectionable because made by one of the defendants only.</p> <p>Id. — Residence of Corporation — Principal Place of Business. — The place of residence of a corporation is in the county where its principal place of business is situated, and that is the proper county, within the meaning of section 395 of the Civil Code, where an action against the corporation for an accounting, and a recovery of shares of its capital stock, alleged to have been illegally sold for delinquent assessments, must be tried, subject, however, to the other grounds of this and the following section, and the provisions of section 16 of article XII. of the constitution, and to the power of the court to change the place of trial as provided in the code.</p> <p>Id. — Proof of Place of Business — Affidavit of Merits — Sham Allegation of Complaint — Information and Belief — Conflict of Evidence.— An allegation, in a complaint against a corporation, by one who has been general manager, director, and owner of a majority of its capital stock, that “plaintiff is informed and believes ” that the defendant corporation has its principal office in the county in which the action is brought, will be disregarded, as a sham allegation, upon a motion to change the place of trial upon the ground that the action was brought in the wrong county, where the affidavit of merits by the president of the corporation, upon which the motion is based, shows that at the time of the commencement of the action, and afterwards, the principal and’ only place of business of the corporation was in the county to which the action is sought to be removed, and no notice of such statement is taken by the plaintiff in his opposing affidavit, and such sham allegation of the complaint does not raise a conflict of evidence upon the question as to the place of residence.</p> <p>Injunction Bond — Time for Justification of Sureties — Dissolution. — Section 529 of the Code of Civil Procedure, providing, among other things, that when the sufficiency of sureties upon an injunction bond is “ excepted to, the plaintiff’s sureties, upon notice to the defendant of not less than two nor more than five days, must justify before a judge or county clerk in the same manner as upon bail or arrest, and upon failure to justify at the time and place appointed, the order granting the injunction shall be dissolved,” must be construed to mean that notice of justification must be given to the defendant of not less than two nor more than five days after the filing and serving of the notice of exception to the sufficiency of the sureties, and the plaintiff’s sureties must justify within five days after said notice of exception is given, or the injunction will be dissolved upon motion.</p> <p>Id.—-Excuse for Delay — Misleading Correspondence — Reversal of Order Dissolving Injunction. — Where it appeared that a plaintiff, in an action in which an injunction had been obtained, might have been misled by correspondence had between his attorney and the attorneys for the defendant as to the time agreed upon between them when the sureties upon the injunction bond should justify, an order of the trial court, upon motion therefor, dissolving the injunction for failure of the sureties to justify within the statutory time, was reversed, with directions to the trial court to make an order granting the motion to dissolve the injunction, unless the plaintiff’s sureties should justify upon proper notice to the defendant within five days after the filing of the remittitur.</p>

<p>Mechanic’s Lien — Unrecorded Contract — Contractor not Entitled to Lien — Assumpsit for Work and Labor — Judgment.—A contractor who has entered into a written contract with the owner of land for the construction of a building thereon for an amount in excess of one thousand dollars, but who fails to have the contract therefor recorded, is not entitled to a lien for the value of the work done thereunder. He can only recover a personal judgment against the owner of the building for the value of his work and labor, as upon an implied contract, without any allowance for counsel fees or expenses of preparing and recording a mechanic’s lien.</p> <p>Id. — Compliance with Statute. — A mechanic’s lien only exists by virtue of a compliance with the statute which creates it, and he who would avail himself of the benefits of the statute must comply with its terms.</p>

<p>Deeds — Breach oe Condition Subsequent—Re-entry oe Grantor — Action to Compel Reconveyance — Removal oe Cloud. — Where a deed of land contained a condition subsequent, to the effect that the grantee should maintain a lumber-yard thereon for a period of five years, but the grantee maintained the lumber-yard for less than one year, whereupon the grantor re-entered for condition broken, and demanded a reconveyance, which the grantee refused to make, except upon the repayment to him, by the grantor, of the purchase-money paid, less any damage the latter had sustained, the grantor is entitled to maintain an action to compel a reconveyance of the land for breach of the condition and to remove the cloud caused by the record of the grantee’s deed.</p> <p>Id.—Condition to Maintain Lumber-yard—“Willful” Breach — Finding against Evidence. — A finding, by the court, that the breach of the condition to maintain a lumber-yard upon the premises granted was not ‘1 grossly negligent, or willful or fraudulent, ” is not sustained by the evidence, where it appears that the breach was the intentional or voluntary act of the will of the grantee, the evidence showing that within a year from the time the lumber-yard was started it was entirely removed from the premises by the grantee.</p> <p>Id.-—Injury to Grantor — Market-Value of Premises — Immaterial Finding.—-A finding that the grantor had not sustained any injury by the breach of conditions, and that the price paid for the lots was the then market value, is immaterial.</p> <p>Id. — Forfeiture — Relief in Equity — Compensation. — Although equity will relieve against a forfeiture for breach of a condition when the act may be performed afterwards or compensation can be made for it, yet unless a full compensation can be given, so as to put the party in precisely the same situation, equity will not interfere. If the act be willfully done, or where the condition is for the performance of a collateral act, or one for which the court has no certain rule by which to measure the damages, beyond their own arbitrary judgment in the matter, equity will not relieve.</p> <p>Id. — Construction of Code — Standard of “Compensation” — “Willful ” Breach of Duty. —Assuming, without deciding, that section 3275 of the Civil' Code, which provides for relief from a forfeiture incurred by the terms of an obligation upon making full compensation, “ except in case of a grossly negligent, willful, or fraudulent breach of duty,” applies to forfeiture for breach of condition subsequent in deeds, the compensation therein provided for will only be made where there is some measure or standard by which it can be estimated, and the exception of the case of a “willful" breach of duty applies to any “spontaneous,” or “ voluntary,” or “intentional” failure to comply with the condition, and does not require that the breach should be malicious.</p> <p>Id. —Unprofitableness of Lumber-yard — Relief in Equity. -—Equity will not relieve the grantee from his obligation to perform the condition expressed in the deed as to the maintenance of the lumber-yard because the findings establish that at the date of the execution of the deed there was great excitement in the real estate market regarding values and prospects of improvement and the laying out of towns on unoccupied land in that vicinity, and that the grantor represented that he and-others would require large quantities of lumber for building houses and other purposes, which representations were believed to be true by both the grantor and grantee, but that both were deceived thereby, and that large quantities of lumber were not required, either by the grantor or other persons, and that very little lumber was sold by the grantee, and that there was very little, if any, demand for a lumber-yard upon the premises at the time, or since the lumber-yard was discontinued.</p> <p>Id.—Relief from Onerous Contract.—A court of equity will not set aside the deliberate contracts or obligations of parties fairly and freely assumed, merely because time may show that the obligation was onerous or unprofitable.</p> <p>Id.-— Enforcement of Forfeiture —■ Statutory Right to Reconveyance — Breach of Condition Subsequent. — The rule that equity will not enforce a forfeiture at suit of a party claiming it does not apply to an action to compel a reconveyance of land, and to remove a cloud upon the plaintiff’s title, after his title has been revested by re-entry for breach of a condition subsequent. Such an action is taken out of the ordinary rule of proceedings in equity, and is based upon the statutory right to. a deed given by section 1109 of the Civil Code, which provides that “ where a grant is made upon condition subsequent, and is subsequently defeated by the non-performance of the condition, the person otherwise entitlid to hold under the grant must reconvey the property to the grantor or his successors, by grant duly acknowledged for record. ”</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 Fresno County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Eminent Domain — Public-Use — Limitation of Authority — Proof of Agency from State. — The right of eminent domain can he exercised only in behalf of those public uses which the legislature has authorized, and in the mode and with the limitations prescribed by the statute authorizing it. Whoever, under claim of agency from the state, would deprive an owner of his property, by the exercise of eminent domain, must show not only that the use is a public use, hut also that the legislature has authorized the right for that particular use, and in the mode in which he is seeking to appropriate it.</p> <p>Id. — Legislative Declaration of Public Use — Power of Judiciary — Determination of Individual Case. — Where the legislature has designated the usesv in behalf of which the right of eminent domain ¡may he exercised, the designation is a legislative declaration that such uses are public, and will he recognized by the courts; but whether, in any individual case, the use is a public use must be determined by the court from the facts and circumstances of that case. -</p> <p>Id.—Supplying Farming Neighborhoods with Water — Effect of Code Provision. — Section 1238 of the Code of Civil Procedure, giving the right of eminent domain for the construction of canals and ditches for supplying farming neighborhoods with water, is a legislative declaration that the use is a public use, and the declaration must be regarded as falling within the scope of legislative duty in providing for the public welfare.</p> <p>Id. — Application of Terms — “ Farming Neighborhood ” — “ Pdblio Use” — Evidence. —The term “farming neighborhood,” as used in the code provision, is an indefinite expression, and whether it can be applied to any particular tract of land must be determined by evidence; and the term “public use” is also an expression of indefinite signification, and its application to the facts of any particular case is to be determined from evidence.</p> <p>Id.— Definition of “Farming Neighborhood” — Number of Proprie-' tors — Single Ownership. — A “ farming neighborhood ” is a region in which there are several tracts of farming land with a proximity of location, and which can be regarded as a whole with reference to some common interests, although they are distinct in boundaries, and held in individual proprietorship. Its extent need not be characterized by fixed boundaries, nor is its existence determined by any definite number of proprietors, and while a tract of land, though large in extent, might, if held in different proprietorships, constitute a neighborhood, yet it would not if it were held in single ownership.</p> <p>Id. —Enjoyment of Use — Number of Persons Capable of Enjoyment. — It is not necessary, in order to render the supplying of water to a farming neighborhood a public’use, that the entire public shall enjoy the use, or even that it be capable thereof, but the use must be capable of enjoyment by all who may be within the neighborhood, and there must be within that neighborhood so great a number of the entire public as to destroy its character as a private use.</p> <p>Id. — Proximity of Several Tracts — Residence of Proprietors — Cultivation of Lands. — It is the proximity of several tracts of land which constitutes a farming neighborhood, and it is not necessary, in order that the use should be public, that a proprietor should reside upon or cultivate his land in person, but it is sufficient that the lands are cultivated by tenants or employees of the proprietors.</p> <p>Id. —Ownership of Stock in Corporation Plaintiff. — Where the right of eminent domain is sought to be exercised for the purpose of the building of canals and ditches for supplying a farming neighborhood with water, the fact that the owners of the land in the neighborhood are stockholders of the corporation seeking the right, and that a majority of the stock is owned by a few persons, who are also the owners of the greater portion of the land to be supplied with water, does not of itself change the supplying of water to the neighborhood from a public to a private use, although such facts should properly be considered in determining whether the region constitutes a farming neighborhood, and whether the supplying of water therefor is a public use.</p> <p>Id.—Questions of Fact — Conclusiveness of Findings—Review upon Appeal — Discretion. — The questions as to whether a particular region is a farming neighborhood, and whether the supplying of water to that neighborhood constitutes a public use within the meaning of section 1238 of the Code of Civil Procedure, providing that the right of eminent domain may be exercised in behalf of certain public uses, among which are included canals and ditches for supplying farming neighborhoods with water, are questions of fact for the trial court to determine, and its decision thereon is conclusive, where there is any evidence to support it, and there is no abuse of discretion shown.</p>