Volume 98 — California Reports

<p>Contract—Hiring of Lighter—Agreement to Pay fob Loss—Inevitable Accident—Pleading—Immaterial Defense.—Where the hirer of a lighter agreed with the owner that if the lighter should he lost or damaged during the term of hiring, to the extent that it could not be put in the same good condition as when received, the hirer would pay a stipulated sum for the lighter, without any provision or stipulation in the agreement as to the manner or cause of the loss, the owner is entitled to recover damages from the hirer for a loss of the lighter, irrespective of the cause of the loss; and where the lighter was lost in a storm during such term, and an action was brought upon the contract by the owner, an answer admitting the loss of the lighter, and alleging that the lighter was not injured, lost, or destroyed by any act, negligence, or default of the defendant, but by the act of God and the elements, and setting forth the particulars of the loss, raises no material issue as to whether the lighter was lost by inevitable accident.</p> <p>Id.—Unforeseen Impossibility of Performance.—Where a party has expressly undertaken without any qualification to do anything not naturally or necessarily impossible under all circumstances and does not do it, he must make compensation in damages, though the performance was-rendered impracticable, or even impossible, by some unforeseen cause over which he had no control, but against which he might have provided in his contract.</p> <p>Id. — Stipulated Value of Lighter—Defense of Less Value—Judgment upon Pleadings.—In an action upon such contract, an answer alleging that the lighter when delivered to the defendant was of a less value than the stipulated sum agreed to be paid in case of loss, presents a partial defense to the action, and a judgment upon the pleadings for the stipulated sum with interest is erroneous.</p> <p>Id.—Stipulated Damages—Penalty — Construction of Contract—Pleading —Actual Damage.—The stipulation in the -contract for the hiring of the lighter for the payment of a fixed sum in case of loss or irreparable damage to the lighter, must be construed as a penalty within which the actual damages for the loss or injury might he assessed, and not as fixed liquidated damages; and the plaintiff in suing upon the contract should have alleged and proved the actual damage.</p> <p>Id. — Contract of Bailment—Sale of Lighter—Indemnity.—The agreement for the hiring of the lighter was a contract of bailment, giving the bailee only a special property therein for the fixed term, the general property remaining in the bailor, and it would be absurd to construe the contract as one of sale of the lighter on condition of its loss during the term of bailment; but it must be construed as a contract of bailment, with a stipulation to indemnify the owner against loss of the property for any cause.</p> <p>Id.—Insurance—Valued Policy—Value of Property.—The contract was not one of insurance in the legal or commercial sense of the word for want of the specifications required by section 2587 of the Civil Code, and cannot be deemed a “valued policy” for want of specification of the value of the property insured, as required by section 2596 of the same Code, and the damages to be recovered can only he estimated by proof of the value of the property.</p> <p>Id.—Sum Fixed as Security—Penalty—Excessive Compensation—Intention of Parties.—A sum fixed as security for the performance of a contract containing a number of stipulations of widely different importance, breaches of some of which are capable of accurate valuation, for any of which the stipulated sum is an excessive compensation, is a penalty; and the application of this rule does not always depend upon the intention of the parties.</p> <p>Id.—Void Stipulation for Liquidated Damage—Recovery of Actual Damages.—The stipulation in the contract, that in case the lighter should be lost or damaged to the extent that it could not be put in the same good condition as when received, the hirer should pay a specified sum for the lighter, is a “contract by which the amount of damages to be paid, or other compensation to be made for a breach of the obligation, is determined in anticipation thereof,” in the sense of section 1670 of the Civil Code; and such a case not being one in which “ it would he impracticable or extremely difficult to fix the actual damage” in the sense of section 1671 of the same Code, the stipulation is void, and the owner is entitled to recover only Ms actual damage proximately resulting from the loss of the lighter, which must be averred and proved.</p>

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

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

<p>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>Fobeolosube of Mobtgage—Deed of Wife’s Sepabate Pbofebty—Defeasance not Delivebed—Repayment of Advances to Husband—Wife’s Defense to Action. —Where the complaint in an action to foreclose a mortgage alleged that the instrument sought to be foreclosed was in terms a deed executed and delivered by a husband and wife of her separate property, but that it was given and intended as a mortgage, and that at the time of its delivery the plaintiff executed and delivered to the defendants, husband and wife, a defeasance declaring that the deed was delivered in trust as security for the repayment of money advanced and to be advanced by the plaintiff for the development of the husband’s interest in a certain mine, but the answer denied that said defeasance was delivered to either of the defendants, and the separate answer of the wife denied that the deed was given for the purpose therein stated, and alleged that plaintiff had been repaid for any advances made to her husband out of the proceeds of his mine, and the evidence given at the trial was sufficient to sustain findings in favor of the wife upon those issues, the action having been dismissed as to the administrator of the husband, a judgment in her favor is supported by the findings and evidence..</p>

<p>Pleading—Verification.—The verification of a pleading by one coplaintiff or codefendant is a sufficient verification under section 446 of the Code of Civil Procedure. J ’</p> <p>Vendor’s Lien—Waiver—Pabol Evidence.—The acts and conduct of a vendor of real property, indicating a waiver of his lien, may be shown by parol evidence. Id.—Lien for Unpaid Pdrohase-money—Construction of Code—Common Law—Equity. — Section 3046 of the Civil Code, which provides that “one who sells real property has a vendor’s lien thereon for so much of the price as remains unpaid and unsecured, otherwise than by the personal obligation of the buyer,” is but a repetition of the common law, and the term " vendor’s lien ” referred to therein is the ordinary vendor’s lien recognized by equity courts.</p> <p>Id.—Nature of Vendor’s Lien—Personal Privilege—Consideration of Waiver—Estoppel—Purchase upon Faith of Waiver.—A vendor’s lien is a simple equity or privilege, purely personal, and does not depend for life upon the agreement of the parties, and a consideration is not necessary in order to support a waiver of it; and the vendor is estopped from claiming that the release of his lien was without consideration, when his promise to release it was the moving consideration of a subsequent purchase of the land by another purchaser, who would not have bought the land without it.</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>Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Seduction—Action for Damages—Sufficiency of°Evidenoe—Conflict—Testimony of Plaintiff.—In an action by an unmarried female to recover damages for her seduction by the defendant, evidence of the plaintiff that at the time of the alleged offense she was but sixteen years of age, and until that time was a chaste and virtuous girl; that she was at the time an employee of the defendant, who was then engaged in keeping a hotel; that she was stopping alone in a cottage near the hotel, where she was visited after dark by her employer, a man of wealth and years, with whom she was upon friendly terms; that after a conversation upon ordinary topics lasting some time, he gave her a glass of wine, which she drank, by which her mind was seriously affected, and she became unable to stand up alone without assistance, whereupon he placed his arms around her and assisted her to the bed, and after expressing affection for her, repeatedly caressing her and malting promises of future friendship and assistance, he had intercourse with her, is sufficient to sustain a verdict in her favor, though her testimony was contradicted in every essential point by the defendant’s evidence.</p> <p>Id.—Exemplary Damages—Rape—Consent—Aggravation of Injury.—It is immaterial in such case whether the plaintiff’s evidence indicated that she had. lost consciousness from the effect of the wine at the time the act was committed so that the defendant was guilty of rape, or that she was conscious at the time and consented thereto, as in either case the plaintiff is entitled to exemplaiy damages. Proof of rape, or the use of force, does not defeat the action for seduction, but only aggravates the injury.</p> <p>Id.—Definition of “Seduction.”—The word “seduction,” as used in section 374 of the Civil Code, providing that an unmarried female may prosecute an action for damages for her own seduction, means the use of some influence, promise, art, or means upon the part of the male, by which he induces the female to surrender her chastity and her virtue to his embraces. There must be something more than a mere reluctance on the part of the woman to commit the act, and her consent must be obtained by flattery, false promises, artiflce, urgent importunity based on professions of attachment, or the like, for the woman s and that relying solely on such promises or professions of flattery, or artifice, or importunity, she then being chaste, surrendered her person and chastity to her alleged seducer.</p> <p>In.—Seduction by Married Man.—It is not necessary in order to constitute a seduction that there should he a promise of marriage; hut it may be committed by a married man, though the girl is aware of his marriage, if she is young and inexperienced, and advantage is taken of her. s</p> <p>Id. — Excessive Verdict.—A verdict for the plaintiff for twenty-five thousand dollars, ,m an action for the seduction of a chaste young girl by a married man of wealth aud mature years, cannot he said to he excessive, and will not be reversed upon appeal upon that ground.</p> <p>Jury Trial — Misconduct of Attorney.—A trial court should always be alert to prevent an attorney from obtaining advantages in jury trials by the practice of methods not countenanced by the ethics of the profession.</p>

<p>Water Rights—Appropriation—Injunction—Restraining Waste by Prior Appropriator—Affirmative Relief to Defendant. —In an action by an appropriator of water to enjoin the defendants from diverting the water from the plaintiffs’ ditch, where the defendants answered contesting the plaintiffs’ claim and asserting their own claims, both as riparian proprietors and as appropriators, and praying affirmative relief, the court may ascertain the respective right of the parties, and enjoin each from interfering with the rights of the other, and it is not error for the court to enjoin the plaintiffs from diverting the whole amount of water appropriated by them for purposes of irrigation at times when it is found that they could not use it beneficially for that purpose, and when, as a necessary consequence, it would run to waste on non-riparian lands of the plaintiff.</p> <p>Id.—Appropriation Limited to Beneficial Use—Right of Riparian Proprietob to Surplus Water.—The extent of an appropriation of water is limited, not by the quantity of water diverted, but by the quantity which is, or which may be, applied by the appropriator to a beneficial use; and as to any surplus, the riparian proprietor below the point of diversion has a right to demand that it should flow in the stream as it has been accustomed to flow.</p> <p>Id.—Rights of Prior Appropriator—Amount of Diversion—Quantity Required for Beneficial Use—Loss by Absorption — Erroneous Decree Limiting Right.—In such case where the trial court finds the quantity of water which the plaintiffs have a right to use on their lands for irrigation and other purposes, but fails to determine the quantity of water diverted, a decree limiting the diversion to the quantity which they are entitled to use on and at their lands has not a sufficient basis to support it. The plaintiffs have a right to</p> <p>divert from the stream a quantity of water sufficient to yield at the place of use the quantity required after the loss by absorption and evaporation of so much thereof as is necessarily lost in a ditch or flume well constructed and kept in good condition, that being the mode of their appropriation.</p> <p>Id.—Appropriation by Ditch and Flume—Use of Land of Third Parties— Limit of Bisht to Quantity Flowing in a Pipe — Improper Decree.— Where it appeared that the plaintiffs diverted the water appropriated by them, by means of a ditch and flume across the land of other parties, a decree limiting their right of diversion to the quantity of water which would flow through' a three-quarter-inch pipe is erroneous, as the plaintiffs not only could not be compelled to put in a pipe, but they would have no right to do so in the land of others through which their ditch and flume extended, and the quantity allowed to he diverted is undetermined and incapable of determination except by a means legally impossible.</p> <p>Id.—Ditches and Flumes—Ordinary Means of Diversions — Substitutions of Iron Pipes not Compellable—Repairs to Prevent Waste.—Ditches and flumes are the usual and ordinary means of diverting water in this state, and parties who have made their appropriations by such means cannot be compelled to substitute iron pipes, though they may be compelled to keep their flumes and ditches in good repair so as to prevent unnecessary waste.</p>

<p>Partnership—Use of Mining Corporation as Mere Agency—Action fob Dissolution and Accounting—Receiver—Prohibition.—Where in a suit in equity for the dissolution of a copartnership, for an accounting and for the setting aside of certain transfers of stock in a mining corporation, on the ground of fraud practiced by an alleged copartner defendant, to which the mining corporation was made a party defendant, the complaint alleged that although the title to the mine stood in the name of the corporation, the copartners as such owned and worked it, and that the partnership still existed, and that the corporation was a mere name and agent of the partnership, and not the owner of the mine, and the court found the allegations to be true, and rendered a judgment ■ in favor of the plaintiff, the court was authorized to make an order appointing a receiver to take charge of and manage and work the mine, and a writ of prohibition will not be granted by the supreme court to restrain the receiver from acting under such order.</p> <p>Id.—Title to Mine in Name op Cobpobation—Pabtnebship Assets—Appointment op Beceiveb. — Where the title to a mine belonging to a partnership stands in the name of a mining corporation, which possesses no interest in the property, the property is assets of the copartnership, and the court is authorized to appoint a receiver to take charge of and work the mine, in an action for dissolution and accounting of the partnership, notwithstanding the legal title is in the corporation.</p>

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

<p>Appeal from a judgment of the Superior Court of 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 au order of the Superior Court of San Joaquin County admitting a will to probate and granting letters testamentary to an executor therein named, and from an order denying letters of administration to the public administrator.</p> <p>The facts are stated iu 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>Arbitration—Guaranty—Erasure of Name of Party from Agreement to Arbitrate—Misdescription in Undertaxing—Immaterial Variance.—Where an undertaking guaranteed the payment of any sum found due to one of the parties to an agreement of arbitration, and to indemnify him against loss by reason of the surrender of property to the arbitrators, and described the agreement of arbitration accurately, excepting that it mentioned the name of another person as party to the agreement, whose name had been erased therefrom with the mutual consent of all the parties thereto, and it appeared that the attorney for the guarantor witnéssed the erasure, that the matter was arbitrated without objection, and that the person indemnified by the undertaking surrendered property in his possession pursuant to the agreement of arbitration, no substautial variance is shown between the agreement of arbitration and the undertaking which could mislead the guarantor, the variance not being as to the measure of his liability, but merely as to the identity of the agreement upon which the guaranty was founded.</p> <p>In.—Consideration of Guaranty.—The contract-of guaranty in such case is supported by the consideration of the execution and filing of the agreement of submission, notwithstanding the variance in the description of that agreement, and also by the surrender to the arbitrators of the property therein provided to be surrendered by the person for whose benefit the contract of guaranty was made,</p> <p>Id,—Re-imbursement of Guarantor—Subrogation—Assignment of Judgment against Principal—Condition of Recovery.—A guarantor, like a surety, is entitled to be re-imbursed by enforcing any remedy which the creditor then has against his principal, and if ho satisfies a judgment obtained against him upon the guaranty, he will be entitled to an [assignment of a judgment rendered in favor of the obligee to whom the guaranty was given against the principal obligor; but such assignment is not a condition precedent to a recovery upon the guaranty by the obligee or his assignee.</p>

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

Motion to dismiss an appeal from the Superior Court of Ventura County. The facts are stated in the opinion of the court. Blaehstoch & Shepherd, for Appellant.

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

<p>Criminal Law—Attempt to Commit Bate—Pleading—Age of Child—Special Demurrer—Abbest of Judgment.—An objection that an information charging the defendant with the crime of an. attempt to commit rape upon a girl “being then and there of the age of eleven years,” does not state facts constituting a public offense, in that it fails to show the child to have been under fourteen years of age, is without merit. Such an objection is too technical to he raised otherwise than by a special demurrer, and is not ground for a motion in arrest of judgment.</p> <p>Id__Grounds for Arrest of Judgment—Jurisdiction to Affix Penalty.—A motion in arrest of judgment in a criminal prosecution can only he based upon defects appearing upon the face of the information or indictment. An objection that the court has no jurisdiction to affix any penalty or render any judgment, because of the failure of the statute to provide any punishment for the offense charged, cannot be urged upon the hearing of such a motion.</p> <p>Id. — “Attempt” to Commit Rape Distinguished from “Assault with Intent” —Punishment of Offense.—The offense of an attempt to commit rape differs from the offense of an assault with intent to commit rape, for which provision is made by section 220 of the Penal Code; and the punishment for the former offense is governed by section 664 of the Penal Code, which provides that an attempt to commit an offense, where no provision is made by law for the punishment of such attempt, is punishable by imprisonment for a term not exceeding one half the longest term prescribed upon a conviction of the offense.</p> <p>Id. — Validity of Sentence.—The crime of rape being punishable by imprisonment for life, or for any specified term of years not less than five, a judgment of imprisonment for five years for an attempt to commit rape is warranted by section 664 of the Penal Code.</p> <p>In.— Evidence—Testimony of Prosecutrix—Corroboration—Support of Verdict.—Evidence of the prosecuting witness alone, in a criminal prosecution for an attempt to commit rape, is sufficient to sustain a verdict of guilty, and where such evidence convinces the jury and satisfies the law, it need not he corroborated.</p> <p>In.—Testimony Taken at Preliminary Examination—Defective Certificate — Absence of Witness from State — Stenographer’s Notes Inadmissible._ A defendant in a criminal prosecution has the right to be confronted with the witnesses against him in the presence of the. court, with the single exception that the deposition of a witness properly taken at a preliminary examination may be read upon its being satisfactorily shown to the court at the time of trial that he is dead, or insane, or cannot, after due diligence, be found within the state; and it is error to admit in evidence the testimony of a stenographer as to the evidence given by a witness upon the preliminary examination, after the rejection of the deposition of such witness by reason of a defective certificate, although it was proved that such witness could not he found in the state, due diligence being used.</p> <p>In.—Impeachment of Prosecuting Witness—Prejudice and Interest.—Where the proper foundation is laid by cross-examination of the prosecuting witness in a criminal prosecution for an attempt to commit rape, evidence that she said that she was going to get some money out of the defendant if she had to put up a job on him, is admissible as tending to show her prejudice and interest in the case.</p>

<p>Cbiminal Law—Homicide—Defendant Charged as Principal—Conviction fob Aiding and Abetting—Modification of Instruction.—Upon the trial of a defendant charged with murder, where the evidence upon the part of the prosetion tended to show that the defendant and others were acting in concert at the time of the shooting of the deceased, an instruction asked hy the defendant to the effect that if the jury should find from a consideration of all the evidence that it pointed as clearly to another person as the homicide, as to the defendant, and if after a full and fair consideration of all the evidence, they should entertain any reasonable doubt as to whether the defendant was the guilty person, then they should acquit the defendant, is properly modified by the court by adding thereto, “unless yon find from the evidence beyond a reasonable doubt that such other person is the guilty party, and that the defendant aided and abetted him in committing the crime.”</p> <p>Id.—Evidence—Dying Declarations. —The dying declaration of the deceased are admissible when shown to have been made under a sense of impending death.</p>

Hearing in the Supreme Court upon a writ of mandamus to compel the judge of the Superior Court of San Diego County to settle and certify a bill of exceptions. The facts are stated in the opinion of the court.

<p>Ceiminal Law—Homicide—Evidence — Family Feud — Cotemporaneous Killing of Mother of Deceased—Proof of Malice. —Upon the trial of a defendant charged with murder, where it appeared that there had been a long and bitter family feud between the family of the deceased and that of the defendant, and that at the time of the homicide, the mother of the deceased was with him, evidence of the shooting of the mother by the defendant immediately after the shooting of her son is admissible as tending to show the malicious motives of the defendant, and to disprove the claim of self-defense.</p> <p>Id.—Wounds upon Body of Mother—Blood upon Her Person.—In such case, evidence of surgeons as to the number and position of the wounds on the body of the mother is admissible as tending to show that the defendant shot at her with deadly aim; as is also the evidence of another witness that, when he saw the mother at the scene of the shooting shortly after it occurred, she was covered with blood from head to foot.</p> <p>Id. — Proof of Distinct Offense — Offense Part of Same Transaction — Prejudice of Defendant.—Upon the trial of a person charged with one offense, proof of another and distinct offense is ordinarily inadmissible, when it has no tendency to establish the offense charged; yet, whenever the case is such that proof of one crime tends to prove any fact material in the trial of another, and in any case where two persons are murdered or assaulted at the same time, and as part of the same transaction, such proof is admissible, and the fact that it may tend to prejudice the defendant in the minds of the jurors is no ground for its exclusion.</p> <p>Id. — Supply of Place of District Attorney—Associate Counsel—Construction of Penal Code — Formal Order of Court. — Section 1130 of the Penal Code, providing for the supplying of the place of the district attorney when for any reason he cannot conduct the prosecution, is not exclusive, and if his place is otherwise supplied by associate counsel employed to conduct the prosecution, who are guilty of no misconduct prejudicial to the defendant, he cannot be heard to object that such counsel bad not been regularly and formally authorized so to do by an order of the court entered in the minutes in pursuance of that section.</p> <p>Id.—Misleading Instruction. —Where an instruction asked for by a defendant in a criminal proceeding, and refused by the court, is so broad in its terms as to be misleading, if not positively erroneous, and so far as correct, is given with the necessary qualifications in another instruction allowed by the court, no error is committed in the refusal to give it as asked.</p>

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

<p>Mechanic's Liens—Statutory Right.—The lien of mechanics and others on buildings, and the land upon which they are erected, for labor and materials, is the creation of statute, and the statute creating it must be looked to, both for the right to such lien and the mode by which it can be secured.</p> <p>&>.— Constitution not Self-Executing.—The provision respecting the liens of mechanics, material men, artisans and laborers, contained in section 15 of article XX. of the constitution, is not self-executing, and is inoperative except as supplemented by legislation.</p> <p>Id.—Building Contract not Recorded—Contractor not Entitled to Lien.— Where a contractor entered into a written contract with the owner of land for the erection of a building thereon for a price exceeding one thousand dollars, but failed to file it, it is wholly void, and cannot be made the basis of a subsequent claim for a lien thereunder in favor of the contractor.</p> <p>Id.—Lien Denied by Statute—Recovery upon Common Courts.—Under section 1188 of the Code of Civil Procedure, providing that where the written contract is wholly void for want of filing,the labor done and materials furnished by all the persons therein named, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and that they shall have a lien for the value thereof, the contractor is disallowed a lien by the terms of the statute, and cannot claim it as an incident of or corollary to his right to recover upon the common-law courts of quantum meruit for services, and quantum valeljat for goods, wares, and merchandise sold and delivered.</p>

<p>Change of Place of Tbial—Fobeclosube of Mobtoage—Convenience of Witnesses—Disobetion—Appeal.— In an action to foreclose a mortgage upon lands situated partly in two counties, where the affidavits on the part of the defendants established clearly that the convenience of witnesses would be promoted by a change of the place of trial to the' other county in which the suit might properly have been brought, and the record discloses no reason or sufficient showing to the contrary, an order denying the motion of the defendants for such change cannot be justified upon the ground that the granting of such orders is in the discretion of the court, and it will be reversed upon appeal.</p>

<p>Easement—Flow of Surface Water.—A,¡natural easement exists in favor of the owner of a higher tract, the surface water from which has been accustomed by a natural flow to pasa off over a lower adjacent tract, to have such water flow over the lands below, and the lower tract is charged with a corresponding servitude.</p> <p>Id.—Overflow of Water from Streams. — The owners of land along the rivers of the state are not subject to an easement or servitude for the overflow of water therefrom, and if the owner of a higher tract fails to erect embankments or levees to protect his land from the effect of floods, the owner of lower adjacent land may protect his land therefrom by erecting a levee on his own land, though its effect may be to increase the flood waters on the higher land of his neighbor.</p> <p>Id.— Seepage from Levee — Surface Water—Obstruction of Flow — Nuisance. —Water which seeps through a large and high levee protecting all the lands adjoining a river from overflow, and which gradually seeks a lower level, not in a defined channel, but as surface water is wont to do, by percolation and by the force of gravity, should be permitted to pass off by natural flow, like other surface water coming without volition from the clouds or rising to the surface from springs, and the owner of higher land has an easement for such natural flow over the adjoining lower land; and where the owner of lower land erects an embankment upon his land which keeps hack both the ordinary surface water which would flow naturally over it, and the seepage from the levee, which would otherwise pass off without detriment to any one, and thereby causes the water to flood the higher land above, the owner of such higher land is entitled to maintain an action to remove and abate such embankment as a nuisance.</p>

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

<p>Appeal—Order Denying New Trial—Undertaking—Dismissal An appeal from an order denying a new trial must be dismissed when no undertaking on appeal is filed thereon.</p> <p>Id__Appeal from Judgment—Review of Evidence.—Upon an appeal from a judgment not taken within sixty days from the rendition thereof, the evidence cannot be reviewed, but only the pleadings, findings, and judgment.</p> <p>Vendor and Purchaser — Contract of Sale—Signature by Vendor Only— Validity. — A contract for the sale of real estate is not void because signed by the vendor only and not by the purchaser. The vendor is the party to be charged, and his signature to the contract, taken in connection with its delivery to the purchaser and a partial payment thereunder, binds both parties.</p> <p>Id. — Signature of Vendor by Co-vendor—Ratification—Finding—Appeal__ When the findings show a written ratification of the signature of one vendor by a co-vendor, such finding is conclusive upon appeal as to the authority for the signature, when the evidence is not before the appellate court for review.</p> <p>Id.— Time of Essence of Conte act—Eailuee of Vendob to Tbndbb Deed — Eecoveby of Pdbchase-money.—The fact that the contract of sale expressly makes time of the essence of the contract, and that the vendor did not tender a deed at the time when the last payment fell due, does not put him in default so as to preclude a recovery by him of unpaid purchase-money.</p>

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

<p>Canal in Streets of City—Abatement of Nuisance—Erroneous Decree.— Where a canal was constructed at great expense more than five years before tile incorporation of a city through which it passes, at the instance and with the co-operation of the original owners of the land and projectors of the town site, and without objection from the board of supervisors of the county, who were consulted about its construction, and expensive and costly mills were erected upon its banks and operated by its waters, and the canal after leaving the city distributes water for the irrigation of many farms; and where, after the incorporation of the city, its trustees by ordinances and official acts regularly done recognized the existence of the canal, and assessed it for taxes, the fact that the canal runs through streets of the city which were dedicated by the owners of the town site, after the agreement to construct the canal, bnt prior to its actual construction, will not justify a decree at the suit of the city authorities, commenced eleven years after its construction, declaring the canal a nuisance per se, and ordering it to be entirely abated, filled up, and destroyed.</p> <p>Id.—Adverse Use of Streets—Estoppel in Pais.—Although, as a general rule, no right to any part of public streets can be acquired by adverse use, it seems that, in exceptional cases, the principle of estoppel in pais may he invoked against the public, leaving the court to decide the question not by the mere lapse of time, but upon all the circumstances of the case, as right and justice may require.</p> <p>Id.—Public Use of Water—Obstruction of Hibhway by Canal—Bemedy for Nuisance. — The use of water appropriated for sale, rental, or distribution, is a public use, under the constitution of this state, and the statutes of the state recognize ditches and canals as of public use, and regulate such use, providing that where they cross, or are on the lines of public highways, their work must be so laid-and constructed as not to obstruct the public highways; and when the nuisance consists merely in the manner in which the canal is conducted and managed, it should be remedied by enjoining its use in such manner as to make it a nuisance, without decreeing a total destruction of the property.</p>

<p>Fire Insurance—Harvesting Machine—Construction oe Policy.—Under a policy of fire insurance of a harvesting machine purporting to be upon a “ threshing outfit in the field,” and insuring it against loss by fire while “operating in the grain fields and in transit from place to place in connection with harvesting,” etc., the insurance company is not liable for a loss of the machine by fire near a blacksmith shop, to which it was taken and left for general repairs. which would require two weeks to make, although taken there with a view to going into the field for harvesting as soon as it was ready to fulfill contracts which had been made for the threshing of grain. The harvester was not “in transit from- place to place in connection with harvesting” when destroyed, within the terms of the policy.</p> <p>Id.—Liability of Insurer. —An insurer is not liable, except upon proof that the loss has occurred within the terms of the policy, and when making the policy he is at liberty to select the character of the risk he will assume.</p>

<p>Appeal—Beview of Conflicting Evidence—Preponderance. — Although the preponderance of evidence may appear to be against a finding of the lower court, such finding will not be disturbed upon appeal, where there is sufficient evidence, positive and circumstantial, to raise a substantial conflict upon the issue to which the finding relates.</p> <p>Husband and Wife—Separate Property—Beoital in Deed of Wife—Estoppel of Husband—Presumption. — Where the deed from a wife to her grantee recites that the property conveyed by her was her separate estate, and that the consideration paid by her for'the conveyance of the same property to her was her separate property and estate, and her husband signs such deed as a witness, with knowledge of such recitals, without disputing the same, he is estopped from denying their truth to the prejudice of the title of the wife’s grautee; and, in the absence of proof to the contrary, it must be presumed that the husband did know the contents of the deed, and thereafter acquiesced in the conveyance, and that any title of the husband prima facie passed to the grantee by the estoppel.</p> <p>Id. — Overcoming Prima 1 Facie Estoppel — Community Property—Quieting Title—Adverse Possession.—The possibility that a prima facie case of estoppel of the husband to claim the property as community property may be overcome by facts not disclosed in the record, cannot avail the defendants in an action to quiet title, where it appears that the plaintiff was in possession of the property at the commencement of the action, and that the defendants had lost their title by adverse possession prior to the deed of the wife to the plaintiff; and it is immaterial in such case whether the wife’s deed passed title to the plaintiff or not.</p> <p>Corporation—Deed—Power to Hold Beal Estate—Presumption.—When a deed is made to a corporation, and there is no evidence to show for what purpose the corporation had been organized, or what business it was conducting, it must be presumed, as against third parties, that the corporation had power to purchase and hold the land conveyed by the deed.</p> <p>Actions to Quiet Title—Evidence—Adverse Possession by Co-tenant—Declaration of Possessor. —In an action to quiet title to land claimed by adverse possession, as against a tenant-in-common, declarations of a co-tenant while in actual possession, that he claimed to be the sole owner of the land, are admissible in favor of his grantee of the entire premises as tending in some degree to show the character of his possession.</p>

<p>Wbit of Review—Remedy by Appeal.—The writ of review cannot be grante3 on the petition of a party who is entitled to appeal from the order or judgment of which he complains.</p> <p>Ed.—Annulling Justice’s Judgment—Ebboneous Judgment of Supeeiob Coubt. —A judgment of the superior court, upon a writ of review annulling a judgment of a justice of the peace, will be reversed if the writ was issue and served before the time had expired within which an appeal might have been taken from the judgment of the justice’s court.</p>

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

<p>Unlawful Detainer—Defense—Mistake in Term of Lease— Evidence—Finding—Appeal—Conflicting Evidence.—In an action of unlawful detainer, where the defendant pleads a mistake in specifying the term of the lease, such defense, whether legitimate or not in such an action, is an affirmative one, and a finding against its existence is necessitated if no competent evidence is offered in its support to prove that the plaintiff intended to make a lease for a term other than that expressed, and where the evidence conflicts upon the question of mistake the finding of the court cannot be reviewed upon appeal.</p> <p>Id.—Lease to Third Party.—It is no defense to an action of unlawful detainer that the plaintiff has leased the premises to a third party, with whose right the defendant does not connect himself.</p> <p>Id,—Question of Title.—Title is never involved in an action of unlawful detainer, and the defendant cannot set up an outstanding title, or show any title not derived from the landlord.</p> <p>Finding Outside of Issues—Support of Judgment.—A finding outside of the issues cannot form an element in determining the judgment to be rendered.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco, revoking the probate of a will, and from an order distributing the estate of a decedent.</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 Fresno County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Railway—Contract to Aid Construction—Breach of Conditions — Assumption of Liability—Consolidation of Corporations—Injunctions— Damages. — Where a contractor for the construction of a street railway agreed with the owners of land along the route that the road should be constructed and put in operation from the center of the city to a point near its northern boundary, by the time of the maturity of the notes or donations made conditional for the construction of the road between the points agreed, and such railway was constructed across the land of plaintiff, but never completed to the center of the city, and the railway company, for which the contractor acted as agent, and the contractor assigned all their rights to another corporation, which expressly assumed to perform the condition as to the completion of the road, except as to time, whereupon the note of plaintiff was paid, and such second corporation assigned its rights to a third corporation, which also assumed the same obligations, after which the three corporations were consolidated under the name of such third corporation, and excavations and embankments were made upon plaintiff’s land, the filling up and removal of which would cost six thousand dollars, the plaintiff is entitled to a decree enjoining the consolidated corporation from entering upon or interfering with the land, and is also entitled to recover from them the sum of six thousand dollars damages for the breach of the contract to complete the road.</p> <p>Id.—Proximate Cause of Damage.—The detriment caused to plaintiff’s land by the excavations and embankments made thereupon in the construction of the</p> <p>road across it was proximately and efficiently caused by the refusal of the defendant to construct its road to the center of the city as agreed, so as to 'make a harmonious whole of its line, whereby plaintiff would have been compensated by the increased value of his land for such detriment; and he is entitled to recover for such detriment, where it appears that the total damage to his land exceeded the costs of filling up and removal of such excavations and embankments.</p> <p>Id.—Assumption of Liability by Consolidated Coepobation—Assent of Creditoe. — Where a consolidated corporation has expressly assumed and made itself liable for all the antecedent liabilities of the consolidating corporations, it cannot be permitted to divide up the obligation and reduce its responsibility; but must be held to be liable precisely as though it had been the sole actor from the outset; and though such assumption of liability does not, without tlieir consent, bind the creditors of a consolidating corporaton, yet suit brought by any creditor thereof against the consolidated corporation, which has agreed to pay the demand, is of itself sufficient evidence of acceptance of the new debtor in lieu of the old.</p> <p>Id. —Measure of Damage—Difference in Value of Land.—The difference between the value of the land with the contract consummated, and its value with the same contract broken, is the true criterion of damage for breach of the contract to construct the street railway as agreed.</p> <p>Id.—Special Damages—Deprivation of Convenience—Pleading.—The damage resulting to the plaintiff from the" deprivation of the convenience of communication between his land and the center of the city is in the nature of special damage, which must be specially pleaded.</p> <p>Id.—Special Finding Controls General Finding.—A special finding, showing that part of the damages consisted of special damages not pleaded, will control a general finding of damages in an aggregate sum.</p>

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

<p>Constitutional Law—Increase of Compensation cubing Term of Office— County Government Act — Compensation of Assistant District Attorneys-—Belief of District Attorneys. — Subdivisions 21 and 23 of section 170 of the County Government Act of 1891, providing that the compensation of the assistants of district attorneys of counties of the eighth class shall be paid by the county, in so far as they purport to relieve the district attorneys of any such counties, who were elected prior to the passage of that act, and whose term of office had not expired at the time of its passage, from the payment of their own assistants, as required by the County Government Act of 1839, is in conflict with section 9 of article XI. of the constitution prohibiting an increase of the compensation of any county or municipal officer after his election, or during his term of office.</p> <p>Id. —Special Legislation as to District Attorneys in Counties of One Class. —Section 170 of the County Government Act, as amended in 1891, by which counties of the eighth class alone are segregated from the others, and authority conferred upon the district attorney therein, which is not granted to that officer in other counties, renders the act to that extent local and special, in violation of the provisions of the constitution.</p> <p>Id. — Construction of Constitution—Uniform System of County Governments. —Under section 4 of article XI. of the constitution, the “ system ” or plan for the government of the several counties of the state is required to be uniform, so that its several parts shall be applicable to each county.</p> <p>Id. — Mandatory Provision—Uniform Legislation as to County Officers._ Section 5 of article XI. of the constitution, directing that “the legislature by general and uniform laws shall provide for the election or appointment in the several counties” of “such county, township, and municipal officers as public convenience may require, and shall prescribe their duties, and fix their terms of office,” is mandatory, and not only gives the legislature exclusive authority to provide for the officers in the several counties, fix their term of office, and prescribe their duties, but also requires that such provision be made “by general and uniform laws,” and that any law which the legislature may enact upon such subject must be uniformly applicable to all the counties of the state.</p> <p>Ty. —Local Legislation—Classification of Counties.—An act of the legislature that is applicable to only one county in the state, is a local act, and it does not cease to be such because it purports to be applicable to a class of counties which the legislature is not authorized to create for the purpose of such legislation, and of which that county constitutes the only member.</p> <p>Id.—Judicial Notice—Population of Counties—Numbeb Forming Class.— The court will take judicial knowledge whether any county in the state has a population which places it in a specified class, and what number of counties belong to a particular class.</p>

<p>ClASSIFIOATION OF GliENN COUNTY—CONSTRUCTION OF STATUTES—PoWER OE LeSISI/Ature—County Government Act. — Section 11 of the Act of March 11, 1801, conditionally creating Glenn County, providing that the county officers referred to in the act should receive the same compensation provided by general law in counties of the same class, and declaring it to be a county of the thirty-seventh class, must be regarded as simply determining the population, rather than arbitrarily fixing the class to which it should belong when organized, and in which it should remain irrespective of subsequent legislation, which the legislature has no power to do; and under the subsequent County Government Act of March 81,1891, Glenn County, with the same population, became a county of the forty-first class.</p>

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

<p>Criminal Law—Evidence—Failure of Defendant to Testify—Comment by District Attorney—New Trial—Waiver of Error Where the defendant in a criminal case fails to testify in his own behalf, the district attorney has no right in addressing the jury to comment upon such failure; hut error in making such comments can only be availed of on motion for new trial, and is waived unless properly presented upon the record of such motion.</p> <p>Id.—Viva Voce Motion for New Trial—Statement of Grounds—Bill of Exception—Where, upon appeal from an order denying a viva voce motion for s, new trial in a criminal case, the bill of exceptions fails to show that the alleged error was stated as a ground of the motion, or that the attention of the trial court was called to it, the alleged error must he regarded as waived.</p> <p>Id.—Misconduct of Jurors—Drinking of Intoxicating Liquors.—The drinking of intoxicating liquors by some of the jurors, in a criminal action, after the case was submitted to them and before verdict, while in charge of an officer who had taken them out to dinner, is not such misconduct on their part as to warrant a reversal of the judgment, if they were not affected by the liquor which they drank.</p> <p>Id.—Setting Aside Information—Preliminary Examination—Substitution of Justice of Different Township.—An information cannot be set aside upon the ground that the defendant was examined and held to answer by a justice of the peace of a different township from that of the justice before whom the complaint was filed, and who issued the warrant for the arrest, where it appears that such other justice was called in pursuant to section 105 of the Code of Civil Procedure to act as a committing magistrate, in place of the justice who issued the warrant and at his request.</p> <p>Id.—Testimony of Accomplice—Instruction as to Matter of Fact.—It is not allowable in a criminal prosecution, where a witness is claimed to have testified as an accomplice, to instruct the jury as to the matter of fact Whether the witness was an accomplice of the defendant.</p> <p>Id.—Burglary—Possession of Stolen Property—Sufficiency of Proof.—In a criminal prosecution for burglary, where it was proved that a burglary had been committed, and that property then stolen was subsequently found in the possession of the defendant, a verdict of conviction will not be reversed upon the alleged ground of absence of proof connecting the defendant with the commission of the burglary.</p> <p>Id.—Refusal to Arrest Judgment—Non-appealable Order.—An order denying a motion in arrest of judgment in a criminal case is not appealable.</p>

<p>Fire Insurance—Proofs of Loss—False Statements—Fraud—Pleading— Instruction.—In an action upon a fire insurance policy, where the answer takes issue upon the sufficiency of the proofs of loss, and points out several alleged defects in it, and alleges it to he false and untrue in respect to quality, quantity, and value of the property insured, and in respect to the amount of the loss, but does not charge that it was wilfully false, nor state any facts constituting fraud, nor claim that a forfeiture has been incurred, an instruction that if the jury find that the proof of loss was false and fraudulent, their verdict should be for the defendant, is properly refused.</p> <p>Id.—Defense, How Pleaded—Fraud —Forfeiture.—A defense should be so pleaded that, being admitted as pleaded, judgment must go for the defendant, and this rule is especially rigid in pleading fraud or a forfeiture.</p> <p>Id.—Trial of Unpleaded Issue—Estoppel—Absence of Prejudice—Inapplicability of Rule—The rule that where proof has been admitted on the trial, without objection that the answer was insufficient to raise an issue upon the subject-matter of the proof, rests partly upon the estoppel of the plaintiff to object to a defect in the pleading until it was too late to remedy it, thereby inducing his opponent to rely upon the pleading as sufficient, and partly on the ground that the issue has been fairly tried, and neither party has been prejudiced by the want of a good pleading; but this rule does not apply where the evidence given was relevant to issues actually joined upon the sufficiency of the proofs of loss under afire insurance policy, and where the answer of the insurance company raised no issue as to fraud of the plaintiff or forfeiture of the policy, and the defendant was not misled by the conduct of the plaintiff.</p> <p>Id.—Stipulation for Arbitration — Uncertainty—Condition Precedent—A stipulation in a fire insurance policy for arbitration of the amount of loss, not providing for the number of arbitrators, nor the mode of their selection, is too indefinite to be enforced, and a submission to arbitration thereunder is not a condition precedent to a right of action upon the policy.</p>

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

<p>Pleading—Amended Complaint—Objection to Original Complaint.—Where an amended complaint, which is unobjectionable, has been filed in an action, an objection upon appeal from a judgment therein that the original complaint failed to state a cause of action is untenable.</p> <p>Id._Irregularity in Pleading Supplemental Matter— Objection upon Appeal. —Alleged irregularity in setting out material matters in an amended complaint, which should have been alleged by supplemental pleading, cannot be questioned for the first time upon appeal upon the claim of the failure of such complaint to state a cause of action.</p> <p>Id. — Statute of Limitations—Judgment by Default—Review upon Appeal.— The question of the statute of limitations cannot be raised upon an appeal from a judgment by default taken upon a judgment-roll containing neither answer nor demurrer.</p> <p>Vacating Judgment—Service of Summons—Question of Fact— Conflicting Evidence—Review upon Appeal. — Upon a motion to set aside a judgment, upon the ground that certain defendants against whom it was rendered had not been served with summons, the question as to whether or not the summons had been served upon them is one of fact, and where the evidence thereon is conflicting, a finding of the trial court that the service has been made will not be disturbed upon appeal.</p> <p>Id.—Discretion—Legal Right—Construction of Code.—An application to vacate a judgment for want of service of summons upon or appearance of a defendant, is not matter of discretion, but of pure legal right, and does not arise under section 473 of the Code of Civil Procedure.</p> <p>Id.—Appearance of Attorney—Evidence of Authority.—The appearance in court of an attorney, claiming to represent a litigant, is prima facie evidence of his authority to act, and in order to show want of authority upon the part of the attorney the litigant must present clear and convincing, evidence.</p> <p>Official Bond—Joint and Several Liability—Effect of Judgment against Part of Sureties. — In an action upon a joint and several official bond of a county officer, an objection by some of the sureties that judgment had previously been rendered against the other sureties is untenable.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order refusing to vacate said judgment.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal from an order of the Superior Court of the City and County of San Francisco, apportioning costs between the parties to condemnation proceedings.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Negligence—Spreading of Fire—Treble Damages—Burden of Proof — Nonsuit. — In an action brought under section 3344 of the Political Code for treble damages caused by fires alleged to have been negligently set by a mill company upon its own land and for its own convenience, and which it negligently permitted to extend to plaintiff’s land, the burden of proof is upon the plaintiff to show the negligence of the defendant, and where the plaintiff failed to prove that the fires were started by the defendant, otherwise than that they originated on'his land, and failed to prove that they were started negligently, or for any unnecessary purpose, or that due care was not exercised by the defendant to prevent them from spreading to other lands, a nonsuit should be granted.</p> <p>Id.—Construction of Political Code—Punishment fob Negligence.—The provision for treble damages in section 3344 of the Political Code is not designed as a compensation to the plaintiff, but as a punishment to the defendant for his negligence, which is the essential fact, and must be proved to sustain a recovery.</p> <p>Id.—Damage Caused by “Unlawful Act”—Negligence—Proof Required.— Where damage is shown to have been caused by an unlawful act, no negligence need be proven; but it is necessary in such case to establish every element showing the act to be unlawful.</p> <p>Id. — Construction of Penal Code—Proof of Unlawful Act. — Under section 384 of the Penal Code, which provides that “ every person who wilfully or negligently sets on fire, or causes or procures to be set on fire, any woods, prairies, grasses, or grain on any lands, is guilty of a misdemeanor,” the word “ wilfully ” means with evil intent, legal malice, or bad purpose, and mere proof of starting a fire on one’s own land, which spreads to the land of another, without proof of evil intent, or of negligence, does not show an unlawful act under that section.</p> <p>Id. — Setting Fires in Woods—Public Lands—Penal Statute. — The act of February 13, 1892, making it unlawful wilfully and deliberately to set fires in the woods, relates only to public lands, and is penal in its nature, requiring proof that the fire was started wilfully and deliberately to show an unlawful act.</p>

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

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

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

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

<p>Ejectment—Prior Possession of Public Land—Entry by Homestead Claimant. — One who was in the prior actual possession of public land open to settlement, under the forfeiture act of Congress of September 28, 1890, may maintain ejectment against a person who made a peaceable entry upon such actual possession, intending to occupy the land as a homestead, but who is not otherwise connected with the government title.</p> <p>Id.—Unauthorized Entry upon Actual Possession—Laws of United States. —The laws of the United States do not authorize an entry upon public land in the actual possession of another, for the purpose of making a settlement, though made by one qualified to purchase from the government or to acquire a homestead, and made with intent to acquire the title in some lawful mode.</p>

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

<p>Criminal Law—New Trial—Separation of Jury—Drinking Intoxicating Liquors—Showing Required.—The mere fact that certain jurors in a criminal prosecution, in violation of the direction of the trial judge and before the final submission of the case, separated from the others and from the officer who had them in charge, and that some of them drank intoxicating liquors, does not ‘ of itself entitle the defendant to a new trial, in the absence of a showing that any one of the jurors was influenced in his verdict by some outside influence, or in consequence of such separation, or was affected by the liquor which he drank, or that the quantity and character of liquor was such as would presumptively affect his capacity as a juror.</p> <p>Id—Cross-examination of Defendant—Reporter’s Notes of Former Testimony—Bill of Exceptions — Statement of Evidence in Assignment of Error.—Where the bill of exceptions upon an appeal from a judgment in a criminal prosecution merely shows that the court permitted the defendant to he cross-examined “upon the transcript of the reporter’s notes of his testimony at the former trial,” and none of the testimony is set out in the bill of exceptions," an objection that the court erred in permitting cross-examination upon matters not brought out in direct examination is not sustained by the record. The statement of such testimony in the assignment of errors cannot he regarded as a part of the record for such a purpose.</p> <p>Id. —Evidence of Insanity—Burden of Proof — Preponderance.—The burden of showing insanity as a defense to crime is upon the defendant charged with the crime, and it must be established by a preponderance of evidence.</p>

<p>Appeal—Stay of Proceedings—Injunction—Restraining Persons not Parties A writ of supersedeas or order for the stay of proceedings pending on an appeal is limited to restraining any action upon the judgment appealed from, and cannot be used to perform the functions of an injunction against the parties to the action, restraining them from any act in the assertion of their rights, other than to prevent them from using the process of the trial court to enforce the judgment, nor can the writ be employed for any purpose upon persons not parties to the judgment.</p> <p>Id. — Corporations—Suit to Set Aside Election of Director — Staying Action of Director Pending Appeal—Recognition of Fellow-directors, — Where one claiming to have been duly elected a director of a corporation filed a petition under the provisions of section 315 of the Civil Code to have the election of another party as a director set aside, and to confirm the election of himself as such director, and after a trial thereof the court rendered a judgment declaring the petitioner elected and confirming his election, a writ of supersedeas will not be granted pending an appeal by the defeated party to restrain the party in whose favor judgment was rendered from acting as director, under the recognition of his fellow-directors, where no proceedings have been had or attempted upon the judgment.</p>

<p>Negligence—Contributory Negligence—Wilful Injury.—Where the conduct both of a party injured and of the party alleged to have caused the injury clearly indicates an absence of the exercise of the most ordinary care, the latter will not be held liable, unless the acts which resulted in the injury were wilfully and deliberately done.</p> <p>Id.—Railroads—Negligence of Engineer—Alarm at Crossing—Collision with Wagon—Negligence of Driver.—The failure of the engineer of a railroad train to ring a bell or blow a whistle at a street crossing, as required by section 486 of the Civil Code, does not abrogate the doctrine of contributory negligence, and where the driver of a wagon recklessly drives across the railroad track at the time when the train is known to be due, without checking speed, or listening for an approaching train, or adopting any precaution to prevent a collision, the railroad company is not responsible for an injury resulting from a collision, notwithstanding the neglect of the engineer to comply with the statute.</p> <p>Id.—Subsequent Employment of Automatic Bell—Evidence An offer of evidence that subsequent to the accident the railroad company placed an automatic bell at the crossing where the collison occurred is properly rejected.</p>

<p>Execution—Sale—Delivery of Possession—Mandamus__A purchaser of property at an execution sale, to whom the judgment debtor refuses to deliver the property, is not entitled to a writ of mandate to compel its delivery by the judgment debtor.</p> <p>Id—Office of Writ of Mandate—Title not Triable.—The writ of mandate is never employed for the purpose of trying title to property, whether the property be the right to land, or to an office, or to a franchise.</p> <p>Id.—Franchises—Sale under Execution—Limited by Statute.—A franchise cannot be levied upon or sold under execution in the absence of a statutory provision therefor, and whenever such a provision exists, the extent as well as the mode of levy and sale are limited thereby.</p> <p>Id.—Sale of Toll Road — Private Franchise not Subject to Execution.— Section 338 of the Code of Civil Procedure, providing that for the satisfaction of any judgment against a corporation authorized to receive tolls, its franchise may be sold under execution, limits the franchises which may be sold under execution to those owned by corporations, and does not authorize the sale of a franchise held by an individual.</p> <p>Id—Franchise not Capable of Manual Delivery—Improper Judgment—Insufficient Determination of Rights. —A franchise is merely a privilege not capable of manual delivery, and a provision in a judgment against the owner of the franchise, requiring him to deliver the possession thereof to the judgment creditor, is not susceptible of execution; and a further provision therein that he deliver “ the possession of all property necessary for the exercise of the powers and the receipt of the proceeds of said franchise” is too indefinite to constitute a determination of the rights of the parties. The court should determine what property is “necessary” in the exercise of the powers of the franchise, and not leave it to the arbitrament of the judgment debtor.</p>

<p>Appeal from an order of the Superior Court of Sierra County, granting a motion to amend a notice of intention to move for a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insolvency—Bond of Petitioning Creditors—Jurisdiction. —The failure of the petitioning creditors of an insolvent to file a bond signed by the creditors and two sureties under section 8 of the Insolvent Act, and the filing of a bond signed by the sureties alone, if irregular, does not affect the jurisdiction of the court over the subject-matter of the proceeding.</p> <p>Id—Place of Business of Insolvent Corporation—Parol Evidence. — Under section 8 of the Insolvent Act, requiring a petition by creditors for an order of adjudication of insolvency, to he filed in the county in which the debtor resides or has his place of business, parol evidence is admissible to show in what county a corporation, sought to be adjudged insolvent, has its place of business.</p>

<p>Appeal from an order of the Superior Court of Glenn County, granting alimony and counsel fees.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Foreclosure of Mortgage—Parties—Representatives of Deceased Mortgagor—Transfer of Mortgaged Premises. — The personal representatives of a deceased mortgagor are not necessary parties to a foreclosure suit, where the mortgaged premises have been conveyed to third parties, and all recourse against the property of the estate, except the mortgaged premises, is waived; and a judgment of foreclosure in such a suit is valid as against the subsequent grantees.</p>

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

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

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

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

<p>Criminal Law—Rape—Information—Capability of Committing Offense — Defense.—An information charging a defendant with wilfully and feloniously committing rape upon the person of a female child under the age of fourteen years, implies an averment that the defendant was capable of committing the offense; and it is not necessary to allege that the defendant was a male, or over fourteen years of age, or, if under that age, that he possessed physical ability to commit the offense. If the defendant was incapable of committing the offense, such fact may be shown in defense.</p> <p>Id.— Evidence—Testimony of Prosecutrix—Impeachment—Deposition before Committing Magistrate—Explanation of Discrepancies.—In a prosecution for rape, where, to contradict the testimony of the prosecutrix, who was a child of eleven years, the defense read her testimony before the committing magistrate, it was proper for the court to allow the prosecution to recall her and to ask her to explain the discrepancies,</p> <p>Id.—Instruction—Sufficiency of Evidence of Prosecutrix.—An instruction to the jury, in a prosecution for rape, that “while it is the law that the testimony of a prosecutrix should be carefully scanned, still this does not mean that such evidence is never insufficient to convict. If you believe the prosecutrix, it is year duty to render a verdict accordingly,” is not equivalent to telling the jury that they should convict if they believe the prosecutrix, hut is simply saying that if they believe it they should act upon it as establishing the facts proved by it, and is properly given.</p> <p>Id—Motion for New Trial—Amendment after Denial of Motion.—Where a defendant in a criminal prosecution submitted a motion for a new trial which was denied, and judgment was thereupon pronounced, a motion thereafter to amend the motion for a new trial, by adding the ground of newly discovered evidence, comes too late.</p>

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

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

<p>Negligence—Insufficient Stoppage of Train at Station—Liability of Bail-road Company.—It is the duty of a railroad company to stop its train at a station for a reasonable time, in order that passengers may get on and off its cars with safety to themselves, and if it fails so to do, and injury results to passengers from the starting of the train while passengers are alighting, the company is guilty of negligence, and is responsible in damages for such injury.</p> <p>Id.—Duty of Gabbier of Passengers.—A common carrier of passengers for hire is bound to use the greatest care and diligence in their transportation consistent with the carrying on of his business.</p> <p>Id.—Contributory Negligence—Jumping from Moving Train—Question for Jury—Instruction.—-The act of a passenger in jumping from a moving train is not negligence per se, but it is for the jury to say, under all the circumstances of the case, whether the act of jumping was justifiable or not; and if the passenger jumped when carried less than one hundred feet beyond the station, after an attempt to alight at the station, where there was no sufficient time allowed to alight with safety, and there is no evidence as to the speed of the train at the time of jumping, it is proper to instruct the jury that if they find that the train did not stop a reasonable length of time to allow the plaintiff to get off, and that she jumped therefrom while the train was in motion, and under such circumstances that an ordinarily cautious, careful, and prudent person would not have apprehended danger therefrom, she was entitled to recover; but if they found that the jumping was under circumstances where such a person would have apprehended danger, it was an act of carelessness which would relieve the defendant from responsibility, and entitle it to a verdict.</p>

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

<p>Option upon Stock—Agreement to Sell—Mutual Agreement upon Acceptance— Dependent Conditions.—A written instrument in the form of a letter, by the terms of which the parties signing it grant to the person addressed the privilege of calling for all or any part of two thousand shares of stock at any time within two years thereafter, at thirty dollars per share, constitutes, under section 1727 of the Civil Code, an agreement of the signers to sell the stock, or any part thereof, at the price stated, to the person addressed, at any time within two years; and upon an acceptance by the person addressed at any time within the two years, becomes, under section 1729 of the Civil Code, an agreement to sell and buy, containing concurrent conditions mutually dependent upon each other.</p> <p>Id,_Tender of Purchase-money—Failure of Acceptor of Option—Breach of Contract — Default of Seller. — An acceptance of the offer to sell upon the part of the party holding the option to purchase, without an offer of payment of the purchase price, does not place the seller of the stock in default so as to give the acceptor a right of action for a breach of contract, unless the conduct of the seller was such as to excuse the failure of an offer of payment.</p> <p>Id._Construction of Code — Concurrent Conditions — Offer of Performance__Section 1349 of the Civil Code, which provides that “before any party to an ooligation can require anotner party to per.orm any act under it, he must be able ancl offer to fulfill all conditions concurrent so imposed upon him on the like fulfillment by the other party,” is applicable to obligations arising upon agreements for the sale of personalty, as well as of realty; and under such section, in order that one party may place the other in default upon a contract consisting of mutually dependent obligations, he must not only be able to perform but must offer to perform.</p> <p>Id. — Waiver of Offer or Tender—Refusal to Perform.—In order to constitute an implied waiver of an offer or tender by refusal of the other party to perform his promise, there must be a distinct and unequivocally absolute refusal to perform the promise, which must be treated and acted upon as such by the party to whom the promise was made.</p> <p>Id. — Promise of Future Performance__A promise to deliver stock at a future day, when -notified of acceptance of an option under an agreement to sell it, indicates a willingness to deliver it, and cannot be construed into a refusal to do so.</p> <p>Id.—Excuse of Tender—Waiver by Inability to Perform—Hypothecation of Stock.—The person accepting the option to purchase the stock, under the contract, was not excused from tendering the purchase-money, on the ground that the seller of the stock had placed it out of his power to deliver it, merely because he had hypothecated it and could not then deliver the shares pledged, where it appears that at that time large amounts of the stock were for sale, and any reasonable amount thereof could be purchased for the price of the shares agreed to be sold.</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>Landlord and Tenant—Bond to Secure Bent—Discharge of Sureties — Tender by Assignee without Deposit—Breach of Covenant not to Assign.—The sureties upon a bond, given by a lessee to secure the payment of rent are discharged by a tender of rent by an assignee of the term, although such rent was not deposited in compliance with the provisions of section 1500 of the Civil Code, and notwithstanding the assignment was made in violation of a covenant not to assign the lease without the written consent of the lessor.</p> <p>Id__-Waiver of Forfeiture of Lease—Acceptance of Bent from Person not Owner of Term.—The forfeiture of a lease for breach of a condition not to assign the lease without the written consent of the lessor is waived by the acceptance of rent, eo nomine, from any one after knowledge of an assignment of the term without the lessor’s consent, though the ownership of the term is disputed, and the rent is paid by one in possession who is not the real owner_of the term.</p> <p>Id.—Affirmance of Lease after Assignment—Action against Sureties.— The lessor affirms the continuance of the lease by bringing a suit to recover rents which accrued under it, after an assignment made to a second assignee without his consent, and cannot claim that such second assignee acquired nothing by its assignment.</p> <p>Id.—Breach of Condition and Covenant not to Assign—Bight of Lessor — Option to Forfeit Lease—Effect of Assignment. — Where an assignment without written consent of the lessor is a breach both of a condition and of a covenant not to assign, the lessor has only the option to forfeit the lease for breach of the condition, and has not the option of declaring the assignment void. An assignment in violation of the covenant is not void, and does not avoid the lease, but passes the term, and the only remedy for such violation is an action for breach of the covenant.</p> <p>Id.—Offer of Performance—Exoneration of Surety—Construction of Code—Deposit no Part of Offer.—Under section 2839 of the Civil Code, providing that an offer of performance “duly made as provided in this code,’* no reference is had to section 1500 in regard to the deposit of a tender, which relates not to an offer of performance of a contract, but to the absolute extinguishment of a debt, and such deposit is no part of the offer which exonerates a surety.</p>

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

<p>Vendor and Purchaser—Action for Purchase-money—Evidence'—Offer and Befusal to Perform—Non-residence of Purchaser—Insufficiency of Proof__In an action by a vendor for the recovery of money due upon a contract for the sale of land, where issue was joined as to an offer of the plaintiff to perform, and refusal to perform upon the part of the defendant, proof that the plaintiff had prepared a deed and was ready to deliver it, and that he had heen told that the defendant, who was a resident of another state, had no residence in this state, is not sufficient to sustain a finding for the plaintiff, where it is not shown that the defendant was actually out of the state at the time of the alleged offer, or that he did not have a place of business within this state, or that plaintiff had used any diligence in finding the defendant within the state, or to ascertain whether he had a place of business therein.</p> <p>Id.—Vendor’s Lien not a Mortgage — Personal Action. — A contract for the sale of land, by the terms of which the vendor is to retain title to the land until the payment of the entire purchase-money, does not establish the relation of mortgagor and mortgagee, and there is no statutory prohibition upon the right of the vendor to a personal action to recover the purchase-money when it becomes due.</p> <p>Id. —Action for Purchase-money not Local.—An action to recover the purchase-money for land sold is not a local action, and may be brought in a different county from that in which the land is situated.</p> <p>In. — Encumbrance upon Land Sold—Failure to Find upon Material Issue. _Where the defendant in such action denied that the plaintiff was able to convey the land free from encumbrance, or that he could furnish title according to the contract, and there was evidence tending to show an existing encumbrance, a failure to find upon such issue is material.</p> <p>Id.—Water StooEt Evidence—Pro Bata Share—Payment of Assessment bs Vendor—Insufficiency of Proof__Where the vendor claims from the purchaser a sum due as an assessment upon water stock sold with the land, the evidence is defective where it fails to show what was the pro rata share of the water stock, or that such sum was assessed or paid by the vendor upon such pro rata share of stock.</p>

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

<p>Dehuebeb to Complaint—Impbopeb Obdeb Steiking Dehuebeb fboh Files— Judgment by Default—Revebsal upon Appeal__Where the summons is served on the defendant in another county than that in which the action is brought, a demurrer filed within thirty days after the service of the summons cannot be properly stricken from the'files, whether it has been served or not, and an order striking such demurrer from the files and entering judgment by default will be reversed upon appeal from such judgment.</p> <p>Id.—Want of Sebvioe of Dehubbeb—Gbounds of Steiking Out—Constbuotion of Code__A demurrer cannot be stricken out for want of proof of service, if filed in time, and the only other possible grounds of striking out such a demurrer is the insertion of irrelevant and redundant matter in it as a pleading under section 453 of the Code of Civil Procedure, which cannot apply when it states only one or more of the grounds enumerated in section 430 of that code.</p> <p>Id.—Demurrer Stricken Out — Date of Filing—Judgment-roll—Appeal from Judgment.—A demurrer stricken out constitutes part of the judgment-roll, as a pleading, and can be looked to to ascertain when id was filed upon appeal from a judgment rendered by default.</p> <p>Id.—Order Deemed Excepted to. — An order striking out a demurrer is deemed excepted to.</p>

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

<p>Landlord and Tenant—Action foe Possession at Expiration of Teem— Pleading—Sufficiency of Complaint. — A complaint which alleges in substance that plaintiff had leased certain premises to defendant yearly, at a certain annual rent; that before the expiration of the last year he notified defendant that he would not renew the lease, and requested him to surrender and vacate the premises, which he refused and still refuses to do, and has withheld and still withholds the possession thereof, to plaintiff’s damage in a specified sum, and has failed and refused to pay the rent for the last year, and praying judgment for possession of the premises, damages, and rent due, states a cause of action, and is sufficient to support findings and judgment for the plaintiff.</p> <p>Id.—Averment of Possession—Demurrer. — The averment that defendant has withheld and still withholds the possession of the premises from the plaintiff implies that plaintiff is in possession, and is a sufficient averment of that fact as against a general demurrer, in the absence of a demurrer that the complaint, is ambiguous or uncertain in that regard.</p> <p>Id.—Yearly Lease—Tenancy at Will—Expiration of Eixed Term.—The averment that defendant leased the lands to plaintiff from year to year, commencing on the first day of March, 1886, down to the first day of March, 1889, for a specified rent, which defendant promised and agreed to pay plaintiff annually therefor, does not show a tenancy at will, but a tenancy for a fixed term which expired March 1, 1889.</p> <p>Id.—Right of Re-entry—Notice to Quit—Demand of Possession.—A landlord who has leased premises for a fixed term has a right to re-enter upon the expiration of the term, and to maintain an action for possession without previous notice to quit, or demand for possession after the expiration of the term.</p> <p>Id,_Estoppel of Tenant to Deny Landlord’s Title__A tenant who is holding over after the term cannot deny Ms landlord’s title without first surrendering to him the possession.</p> <p>Id__Evidence—Occupancy of Tenant—Withholding of Possession. —In an action by a landlord to recover the possession of premises held by a tenant after the expiration of the term, it is proper for the plaintiff to show that the defendant continued in the occupancy of the land and was withholding its possession from him.</p> <p>Id. — Pboof of Plaintiff’s Title — Pbiobtty with G-ovebnment—Entby of Desebt Lands—Ceetificate of Begisteb. — Such action could be maintained without a showing of priority with the government; and it cannot be error prejudicial to the defendant for plaintiff to be permitted to prove his priority with the government of the United States, by producing in evidence a certificate of the register of the local land office showing an entry of the lands in question as desert lands, and a conveyance to the plaintiff from the person entering the same, instead of producing a certified copy of the certificate of purchase or receiver’s receipt from the general land office.</p>

<p>Street Assessment—Void Contract with School Trustee—Municipal Corporation Act.—Under section 628 of the Municipal Corporation Act of March 13, 1893, which provides that no officer of a city of the fourth class organized thereunder “ shall be interested in any contract to which the city is a party, and any contract contrary to the provisions hereof shall be void,” a contract by such a city with one of its school trustees, for street work, is void, and furnishes no basis for a valid assessment therefor.</p> <p>Id.—Special Finding as to Official Character of Contractor — Control of General Finding.—A special finding that the plaintiff was a school trustee at all of the times mentioned in the complaint to foreclose an assessment for street work done by plaintiff will control a general finding that all the allegations of the complaint are true, so far as respects the validity of the contract.</p> <p>Id.—Appeal to Council Inapplicable in Case of Void Contract—Limitation of Power.—Section 3 of the act of March 18, 1885 (Stats. 1885, p. 147), which provides for a petition of remonstrance to the city council by any one who may feel aggrieved or may have objections to the proceedings of the council in relation to the street work to be done, and that the decision of the council shall be conclusive thereon, was intended to apply only to acts and proceedings within the power of the council, and does not apply in case of a void contract which forms a limitation upon the power of the council.</p> <p>Id.—Construction of Statutes—Street Improvements. — Section 5 of the act of March 18, 1885, relating to street improvements, did not supersede or repeal section 628 of the Municipal Corporation Act of March 13, 1883.</p> <p>Id.—Kepeal by Implication.—The repeal of statutes by implication is not fayored. In order for a subsequent act to repeal a former, it should appear from the last act that it was intended to take the place of or repeal the former, or that the two acts are so inconsistent that force and effect cannot be given to both.</p>

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

<p>Interpleader—Judgment Determining Claims to Fund Deposited in Countf —Appeal—Bond to Stay Execution—Void Judgment against Sureties.— In an action where conflicting claims are made to a sum of money deposited in court by an original defendant, a judgment awarding the money to one of the claimants, together with costs, does not necessitate the giving of a bond by the defeated party, under section 942 of the Code of Civil Procedure, in order to stay execution upon appeal therefrom, but such execution is stayed by the ordinary appeal bond for three hundred dollars, and a judgment rendered on motion against the sureties on a separate stay bond, after the affirmance of the judgment upon appeal, for any portion of the fund found to be lost or misappropriated by the custodian of the fund, is void.</p> <p>Id. — Motion fob Judgment against Sureties Allowed only upon Statutory Bond—Void Bond. —It is only upon a statutory bond that judgment can be ordered against the sureties upon motion, and if a judgment from which an appeal is taken is not such as calls for the giving of a bond to stay execution, aside from the ordinary three-hundred-dollar appeal bond, the filing of a bond for that purpose is unnecessary and useless labor, and if so filed, is void as a statutory bond.</p> <p>Id__Judgment for Costs—Stay Bond — Construction of Code.—A judgment for costs is not a judgment directing the payment of money contemplated by section 942 of the Code of Civil Procedure, and a stay bond is not required in order to restrain the issuance of an execution to recover such costs.</p>

<p>Deed—Delivery to Third Party for Grantees—Instruction to Deliver after Death of Grantor—Vesting of Title—Life Tenancy—Trust. — The delivery of a deed by the grantor named therein to a third party for the children of the grantor, with instructions to such third party to hold the deed for them without recording it until after the grantor’s death, and thereupon to deliver it to them, the grantor parting with all dominion over the deed and reserving no right to recall it, or to alter its provisions, or to have or enjoy any other or further interest in the premises than to hold the use thereof until his death, constitutes a valid 'delivery of the deed, which vests the title immediately in the grantees, qualified only by a life tenancy in the grantor, and the depositary becomes the trustee of the grantees.</p> <p>Id.—Grantor must Part with Control of Deed.—The essential requisites to the validity of a deed transferred under such circumstances is that when placed in the hands of the third party it has passed beyond the control of the grantor for all time.</p> <p>Id.—Delivery—Intention of Grantor—Question of Pact.—The question as to whether, when a deed has been placed in the hands of a third party, it has passed beyond the control of the grantor for all time, is determined by the grantor’s intention in the matter; and his intention in making the delivery is a question of fact to be solved by the light of all the surrounding circumstances.</p> <p>Id.—Evidence — Declarations and Acts of Grantor after Delivery.—The declarations and acts of a grantor, made and done in his own interest months after the delivery of a deed by him, are not admissible as indicating his intentions in delivering the deed, and instruments executed by him thereafter can not constitute evidence in his favor upon the question of such intention.</p>

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

<p>Stockton—Duty op Department op Streets and Wharves—Removal of Obstructions to Watercourses—Ordinance. — Under the terms of the charter of the city of Stockton, approved March 2, 1889 (Stats. 1889, p. 577), it is the duty of the department of streets and wharves to see that the watercourses and channels are not obstructed by anything which will cause the waters thereof to overflow and injure or destroy the public streets or property of the city, and no ordinance of the city eouncil is necessary in order to authorize the department to remove such obstructions.</p> <p>Id. —Deposit in Slough by Act op United States—Improvement op Navigation —Right of City to Remove Deposit.—The fact that the deposit sought to be removed from the slough is due to the- acts of the United States government in improving the navigable portion of the stream below does not affect the right of the city to cause it to be removed. The city has the right to remove obstructions from a natural watercourse so as to preserve it in its natural form, without regard to the cause of such obstruction.</p> <p>In. — Construction op Charter—Authority over Channel op Slough.—The act of March 23, 1872 (Stats. 1871-72, p. 540), authorizing the city authorities of Stockton to widen and deepen the channel of Mormon slough, and providing for condemnation proceedings therefor, was intended to provide against overflow, but does not prevent action under authority of the department of streets and wharves to remove a deposit of earth which has partially filled up the channel of the slough, and which if allowed to remain will tend to cause an overflow of the waters and an injury to property of the city, if there is no removal of land belonging to a private person, and no attempt to widen or deepen the channel.</p>

<p>Husband and Wife—Separate Property of Wife—Conveyance to Husband in Trust Void under Act of 1857. — Under the law of this state, as it existed in 1857, requiring a husband and wife to join in the conveyance of her separate property, a husband and wife could not legally convey her separate real estate to the husband, and a deed of trust to the husband, executed by the husband and wife jointly, was void and passed no title.</p> <p>Id.—Validity of Trust—Capacity of Donor__A trust is valid only to the extent of the legal capacity of the one creating it; and in the absence of a statute expressly permitting it, a wife has no common-law capacity to convey property in trust to her husband.</p> <p>Id.—Statutory Construction — Provisions for Benefit of Wife.—Statutes empowering a wife to convey her real property by joining with her husband in the deed of conveyance are for the benefit of the wife and not of the husband; and any construction thereof which would result in making it more easy for the husband to secure control of the estate of the wife would tend to defeat the object of the law.</p> <p>Id._Incapacity of Husband to Take by Gift from Wife—Common Law.— The inhibition of the common law as to the conveyance of property by husband and wife to one another, as applied to the husband, was that he could neither convey to his wife directly or be a grantee from her; and while the right of the wife to take by gift removes the impediment to a voluntary conveyance from the husband to her, yet the right to receive such voluntary conveyance from the wife was not conferred upon the husband under the act of 1857, and he stood thereunder, as at common law, incapacitated from taking ky deed of gift directly from his wife.</p> <p>Id._Power of Married Woman to Convey ok Devise—Incompetency of Grantee or Devisee—Disability of Husband. — The power granted by statute to married women “ to convey and devise real and personal property as if she was unmarried” does not enlarge the powers of the grantees under conveyances made by her, nor permit her to convey or devise her property to one incompetent to take from her by conveyance or devise; and to render a conveyance from a wife to her husband valid, the husband’s common-law disability, as well as that of the wife, must he removed.</p>

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

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

<p>Wateb Bights —Easement in Watebs of Spring—Quieting Title—Beat, Action —Venue—Jurisdiction—Demubbeb—Dismissal.—An action to quiet title or to determine an adverse claim to an easement in the waters of a spring situated upon the lands of the defendant, and to a right of way over the defendant’s land for the purpose of conducting such waters to the premises of the plaintiff, and to obtain an injunction against interference with plaintiff’s pipes from such spring, is a real action, which must be brought in the county where the subject-matter of the action is situated, and a demurrer to the complaint in such action, when brought in another county, upon the ground that the court has no jurisdiction of the subject-matter of the action, should be sustained, and the action dismissed.</p>

Separate appeals from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. The facts are stated in the opinion.

<p>Eire Insurance—Estoppel of Insubebs—Waiver of Defense—Insurers may by their acts and conduct be estopped from availing themselves of a defense which they otherwise interpose to an action upon their policies, or may waive their right to avail themselves of such a defense.</p> <p>Id.—Insurance on Unoccupied Building—Proviso as to Invalidity—Presumption of Waiver. —If a building is insured against loss by fire under a policy containing a proviso that it shall be or become void in case the building is or shall become vacant or unoccupied, when it was well known to the insurer at the date of the policy and subsequently that it was and remained unoccupied» the insurer will be presumed to have waived the clause as to occupancy.</p> <p>Id.—Insurance of Lumber Company—Policy in Name of Lessee—Surrender of Leasehold Interest—Waiver of Forfeiture—Power of Local Agent. — Where a policy of fire insurance was issued in the name of a lessee, at the instance of a lumber company, which furnished material for the erection of a frame building by the lessee, and the lumber company paid the premium and received the policy which provided that the loss, if any, should be payable to the lumber company, as its interest may appear, and also provided that if any change takes place in title or possession without the consent of the insurance company indorsed on the policy, the policy shall be void, but contained no provision in regard to the mode of waiver of a forfeiture, or stating by whom a waiver might be made, it must be assumed that the local agent who issued the policy had power to bind the insurance company by such waiver by his acts or declarations, and its right to terminate the policy on account of the surrender of the leasehold interest by the lessor, without indorsement of consent on the policy, is waived by the declaration of such local agent to the agent of the lumber company that no change in the policy of insurance was necessary on account of such surrender.</p> <p>Id.—Proofs of Loss—False Swearing—Fraud The false swearing and fraud in the proofs of loss that will forfeit a policy under a clause to that effect is wilful fraud or false swearing, and not the result of inadvertence or mistake, and should be knowingly and wilfully false, and intended to injure the company, or if not so intended, must relate to some material matter concerning which the company has a right to know the truth, and the effect of which could have a bearing upon its liability.</p> <p>Id__Presumption of Mistake or Misapprehension__If such a state of facts is presented as leaves a reasonable presumption of mistake or misapprehension on the part of the person swearing to the proofs of loss, such presumption should be indulged in preference to that of wilful false swearing.</p> <p>Id._Insured Building Surrendered to Lessor as Security for Kent—Affidavit of Ownership by Lessee__Where it appears that the lessee in whose name the insurance policy was taken had surrendered the lease to the lessor as security for the payment of back rent, he still had an equitable interest in the property, and subject to payment of the back rent, was entitled to be restored to his legal status under the lease, and it will not be presumed that he intended , wilfully to swear falsely in stating in the proofs of loss that he alone owned the insured building, which he had erected as lessee, because of the fact that the legal title had passed from him to the lessor.</p> <p>Id.—Waiver of False Proofs of Loss—Bill of Exchange for Amount of Insurance__Where it appears that the insurance company knew where the title of the leasehold interest was vested, and knew the interest of the lumber company in the building, and insisted that the lessee, in whose name the policy was taken, should make the proofs of loss, and made no objection to the proofs when received, and drew and delivered to the lumber company its bill of exchange for the amount of the insurance which was not paid upon presentation for the only reason assigned that it was not accompanied by a receipt from the lessee, who died before such receipt could be obtained, the delivery of such bill of exchange, with full knowledge of all the facts, constituted a waiver of the right of the insurance company to set up a forfeiture by reason of false swearing in the proofs of loss.</p> <p>Id._Action upon Policy — Parties—Bights of Beneficiary—Release—Receipt.—A beneficiary to whom the .whole amount of an insurance policy is payable by its terms in case of loss, may sue thereon as the real party in interest, and may give a valid discharge of the cause of action, without the necessity of obtaining a receipt from the owner of the building, in whose name the policy was taken for the benefit of the party obtaining the insurance.</p>

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

■ Appeal from a judgment of the Superior Court of the City and County of Sau Francisco, and from an order denying a new trial. The facts are stated in the opinion.

<p>Pleading—Defective Denials in Answeb—Tbial without Objection—Appeal by Plaintiff—Objection not Allowed__Where an answer is defective in its denials, but a trial is had in all respects, and evidence taken as though it properly raised an issue, without any objection in the court below to the defective denials, plaintiff cannot object upon an appeal taken by him that the answer raised no issue.</p> <p>Obdeb Geanting New Tbial—Pbepondebance of Evidence—Substantial Conflict—Review upon Appeal__Where there is a substantial conflict in the evidence, the appellate court will not disturb an order of the court below granting a new trial, upon the ground that the verdict was against the preponderance of evidence. The rule prevailing in the appellate court does not apply to the judge of the trial court.</p>

<p>Conversion op Wheat Crop—Rights of Grantee op Land—Unrecorded Lease.—In an action for the conversion of wheat, where the plaintiff claimed title thereto by virtue of his ownership of the land, subject to a lease to a third party, and the defendant claimed the wheat by virtue of a lease executed by him to such third party prior to the acquisition of the land by the plaintiff,' it appearing that the plaintiffs grantor had theretofore 'leased the premises to the defendant by an unrecorded lease, and that he in turn had leased them to such third party for an interest in the crops, but that the plaintiff knew nothing of the lease t<j the defendant, or that defendant was the lessor of such third party when he purchased the land, having been informed merely that he was not to disturb the possession of such third party, and that he was to receive the rents and issues of the land, and that a clause was inserted in the deed to the plaintiff in the covenant of quiet enjoyment, making it “ subject, however, to a lease” to such third party, but naming no lessor and containing no reservation of the rents to be paid by such third party, the plaintiff is entitled to judgment for the conversion of the wheat by the defendant.</p> <p>Id. — Effect op Conveyance op Land—Right to Rents and Profits—Limitations.—A conveyance of land passes title to its rents, issues, and profits, subject only to such limitations as are contained in the instrument of transfer, or of which the grantee has actual or constructive notice.</p> <p>Id.—Record op Lease Required by Recording Act.—A lease of land is a “conveyance” thereof within the meaning of section 1215 of the Civil Code, requiring a record of all conveyances of land, and the interest thereby created in the lessee, though limited to a right to receive the products of the land, is equally as void against a subsequent purchaser of the land, with no notice of the lease by reason of the failure to have it recorded, as if it were an unrecorded conveyance in fee.</p> <p>Id.—Effect op Record op Lease prom Lessee having Unrecorded Lease— Constructive Notice__No constructive notice is given of the rights of a lessee under an unrecorded lease by reason of the record of a lease from him to a second lessee, and a grantee of the original lessor is not affected with constructive notice of the rights of such first lessee, although her deed is expressly subject to the second lease, no lessor being named in the deed.</p> <p>Id__Object op Recording Act—Rights of Strangers to Title—Notice__ The provisions of recording acts are for the protection of subesquent purchasers and encumbrancers from the common grantor, and do not affect the rights of strangers to the claim of title. Records are only constructive notice of a title of which they enable a party to obtain actual knowledge by means of a search.</p> <p>Id.—Actual Notice—Burden op Proof.—A lessee under an unrecorded lease who has leased to a second lessee, and claims an interest in the crops under such lease, has the burden of proving actual notice of his rights to a grantee of his lessor, who takes merely subject to the second lease, without being informed as to the name of the lessor of such lease.</p> <p>Nonsuit—Allowance op Additional Proof after Denial op Motion—Discretion. —It is within the discretion of the trial court to allow a plaintiff, after the denial of a motion for a nonsuit, to supplement his case by additional proof.</p> <p>Id.—Effect op General Objection to Evidence.—An objection to allowing any further testimony, upon the ground that after the denial of the motion for a nonsuit it was incompetent to call other witnesses, cannot be used as against any particular testimony thereafter introduced that was not specially objected to.</p>

- refusing to revoke letters of administration and denying an application for such letters. The facts are stated in the opinion of the court.

<p>Appeal from a judgment or order of the Superior Court of Mendocino County, granting letters of administration, and denying an application therefor, 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>Constitutional Law—Police Power—Regulation of Liquor Traffic—Withholding of Lioenses—Munioipal Ordinance.—An ordinance of the city and county of San Francisco, making it unlawful to sell liquors without a license, and providing that no license shall be issued to persons engaged in the sale of liquors in dance-cellars or dance-halls, or in places where musical, or theatrical, or other public exhibitions are given, and where females attend as waitresses, is a valid exercise of the power conferred by section 11 of article XI. of the constitution upon counties, cities, and towns to make “all such local, police, sanitary, or other regulations as are not in conflict with general laws.”</p> <p>Id. — Disqualification on Account of Sex. — Such ordinance does not violate section 18 of article XX. of the constitution, prohibiting disqualification of any person on account of sex “from entering or pursuing any lawful business, vocation, or profession,” which section does not operate as a limitation upon the power of the state or its municipalities to prescribe the conditions upon which the business of retailing intoxicating liquors shall be permitted to be carried on, or in regulating the manner in which such business shall be conducted.</p>

<p>Appeal from a judgment of the Superior Court of San Joaquin County, and from a decree denying to defendant the relief demanded in its cross-complaint.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action—Malicious Inducing of Breach of Contract__An action will not lie against one, who, from malicious motives, but without threats, violence, falsehood, deception, or benefit to himself, induces „ . uo violate his contract with the plaintiff, with whom he does not stand in the relation of master and servant, or any other personal relation.</p> <p>Id.—Malicious Motives Immaterial where Act is not a Legal Injury.—An act which does not amount to a legal injury cannot be actionable because it is done with a bad or malicious motive or intent. Malicious motives make a bad act worse, but cannot make that a wrong which in its own essence is lawful.</p>

<p>Accusation against Commissioners of Golden Gate Park—Violation of Eight-hour Law — Insufficient Averment.—A written accusation, under section 772 of the Penal Code, against certain individuals, charging that “ while acting in the official capacity of commissioners of Golden Gate Park” they wilfully omitted to insert a provision that eight hours should constitute a legal day’s work, in a contract for labor upon said public park, and that they compelled the laborers employed by them to work nine hours daily, and praying their removal from office, and for a judgment of five hundred dollars in favor of the informer, as provided in said section of the Penal Code, but not averring where Goldeu Gate Park is located, or that the defendants were officers of the state or of any county or municipality when the contract was entered into, or that they held office when the accusation was filed, is fatally defective.</p> <p>Id.—Jurisdiction of Superior Court to Remove State or County Officer— Showing Required. —In order to give the superior court authority to enforce the penal provisions of section 772 of the Penal Code for the removal from office of an unfaithful officer of the state, or of a county or municipality, who is within its jurisdiction, all the facts showing that the accused is a state, county, or municipal officer within the jurisdiction of the court, and when, . how, and where he refused or neglected to perform his official duty, must be . plainly and1 fully alleged, and the proceeding must be instituted while the " accused is still in office] and not after his term has expired.</p>

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

Mandamus to compel the Superior Court of San Joaquin. County to grant a change of venue. The facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of the City and County of Sau Francisco, confirming an executor’s sale of real estate of an estate, and directing conveyances to be made.</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.</p>

Application to the Supreme Court for a writ staying execution of a judgment. The facts are stated in the opinion of the court.

<p>Conveyance in Consideration of Support—Action to Comped Reconveyance— Estoppel of Former Judgment.—In an action to compel a reconveyance of land alleged to have been conveyed to one of the defendants upon the sole consideration and condition that the grantee would apply a sufficient portion of the rents for her support and maintenance during life, on account of the alleged breach of such condition, a judgment in a former action between the same parties, the complaint in which set up the same conveyance, and alleged that it had been made upon the sole consideration that the grantor should hold the same in trust for her, and that the rents, issues, and profits should be applied in providing for her support and maintenance during life, and that they had not been so applied, and sought a judgment that she was the owner of the premises, as against the defendants, and that the premises be reconveyed to her, in which action the court adjudged that the defendants as against the plaintiff were the owners of the land in fee-simple, free and clear of any and all trusts, exceptions, limitations, and conditions set forth and alleged in said complaint, constitutes a complete defense and bar to the new action by way of estoppel.</p> <p>Id. — Immaterial Change of Allegation—Violation of Trust—Breach of Condition—Litigation by Piecemeal.—The change of the allegation of the violation of a trust in the former action to that of a breach of condition alleged in this action is immaterial, the cause of action being substantially the same in both actions. A party cannot litigate his cause of action by piecemeal, and after a judgment against him seek in another action to obtain relief dependent upon the transaction therein adjudged, by bringing forward claims and demands properly belonging to the first action, and which should have been alleged in the complaint therein as part of the facts constituting the cause of action.</p> <p>Id.—Conolusiveness of Judgment.—A judgment is conclusive not only of what was in fact determined, but also of all matters which might have been presented in support of the cause of action and litigated in the action.</p> <p>Id. — Subsequent Breach of Condition.—The former judgment being conclu- • sive that the land was free from the conditions set forth in the complaint in the former action, which alleged that a portion of the rents should be applied to the ■ support of the plaintiff, any subsequent failure to so apply the rents would not • impair the tenure of the defendants, and the plaintiff has no new cause of action by reason of such subsequent failure, alleged in this action as a breach of condition.</p> <p>Id__Omission to Describe Condition in Judgment—Presumption.—Although the breach of condition alleged in this action was not set out in the judgment in the former action, yet having been presented as an issue in that action, it is presumed to have been included in the judgment.</p>

<p>Fraud—Presumption—Burden of Proof.—Fraud must be specifically charged; it cannot be presumed, and the burden of proof is upon him who alleges it.</p> <p>Id__Relationship of Parties.—The mere fact of relationship between the parties to a transfer cannot be resorted to as a badge of fraud, where the conduct of the party receiving the transfer is consistent with fairness and honesty.</p> <p>Id.—Fraud upon Creditors—Transfer of Chattel Mortoage—Insufficiency of Evidence.—The evidence reviewed, and held insufficient to sustain a finding that the transfer of a chattel mortgage was made for the purpose of defrauding the creditors of the mortgagor.</p>

<p>Appeal from an order of the Superior Court of Sonoma Couuty, granting a new trial, and from an order amending a statement on motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco,' vacating a default, and allowing the filing of a complaint in intervention.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading—Demurrer for Uncertainty—Appeal—Reversal of Judgment._ Where a demurrer to a complaint upon the ground of uncertainty, setting forth the particulars thereof, is improperly overruled, and judgment is thereafter rendered, upon trial of the cause, in favor of the plaintiff, the judgment entered upon the uncertain complaint must be reversed.</p> <p>Id. —Action fob Destruction of Property—Uncertainty as to Damages_ Value of Property—Items of Damage.—A complaint in an action to recover damages for trespass and destruction of property, which alleges that defendant entered upon plaintiff’s premises and tore down parts of a building thereon, and caused great damage to plaintiff’s goods and business, and rendered the premises unfit for plaintiff’s business, and thereby broke up and destroyed said business, and that the same was done in a threatening and terrorizing manner, so that plaintiff suffered great mental and physical distress, and that she was damaged thereby in the sum of five thousand dollars, is demurrable for uncertainty on the ground that it does not specifically allege the value of the property destroyed, nor the amount of damage done to the premises, nor the amount of damage done to plaintiff’s business, each of which should have been alleged.</p> <p>Id.—Special Damages. — Where special damages have been sustained from the destruction of property, which do not all flow from the same facts, or constitute the natural consequence of the act constituting the right of recovery, but depend upon the proof of different circumstances, such special damages, as well as the circumstances justifying their recovery, should be alleged.</p>

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

<p>Estates of Deceased Persons —Trust under Will—Renunciation of Trust by Surviving Partner—Partial Distribution—Stipulation—Rights of Legatee.—Where by the terms of a will the interest of the testator in a co-partnership business was given to one of'his copartners in trust, to retain one half of the profits for his services during the life of the testator’s mother, and out of the other half of the profits to pay her two hundred dollars per month, and that upon her death one half of the profits should be paid over to the sisters of the testator during the remainder of a term of five years, and that upon termination of the trust, a legacy of three thousand dollars should be paid to a person named, and the remainder of said partnership interest and share should be paid over to the sisters of the testator; and where it appears that the surviving partner renounced the trust, and that the mother of the testator made an. arrangement with his sisters to apply for an order of partial distribution, under a stipulation providing that the legacy of three thousand dollars should be paid, and the residue of the estate distributed in equal shares between the mother and the sisters, such legatee is entitled to distribution of said sum of three thousand dollars after the expiration of a year from the date of the letters, and of the time for the presentation of claims, it appearing that all claims against the estate had been paid, and that the legacy could be paid over without loss to the creditors or to any person interested in the estate.</p> <p>Id.—Time for Payment of Legacy—Estoppel of Distributors and Executor. —There being no trust to carry out under the will, time does not enter into the question to be considered, respecting payments to be made after the death of the mother, except for her protection, and when she and the sisters agreed to accept an equal distribution of the residue, instead of a monthly allowance to the mother for her life, and procured an order of distribution thereof upon the faith of their consent to the immediate distribution of the legacy of three thousand dollars to the legatee thereof, neither the mother nor the sisters nor the executor can raise an objection to the distribution of such legacy that by the terms of the will it should not be paid until after the death of the mother, or until after the expiration of five years from the death of the testator.</p> <p>Id.—Bond upon Partial Distribution—Discretion. — The question whether a bond should be given by any one of the parties to a partial distribution is entirely within the discretion of the court.</p>

<p>Claim and Delivery—Pleading—Right of Possession at Time of Commencement of Action.—To sustain an action of claim and, delivery the plaintiff must have the right to the immediate and exclusive possession of the property at the time of the commencement of the action, and a complaint in such action averring that on a day two days prior to the commencement of the action, plaintiff was the owner and entitled to the immediate possession of the property, and that defendants refused to deliver the property upon demand made on the day of the commencement of the action, and unlawfully withhold possession, etc., does not state a cause of action.</p> <p>Id.—Ultimate Facts—Presumption of Continuance of Right—Evidence.— It is a cardinal principle in pleading that ultimate and not probative facts are to be pleaded; and though the fact that plaintiff was the owner and entitled to the possession of the property at a previous date is evidence from which the ultimate fact may he deduced by a presumption of continuance of the right, yet that principal has no application to the statement of facts in a pleading, and cannot dispense with the allegations of the ultimate fact of right of possession at the time of the commencement of the action.</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 Humboldt 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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action upon Judgment —Proof of Service of Summons. —In an action upon a judgment, where the judgment-roll introduced in evidence showed that both the default entered by the clerk and the judgment recited that the defendant therein was “ regularly served with process,” and that the affidavit of service of summons stated that the summons was personally served upon the defendant, and where the defendant himself admitted that he had been served with a paper which purported to be a copy of the summons, and a paper which purported to be a copy of the complaint, and that he could not deny that he was served on the day stated in the affidavit of service, the service of summons upon the defendant is sufficiently shown.</p>

The facts are stated in the opinion of the court, and more fully in the opinion upon the former appeal reported in 90 Cal. 581.

<p>Inns—Hotel Del Monte—Liability of Innkeeper to Guests—Loss by Fire, —The hotel known as the “Hotel Del Monte” is a public inn, and the proprietor and keeper thereof is liable as an innkeeper for the safety of personal property belonging to its guests, in case of loss thereof by fire.</p> <p>Id. — “Boarder”—Finding against Evidence—Rule of Inn—Notice.—A finding that the plaintiff was an inmate of the house under a special arrangement for board and lodging by the week for a permanent stay, is against the evidence, where there is no evidence of such contract other than a rule of the house to charge guests a less rate per diem weekly for entertainment where the guest remained more than one week, there being no notice of such rule to the plaintiff; or any agreement for board by the week.</p> <p>Id.—Findings—Material Issue—Evidentiary Facts.—In an action against an innkeeper to recover the value of personal properly lost by the burning of the inn, an issue as to whether the plaintiff was a guest or boarder at the inn is one upon which the court should have made an express finding, and a finding that the plaintiff had made a special arrangement with the defendant for board and lodging by the week is not determinative of such issue, but is merely a matter of evidence to be considered in determining that issue.</p> <p>Id.—Corporation as Innkeeper—Ultra Tires—Estoppel—A corporation which engages in the business of innkeeping and assumes the liability of an innkeeper towards a guest, and receives from the guest the consideration for such liability, cannot, in an action against it to recover damages for personal property destroyed by fire, plead that its acts as an innkeeper are ultra vires because under its corporate powers it was not authorized to engage in such occupation.</p>

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