Volume 99 — California Reports

<p>Criminal Law—Homicide—Mubdeb—Information—Means of Death—Deliberated and Premeditated Killinq.—Murder, as defined in section 187 of the Penal Code, as being the unlawful killing of a human being with malice aforethought, includes both degrees, and an information which charges the offense of murder in the language of that section is sufficient, and need not state the means used to procure the death, nor allege that the killing was deliberate and premeditated.</p> <p>Id.—Justifiable Homicide—Fear of Bodily Harm—Preconcerted Assault —Instructions.—Where there is evidence tending to show that the defendant was assaulted by a woman, whereupon the deceased voluntarily joined in the assault, and threw defendant upon the floor, and by being upon him prevented him from protecting himself against being beaten with a hammer by the woman, the jury should he instructed that if the defendant had reason to fear and did fear that if his life was in imminent danger, or that he was in danger of receiving great bodily harm at the hands of the woman and the deceased jointly, and acted under the influence of such fears alone, and to save his own life or to prevent his receiving great bodily harm gave the mortal cuts to the deceased, he was justified, and the jury should acquit, and it is error to refuse such instruction and to instruct the jury that 'the deceased and the woman must also have had a preconceived design, and had agreed together to assault the defendant.</p> <p>Id.—Evidence—Reconciliation—Previous Threats—Instructions.—Threats made by the defendant against the deceased previous to a reconciliation between them, may he shown in evidence, and it is proper to instruct the jury that their effect as evidence of malice depends upon whether the reconciliation on the par* of the defendant was or was not in good faith.</p> <p>Id.—Applicability op Threats—Effect of Reconciliation—Self-defense — Instructions. —The court should exercise great care to prevent misconception or misapplication of threats, or their being given undue weight by the jury, and they should he instructed that threats are entitled to weight only when clearly connected by circumstances with the time and manner of the homicide, and that after reconciliation of a previous quarrel between the parties it will not be presumed that they were moved by the old grudge, unless it appears from all the circumstances, and that previous ill-will or malice cannot take away the right of self-defense or convert a justifiable homicide into a murder.</p>

Aureal from an order of the Superior Court of the City and County of San Francisco, refusing to dissolve an attachment. The facts are stated in the opinion of the court.

<p>Constitutional Law—Validity of Act fob Relief of Stbeet Contbaotob— Mandamus — Pleading-—Demubbeb to Answeb__The validity of a statute must be determined only by facts appearing upon the face of the statute, and those of which the court can take judicial notice, and a demurrer to an answer setting forth certain matters alleged to be the basis of the action of the legislature in passing the act should be sustained.</p> <p>Id.—Gift from Municipal Treasury—Appropriation without Legal Claim— Unconstitutional Statute. — An appropriation of money from the treasury of a municipality, by an act for the relief of a street contractor, who theretofore had no legal claim against the municipality, is a gift within the prohibition of section 31 of article IV. of the state constitution, and the act making such appropriation is unconstitutional and void, where it shows by its own terms that there was no prior legal obligation resting upon the municipality.</p> <p>Id.—Judicial Notice of Statutes Regulating Street Improvement in San Francisco—Liability of City and County.—The supreme court takes judicial notice of statutes regulating street improvements in the city and county of San Francisco, and that in no case would the city and county be liable for any portion of the expense of such improvements or for any delinquency of persons or property assessed.</p> <p>Id.—Moral Claim for Benefit Received.—The mere fact that the city and county enjoyed the actual advantage and benefit of the work done by the street contractor, does not create any moral obligation to pay for the cost, and cannot support a statute appropriating money out of the municipal treasury for his relief.</p>

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

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

<p>Taxation—Assessment of Fbanchise of Wateb Coiibant — Owneeship of Wateb Pipe—Right of Wat. — A water company, whose franchise has been assessed in the county where it has its principal place of business, cannot be assessed as upon a “franchise” for a mere right of way in another county, through which a portion of its pipe and pipe line passes entirely unconnected with any privilege granted by such county to take tolls or collect water rates, or enjoy any other special prerogative. Such mere right of way is not a fi^mchise.</p>

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

Motion to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco setting aside and quashing a service of summons. The facts are stated in the opinion.

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

<p>Action to Enjoin Sale of Pledged Stocks—Ebaud—Answeb—Affirmative Belief to Defendants not Pbayed for__In an action to enjoin the sale Of shares of stock by the defendants claimed to be held in pledge, where an amended and supplemental complaint charged the defendants with fraud and conspiracy to sell the stocks for a fraudulent claim indebtedness, whereas in fact plaintiff owed defendants nothing whatever, and alleged that plaintiff was the owner of the stocks and defendants had an interest therein, and the answer took issue upon the averments of fraud, alleged unpaid loans to the plaintiff for which the stocks were pledged and judgments recovered thereon, which were pleaded as estoppels, but asked for no affirmative relief, upon findings in favor of the defendants upon all the issues, or decree dissolving the injunction adjudging the indebtedness and the lien of the pledge therefor, and awarding affirmative relief to the defendants by directing the shares of stock to be sold under execution to satisfy the indebtedness, is authorized and not erroneous.</p> <p>Id.—Belief Embraced in Issues Joined.—In a case in equity, where issues are joined, the court is authorized to grant any relief consistent with the case, and embraced within the issues, though not specifically prayed for.</p> <p>Id.—Statute of Limitations—Waiver—Objection upon Appeal fob First Time. — Where the plaintiff alleged the former judgment, which defendants also pleaded as an estoppel and averred that they were procured by fraud, and brought the whole matter before the court for its determination as to their validity, and did not by pleading or otherwise raise any question at the trial as „ to whether the judgment was barred by the statute of limitations, and an accounting was had as to the indebtedness without objection by either party, the objection cannot be raised on appeal for the first time that the indebtedness was barred by the statute.</p> <p>Id. — Moral Obligation of Barred Indebtedness — Continuance of Pledge— Order of Sale.—The moral obligation to pay indebtedness is not extinguished by the statute of limitations, and even though the debt is barred the debtor cannot recover property pledged to secure its payment, without first paying the debt; and where the objection of the statute is not properly raised upon the record, the court may order the pledged property to be sold to satisfy the indebtedness.</p> <p>Id. — Corporations—Extra Compensation of Secretary—Action of Board of Directors—Presumptions. — Where the secretary of a corporation has performed extra services for the corporation, and there is no proof that he did not perform them or was overpaid therefor, other than the protest of one director, and it does appear that the secretary as a member of a board of five directors took any share in the passage of the act for his compensation, it will be presumed from the action of the board that he did perform the extra services and received only a reasonable compensation therefor, and the resolution awarding the compensation was authorized and was properly passed.</p> <p>Id.—Dividends—Discretion of Directors.—The apportionment of the net earnings of a corporation to the payment of cash dividends is largely a question of policy entrusted to the discretion of the directors, which, when honestly and intelligently exercised, will not be lightly overruled.</p> <p>Id.—Justifiable Delay of Directors—Pledge of Stocks—Application of Net Profit—Accounting. — Where the further working of a mine involves a large expenditure of money, and a majority of the stock is held in pledge for indebtedness of one of the directors to the other directors, aud a net sum of money has been realized by them from the past working of the mine, and the director who has pledged his stocks, denies the indebtedness or their right to hold the stock in any capacity, and is litigating those questions with them, it is a proper exercise of discretion on their part to suspend further operations upon the mine, and not to declare any dividends from the net profits, and to hold the assets in their hands to await the result of the litigation, and they cannot be compelled to account for the money in that litigation.</p> <p>In.—Ebaudulent Conspiracy—Evidence—Letters between Defendants—Rebuttal of Conspibaoy.—Where the plaintiff charged a fraudulent conspiracy between the defendants, which was alleged to have'existed prior to their obtaining possession of his stocks, under a false claim of indebtedness, and to have continued until an attempt to sell the stocks of the plaintiff as a pledge for the indebtedness falsely claimed, which sale it was the object of the action to enjoin,"letters from one of the defendants to another written prior to the pledge of the stocks are admissible on behalf of the defendants, as part of the res gestee, to disprove the allegation of false claim of indebtedness and fraudulent conspiracy.</p> <p>Id.—Secondary Evidence of Letters out of Jubisdiction—Statutory Construction—“Lost” Writing.—Where letters are proved to have been mailed by one of the defendants to another residing in a foreign jurisdiction, to which replies were received in due course of mail, it must be presumed that the letters mailed were received in the regular course of mail, and a letter beyond the territory of the state is within the meaning of the statute “ lost," so as to allow secondary proof of its contents.</p> <p>Id.—Appeal—Modification of Judgment—Clerical Ebbob—Costs. — Where it was admitted that there was a clerical error in the judgment appealed from, and the judgment in other respects was affirmed, held, that the judgment should be ordered modified so as to correct the mistake, and that each party should pay his own costs upon the appeal.</p>

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

<p>Appeal from 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>

Hearing in the Supreme Court upon an application for a writ of mandate to the Superior Court of Yolo County. The facts are stated in the opinion of the court.

The principal facts are stated in the opinion: The record discloses a written agreement between Cox and the executors of the Eeese estate, dated September 7,1880, and which was executed avowedly to supply the place of a lost agreement between Cox and Arnold and Michael Eeese, and which shows that on the twenty-fifth day of May, 1868, there was sold under execution to certain Chinese creditors of Cox and Arnold all the rights of Cox and Arnold in the cause of action, in the…

<p>Banks—Time fob Emma Statements—Dibectobv Statute—Condition Pkecedent to Action.—The act of April 1, 1876, requiring a banking corporation to publish and file statements of its capital stock and of its assets and liabilities in January and July of each year, and prohibiting such corporation from maintaining any action in the courts of this state, “until they shall have first duly filed the statements herein provided for, and in all other respects complied with the provisions of this law,” is directory as to the naming of the months, and it is a sufficient compliance with the provisions of the statute if a semiannual statement is published and filed before the commencement of an action by the corporation, and before the time named in the statute for the publication of the next statement.</p> <p>Id__Two Statements Included in One Document—Recobd.—The fact that the statute provides for the semi-annual publishing and filing of two statements, one of the amount of the capital stock actually paid in, and the other of the actual condition and value of the corporation’s assets and liabilities, and where the same are situated, does not render it essential that they shall be presented in two distinct documents, and the incorporation of both of such statements in one document, which is published aud filed,is notobjectionable, espeeiallyif they are recorded in each of the books kept for that purpose by the county recorder.</p> <p>Id__Vebifioation of Statements—“Best Knowledge and Belief” of Agent. —The legislature, in requiring the sworn statements to be verified by the resident agent or manager of the corporation, did not intend to require an affidavit of a higher degree than could be made on the part of the officer from whom it is demanded, and when an affidavit is to be made of matters which are presumptively derived through information from others, it is sufficient if the affiant states that it is made to the best of his knowledge and belief.</p> <p>Id__Statement of Assets and Liabilities.—The statute does not contemplate a detailed schedule setting forth every asset and liability of the bank, and a general statement of its assets and liabilities showing their condition and value in gross, with such distribution into groups or classes as will enable those for whose benefits the statements are required to ascertain the financial standing of the bank, is sufficient.</p> <p>Id.—Plage of Situation of Assets — Destination of Amount in Each Place.— The places where the assets of the bank are situated and the amount of assets at each place must he shown with certainty, and a statement is insufficient which designates several cities in each of which the assets are partly situated, without stating the amount of the assets at each of the designated places.</p>

<p>Mextoan Grant—Purchase in Good Paith of Land Excluded from Survey— Conness Act. — One who, prior to the passage of the act of Congress of July 23, 1866, known as the Conness Act, made a purchase in good faith and for a valuable consideration of land excluded from the final survey of a Mexican grant, but which was at the time of the purchase believed to be within the grant, and who took and retained actual possession thereof, and used and improved the same according to the lines of the original purchase, became entitled to the benefit of the right of purchase from the government conferred by that act.</p> <p>Id.—Relation—Disturbance of Possession—Homestead Claim.—The claim of such purchaser related to the date of the act, and was not affected by a subsequent disturbance of the actual possession by the settlement of a homestead claimant, with whom a contest was made in the land-office over the right to purchase the land, and the application by such purchaser for a patent properly prevailed over the homestead claim.</p> <p>Id.—Actual Possession— Grazing Land. — To constitute actual possession of land it is not necessary that there should be an enclosure, and where it appeared that land purchased was best adapted and was used for grazing purposes, and was fenced on two sides, and that the purchaser was put in possession of the tract claimed by his grantor, and paid taxes thereon, and such possession was respected by all persons until the adverse settlement made by the home-dead claimant, the actual possession of the purchaser is sufficient to support that right of purchase under the Conness Act.</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>Promissory Note—Indorsement—Notice of Dishonor to Executors—Misdescription. —A notice of dishonor of a promissory note may be given in case of the death of the indorser to those whom he has appointed as executors by his will, though not yet appointed as such by the court, and it is sufficient if such executors receive notice of the dishonor, though misdescribed in the notice as administrators of the estate of the indorser.</p> <p>Id.—Address of Notice—Representatives of Deceased Person.—A notice of dishonor given to the representatives of a deceased person need not be addressed to them in their representative character.</p> <p>Id. — Notice by Aoent.—A notice of dishonor may properly be given by an agent, and the agent may give the notice in his own name.</p>

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

<p>JÍORT0AGE TO SECURE ADVANCES — SUBSEQUENT NOTES FOB PbIOR INDEBTEDNESS —Ihmatebial Vabianoe—Pbioeitx of Liens Where a mortgage was made by its terms to secure a note of two thousand five hundred dollars, and such additional sums and interest thereon as might be loaned by the mortgagee to the mortgagor before the discharge of the mortgage, each additional loan to be evidenced by the promissory note of the mortgagor, and subsequently two other notes were given, aggregating in ali the sum of eleven thousand dollars, which other notes recited that they were given to evidence advances made in accordance with the mortgage, the fact that the whole eleven thousand dollars was a subsisting indebtedness when the mortgage was executed does not constitute a material variance, or make the mortgage as to the two latter notes subject to a judgment lien docketed after their execution.</p> <p>Jfo.—Unpbue Recitals of Consideration—Ascertainment of Extent of Encumbrance.—Although a mortgage ought to state the true consideration for ■ which it was given, yet untrue recitals, or the omission to disclose the real nature of the transaction ou the face of the mortgage, will not make it invalid, unless some one has been prejudiced by the misrepresentation, and where, uofcwithstmding such recitals, the mortgage gires such information that a junior lienholder may by Inspection of the record, and the exercise of ordinary diligence, ascertain with certainty the extent of the encumbrance, and the transaction is otherwise fair, there is nothing inequitable in enforcing it against him.</p>

<p>Reformation of Deed—Variance from: Written Contract—Mistake Where a written contract for the exchange of land, made in San Francisco, provided for the conveyance of four city lota in Los Angeles, described as containing about two hundred feet front, with seven houses thereon, and the defendant represented to the plaintiffs that the property he was to convey had a frontage of two hundred feet, and each of the lots had a frontage of fifty feet, and the deed of the lots described them as three lots and pari of a fourth, “containing about two hundred feet front,” with the seven houses thereon, upon the delivery of which for examination the defendant stated to the plaintiffs that the description therein was according to the written agreement, the plaintiffs are not precluded by examination and acceptance of, the deed from obtaining a rescission and correction thereof to correspond with the written contract, on the ground of mistake, upon subsequent discovery that the deed did not embrace all the land which the defendant had agreed to convey to them.</p> <p>Id. — Showing of Mistake—Effect of Beading Deed — Mutual Mistake— Fraud. — Where the evidence was sufficient to satisfy the court that the deed did not express the intention of the parties, and that the plaintiffs had been mistaken in supposing that it did, the fact of his having read the instrument would nob prevent the court from finding that it was made under a mistake; nor was the court bound to accept the statement of the defendant as to liis intention in direct contradiction of the written contract, and from his statement to plaintiffs that the deed was intended to be in execution of the agreement, the court was authorized to find that the mistake was mutual, and that liis failure to include the whole of the four lots in his deed, in accordance with the written agreement, without showing a release from his obligation, was either a mistake on liis part, or a fraud upon the plaintiffs.</p> <p>Id. — Olear Proof of Mistake — Conflicting Evidence — Decision of Trial Court—Appeal.—To justify a court in decreeing the reformation of an instrument on the ground of mistake, the proof of the mistake must be clear, convincing, and satisfactory to the court; yeta mere conflict of testimony as to the mistake does not necessitate a denial of the relief, and the decision of the trial court upon such conflict is conclusive upon the appellate court.</p>

<p>Execution—Broker’s Seat in Stock and Exohanse Board not Subject to Levy and Sale.—A broker’s seat in the San Francisco Stock and Exchange Board, a voluntary association, membership in which depends upon the election of the associates, ten negative votes excluding from participation therein, and which cannot be voluntarily transferred, except to a person whom the association shall choose to elect as a member, is not subject to levy and sale under execution, and an attempted sale thereof under execution to one whom the association refuses to elect, passes no title as against the broker who retains his seat therein.</p>

<p>Foreclosure of Mortgage—Action upon Judgment—Remedy by Sale.—An action may be maintained by a judgment creditor to enforce a judgment for the foreclosure of a mortgage, deela'ring the indebtedness therein ascertained to be a lien upon the mortgaged land and directing a sale of the land to satisfy the indebtedness, although he m^ also have a remedy for the enforcement of the judgment by a sale within five years from its entry.</p> <p>Id.—Enforcement of Decree in Equity.—'In this state there is but one form of civil action for the enforcement of a private right, and the rules which under the chancery practice prevents the enforcement of a decree in equity by a proceeding at law are inapplicable.</p>

<p>Motion in the Supreme Court for substitution of attorneys.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Insurance—Liability of Beneficiary fob Debt of Insobed—Advances upon Policy—Statute of Limitations.—The wife named as beneficiary in a policy of insurance upon the life of her husband is under no obligation to pay a debt of her husband to his brother for advances made on account of the policy, for which she had never before been liable as principal or surety, even thougli such debt had not been barred by the statute of limitations, and surely not after the debt had been so barred.</p> <p>Id. — Promise of Beneficiary—Want of Consideration—Money Had and Received__A promise by the wife as beneficiary of such policy to pay out of the proceeds of the policy the debt of her insured husband to his brother, after such debt had become barred by the statute of limitations, made to the executor of the deceased brother in consideration of a promise by such executor to deliver to her the policy, which it was his duty to do upon demand, without compensation, is without legal consideration to support it, and can lay no foundation for an obligation on her part to pay the debt, and she is not liable to an action for money had and received to the amount of the debt, after having collected the full amount of the policy.</p> <p>Id. — Contract —Performance of Duty No Consideration. —Neither a promise to perform a duty, nor the performance of a duty, constitu.es a consideration of a contract.</p>

<p>Promissory Note—Fraud in Procurement—Bona Fide Purchaser—Burden of Proof.—Where fraud in the procurement of a promissory note is shown hy the maker, the burden of proof is then cast upon the indorsee to show that he is an innocent holder, and to sustain such burden he must show that he purchased the note before maturity in good faith for value, in the usual course of business, and under circumstances which create no presumption that he knew the facts which impeach its validity.</p> <p>Id.—Presumption aoainst Fraudulent Payee and Holder.—A presumption exists that a fraudulent payee would be likely to shield himself hy placing the note in the hands of another person to sue upon it, and such presumption operates against the holder.</p> <p>Jd.—Purchase for Half Value with Knowledse of Maker’s Solvency— Purchaser Put toon Inquiry as to Consideration.—The purchase of a promissory note before its maturity for one half its face value, with knowledge upon inquiry previously made of the maker’s solvency, but without inquiry as to the consideration thereof, are circumstances to be considered by the jury in determining whether the purchase was made in good faith, and are of themselves sufficient to arouse the suspicions of an ordinarily prudent man, and to put him upon inquiry as to the consideration.</p>

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

<p>Insolvency—Exemption from Execution—Lathes of Machinist. — A lathe and appliances costing about two hundred and fifty dollars, and used for shaping wood or metal, which are necessary to a mechanic and machinist in carrying on his business, is a tool, and may be properly set apart to him in insolvency proceeding as exempt from execution.</p> <p>In. —Employment of Journeyman—Manufacture of Machinery. —The fact that a journeyman mechanic or machinist can get employment with a manufacturer who will supply the implement does not prove that a lathe is not necessary to the trade; and the fact that the debtor manufactures machinery with the lathe is not material where he uses it himself and does not employ others to use it.</p>

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

<p>Arbitration— Clerks Entry of Submission—Amendment of Defects in Register before Judgment upon Award. —An entry by the clerk in his register of actions of the submission of a cause to arbitration, which complies with section 1283 of the Code of Civil Procedure in all respects other than that it fails to contain the names of the arbitrators, or the time limited for the rendering of the award, may be amended at any time before entry of judgment on the award, and such entry, when taken in connection with a subsequent amendment by adding to the register the names of the arbitrators, and the time limited, is a sufficient compliance with the code to sustain judgment upon the award, though the amendment is made after the filing of the award.</p> <p>Id.—Submission not Revocable after Award.—After an award under a submission to arbitration neither party can revoke the submission.</p> <p>Id.—Restriction of Right of Revocation—Construction of Code.—The provision of section 1283 of the Code of Civil Procedure to the effect that where it is stipulated that a submission to arbitration may be entered as an order of the court, after the clerk has entered the proper order, “ the submission cannot be revoked without the consent of both parties,” is a restriction and not an enlargement of the right of revocation.</p> <p>Id.—Meaning of “Thereupon”—Jurisdiction to Enter Judgment. — The provision of section 1283 of the Code of Civil Procedure to the effect that, after the filing of the stipulation of submission the clerk must “ thereupon ” enter a note of the submission in the register of actions, does not require that it should be entered immediately, and where there is a full entry of everything required by the code at the time of the entry of judgment upon the award, there is jurisdiction to enter the judgment.</p>

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

<p>Judgment—Pleading__In pleading a judgment the pleader need only follow section 456 of the Code of Civil Procedure, and aver that the judgment was “duly given.”</p> <p>Id. — Action upon Judgment—Insufficient Avebment.—In an action upon a judgment, the complaint must show that a final judgment was recovered; and an allegation that in the prior action the court “adjudged” that the defendant should pay to the plaintiff a certain sum of money, without the use of the word “judgment,” is insufficient to show a canse of action.</p>

<p>Estates of Deceased Pebsons—Insanity of administbatbix—Adjudication— Appointment of Successor — Citation—Notice of Heabino. — Where the administratrix of an estate appointed prior to the adoption of the codes was adjudged insane and sent to the insane asylum, and was not restored to sanity before an application was made to revoke her letters and to appoint a new administrator, the probate court had jurisdiction under the general laws of the state to make such revocation and to appoint a new administrator, without the issuance of any citation to her, or any other notice of the hearing than was given to her as an heir by posting the usual notice, she having had her day in court in the adjudication of her insanity, which was sufficient proof of the fact.</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>Appeal from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Pledge of Piano—Consent of Pledgor to Storage fob Use — Negligent Use — Liability of Pledgee—Counter-claim to Note. — Where a piano was pledged as security for a note, and the pledgor consented that it should be stored with friends, who might use it as compensation for the storage, he cannot complain of negligence on the part of the pledgee in thus storing it, and permitting it to be used, though it may have been injured by negligent use on the part of those with whom it was storéd, nor can he recover damages for such negligent use by way of counter-claim in an action upon the note after sale of the piano by the pledgee.,</p>

<p>Sale of Wheat by Sample—Delivery Varying from Contract—Liability of Purchaser. — Where a purchaser has contracted for the sale of two lots of wheat by sample to be delivered within ten days, he is liable for a larger quantity, a portion of which is delivered at a later period, if the delivery is accepted by his agent for him and pursuant to his orders, but is not liable for the delivery of any excess to the agent, against his consent, and without his authority.</p>

<p>Fobeolosubb of Hobtqaqe—Secübity of Note and Wbitten Aqbeement—Application of Payments — Complaint Relyins upon Note—Relief upon Wbitten Aqbeement — Pbayeb of Complaint. — In an action by the executors of the mortgagee to foreclose a mortgage given to secure a promissory note, and also a written agreement of the mortgagor to pay to the mortgagee the remainder of full interest on a prior mortgage, unless the mortgagee was willing to accept a less rate already paid as payment in full, when the complaint averred that the mortgagee and his executors did not elect and never consented to accept the less rate, and that payments made by the mortgagor had been applied by the executors of the mortgagor in payment of the amount due upon the written agreement, and prayed for foreclosure of the mortgage for a balante due upon the note, and the answer took issue upon the allegations as to the written agreement, and averred that the mortgagee agreed to accept the less rate paid as payment in full, and also that the note had been paid in full, and that the payments made were applied by the defendant to the extinction of the note, and the findings were responsive to the issues, and establish that the agreement to pay interest in full was never discharged, but that the note was paid in full, and that plaintiffs had no right to apply any payments upon the written agreement, the facts in regard to the written agreement were sufficiently embraced within the issues to warrant a decree of foreclosure of the mortgage for the amount due and unpaid upon the written agreement, though not specifically prayed for in the complaint.</p> <p>Id.—Pleading undeb Oode — Equitt Pbactioe—Prateb of Complaint—Belief Embraced within Issues. — Our Oode of Civil Procedure in prescribing the mode of pleading had adopted the essential elements of the former equity practice, providing that in case of default the relief is confined to the relief demanded in the complaint, if justified by its allegations and general scope, as was the rule under a prayer for special relief in equity, while in other cases it is extended to granting relief similar to that granted under a prayer for general relief in the chancery courts, though where there is an answer in the case, the right to recover under the code does not depend in any manner upon the prayer of the complaint, but upon the scope of that pleading, and the issues made or which might have been made under it, and the court may grant any relief consistent with the case made by the complaint and embraced within the issue.</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>

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

<p>Bbidge Contract with Count?—Presentation and Rejection of Improper Claim—Subsequent Presentation of Proper Claim—Mandamus to Supervisors.—Where a contract with a county for bridge work provided that the contract price was payable upon the presentation of the written certificate of the superintendent of construction that the bridge had been erected and completed in every respect in accordance with the terms of the contract, and that the contractor should be paid in warrants drawn upon a particular road district fund, the presentation and rejection of a claim against the county for the contract price, which failed to have the superintendent’s certificate attached, is not a bar to action by the supervisors upon a subsequent claim, which has a copy of the contract and the superintendent’s certificate attached, and which is presented as a claim against the fund mentioned in the contract, and asks for warrants upon such fund, and the supervisors may he compelled by mandamus to act upon such second claim.</p>

Motion to dismiss appeals from a judgment of the Superior Court of Fresno Couuty, and from certain orders. The facts are stated in the opinion of the court.

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

<p>Evidence—Judgment Roll—Latee of Two Judgments Alone Considered.— Tuere can properly be but one judgment in a judgment roll, and if two judgments are found therein, the later in point of time is the only one which can be considered as a part of the judgment roll, and the fact that the earlier judgment is hound up with the roll can not impair the admissibility of the judgment roll in evidence, or affect the later judgment which alone forms part of it.</p> <p>Id. —Sale under Later Judgment—Collateral Attack—Vacation of Earlier Judgment—Presumption. — Where a judgment roll is offered in evidence which improperly contains two judgments, it will be conclusively presumed upon collateral attack upon a sale under the later judgment, that the earlier judgment was vacated by consent of the parties, or under such circumstances as to justify its vacation by order of the court, and that an order vacating the earlier judgment, which forms no part of the judgment roll, appears in the minutes of the court, and it is not necessary in order to sustain such sale to offer any evidence that the former judgment was annulled.</p> <p>Id.—Ejectment—Sale under Execution—Judgment—Effect of Appeal— Execution not Stayed.—In an action of ejectment, where the defendant claims the right to the possession of the property through a sale under an execution, it is necessary for him to introduce in evidence the judgment as the basis of the execution, and if the enforcement of the judgment has not been stayed, the fact that an appeal therefrom has been taken does not prevent the judgment from being received in evidence and considered, as a collateral fact in support of the execution.</p> <p>Id.—Deed of Corporation—Seal—Contents of Deed—Capacity of Grantor — Objection upon Appeal.—If the grantor of a deed is in fact a corporation, and the corporation seal is affixed thereto, a statement in the deed that it is incorporated is not essential, and an objection upon appeal, that a deed offered in evidence at the trial does not show upon its face that the grantor was a corporation, will not he considered where the only objection to its introduction taken at the trial was the general objection that the deed was incompetent, irrelevant, and immaterial, there being no proof that the grantor was not a corporation in fact, and no objection urged upon that ground in the court below.</p> <p>Id. — General Objections—Special Objection which Might be Obviated.— Under a general objection to evidence, a party cannot upon appeal urge an objection which is merely formal or special, and which, if it had been pointed out when the evidence *as offered, might have been obviated.</p> <p>Id. — Map of City Lots—Deposit for Record — Acknowledgment not Re-' quired. — A map is not an “instrument” which affects the title or possession of real properly, within the meaning of the recording act, nor is it an instrument which is to be executed by the party who prepares it, or of which an execution can be acknowledged; but it is sufficient if it be deposited in the recorder’s office, and a map so deposited is properly referred to as being of “record” therein, and may he received in evidence, even though it be not acknowledged.</p> <p>Id. —Parol Evidence—Location op Addition to City.—Parol evidence is admissible to show that a tract of land described in a deed as a part of “ Colton addition ” lies within the limits of the city of Colton.</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 Monterey County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Stbeet Assessment—Value of Lot.—Under the street law of 1885 (Stats. 1885, p. 117), a lot liable to an assessment for street work may be held to the extent of one half its assessed value for any single assessment for such work, regardless of the fact that it has already, during the same tax year, been assessed for other work.</p>

<p>Evidence—Res (Jests—Deolabations of Agent. —The admission or declaration of an agent binds his principal only when it is made during the continuance of the agency in regard to a transaction then depending, and as part of the res gestae.</p> <p>Id.—Admission of Abohiteot—Past Tbansaotion.—In an action to recover for the construction of an elevator, where the defendant set up as a defense that the work was done so unskillfully and negligently that he was obliged to make repairs costing more than the balance claimed to be due the plaintiff, it being claimed that the pipes leading to the tank through which the water, used to run the elevator, was pumped, were put up in such a “crooked manner” that the pump when at work made a great noise and caused the building to shake, thereby necessitating the repairs made, it is error to receive in evidence the admission of the architect of the defendant that he had given instructions to put the pipes up in that manner, where it did not appear that the architect was still the agent of the defendant when the admission sought to be proved was made, if made at all, nor that it related to a transaction then depending, and was thus a part of the res gestee, but the question showed that it related to a past transaction.</p> <p>Id.—Impeachment of Witness—Contbadiotoby Statements—Laying Foundation.— The testimony of a witness for the purpose of impeaching a former witness that he had made at other times statements inconsistent with his testimony cannot be received without first laying a foundation therefor by stating to the former witness the circumstances of time, place, and persons present, and asking him whether or not he made such statements.</p>

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

<p>Conveyance doting Last Sickness—Tbust—Finding—Absolute Conveyance. —Where a person during his last sickness and in contemplation of death executed a conveyance of his real property to his brother, of his own motion and without any solicitation, undue influence, or fraud on the part of the grantee, the mere statement by the grantor to the grantee at the time of the conveyance that he knew the latter would do what was right, does not show either an express trust or a trust arising by operation of law, and a finding that such conveyance is absolute will not be disturbed upon appeal.</p> <p>Id.—Tbust, how Cheated__An express trust in real property can only be created or declared by a written instrument subscribed by the trustor or trustee; but an express or implied trust in relation to personal property may be declared and proved by parol.</p> <p>Gift Causa Mobtis—Revocation.—A gift causa mortis maybe revoked by the donor at any time during his life and without the consent of the donee.</p> <p>Id.—Assignment of Pass-book—Demand fob Money—Tbust fob Heibs.— Where a person during his last illness, and in contemplation of death, assigned a bank pass-book to his brother, and some five days thereafter on the morning of his death, told his brother to hurry down to the bank and get out his money and bring it up to him,, a revocation of the gift is thereby shown, and the brother will be held to be a trustee of the money for the heirs of the decedent.</p>

<p>Building Contract—Insufficient Record—Failure to File Plans and Specifications —Invalidity.—Where a contract for the erection of a building to cost over one thousand dollars, provided that the building should be delivered to the owner free from all liens and charges “in conformity with the plans, drawings, and specifications for the same,” therein referred to as signed by the parties and kept in the office of the architects for inspection, the filing of such contract for record, without filing therewith the plans and specifications therein referred to, or filing a memorandum showing the dimensions and character of the work, is insufficient; and the contract being in its terms essentially uncertain and indefinite without such plans and specifications, is rendered void by the failure to file them with it.</p> <p>Assignment—Claim of Corporations—Authority of Directors not Recorded. —¡An assignment for collection of a claim of a corporation, executed in due form by the president and manager with the corporate seal attached, made in the ordinary course of business of'the corporation, and by authority of the board of directors, sitting as such, is a sufficient assignment, although tile authority to make the assignment has not been entered in the records of the corporation. Id.—Power of General Managing Agent—Assignment of Chose in Action for Collection. —A general managing agent of a corporation is the representative of the corporation, and may do in the transaction of its ordinary affairs what the corporation itself could do within the scope of its powers; and he may assign a chose in action of the corporation to a third party for collection.</p> <p>Id. — Effect of Assignment fob Collection—Consideration. — An assignment of a chose in action for collection vests the legal title therein in the assignee regardless of whether or not any consideration is paid therefor by the assignee, and the assignee may sue thereon in his own name.</p>

<p>Summons—Unlawful Detainer—Affidavit for Publication— Concealment of Defendant to Avoid Service. —An affidavit for publication of summons in an action for unlawful detainer, stating the residence and office of the defendant at the time of the commencement of the action, and that about that time he disappeared from his office and could not be found, that thereafter affiant made inquiries for the defendant at various places, including his office, and of various persons who knew him and would be likely to know of his whereabouts, but was unable to find him; that eight new summonses had been issued and four different competent persons had been employed to serve them, hut without success, and that a continued and constant effort had been made to secure service upon the defendant; that the defendant “has not been in his accustomed places and resorts, but has left an agent in this city who is using persistent efforts to continue to collect the rents of the premises sought to be recovered"; that affiant does not know the whereabouts of defendant “and verily believes that he conceals himself to avoid the service of said summons,” is sufficient to support an order for publication of the summons, although it does not state that the affiant had made inquiry of the defendant's agent as to the whereabouts of the defendant.</p> <p>Id.—Settinq Aside Judqment by Default—Insufficient Counter-affidavits. —In such case counter-affidavits of the defendant and his agent, read upon the hearing of a motion to set aside a default judgment upon the ground that summons had not been served upon him, which state respectively that the defendant did not conceal himself for the purpose of avoiding service of summons upon him, and that at no time did the plaintiff inquire of the agent as tq the whereabouts of the defendant; but which fail to state where the defendant was during the time the action was pending, or where, or how he could have been found, or that the agent knew at any time where the defendant could have been found, or that he could or would have given information as to his whereabouts if inquiry had been made of him, are not sufficient to warrant the court in setting aside the judgment.</p>

<p>Ckiminal Law—Indictment—Date of Offense—Pbiobity of Offense to Accusation. — it is not necessary that an indictment for a criminal offense shall show that the offense was committed on a day prior to the time of the filing of the indictment, but it is sufficient if it can be understood therefrom “that the offense was committed at some time prior to the time of finding the indictment ”; and an indictment alleging the commission of an offense upon the same day on which the indictment is filed sufficiently shows that the act charged was commitited prior to the filing of the indictment. To accuse is to state that the act charged was prior to the accusation.</p> <p>Id.—Offense Committed on Date of Accusation—Reactions of Day. — Courts disregard fractions of days when necessary; and one may he accused of an offense on the very day of its commission.</p> <p>Id Evidence of Date. —The proof need not show that the offense was committed on the day named in the indictment.</p> <p>Id. — Request of Jubob fob Bbibe—Sufficiency of Indictment—Agbeement— Offek of Jubob. —An indictment of a defendant for asking for and agreeing to receive a bribe as a juror, need not charge that he asked for or agreed to receive it upon any agreement or understanding with the person approached that he , would cast his vote in consideration thereof; but it is sufficient to aver that the accused offered or was ready to make such agreement or understanding. It is not necessary to complete the offense that the party approached should consent to give the bribe.</p> <p>Id.—Cebtainty of Indictment.—An indictment charging a defendant with asking for and soliciting a bribe and charging the elements of the offense defined in section 93 of the Penal Code, is not uncertain as to whether the offense is charged under that section or section 96 of the code which does not make it an offense to solicit a bribe.</p> <p>Id.—Evidence of Good Faith of Pboseouting Witnesses — Obdek of Pboof— Habmless Bbkob.—In a criminal prosecution for asking for and soliciting a bribe as a juror, where the defendant claimed that the prosecuting witnesses were really trying to bribe him, and that he simply declined to be bribed, evidence of one of such witnesses that the defendant intimated that he was willing to receive a bribe, and that witness then consulted the judge in regard to the matter before he called at the defendant’s store and received the offer to be bribed, is admissible as showing that his own conduct in connection with the matter was not improper and was taken in good faith, and the admission of such evidence at the wrong time is not prejudicial error.</p> <p>Id. — Offer of Juror to Proodre Verdict.—An offer of a juror in a civil case to procure a verdict for the defendant for a specified sum, though showing that he proposed to do more than merely cast his vote as a juror, includes an offer to promise that in certain contingencies he would cast his vote as a juror for the defendant, and the offense of asking for a bribe as a juror is thereby made out.</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>Eobeclosube of Stbeet Assessment—Sebvioe of Summons upon Guabdian of Minob Ownbb of Land—Impbopeb Default—Void Deobee.—Where a minor is the owner of the land upon which a street assessment is sought to be foreclosed, a service of the summons upon his guardian without serving it upon him personally is insufficient, and a default entered against the guardian does not hind either the guardian or the minor, and a decree rendered thereon is absolutely void, and should be vacated on motion.</p> <p>Id.—Sebvioe of Retubned Summons—Quashino Void Sebvioe.—A returned summons is functus officio, and the service of it cannot be made thereafter; and service of a copy of such summons more than eleven years after the filing of the complaint upon a street assessment, made upon the grantee of the land, who was never made a party to the suit, and who did not appear in the case, is void, and such service may be quashed upon his motion.</p> <p>Id.—Dismissal of Action—Want of Pboseoution.—An action to enforce a street assessment is properly dismissed for want of prosecution where there has been no proper service of summons upon the owner of the land for a period of eleven years after the filing of the complaint, and the owner of the land may appear for the purpose of moving to dismiss such action after vacation of a void decree foreclosing a lien for the assessment, the plaintiff having lost all right to bring him in as a party defendant.</p>

<p>New Trial—Draft of Statement—Lack of Signature—Acknowledgment of • Service—Waiver of Objection.—An objection by the attorneys for the plaintiff to the settlement of the defendant’s statement on motion for a new trial, on the ground that the proposed statement had not been signed by the defendant or his attorneys, is without merit, where it is shown on behalf of the defendant that the document had been delivered by the attorneys for the defendant to the paintiff’s attorney, who acknowledged receipt thereon from the defendant’s attorneys of the “original draft of statement on motion for new trial,” and failed to object for want of a signature until after the time had elapsed for service of the draft of the statement.</p> <p>Sales —Delivery—Attachment—Replevin—Instruction—“ Wrongful ” Prevention of Possession—Question of Law. — In an action of claim and delivery, where it appeared that the plaintiff purchased two mares from the owner thereof, but the custodian of the mares refused to give them up on the ground that an employee of the owner, who placed them in his care with the owner’s consent, told him not to deliver them to any one except on his order, and subsequently snch employee removed them to his own place where he attached them in a suit against their owner, and they were sold to the defendant under execution, an instruction to the jury that if they believed from the evidence that if the plaintiff bought the mares in good faith from their owner, and was prevented from getting possession thereof by the wrongful act of the attaching creditor, they should find for the plaintiff, is erroneous in leaving to the jury the determination of the question of law as to whether any act of the attaching creditor by which the plaintiff had been prevented from getting possession of the mares was “wrongful.”</p> <p>Id.—Change of Possession—Right of Possession—Improper Instruction — In such case an instruction to the jury that “ what constitutes a delivery of personal property by the vendor to the vendee depends upon the character of the property sold and the circumstances of such particular case, and for the purpose of a delivery it is not necessary that the property should pass into the actual possession of the vendee; therefore, when it is so situated that the vendee is entitled to and can rightfully take possession thereof at his pleasure, he is considered as having actually received it as the statute requires,” is, as to the latter clause thereof, in direct conflict with section 3ÍI0 of the Civil Code.</p> <p>Id. — Failure to Take Possession—Sale Void as to Creditor__If the property is so situated that the purchaser can take possession of it at pleasure, his failure to do so renders the previous transfer void as to the creditors of the vendor.</p> <p>Construction of Decisions—Instructions.—The opinion of the court in a given case is to be read in connection with the facts of that case, and the language of the court therein, where it is seeking to apply principles of law to the facts of the case, is not always proper to give to a jury in another case where the same principles are inapplicable or the facts are different.</p>

<p>Appeal from an order of the Superior Court of San Joaquin County refusing to strike out part of a judgment.</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>Contracts—Purchase of Stock of Corporation—Fraud—Rescission —Restoration of Dividend.—A rescission of a contract of purchase of the stock of a corporation, upon the ground that the purchase was induced by false and fraudulent representations as to the profits of its business and value of its stock, can not be made without an offer to return or account for a dividend upon the stock received by the purchaser from the corporation.</p> <p>Id.—Ratification of Contract—Discovert of Fraud—Subsequent Action as Stockholder—Payment of Assessment. —Where the purchaser of the stock upon the day of his alleged discovery of the facts constituting the fraud of the vendor in inducing the purchase, voted in a stockholders’ meeting for the levy of an assessment upon the capital stock, and subsequent to that day attended another stockholders’ meeting, and afterwards paid the assessment upon his stock without objection, such action is in effect an affirmance and ratification of the contract after full knowledge of the fraud.</p> <p>Id.—Delay in Offer to Rescind—Mandatory Statute.—Subdivision 1 of section 1699 of the Civil Code, providing that the party rescinding a contract must do so “promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind,” is mandatory as to the promptitude required, except as to the eases therein enumerated, and others where a sufficient showing is made in excuse of the delay, and where there is no excuse therefor, a delay of three months in an offer to rescind a purchase of stock, after discovery of the facts constituting fraud in the purchase, is sufficient to prevent a rescission.</p> <p>Id.—Improper Demand fob Return of Assessment Paid.—A demand by the purchaser of the stock as a condition of rescission that the vendor of the stock should return to the purchaser the amount of the assessment, which he voted for and voluntarily paid with full knowledge of the facts constituting the fraud, is fatal to the validity of the offer to rescind.</p>

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

<p>Hearing in the Supreme Court upon a writ of habeas corpus.</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 Santa Cruz County, and from an order refusing to revoke and grant letters of administration.</p> <p>The facts are stated in the opinion of the court.'</p>

<p>Deed — Mobtgage—Absolute Conveyance—Pbesumption—Finding. — The presumption of law, independent of proof, is that a deed absolute in form is what on its fane it purports tobe—an absolute conveyance; and this presumption should prevail unless the evidence is such as to leave in the mind of the trial judge a clear and satisfactory conviction that the deed was intended by all the parties as a mortgage, and in the absence of such evidence the finding should be against the party claiming it to be a mortgage.</p> <p>Id__Pbovinoe of Tbial Ooubt—Conflicting Evidence—Appeal, — Whether in any case the evidence is sufficiently strong and clear to produce conviction that a, deed absolute in form was a mortgage is matter for the trial court to determine; and the finding of the trial court that the deed was not intended as a mortgage will not be set aside upon appeal, when there is a substantial conflict in the evidence.</p>

<p>Dismissal—Delay in Service of Summons—Discretion__The court below has discretion to dismiss a cause for delay of nearly two years in the service of the summons upon the defendant.</p> <p>Id.—Limitation of Discretion__The only limitation upon the exercise of the discretionary power of the court to dismiss a cause for delay iu the service of summons is that it must not be abused; and it is for the court, in the exercise of its discretion, after hearing the statement of the parties, to determine whether the plaintiff was or was not acting in good faith and in the exercise of reasonable diligence.</p> <p>Id.—Insufficient Excuse for Delay—Appeal from Order Staying Judgment upon Award.—It is not a sufficient excuse for long delay in the service of summons in an action, where it appears that it can be served promptly without difficulty, that the complaint in the action was filed to prevent the running of the statute of limitations upon the cause of action, and that an appeal was pending from an order of the court, upon motion of the plaintiff, granting a perpetual stay of execution on a judgment upon an award in favor of the defendant, under an arbitration of the subject-matter of the action.</p> <p>Id.—Delay of Less than Three Years—Construction of Code. —Section 581 of the Code of Civil Procedure, as amended in 1889, is not prohibitory, and was not intended to limit the power of the court to determine whether there has been an inexcusable delay to serve the summons within the term of three years fixed by that section, but rather to confer power upon the court of its own motion to dismiss an action which has been pending for that period without service of summons. The discretion of the court remains as before, and each case must be determined upon its own peculiar circumstances.</p>

<p>Street Assessment—Improvement op Part op Street between Crossings — Validity op Assessment__Under the act of 1889 (Stats. 1889, p. 157), the ci:y council has authority in certain cases to order the improvement of only a portion of a street lying between two main street crossings, and when so ordered, the assessment therefor must be upon only the lots which front on the portions of the work ordered; and an assessment for work done under such order is not void upon its face because only a part of the lots on the street on which the work is to be done are assessed therefor.</p> <p>Id.—Improper Assessment — Remedy by Appeal.—It is the duty of the superintendent of streets, when part only of a street is ordered improved, to exclude from the assessment lots fronting upon excepted work already done; but the remedy of the party aggrieved is by an appeal to the supervisors for correction of the assessment, and it is not rendered void upon its face for including lots Which ought not to be assessed.</p> <p>Id. — Diagram of Street Work Auxiliary to Assessment—Contents—Location of Work not Required. —A diagram of street work attached to an assessment therefor is only auxiliary to the assessment, and if it exhibits the street upon which the work was done and also delineates the several lots assessed and shows that each of the lots assessed fronts upon such street and that its location is within the territory liable to be assessed for the work done, it sufficiently complies with the statute, and is not required to show the location of the particular portion of the street in which the work was done.</p> <p>Id. — Prima Facie Evidence of Regularity of Proceedings—Constitutional Law.—The statute making the assessment and other documents prima facie evidence of the regularity and correctness of the assessment and of the prior proceedings is a constitutional regulation of the rules of evidence, and is not a local or special law “ regulating the practice of courts of justice ” within the inhibition of the state constitution.</p> <p>Is. — Regulation of Rules of Evidence: —It is competent for the legislature to prescribe rules of evidence for the trial of actions, and statutes which make a document prima facie evidence of the regularity of official proceedings in reference thereto, or which cast the burden of proof in an issue upon either party to the action, are within the constitutional power of the legislature.</p> <p>Id.—General Law—Statute Regulating Judicial Procedure—Special Legislation. —It is not necessary that a law shall affect all the people of the state in order that it may he general, or that a statute concerning procedure in courts of justice shall be applicable to every action that may be brought in the courts of the state to prevent it from being subject to the constitutional inhibition against special legislation. A statute which affects all the individuals of a class, or all actions of a particular kind, and is in force in all parts of the state, is a general and not a special law.</p> <p>Id. — Charge fob Engineering—Incidental Expenses—Presumption.—An item for engineering work done is properly included in the “incidental expenses” in the assessment, and upon the face of the assessment it must be assumed that the work was done and the amount included therefor is correct.</p>

<p>Mutual Benefit Association—Benefit Certificate—Coupons — Change of Bylaws. — Where a benefit certificate in a mutual benefit association, with coupons attached, provided that the member should be “entitled to participate in the special benefit fund of the order in an amount to be computed according to tile laws of the order, not exceeding the amount named in said coupons respectively,” and the constitution of the order contained a provision that the constitution and laws relating to and governing the beneficiary fund might he amended by a three-fourths vote of the grand lodge, a change of the laws regularly made by the grand lodge limiting the amount to be paid upon a maturing coupon to a proportionate share of one assessment for the payment of all coupons then maturing does not impair the obligation of the contract, though a different rule of computing the amount to be paid existed at the date of the certificate.</p> <p>Id.—Laws Entering into Contract—Provision fob Future Change.—The constitution and laws of the Mutual Benefit Association entered into and became part of its contract with its members, including the provision therein for future change of the laws regulating the beneficiary fund, and such change is not an amendment of the certificate of incorporation or articles of association within the meaning of section 362 of the Civil Code.</p>

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

Motion to dismiss an appeal from an order of the Superior Court of Los Angeles County making the indebtedness contracted by a receiver a lien prior and paramount to any other liens. The facts are stated in the opinion of the court.

<p>Application to the Supreme Court for a writ of mandate to the treasurer of the City and County oí San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Master and Servant—Negligence—Dangerous Machinery—Insufficient Light—Risk when not Assumed by Servant—Contributory Negligence. —Iu an action by a laborer in a flouring mill to recover damages for injuries received by reason of the dangerous condition of the mill, where a verdict was given iu his favor, and it is undisputed that the place where the plaintiff was injured was extremely dangerous to a person working there, and that the defendants knew of its dangerous character, and that the machinery was unprotected by guards or railing, and could not be distinguished on account of the darkness of the room in which the plaintiff was taken to assist the foreman, it being lighted only by a lantern, which the foreman had with him at the time and place of the accident, and the evidence on the part of the plaintiff tended to show that he was never before in that particular place, and had no knowledge of the location of the machinery which caused his injuries, and that his general duties were not such as tó require him to have such knowledge, an implied finding of the jury that the injury was not caused by any of the ordinary risks of his employment, and that he was not guilty of contributory negligence, will not be disturbed upon appeal.</p> <p>Id.—Notice of Danger Essential to Assumption of Risk.—Unless an employee injured by dangerous machinery knew, or ought to have known, of the danger to which he was exposed in working near it, he cannot be said to have recklessly exposed himself to the danger, or to have voluntarily assumed the risks attendant thereto.</p>

Appeati 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 of the court.

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

<p>Oosts—Taxation after Judgment—Non-appealable Order—Amount in Controversy—Jurisdiction of Supreme Court.—An order made after final judgment taxing a cost bill, is a separate independent proceeding, and when the whole amount involved is less than three hundred dollars, such order is not appealable, and the supreme court has no jurisdiction of an appeal therefrom, the amount in controversy being insufficient to confer jurisdiction under the constitution.</p>

<p>Libel—Corruption of Voters—“ Osarse of Sack”—Words Libelous per se —Instruction—Subjection to Obloquy. — A newspaper article, which in referring to a city election, states that a large sum of money is to be put up by a corporation to corrupt voters, of whom there were a large number who could be bought, and that “it is reported that Edwards is to have charge of the sack,” is libelous per se¡ and imports the use of a fund for purposes of corruption; and it is proper to instruct the jury in an action against the proprietors of the newspaper for damages for such libel, that the article upon its face imputed to the plaintiff conduct or the possession of a character which would lead him to commit acts, and that he was about to commit acts which, if true, would subject him to obloquy in the community.</p> <p>Id.—Covert Meaning of Words — Proof of Libelous Sense—Words in General Use—Judicial Notice When a slander or libel is couched in language having a covert meaning not apparent upon its face, or in words or phrases not used otherwise than as slang, or cant terms, it is necessary for a plaintiff not only to allege and prove the slanderous or libelous sense in which the words were used by the defendant, but also that they were understood in the same sense by those to whom they were addressed; but where the words are in general use they will he understood by the court in the same sense in which they are usually understood by the masses of men, and no allegation or proof of such meaning is necessary.</p> <p>Id.— Mitigation of Damages—Good Faith of Editor—Improper Evidence— General Report. — The testimony of the editor of the newspaper in which the alleged libel was published, to the effect that reports came to him from various parties, whose names the witness did not give, that the plaintiff was a political manipulator, and that he would use money as he had done theretofore; but not showing that any reliable person professing to have any knowledge of the fact gave him any information to the effect that the plaintiff was to corruptly disburse money for the purpose of bribing voters in the election then to occur, is properly excluded as not tending to bring the defendants within the protection of the rqle permitting the mitigation of damages when a publication reflecting upon the character of another has been made in good faith.</p> <p>Id.—Belief of Editor—Reliable Information—Proof of Investigation__ The mere belief of the editor of a newspaper in the justice and truth of an attack which lie makes upon the private character of a citizen, is no defense to an action brought by the person assailed for the damages sustained by such attack; nor can such belief be considered in mitigation of damages, unless it is shown to have been based upon information derived from a reliable source. It must be shown that the charge was only made after due investigation of the matter to which it relates.</p> <p>Id.—Liberty of Press The liberty of the press is not more under the protection of the constitution than the liberty of speech, and the publisher of a newspaper can only defend an action for libel, or mitigate the damages to be recovered therefor, upon precisely the same grounds as any other individual could defend an action for slander in uttering the same words upon the street.</p> <p>Id. — Evidence of Prior Acts of Plaintiff—Knowledge of Defendants. — Evidence of witnesses offered for the purpose of proving particular acts of the o plaintiff in relation to the use of money inflections, prior to the publication of the libel set out in the complaint, is inadmissible in the absence of a showing, or an offer to show, that the defendants had knowledge of such acts when they made the publication complained of.</p> <p>Id.—Reputation of Plaintiff—Damages—Instruction__Where the evidence was conflicting as to the plaintiff’s previous reputation, an instruction to the jury, asked by the defendants, that in case they found “that plaintiff, prior to the publication, bore a bad reputation as to the point wherein he claims to be damaged, you may fix nominal damages only” is properly refused, as the jury even if they found the character of the plaintiff to be bad could not be restricted to nominal damages in their verdict, unless they believed that such damages j would fully compensate the plaintiff, and that exemplary damages should not be given.</p>

<p>Chiminal Law—Assault with Knife—Evidence—Possession of Pistol.—In. a criminal prosecution of one charged with an assault “ with a deadly weapon, to wit, a knife,” the admission of evidence that the defendant, when arrested, had a pistol is prejudicial error.</p> <p>In.—Ckoss-examination of Defendant.—A defendant, in a criminal action, who offers himself as a witness, can only be cross-examined as to matters about which he was examined in chief, and where the defendant, accused of an assault with a knife, testified in his own behalf that it was a third person who cut the" prosecuting witness, and merely gave an account of how he happened to be near the scene of the assault at the time of his arrest, and made no allusion in his evidence, in chief to the fact that he had a pistol at the time, it was prejudicial error for the court to allow him to be asked upon cross-examination about a pistol.</p>

<p>Highway—Description of Eoad—Complaint fob Obstruction—Support of Judgment. — When in describing the location of a road the width is given, and but one of its lines is particularly described by course and distance, tlie line so described will be deemed to refer to the center line of the road in the absence of anything in other parts of the description tending to indicate a contrary intention ; and where a complaint for the obstruction of a highway described it as forty feet wide, commencing at a certain point named, and following the course and distance of a given line to the line of average high tide in a given bay, the description is sufficiently certain to support a judgment abating the obstruction.</p> <p>Id__Highway by User in Santa Cruz County—Dedication Immaterial—Finding.— Under section 52 of the act of March 31, 1876, providing for the establishing and maintaining of roads in Santa Cruz County, the use of a road by the public for a period of five years next preceding the passage of the act, constituted such road a public highway, regardless of whether or not the owner of the land in permitting such use intended thereby to dedicate the land used as a public highway; and a finding that a road in that county has been traveled and used by the public generally as a public road or highway “ for more than twenty years continuously immediately preceding the 1st of May, 1890,” is a sufficient finding that the road in question was a public highway.</p> <p>Id. — Penalty fob Obstruction Inapplicable—Construction of Code.—The right of a road overseer to recover the penalty of ten dollars for each day an obstruction exists upon a public highway, given by sections 2731, 2732, and 2734 of the Political Code, applies only to the case of a highway established by the proper officers in the manner prescribed by law, and does not extend to a case where the highway is only such by user or abandonment to the public, and has not been recorded as a highway.</p> <p>Id.—Highway Duly Laid Out or Erected. — The words “ duly laid out or erected,” as used in section 2731 of the Political Code, have reference to the formal and official action which the law enjoins upon those charged with the duty of establishing public highways; and a highway “duly laid out or erected,” within the meaning of that section, is one which has been established by the proper officers in the manner prescribed by law.</p> <p>Id. — Remedy fob Obstruction in Highway by Hser—Nuisance. — The only remedy which the public has for an obstruction in a highway which exists only by user is an action to remove the obstruction as a nuisance.</p> <p>Id.—Evidence — Ordinance Directing Record—Defect in Pleading.—In an action by a road overseer to have an obstruction placed by the defendant in a public highway abated as a nuisance, where the complaint does not allege the encroachment to bo upon a highway duly laid out or established by law, it is error for the court to admit in evidence an ordinance of the board of supervisors directing the clerk to record the road as a public highway.</p> <p>Id.—Void Ordinance—Insufficient Desoription of Road.—An ordinance of the board of supervisors directing the clerk of the board to record as a public highway a road described only by the course and distance of a given line, the width of the road not being, given, is void.</p> <p>Costs — Taxation—Order before Judgment—Review upon Appeal.—Where a motion to tax costs is made before judgment and denied, the order denying the motion may be reviewed upon appeal from the judgment.</p> <p>Id. — Costs of Attendance of Jurors—Waiver of Jury Trial.—Where upon the day fixed for the trial of an action, a jury was in attendance, but the parties agreed to try the case without a jury, the successful party is not- entitled to recover as costs the amount of the attendance fees of such jurors, where*the fees were not actually paid, nor any liability therefor incurred by such party.</p>

<p>Homestead—Estate of Deceased Persons—Setting Apart Homestead not Selected by Decedent—Value not Limited. — Since the repeal of section 1480 to 1484 of the Code of Civil Procedure in 1874, the provisions of that code authorizing a homestead to be set aside to the family of a decedent, where none has been selected before his death, contain no limitation as to the value of the homestead, and the fact that the property resided upon by the family exceeds five thousand dollars in value, does not prevent the probate court from creating a homestead thereupon, and it is immaterial whether such property is the separate property of the decedent, or common property. „</p> <p>Id.—Right of Sale of Homestead at Instance of Creditors—Contest between Widow and Heirs.—The fact that the code provides the machinery by which the creditors may have the homestead sold and the proceeds in excess of five thousand dollars applied to the payment of debts, does not affect the creation of a homestead upon land valued in excess of five thousand dollars, upon a contest between the widow and the heirs-at-law of the decedent.</p>

<p>Appeal from a judgment of the.Superior Court of Sonoma 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>Estates of Decedent—Contest of Heirship—Application for Family Allowance—Evidence—Findings and Judgment Determining Contest.—Upon an application to the probate court for a family allowance by an alleged daughter of the decedent, where the allegation of the petition that the petitioner was the child and heir-at-law of the decedent was denied by parties claiming to be next of kin to the decedent, the findings and judgment rendered in an action under section 1664 of the Code of Civil Procedure, to determine the heirship, which determine her to he the child and heir-at-law of the decedent, but which are only nine days old when offered in evidence, are not admissible or sufficient evidence to support a decree granting her a family allowance.</p> <p>Id.—Judgment Inadmissible until Action is Finally Determined__An action is deemed pending until the time for appeal has expired, or the judgment is sooner satisfied; and a judgment is not admissible in evidence for the purpose of proving facts therein cited, so long as it is liable to reversal upon appeal, or until the action is finally determined, so that the judgment shall become res adjudicata.</p> <p>Id. — Jurisdiction—Denial of Paternity of Petitioner for Family Allowance-Question of Fact. —Upon an application to the probate court for a family allowance by an alleged daughter of a decedent, the question as to whether or not the petitioner is a child of the decedent, is a question of tact for the court to determine before denying or granting the application, and the mere fact that the petitioner’s status as a child of the decedent is denied, does not render the court without jurisdiction to make the order of allowance, provided the facts showing the petitioner’s right are proved by competent evidence.</p>

<p>Appeal—Revebsal of Judgment oe Intervention—Costs Claimed by Appellant— Costs of Tbial—Retaxation—Motion by Execdtbix. — Where as the result of an appeal by a plaintiff from a judgment in favor of an interveuor, the judgment is reversed with directions to strike out the intervention, and proceed to a trial by jury, if not waived, of the issues raised by the complaint and answer, and pending the appeal, the executrix of the deceased interveuor was substituted in his stead, the plaintiff upon the filing of the remittitur is entitled to file his memorandum of costs, including those incurred on the trial of the intervention and answer thereto, together with his costs of the appeal from the judgment, and such costs cannot be re taxed by striking out the costs of the trial on motion of the executrix of the decedent’s estate.</p> <p>Id.—Taxation of Costs against Exeoutob—Constbuotion of Code.—Section 1031 of the Code of Civil Procedure does not forbid the taxation of a memorandum oi costs against an executor in an action prosecuted or defended by him, but merely provides that such costs must by the judgment be made chargeable only upon the estate, unless the court directs the same to be paid by the executor; and the taxation of a memorandum of costs against an executor is not erroneous merely because it does not appear whether the costs are made chargeable only upon the estate by the judgment óf the court.</p> <p>Id.—Appeal fbom Obdeb Defusing to Retax Costs—Judgment not Involved —Pbesumption—Remedy of Exeoutob. — The taxation of a memorandum of costs against an executor does not prevent the court from directing in the judgment for costs, that the same be chargeable upon the estate, and the mere refusal of the court to strike out the memorandum of costs or to retax them does not determine the form of the judgment; and upon an appeal from the order refusing to strike out, or retax the memorandum of costs, where there is no judgment before the appellate court, it will not presume that the trial court has not by its judgment made the costs chargeable upon the estate. If, in fact, it has not, the remedy of the executor is by an appeal from the judgment.</p> <p>Extension of Time—Constbuotion of Code—Time Expibing on Sunday— Powee of Coubt—Case Doubted. — The ease of Muir v. Galloway, 61 Cal. 498, m so far as it holds that the superior court may by the entry of two or more orders (the first or any order or orders preceding the last expiring on Sunday) extend the period of time within which any of the acts mentioned in section 1051 of the Code of Civil Procedure may be performed for a longer period than authorized by that section if only one order of extension is made —doubted, and the question declared to be an open one.</p>

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

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

<p>Lien of Matebial Man—Oonstbuction of Telephone Line — Sale fob Pabtioulab Use—Finding against Evidence.—-In an action to enforce a material man’s lien against a telephone line, where there is no evidence that the goods -were sold for the purpose of being used in the construction of the particular telephone line against which the lien is sought to be enforced, the only evidence on the subject being that of the salesman of the material man, who testified that he did not know where the goods were to be used, but that they were of the kind that were used' for a telegraph or telephone line, a finding that the materials sold were “ to be used in the construction of said telephone line, ” is not supported by the evidence.</p> <p>Id.—Materials to be Expbessly Furnished fob Stbuotube Charged with Lien. —In order to enforce the lien of a material man against a building or structure the materials must not only have -been used in the construction of the building, hut they must have been, by the express terms of the contract, furnished for the particular building on which the lien is claimed.</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>Mortgage—Agreement of Mortgagor to Pay Taxes — Construction of Mortgage—Void Option to Foreclose for Non-payment of Interest.—Where at the time of the execution of a note and mortgage, and as part thereof, an express stipulation is signed by the mortgagor agreeing to pay all taxes assessed on the mortgage, which is prepared with distinct care and deliberation, and which a surety is required to sign, leaving no doubt of the intention of the parties, the fact that the body of the mortgage authorizes the mortgagor to protect the mortgaged property and pay the taxes thereon “other than the taxes of this mortgage or the money thereby secured,” is not necessarily inconsistent with the language of the express stipulation, which must be construed together with it, and the express and unequivocal agreement that the mortgagor shall pay all the taxes upon the mortgage, renders the note and mortgage unlawful and null and void as to the payment of any interest specified therein, and such mortgage cannot be foreclosed in advance of the maturity of the note, under a clause making it due and payable upon non-payment of interest at the option of the holder of the note.</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>Estates of Deceased Persons—Foreclosure of Mortgage — Action pending at Death of Decedent—Presentation of Claims—Waiver. — Section 1502 of the Code of Civil Procedure, which provides that if an action is pending against a decedent at the time of his death the plaintiff in order to recover must present his claim against the estate, must be construed in connection with section 1500 of the same code, and as referring only to actions upon such claims as are required to he presented for allowance under the provisions of the code, and as not applying to an action for the foreclosure of a mortgage upon other than homestead premises, though commenced prior to the death of the mortgagor, and pending and undetermined át his death; but such action may he continued against the executors of the deceased mortgagor without presentation of the claim to them for allowance, if the plaintiff expressly waives all recourse against any other property of the decedent.</p> <p>Id. — Construction of Code—Remedial Statutes.—Although the language of section 1509 of the Code of Civil Procedure, which permits the holder of a mortgage or lien to maintain an action thereon without presentation of the claim to the executor or administrator of an estate, if construed literally, would only apply to an action commenced after the death of the mortgagor, yet when construed like all other remedial statutes, it should not be confined to cases falling within its exact letter, but should be given effect according to its spirit and reason, and when so construed applies to an action pending at the time of the mortgagor’s death.</p> <p>Id—Waived of Beooubse—Braved of Comflaint.—Where a complaint in an action to foreclose a mortgage against property of a deceased mortgagor expressly waives all recourse against any other property of the estate, the fact that the prayer for relief asks for “the amount due upon the said note and mortgage,” and for costs “and counsel fees,” and “ that a receiver be appointed to take charge of the real estate until the same be sold, and collect the rents and hold the net income therefrom, to be applied to the payment of any deficiency which may remain due to plaintiff after said sale,” does not destroy the effect of the express waiver.</p> <p>Id.—Substitution of Executors — Supplemental Complaint — Continuation of Action—Statute of Limitations.—The filing of a supplemental complaint in an action to foreclose a mortgage, which contains in addition to the matters stated in the original complaint allegations of the death of the mortgagor and the appointment of his executors, who were named as defendants therein, and that the other persons who were named as defendants therein claimed an interest in the property mortgaged, and which also contains an express waiver of recourse against any other property of the decedent, is a continuation of the original action, and not the commencement of a new action, and where the original action was commenced within the time limited by section 337 of the Code of Civil Procedure the cause of action stated in the supplemental complaint is not barred by the provisions of that section, though the time therein specified had expired before the filing of the supplemental complaint.</p>

Motion to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco denying a motion for a new trial. The facts are stated in the opinion of the court.

<p>Street Assessment—Assignment as Security—Demand by Owners.—Where a street assessment is assigned as security for indebtedness, the title to the assessment still remains in the assignors, and a proper demand by their agenfc in their name and behalf for the amount of the assessment is valid, even though the agent making the demand is also in fact the agent of the assignees.</p> <p>Id.—Affidavit of Demand—Proof of Agency An affidavit of demand stating that the person making it was at the time of making the demand the manager of the owners of it, and that he made the demand as such manager, is prima, facie evidence of his character, as agent of the owners, which is not overcome by proof that he was at the same time the agent of assignees who held the assessment as security for indebtedness of the owners, and that he received the assessment warrant and diagram from them.</p> <p>Id.—Action by One of Two Owners—Waiver of Defect of Parties.—Where an action to enforce the lien of a street assessment is brought in the name of one of two owners, who is a proper party plaintiff, objection to a defect of parties by non-joinder of the other owner is waived, if not taken by answer.</p>

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

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

Hearing in the Supreme Court upon writ of certiorari, in review of a judgment of the Superior Court of Sauta Clara County, The facts are stated in the opinion of the court.

<p>Application for a writ of supersedeas of execution upon a judgment of the Superior Court of Sacramento County.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Resulting Trust—Security for Future Advances—Verbal Agreement—Mortgage by Deed Absolute in Form. —A conveyance of land made to a third p-r-son under a verbal agreement that he shall loan to the purchaser the amount of the purchase-money, and hold the title as security for the money so loaned, and •also for all other moneys which he shall thereafter loan to or advance for him, •creates a trust resulting to the purchaser by operation of law; but cotemporaneously with the creation of the trust there is impressed upon the title by virtue of the agreement a lien both for the purchase-money and also for such other moneys as the trustee may thereafter loan or advance to him, and the verbal agreement has the effect to render the deed absolute in form a mortgage to secure the purchase-money and all future advances made to the purchaser, which may be foreclosed by the trustee.</p> <p>Id__Equity Looks beyond Forms.— Equity looks beyond the forms of a transaction, and shapes its judgment in such way as to carry out the purposes of the parties to the agreement, and to protect each of them against any unconscionable advantage to be derived from the apparent form in which their transaction has taken place; and if a transfer is made as seeurity for the performance of an obligation, it is in equity a mortgage, irrespective of the form in which it is made.</p> <p>Id.—Allowance of Attorney’s Fee.—Where the note evidencing the indebtedness of the purchaser to the trustee provides for the payment of an attorney’s fee, a reasonable fee may be allowed upon foreclosure of the security.</p> <p>Appeal—Bequest for Amendment of Pleadings—Authentication in Transcript— Affidavit of Attorney.—The refusal of the court to allow a defendant to amend his answer cannot be considered upon his appeal from the judgment, where the request therefor and the ruling thereon are not incorporated in the statement or in any bill of exception, and is unauthenticated otherwise than by the affidavit of an attorney.</p>

<p>New Trial—Statement—Extension of Time—Belief fob Mistake or Excusable Neglect—Discretion.—Where the failure of a party to procure additional time in which to prepare and serve his proposed statement on motion for a new trial is the result of excusable neglect or mistake, the court has power to relieve him from the effect thereof; and whether it is the result of such mistake or excusable neglect is to be determined in the exercise of its discretion by the court to which the application is made.</p> <p>Id.—Statement not Embodying Grounds of Objection.—Where a statement on motion for a new trial, as settled and allowed by the judge, recited therein that it was “duly prepared and settled within due time and in the manner required by law,” and also that the “defendant objected to settlement of statement upon the ground that the same was not served in time,” but it failed to point out the basis or grounds of the objection or to present the facts upon which it was made, an objection to the hearing of the motion for a new trial, upon the ground that the proposed statement had not been served in time, is properly overruled.</p> <p>Id.—Hearing of Motion—Consideration of Court Limited to Statement.— Upon the hearing of a motion for a new trial the court is limited in its consideration to the matters contained in the statement on motion for a new trial, and is not at liberty to go outside of the statement for the purpose of determining whether the new trial should be granted or refused.</p> <p>Id. — Order Granting New Triad—Insufficiency of Evidence—Discretion. —The granting of a new trial upon the ground that the former verdict or decision was not supported by the evidence is within the discretion of the trial court, and unless it appears that there has been an abuse of that discretion the action of the trial court will not be reversed.</p>

<p>Motion to dimiss an appeal and for damages.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Law Libraeies — Constitutionality op Statute — Discretionary Power op Supervisors. — The legislature had the power to enact the act approved March 81, 1891, to establish law libraries, and to provide therein that counties might come within or remain without the provision of the act, as the boards of supervisors of the respective counties might determine.</p> <p>Id__County Ordinance Adopting Statute—Repeal Ineffective.—When e comity has once by ordinance come within the provisions of the act to establish law libraries, it is there for all purposes, and cannot thereafter evade the force and effect of the statute by a repeal of the ordinance adopting its provisions.</p> <p>Id.—Mandamus—Library Rooms.—When the board of supervisors of a county which has once adopted the provisions of the act of March 81,1891, fails to provide a suitable or sufficient library room, the board of law library trustees of the county may by writ of mandate compel the board of supervisors to provide such room.</p>

<p>Criminal Law—Evidence of Accomplice—Insufficient Corroboration—Suspicion of Guilt. — Uncler section 1111 of the Penal Code, the corroboration of the evidence of an accomplice must be by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the act, and testimony which at most only raises a bare suspicion of the defendant’s guilt falls short of such corroboration as can be relied upon to support a conviction.</p> <p>Id. — Grand Larceny—Testimony of Principal Thief — Conviction not Warranted. — When a defendant accused of grand larceny was convicted upon the testimony of a woman with whom he had lived, who admitted that she committed the larceny in person and testified that she was urged to do it by the defendant and paid the money over to him, without other evidence as to his complicity, except a request from him to the sheriff to see her after her arrest, and declarations by him that the sheriff had the wrong woman, and that he did not know or have anything to do with her, such figment of evidence in support of her testimony does not rise to the dignity of corroboration, and cannot warrant a conviction of the defendant.</p>

<p>Criminal Law—Signature to Information—Deputy District Attorney.— The name of the district attorney may be signed to an indictment or information by his deputy.</p> <p>Id.—Bobbery—Possession of Stolen Property Unexplained—Instructions__ Where the court has instructed the jury upon the trial of a charge of robbery, that “ the mere possession of stolen property unexplained by defendant, however soon after taking, is not sufficient to justify a conviction, it is merely a circumstance, which taken in connection with other testimony, is to determine the question of guilt,” it is not error for the court also to instruct the jury that “ the failure of the defendants to account for such possession, or to show that such possession was honestly obtained, is a circumstance tending to show their guilt, and the accused is bound to explain the possession in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts, if the evidence discloses any such.”</p> <p>Id—Instructions to be Taken Together. —The instructions are to be taken together and read as a whole, and when so read, if they correctly interpret the law applicable to the case, no error is committed.</p> <p>Id.—Proof of Venue.— Where the information charged the offense to have been committed at the county of Los Angeles, state of California, and the trial' was bad in that county, and the robbery is described in the evidence as having occurred in Los Angeles, and there was no suggestion in the evidence that it occurred elsewhere, the venue is sufficiently proved.</p> <p>Id.—Judicial Notice of County Seat.—The courts will take judicial notice of ‘ whatever is established by law,” and hence that Los Angeles is the county seat of Los Angeles County, and in said county.</p>

<p>Insolvency—Dissolution of Attachments — Assignment Subject to Other Liens.—The statutory provision that the effect of an adjudication in insolvency is to dissolve attachments made within one month next preceding the commencement of the proceedings in insolvency, is equivalent to an express declaration that it dees not affect liens of any other nature, and the assignee takes the property of the insolvent subject to all other liens existing at the institution of the proceedings.</p> <p>Id.—Prior Levy undeb Execution—Right of Sheriff to Sell—Jurisdiction of Court— Order Restraining Sale__By the levy of an execution upon the property of an insolvent debtor prior to the filing of the petition in insolvency, the judgment creditor acquires a lien which is not divested by the subsequent adjudication of insolvency of the debtor, and when the sheriff has seized personal property of the debtor under such execution, such property is not subject to the control of the court in the subsequent proceedings in insolveucy, and the court has no jurisdiction in such proceedings to make an order restraining the sheriff from selling the same, and such order cannot protect the sheriff</p> <p>Id. — Death of Insolvent—Abatement of Pbooeedinqs—Effect upon Execution Sale. — The death of the insolvent before the return day upon the petition had the effect to abate the insolvency proceedings and all orders therein, but did uot affect the lien of the execution or relieve the sheriff of his obligation to sell the property.</p> <p>Id. — Review of Abated Obdeks. —Where an order in insolvency proceedings has abated by the death of the insolvent, an order of the supreme court annulling it upon writ of review would be vain, and an application for such writ will be denied.</p>

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

<p>Action fob Taxes—Pabties — Suit by County—Omission of State Taxes The act of April 23, 1880 (Stats. 1880, p. 136), authorizing the bringing of suits to recover delinquent taxes, gives a county the right to maintain an action in its own name for delinquent taxes levied for county purposes; and the fact that it might also have sued in the same action (for delinquent state taxes, is immaterial, where it does not appear that any other action for the state taxes is pending or has been prosecuted to judgment.</p> <p>Id. —Liability Cheated by Statute —Limitation of Action. —An action to recover delinquent taxes is not an action “ upon a contract, obligation, or liability, not founded upon an instrument in writing,” mentioned in section 339 of the Code of Civil Procedure, which must be brought within two years after the cause of action accrues, but is one which arises upon a liability created by statute, other than a penalty or forfeiture, and is barred by the three years’ limitation contained in section 338 of the same code.</p> <p>Id. — Peboentage not a Penalty ok Fobfeitube. — The five per cent upon the amount of a delinquent tax, which under section 3770 of the Political Code the tax collector is directed to collect in addition to the delinquent tax, is not such a penalty or forfeiture as is excepted from the operation of section 338 of the Code of Civil Procedure, which prescribes a three years’ limitation for the bringing of actions, “ upon a liability created by statute other than a penalty or forfeiture,” or as falls within the provisions of section 340 of the same code, requiring an action upon a statute for a penalty or forfeiture to be brought within one year after the cause of action accrues.</p> <p>Id.—Defense of Ebaudulent and Exobbitant Assessment—Tendee of Just Tax—Pleading—Evidence. —An answer in an action to recover a delinquent tax, which seeks to defend against the collection of the tax upon the ground that the assessment was fraudulently and corruptly made at an exorbitant valuation, with the intention of discriminating against him and causing him to pay more than his share of the public taxes, but which fails to allege that the defendant ever paid or offered to pay what would have been right for him to pay upon what he concedes would have been a fair valuation of his property, and fails to offer to pay what the court shall ascertain to be just, fails to state facts constituting an equitable defense to the action; and it is not error for the court to exclude evidence offered by him to show the real value of the land and the discrimination made against him in the assessment.</p>

The complaint in the action was not in the form .prescribed by section 3900 of the Political Code. _The other facts are stated in the opinion of the court.

<p>Appeal—Dismissal without Prejudice—Inadvertent Order — Second Appeal. — Where, after the filing of a notice of motion to dismiss an appeal, the court, upon stipulation of counsel, orders the appeal dismissed without prejudice, and subsequently another order is inadvertently made by the court after the submission, dismissing the appeal absolutely, a motion to dismiss a subsequent appeal taken after the first order of dismissal and prior to the last one, upon the ground that at the time it was taken the former appeal from the same order and judgment was undisposed of, must be denied.</p>

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

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

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

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

<p>Alimony pendino Suit—Issue of Insanity not Determined.—The purpose of alimony allowed in an action by a wife for maintenance or divorce, is to give the wife support and to enable her to conduct her side of the litigation pending the trial of the issues made by the pleadings, and the court cannot be compelled to try and determine an issue of insanity raised by the answer of the husband before it can allow alimony.</p> <p>Id. — Order for Attorneys’ Fees—Modification upon Appeal. —Where a notice to a defendant in an action for permanent support and maintenance to show cause why an order should not be made for the payment of alimony, recited that it was “ to pay the said clerk a certain sum of money to be applied by plaintiff as counsel fees in prosecuting the action,” but the order directs the defendant to pay a sum of money “ to the attorney for plaintiff,” the order, although irregular, will not be reversed upon appeal, but will be modified so as to require the money to be paid to the plaintiff.</p> <p>Id. — Modification of Order by Court Below—Pendency of Appeal. — An order allowing counsel fees as alimony pending an appeal from a previous order, “in lieu” of the alimony appealed from, which is modified before an appeal is taken therefrom, by striking out the “lieu” clause and leaving it as a new order for further counsel fees, will be affirmed upon appeal.</p>

<p>Appeal from an order of the Superior Court of San Diego County setting aside a judgment of foreclosure and sale thereunder, and allowing an amended and supplemental complaint to be filed; and from an order refusing to vacate such an order.</p> <p>The facts are stated in the opinion of the court.</p>

<p>County Government Act—Unauthorized Employment by Supebvisobs—Procuring Bids fob County Bonds —Liability of County. —The provisions of the County Government Act confer no power upon the board of supervisors of a county to make a contract of employment of a person to procure a bid or bids for county bonds delivered to the treasurer for sale or exchange, but the power to negotiate the sale or exchange is conferred on the county treasurer exclusively ; and such a contract of employment entered into by the board of supervisors is a void act, and the acts of the person so employed in pursuance of such employment create no liability against the county, however beneficial the services may have been to it.</p>

<p>Mechanics’ -Liens — Foreclosure—Default of Contractor—Liability of Owner of Buildinq—Costs and Counsel Fees in Excess of Contract Price. —In an action against the owner of a building and the contractor to foreclose mechanics’ liens, the action of the contractor in permitting Ms default to he entered, is, in effect, an admission that the plaintiff's are entitled to the money, and where the owner of the building retains the balance of twenty-five per cent due the contractor in his hands, and apparently without cause or right raises a contest on every point and fights the case to the end, Ms liability is not limited to the amount due the contractor, but costs and counsel fees are properly allowed and made payable out of the proceeds of the property ordered to be sold to satisfy the liens.</p> <p>Id—Objection of Retention of Twenty-five per Cent—Benefit of Lien-holders—Construction of Code.—The object of section 1184 of the Code of Civil Procedure, which requires twenty-five per cent of the whole contract price for the erection of a building to be made payable at least thirty-five days after the final completion of the contract, is to protect subcontractors, material men, and laborers, thereby giving them , if unpaid, ample time after the completion of the work to file then' claims of lien and secure payment of any sums of money due them.</p> <p>Id.—Deposit of Money in Court.—The owner of a building, after its completion by the contractor, holds the money reserved, as required by secton il84 of the Code of Civil Procedure, for payment to the contractor or lien-claimant, whichever is entitled to it, and if there is a contest between them he should deposit the money in court to be paid to the party adjudged to be entitled to it.</p>

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

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

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

<p>Appeal—Bill of Exceptions on Motion for New Trial. —Any bill of exceptions settled may be used upon appeal from a final judgment; and an objection to the consideration of alleged errors in instructions to the jury, upon the ground that the appeal is taken from the judgment alone, and that the rulings are only found in a “ bill of exceptions on motion for a new trial,” is without merit.</p> <p>Id. — Appeal from Judgment Boll—Error Appearing not Presumed Cured —Bill of Exceptions not Embodying Evidencie.—Upon an appeal from a judgment upon a judgment roll alone, nothing can be assumed or considered that does not appear upon the face of the roll. If that discloses error it cannot be assumed that the error was cured by matter not appearing in a bill of exceptions which form part of the judgment roll, though it does not purport to contain all the evidence.</p> <p>Action of Criminal Conversation—Proof of Intercourse Sufficient—Incidents Affecting Damages.—It is not necessary, in order to entitle a husband to recover in an action of criminal conversation, that he should show that the sexual intercourse between the defendant and the wife was accomplished by means of force, or against her will; but it is sufficient if he shows the mere fact of the intercourse. The means by which the intercourse was effected are hut incidents to increase or mitigate the damage.</p> <p>Id.—Immaterial Questions—Plaintiff’s Capacity—Paternity of After-born Child—Matrimonial Intercourse.—In an action of criminal conversation the plaintiff’s right of action depends solely upon the defendant’s carnal intercourse with the wife, and not upon the plaintiff’s impotence or capacity; and the question as to whether an after-horn child was begotten by the husband or the defendant, or as to whether there had been any matrimonial intercourse between the husband and his wife, is immaterial.</p>

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

<p>Estates of Decedents—Gift of Bank Check and Certificate of Deposit — Action bi Administbatoe—Finding against Evidence In an action by the administrator of the estate of a decedent wherein it is sought to set aside ihe transfer of a bank check and certificate of deposit by the decedent in his lifetime, upon the alleged ground that the check and certificate were given to the transferee merely for safe-keeping and not as a gift, where the evidence shows that the deceased was a wealthy man and was in the habit of keeping bank accounts; that the check was drawn payable to the transferee and was immediately collected by her, and the proceeds deposited in bank to her account, and there is no evidence tending to show that the check was not given to her, and the evidence shows without conflict that the check añd certificate were intended to be a gift to her, and that the certificate of deposit was indorsed and delivered to her by the decedent, a finding that they were not given to her as a gift is not supported by the evidence.</p> <p>Findings — Current of Evidence against Finding—Conflict—Review upon Appeal.—Although a finding by a jury or trial court will not be disturbed on the ground that it is not warranted by the evidence where there is presented a fair, reasonable ground for a difference of opinion, yet where the great current of the evidence is against the finding or verdict, and the appellate court is convinced that it is wrong, it will not be deterred from setting it aside by the contention that one or two general statements or assertions of one or two witnesses bring the case within the rule which governs where there is a material conflict of evidence.</p> <p>Id—Mental Soundness of Donob of Personal Property—Finding against • Evidence. — Where it is sought to have a gift of personal property set aside at suit of an administrator on the ground that the decedent, at the time of making the transfer, was of unsound mind, and the jury finds that the mind of the decedent was sound up to within three days of the date of the making of the transfer, and from that time on was unsound; and the evidence introduced to show the unsoundness of mind consists of statements as to the characteristics of the decedent, which characteristics were exhibited continuously for at least three months prior to the first day upon which the decedent was found to be of unsound mind, the finding of the jury as to unsoundness of mind at the date of the transfer will be set aside as not supported by the evidence.</p> <p>Id.—Gift in View of Death — “Unnatural Disposition of Property”— Erroneous Instruction. — Where a man in contemplation of death makes D gift amounting to only about one fourth of Ms property to friends with whom he has been quite intimate for several years, and w1k> have done him many favors and attended to his wants during a long illness, and his only relatives are collateral kindred whom he has not seen for thirty-five years, with the exception of a nephew, who came to see him for a short time during his last illness, it is error for the court to instruct the jury, in an action to set aside the gift on the ground of unsoundness of mind on the part of the decedent, that “ an unnatural disposition of property is a circumstance ” tending to show unsoundness of mind on the part of the decedent.</p> <p>Id.—Right of Owner to Dispose of Property.—A person in disposing of his property in contemplation of death is not called upon to suit the tastes or views of jurors or courts.</p>

<p>Adverse Possession—Payment of Taxes—Assessment to Possessor. —The provision of the statute requiring an adverse possessor of land to “pay all the taxes, state, county, or municipal, which have been levied and assessed upon such' lands,” during his five years’ term of occupation, in order to entitle him to a title by adverse possession, is sufficiently complied with by the occupant having the land assessed to himself each year, and paying the taxes levied thereon.</p> <p>Id.—Double Assessment—Pbiobity of Payment. — The fact that the owner of the land has also had the land assessed to him during the five years’ period, and has paid the taxes levied thereon, does not affect the rights of the adverse possessor, who has continuously paid or tendered the taxes assessed to himself, regardless of the time or priority of payment of taxes by them respectively. [Per Gaboutie, J., and Beatty, C. J. Haebison, 3., contra.\</p>

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